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Adoption on the Web
The following letter was sent to ISPs on 22 January, 2001.
From John Hutton MP, Minister of State
To Mr Nicholas Lansman, Internet Service Providers Association
Dear Mr Lansman,
ADVERTISING FOR ADOPTION ON THE INTERNET ADOPTION ACT 1976
You will be aware of the considerable press and public interest in children being advertised for adoption on the internet. I am writing to alert you that I have received legal advice that if a UK based Internet Service Provider has actual knowledge that they are storing any material which breaches Section 58(1) of the Adoption Act 1976, they must remove it. If they do not do so they are committing an offence and may face prosecution.
Section 58(1) of the Adoption Act 1976 provides that it is unlawful for any advertisement to be published indicating -
- that the parent or guardian of a child desires to cause a child to be adopted;
- that a person desires to adopt a child; or
- that any person (not being a local authority or voluntary adoption society approved by the Secretary of State)
is willing to make arrangements for the adoption of a child.
"Making arrangements for the adoption of a child" is defined in section 72(3) of the Adoption Act 1976 as amended by section 13 of Adoption (Intercountry Aspects) Act 1999. Section 58(2) provides that any person who causes to be published or knowingly publishes an advertisement in contravention of section 58(1) is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
The law applies equally to the internet as it does to any other medium.
I am copying this letter to all the individual Internet Service Providers my Department has been able to identify and to the Internet Watch Foundation.
Yours sincerely
JOHN HUTTON, MP
A search on the Internet revealed something over two hundred thousand such pages. No doubt very many of these are repeat entries, but the number is significant. The question arises as to two and why ISPs might come to be liable. There are two situations which might be likely.
- The ISP hosts the pages for a client.
- The ISP 'caches' the pages on his server automatically, so that his own customers can see them more quickly. This is perhaps the most frequently encountered situation. In practice a UK ISP is unlikely to be hosting an unlawfuul UK adoption service.
Does the ISP have to have notice of the existence of the adoption advert on his server. The wording described in the letter is distinctive. The ISP must either 'knowingly publish' or 'cause to be published' an advert to be guilty. Does the application of the word 'knowingly' to only the second limb exclude that requirement for the first? In other words, is the offence of causing to be published an absolute one, not dependant upon knowledge (or notice). There is at present no complete answer. I suspect that the answer is that the ISPis liable.