There is often discussion in some (small) circles, on two points:

1. Is a disk file consisting of a series of ones and zeros capable of being obscene?
2. Does someone making a file available for download, themselves publish or distribute the file?

Both questions were answered, in part at least, in the case of R v Fellows, and R v Arnold (CACD Sep 1996). The casemap is available on-line from via lawindexpro.

Here the first defendant had collected many images together on his computer. They were made available for others to download subject to password access. The images were in general obscene and many of them, as photographs, would also clearly count as indecent images of children.

All information when held in a computer, first has to be transformed in order to make it possible to store that information. It is inevitable. Information can also be transformed, in very many different ways, for the same purpose, and to add additional transformations intended, for example to prevent others accessing the file. The court used a purposive construction, and said that if what started as a photograph, could be turned back into something which has similar characteristics, then it remained a photograph in law whilst in those intermediate states.

The second issue is important. Frequently, files are made available for transfer to a visitor on Internet. The files might be web pages, or usenet postings, or more obviously files as commonly understood. The common characteristic is that the file is positively and deliberately set up in such a way that a visitor has only to make a request - by opening the site, including a news group in a list of such, or by clicking on a file download link. In each case, once the arrangement is made, and the computer turned on and connected up, the holder of the information has to do no more, it is the receiver who 'pushes the button.' In such cases, then, can the host be said to send anything?

The case answered the point positively. The person who sets up the computer to make the file available distributes it. The argued passivity of the defendant was irrelevant, after taking such positive steps to make it possible. The inevitable creation of a new copy on the receiving computer added to the finding.

It should be noted and emphasised, that this case concerns particular words occurring in particular Acts. Our view is that similar conclusions would be likely reached for the different words used in different Acts and contexts, unless those words clearly required a different interpretation, but it is clear that this case is not a direct decision on the point for any other Act.