Britannia rule the internet

Coined in 1740, ‘Britannia! rule the waves’ was a dawn-of-Empire exhortation to assert British naval power worldwide. Today, the Law Commission exhorts Britannia (or England and Wales, to be exact) to rule the internet worldwide: 

“In our view, contempt laws should apply to all material that is accessible in England and Wales.” (Part 1 Report on Liability for Contempt of Court, November 2025 [4.173]) 

The proposed law in question ('contempt by publication') would apply to publication of material that created a substantial risk that the course of justice in active legal proceedings in England and Wales would be seriously impeded or prejudiced. Fault would be established where the defendant knew the proceedings were active or was aware of a risk that they were active.

The Report goes on:

“Given that the risk to the interference with the interference of justice may arise when material is accessible, it is necessary and proportionate for the protection of fair trial rights that the law does not preclude liability on the grounds that the material was uploaded outside the jurisdiction. This broad approach lends itself to clarity, certainty and consistency in the law. Using a VPN or moving briefly into another jurisdiction should not be left open as methods for people ordinarily resident in England and Wales to attempt to avoid liability.” [4.173]

It is a defining feature of the internet that material is inherently accessible worldwide unless positive steps, such as geofencing, are taken to limit its accessibility. Accordingly the Law Commission’s proposal equates to default world-wide applicability. The Report explains further:

“An approach that imposes liability regardless of where and how material has been made available ensures that enforcement is possible in the widest range of circumstances where potentially prejudicial material is available to an audience in England and Wales. Even where enforcement is impractical or not possible, this approach signals that the right to a fair trial is nevertheless important and should be protected.” [4.174]

As well as recommending world-wide online application, the Law Commission has proposed that a single set of liability rules should apply to both publishers and distributors. On the face of it the resulting regime could, de facto, oblige at least some platform operators to monitor for potentially prejudicial user posts if the operator is aware of proceedings being active or of a risk that they are active. However, this aspect of the proposals is not simple. It may be the subject of a future blogpost.

These are not the most auspicious times in which to be proposing world-wide applicability of local laws. The current US administration has, justifiably or not, loudly criticised the extraterritorial reach of European (including UK) online safety laws. None of those laws, it should be said, goes so far as to assert jurisdiction based on mere accessibility of the content.

How to approach cross-border liability on the internet has been a lively topic of academic discussion for many years. For instance in Solving the Internet Jurisdiction Puzzle (2017) Professor Dan Svantesson proposed, as an alternative to the traditional approach rooted in territorial sovereignty, a framework consisting of three core principles upon which exercising jurisdiction could be justified:

(1)   There is a substantial connection between the matter and the state seeking to exercise jurisdiction;

(2)  The state seeking to exercise jurisdiction has a legitimate interest in the matter; and

(3)  The exercise of jurisdiction is reasonable given the balance between the state’s legitimate interests and other interests.

For present purposes the significance of this suggested framework lies mainly in the third principle: it is not enough to consider jurisdictional reach only through the domestic lens of the state asserting jurisdiction. Other interests also have to be considered: typically those of states whose sovereignty may be affected and of persons overseas who may feel incentivised  or compelled to modify their conduct as a result of the assertion of jurisdiction, especially if that conduct is lawful in their own country.

In the traditional framework the starting point would be to consider whether the jurisdiction asserted is extraterritorial, and if so to consider whether it can be justified under one of the categories recognised by international law. Questions of reasonableness may arise as part of that assessment, or otherwise as a matter of comity: due respect for the sensitivities of other nation states.

Although principally a state-centric doctrine, comity encompasses the interests of non-state persons in other countries. In a 2024 Australian case concerning the extraterritorial reach of Australia’s online safety legislation, Kennett J. said:

“In so far as the notice [given by the eSafety Commissioner] prevented content being available to users in other parts of the world, at least in the circumstances of the present case, it would be a clear case of a national law purporting to apply to “persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State”. Those “persons or matters” can be described as the relationships of a foreign corporation with users of its services who are outside (and have no connection with) Australia. What X Corp is to be permitted to show to users in a particular country is something that the “comity of nations” would ordinarily regard as the province of that country’s government.” (eSafety Commissioner v X Corp [2024] FCA 499, [50])

Worldwide mere accessibility as the jurisdictional threshold is likely to raise comity issues, most obviously with countries that take a significantly less strict approach to commenting on court proceedings; perhaps all the more so if world-wide accessibility is combined with some variety of platform monitoring obligation. Conversely, since comity is founded on mutual respect, some countries might see a precedent for giving their own contempt laws worldwide effect.

Notably, in its response to the Law Commission's July 2024 consultation the Attorney General’s Office suggested that “expanding contempt jurisdiction to cover publication abroad for a foreign audience would breach principles of international comity”.  (Report [4.165])

How did the Law Commission arrive at its conclusions? Its work on contempt has a long history, stretching back to a previous Report on Contempt of Court: Juror Misconduct and Internet Publications, published in December 2013 following a 2012 consultation paper.  That Report included a defence for prior-published items, which could be disapplied by a notice given by the Attorney General. It was included in the next Criminal Justice and Courts Bill, but then dropped following opposition from, among others, the Society of Editors.

After a gap of nearly ten years the Law Commission commenced a review of contempt of court in 2022. That led to a Consultation Paper in July 2024, a supplementary Consultation Paper in March 2025, and the Report (Part 1) on Liability in November 2025. A further report dealing with remaining issues will be published this year.

The Law Commission’s starting point is that the current law is unclear about its territorial ambit. But exactly how the law should be clarified has been difficult to pin down from the outset. The 2012 Consultation Paper posited, as examples, three possible approaches to publication:

(a) production within England and Wales,

(b) targeting a section of the public in England and Wales, or

(c) mere accessibility in England and Wales.

The 2013 Report summarised a mixture of consultation responses and recommended that the issue be addressed in a future project on social media.

Some years later, the Law Commission considered territorial scope of a new harmful communications offence that it proposed in its 2021 Report on Modernising Communications Offences. It settled on a test of habitual residence. It made no specific extraterritoriality recommendation in its subsequent 2022 report on Intimate Image Abuse, inviting the government to consider whether the new offences proposed would benefit from specific extra-territorial statutory provision.

The July 2024 Contempt Consultation Paper provisionally recommended that territoriality should be clarified. It identified three principal options:

(a)  Place of publication irrelevant (i.e. mere accessibility).

(b)  Production or uploading in England and Wales.

(c)   As per (b), or production or uploading outside England and Wales by a person habitually resident in England and Wales, or by an organisation with a place of business within England and Wales.

So, compared with the 2012 Consultation Paper a decade earlier, in July 2024 the Law Commission in effect borrowed the habitual residence option from its previously proposed harmful communications offence and dropped the targeting option. The Law Commission’s view was now that the third option might be preferable, but it had not reached a firm provisional conclusion.

Given that in the broader online world targeting is often seen as a reasonable online jurisdictional compromise, it might be asked why the Law Commission dropped it as a provisional option. The Consultation Paper did not give specific reasons, other than noting that only three responses to the 2012 consultation had been in favour of targeting.

However, targeting then reappeared in the November 2025 final Report:

“4.165 Where a more limited approach was favoured then it often took as the discriminating factor whether there was an intention that the publication would reach an audience in England and Wales.

For example, the University of Sheffield CFOM argued that liability should attach also “to any publication accessible in England and Wales, wherever it was produced or uploaded, and whoever produced it, if it was primarily targeted at a section of the public in those two nations”.

The Attorney General’s Office (AGO) said “the administration of justice in England and Wales should seek to protect itself against substantial interference, regardless of the place of publication” but also suggested liability should be limited to circumstances “where the publisher intended that the publication would be accessed by members of the public in England and Wales”.

Gavin Sutter favoured the approach of section 19(11) of the Online Safety Act 2023, which attaches liability to “UK-linked” publications. This refers to publications which have the UK as a target market or their sole target market, or where “the content is or is likely to be of interest to a significant number of UK users”.  

The opening sentence could be taken as suggesting that targeting is a matter of subjective intention. Similarly, the conclusion states:

“4.173… A requirement to prove an intention to reach people in England and Wales would add complexity to the law. It may become increasingly challenging as technology evolves and new ways of masking one’s location or reaching audiences become available. The words “addressed to” in the existing definition do not necessarily import a requirement to prove intention, but a definition that does not rely on those words would avoid the risk of an inadvertent limitation.”

However, a targeting test does not have to involve proof of subjective intention. There is a wealth of caselaw in, among other fields, intellectual property law (especially trade marks) that treats targeting as an objectively ascertainable matter. If the Report’s rejection of targeting was predicated on an assumption that subjective intention is a necessary component of a targeting test, that would be unfortunate. But we do not know.

Of course, given its stated policy reasons regarding the importance of a fair trial, the Law Commission might have opted for mere accessibility and worldwide application whatever its understanding of targeting.

The question of reasonableness from the perspective of foreign states and private persons is an undercurrent to the Law Commission's efforts to wrestle with the question of territorial reach since its first consultation paper in 2012. The 2012 paper started with the criminal law, noting that "the complexity in applying these principles of jurisdiction to crimes committed via the internet cannot be understated." As regards contempt under the existing 1981 Act, it observed that:

"There do not appear to be any reported cases of section 2 with a cross-frontier element. It is certainly possible to conceive of circumstances in which they might arise. For example, a US tourist might be murdered in England and Wales in such newsworthy circumstances as to be prominently featured on US news websites. These could be accessed in England and Wales and might give rise to a substantial risk of serious prejudice or impediment at trial. It is unclear whether liability for contempt might arise in such circumstances on the basis of the accessibility of the publication in England and Wales."

The 2012 consultation paper, like the Law Commission's subsequent publications, offered examples with varying degrees of connection to England and Wales. However, reasonableness from the perspective of foreign states and private persons remained an undercurrent, rather than being brought to the surface and analysed in terms of international law and comity.

Ultimately, the policy reasons that the Law Commission has finally relied upon are domestically focused. They do not go into the broader cross-border legal and geo-political aspects that a full discussion of international law and comity could have illuminated.

Such an analysis would have involved considering whether it is reasonable, from the perspective of the foreign state and its citizens, to impose ‘mere accessibility’ liability on persons in another country. It would require consideration of the position of a variety of potential actors: mainstream foreign press and media, individual bloggers and posters, and online platforms. 

Analysis of the question of reasonableness might not be the same for all actors. For instance, in 2006 the New York Times blocked UK access to an article on on its website, out of concern for possible breach of UK contempt laws.  Its spokesperson said:

"We're dealing with a country that, while it doesn't have a First Amendment, it does have a free press, and it's our position that we ought to respect that country's laws"

But what might be reasonable for the mainstream press might not be reasonable for an individual person.  Reasonableness could also be affected by the liability threshold proposed for each kind of actor.

Reasonableness arguments would not necessarily be all in one direction. For instance it might be suggested that broad extraterritoriality could in some circumstances be reasonable for an individual foreign user: that if you choose to discuss publicly proceedings that are self-evidently active in another country you knowingly take a risk as regards that country’s contempt laws. That could lead into human rights questions about the foreseeability of other country’s laws: an analysis that could differ as between individuals, businesses and professionals (Perrin v UK, ECtHR 18 October 2005).

Reasonableness could also be affected by technical ability to geofence specific material, collections of material or an entire site. Such ability could well be different for different kinds of actor.

However, the Report and its precursors do not go into the kind of detailed balancing of domestic against foreign interests implied either by Professor Svantesson's third principle or by comity.

These issues are certainly not simple. A balancing exercise might or might not result in a different conclusion for some or all kinds of actor. But such an exercise would require consideration of the issues from the foreign perspective. To look at the matter simply through a domestic lens does not do full justice to the broader comity and related issues surrounding cross-border internet liability.