Public Electronic Communications Networks
The term “Public Electronic Communications Network” or “PECN” has quite a specific meaning. The principle definition is given by the General Conditions of Entitlement published by Ofcom, which came about as the regulatory regime shifted from one of licensing to one of general authorisation (that is, in order to operate a communications network you used to need to obtain a license, and nowadays you don’t).
Before we get into the detail of what the General Conditions state now, let’s have a look at DPP v Collins:
This brief summary of the relevant legislation suggests two conclusions. First, the object of section 127(1)(a) and its predecessor sections is not to protect people against receipt of unsolicited messages which they may find seriously objectionable. That object is addressed in section 1 of the Malicious Communications Act 1988, which does not require that messages shall, to be proscribed, have been sent by post, or telephone, or public electronic communications network. The purpose of the legislation which culminates in section 127(1)(a) was to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society. A letter dropped through the letterbox may be grossly offensive, obscene, indecent or menacing, and may well be covered by section 1 of the 1988 Act, but it does not fall within the legislation now under consideration.
This, in particular my emphasised sentence, explains how section 127 of the Communications Act came about, and the sort of networks the legislation that it replaced was intended to cover: “a service provided and funded by the public for the benefit of the public”.
It’s important to note that this particular aspect is stated quite pointedly in the past tense: “… the legislation which culminates … was to prohibit …”, though my reading isn’t intended to suggest that the purpose has changed, even if the object has broadened. That is, it remains to prohibit “communications which contravene the basic standards of our society”. A reasonable enough aim, really.
So, having discovered what the object of legislation upon which section 127 was based, what do the General Conditions say a PECN is now?
“Public Electronic Communications Network” means an Electronic Communications Network provided wholly or mainly for the purpose of making Electronic Communications Services available to members of the public
Okay, so we don’t necessarily know what an “Electronic Communications Network” is, but if we see one which is “provided wholly or mainly for the purpose of making Electronic Communications Services available to members of the public”, then we’ll know it’s a public one. The key thing here is that unlike with past legislation, the intent is any Electronic Communications Network which is made generally available to the public, not just a network which is funded by the public. This is part of the effects of privatisation in the 80s and 90s — most of the nation’s telecommunications infrastructure isn’t publicly-funded any more. Much of it does, however, exist mainly to be made use of by the public (generally in exchange for a fee, of course). BT and Virgin Media’s networks fall into this category, for example, because even though they’re not owned by the government, they’re still retailed to the likes of you and I.
Next up, then, the definitions of “Electronic Communications Network”:
“Electronic Communications Network” means-
- a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of Signals of any description; and
- such of the following as are used, by the person providing the system and in association with it, for the conveyance of the Signals—
- apparatus comprised in the system;
- apparatus used for the switching or routing of the Signals; and
- software and stored data;
“Electronic Communications Service” means any service consisting in, or having as its principal feature, the conveyance by means of an Electronic Communications Network of Signals, except in so far as it is a Content Service;
“Content Service” means so much of any service as consists in one or both of the following-
- the provision of material with a view to its being comprised in Signals conveyed by means of an Electronic Communications Network;
- the exercise of editorial control over the contents of Signals conveyed by means of a such a network
Confused? To put it another way: the low-level connection (be it carrying voice, fax, data, video, or what-have-you) is the ECN. The phone network as provided by somebody is an ECN, but the ticket-booking line at your cinema is a “Content Service”. By the same token, although a website operator might have their own ECN (and it might be one which your chosen ECN provider is connected directly to), the website itself is not an ECN.
The important aspect of all of this is, however, what constitutes a public ECN, or PECN, and in the context of the Paul Chambers case, how this relates to an Internet-based service.
In order to connect to Twitter’s web servers from a TalkTalk broadband connection, traffic is routed through several different ECNs: Opal Telecom (owned by, but a separate entity from, TalkTalk), above.net, NTT Communications, and Verio. Only one of these — TalkTalk’s — is a PECN, the rest are merely ECNs (and Verio’s isn’t even within the UK at all).
Thus, to look at whether one can be guilty of an offence under section 127 via Twitter, one has to know how exactly the accused connected to Twitter in the first place: if I happened to send a message which would otherwise contravene section 127, but did so from an entirely private network which happened to peer with other private networks and end up at Twitter’s servers (for example, because I was using Twitter from the console of a server in a datacentre somewhere), then I could not possibly be guilty of that offence, because at no stage did I use a PECN. In contrast, if I did the same from home, using my TalkTalk ADSL connection, then I could hypothetically be found guilty — other factors notwithstanding — because TalkTalk’s ADSL service is definitely an ECN, and is “provided wholly or mainly for the purpose of making Electronic Communications Services available to members of the public”, and so is a PECN.
One would have thought, and I’m not sure if they did, that in bringing the case against Paul Chambers, the CPS would have to at least present some cursory evidence indicating that Paul did in fact use a PECN in order to send his ill-fated tweet. It’s relatively unlikely that he didn’t, on the balance of probabilities, but not by any means impossible.