Malicious Communications
There are two main pieces of legislation which directly address online communications and communications by phone or text message: section 1 of the Malicious Communications Act 1988 and s.127 of the Communications Act 2003.
These laws overlap, are unclear, and have an excessively broad scope which can create a real risk to freedom of expression.
Malicious Communications Act
If you send a threatening, indecent, or grossly offensive message to another person, you may have committed an offence under the Malicious Communications Act.
The message could be sent by phone (during a call), text message, WhatsApp, email, or online.
To commit an offence, your purpose in sending the message was to cause distress or anxiety to the recipient of the message, or to anyone else you intended the message to be communicated to.
There is another way of committing an offence, and that is to send a message which you know is false. Again, to commit an offence, your purpose in sending the message was to cause distress or anxiety, as above.
The maximum sentence for this offence is 2-years imprisonment and an unlimited fine.
What does ‘grossly offensive’ mean?
“There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context”
The leading case is Director of Public Prosecutions v Collins (2006). The defendant in this case was charged with an offence under section 127 of the Communications Act after making racially offensive telephone calls to the offices of his MP and leaving racially offensive telephone messages (although the charge was one under the Communications Act, the definition of the term ‘grossly offensive’ would also apply to an offence under section 1 of the Malicious Communications Act 1988).
Lord Bingham of Cornhill, giving the leading judgment in the House of Lords, stated this:
‘..it is for the Justices (the Magistrates) to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances…
There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates…
Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates, or which may even be thought, however wrongly, to represent a polite or acceptable usage.
On the other hand, a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender.’
Lord Carswell in the House of Lords agreed and stated this:
‘..it must be proved that the respondent intended his words to be offensive to those to whom they related or be aware that they may be taken to be so.
..it can make no difference to criminal liability whether a message is ever actually received or whether the persons who do receive it are offended by it. What matters is whether reasonable persons in our society would find it grossly offensive.’
Malicious Communications involving ‘Indecent’ communications – What is indecent?
‘The words “grossly offensive” and “indecent” are ordinary English words. They are not used in a special sense in section 1 of the 1988 Act.’ Lord Justice Dyson, Connolly v DPP (High Court).
The words ‘grossly offensive’ and ‘indecent’ were considered in the case of Connolly v DPP (2007).
The case against Mrs Connolly was that she had sent three pharmacists pictures of aborted foetuses. She admitted sending the pictures but maintained that the pictures were not indecent nor grossly offensive and that the purpose of sending them was not to cause distress or anxiety but merely to make a lawful protest and educate against the use of the morning after pill.
Mr Connolly was found guilty of offences under the Malicious Communications Act. She appealed to the High Court.
Her case was that as current standards are so low, the material did not therefore cross the threshold of being indecent or grossly offensive, and that the Malicious Communications Act should not apply to a lawful protest, and to find otherwise would be a breach of the European Convention of Human Rights on issues pertaining to freedom of expression and, in particular, freedom of religious expression.
In the High Court it was submitted on behalf of Mrs Connolly that the images were neither indecent nor grossly offensive.
Lord Justice Dyson in the High Court stated this:
‘The words “grossly offensive” and “indecent” are ordinary English words. They are not used in a special sense in section 1 of the 1988 Act. This is an appeal by way of case stated and it can only succeed if the appellant can identify a material error of law.
On well established domestic law principles, that means that Mrs Connolly must show that the decision below that the photographs were indecent and grossly offensive was one which no court acquainted with the ordinary use of language could have reached…
We have seen the photographs. They are close-up colour photographs of dead 21 week old foetuses. The face and limbs are clearly visible. One of them is a close-up showing an abortion taking place. They are shocking and disturbing. That is why Mrs Connolly sent them to the pharmacists.
In my view, it is impossible to say that no reasonable tribunal could have concluded that these images were grossly offensive within the meaning of section 1 of the 1988 Act.
With more hesitation, I would say the same of “indecent”…it is clear that the court was entitled to make this finding on the facts of this case’.
Malicious Communications – Purpose was to cause distress of anxiety
To commit an offence under section 1 of the Malicious Communications Act, your purpose, or one of your purposes, was to cause distress or anxiety to the recipient or another person.
If the message was sent, for example, as a joke with no intent to cause distress or anxiety, that would be a defence.
Section 127 Communications Act 2003
Section 127(1) of the CA 2003 criminalises the sending, via a public electronic communications network, of a message which is grossly offensive or of an indecent, obscene or menacing character.
Subsection 2 criminalises sending a message which is known to be false for the purpose of causing annoyance, inconvenience, or needless anxiety to another.
The maximum punishment for an offence under s.127 of the Communications Act 2003 is 6-months imprisonment and / or an unlimited fine.
What is a public electronic communications network?
It has been defined as “a service provided for and funded by the public, for the benefit of the public”.
It includes the internet and mobile phone networks, and social media platforms which operate via the internet. Messages sent on WhatsApp fall within this definition.
Communications Act – Message of a ‘Menacing’ character
DPP v Chambers (2012) was a case involving a message posted on Twitter, which was meant to be a joke and not of a menacing character.
Mr Chambers was a user of Twitter. He met another Twitter user on line and they started communicating. A romance developed and he was then due to fly to Belfast to meet her. A few days before he was due to fly out, he became aware of problems at Doncaster, Robin Hood airport, due to bad weather conditions.
He sent the following messages to the person with whom he had been communicating:
‘I was thinking that if it does then I had decided to resort to terrorism”, and
‘That’s the plan! I am sure the pilots will be expecting me to demand a more exotic location than NI’.
Those messages seemed to be a reference to the possibility of the airport closing. About 2 hours later when he heard the airport had closed he posted the following message:
‘Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!’
The message was posted on to the Twitter public timeline and was available to be read by his followers.
There was no evidence before the Crown Court that any of his followers or anyone who may have read the message found it to be menacing.
Mr Chambers was found guilty at the Magistrates Court of posting a message on Twitter which was of a menacing character.
He appealed to the Crown Court against his conviction and lost.
He then successfully appealed to the High Court where the court ruled his message was not of a menacing character.
The High Court stated:
‘…Before concluding that a message is criminal on the basis that it represents a menace, its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent…the mental element of the offence is satisfied if the offender is proved to have intended that the message should be of a menacing character (the most serious form of the offence) or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it…’
Is it in the public interest to prosecute you for an offence under the Malicious Communications Act or the Communications Act
While the police may have strong evidence you sent a message, it does not necessarily follow that you should be charged with an offence under the Malicious Communications Act.
The police (or prosecutor) must be satisfied that a prosecution is required in the public interest. They should have particular regard to:
- The likelihood of repeat offences. This can range from an isolated remark to an ongoing targeted campaign against a victim.
- Your age or level of maturity. This becomes particularly relevant if you are young or immature and may not fully comprehend the impact of your words.
- The specific circumstances and harm inflicted upon the victim.
- The presence of genuine remorse expressed by you.
- The promptness and effectiveness of actions taken by you and/or others, such as service providers, to remove the communication in question or prevent further access to it.
- Whether the communication was intended for a wide audience, particularly where the intended audience did not include the victim.
- Whether the offence can be classified as a hate crime.
Contact
Yasar Saleem
Martin Murray & Associates, The Pavilions, Stoke Gardens, Slough SL1 3QD 01753 551313
