Offensive Communications and the Law - PNLD · – Tweeted: ‘Crap! Robin Hood Airport is closed....

Offensive Communications and the Law

Prof Alisdair A. GillespieHead of Lancaster University Law School

Offensive Communications

• Going to look at the increasingly complicated situation of offensive communications online.

• When does this become a criminal matter?

• What are the applicable offences?

• What developments are there likely to be?


• John Apter, the new chair of the Police Federation, has said that police are frustrated about being sent to Facebook rows rather than burglaries.

• Are Facebook rows a crime? At what point do they cross the criminal threshold?– Probably depends on whether you are

the perpetrator or the victim?


Key offences:

• Malicious Communications Act 1988, s.1.

• Communications Act 2003, s.127.

• Public Order Act 1986.– Particularly useful in respect of racial hatred offences.

Malicious Communications

Section 1, MCA 1988(1) Any person who sends to another person-(a) a letter, electronic communication or article of any description which

conveys-i. a message which is indecent or grossly offensive;ii. a threat; oriii. information which is false and known or believed to be false by the

sender; or(b) any article or electronic communication which is, in whole or part, of

an indecent or grossly offensive nature;is guilty of an offence if his purpose, or one of his purposes, in sending it is…to cause distress or anxiety to the recipient or to any other person to whom he intends that or its contents or nature should be communicated.

Originally did not include electronic communications but was added by

the CJPOA 2001


Elements to prove:– Sends to another person.– Electronic communication (or equivalent).– Inappropriate content.– Purpose to cause distress or anxiety.

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Prosecutions under s.1, MCA 1988


• Sends:– s.1(3) defines ‘sends’ to include delivering, transmitting or causing

to be sent, delivered or transmitted.– Nothing requires that the communication is received.– Third-party deliveries also apply.

D tells X to send an anti-Semitic cartoon to V, saying that V collects these things. X does so and V is distressed by the

cartoon, something D knew would happen.

D has caused X to send the message.

X is not guilty as no fault element

D is guilty as all elements are satisfied

Malicious Communication

• “To another person”.– No need to identify the other person but it must be to another

person.– R v Paley (2018, Preston Crown Court).– What about Twitter?

• Where a person’s handle is included then it must be sent to that person.

• What is the position where a hashtag has been used…? Is this to a person?

• Where it is sent without either then unlikely to meet this test.– What about where it is saved as a draft?

• Not ‘sent’ but may be attempted.


Content of the communication.– Indecent or grossly offensive.– Threat.– Information which is false.

• ‘Indecent’ is measured against recognised standards of propriety (R v Stamford (1972)). – ‘Grossly offensive’ is a higher threshold: merely offensive will not

suffice (DPP v Collins (2006)).

• Need not be text. A picture or sound file is still a communication.


Fault element:• Purpose, or one of their purposes, is to cause distress or anxiety

to the recipient or to any other person to whom they intend it to be communicated.

• Words are self-explanatory but the fact that one of the purposes is included widens the offence.– Connolly v DPP (2007).

Communications Act 2003

Second principal offence is s.127, CA 2003.Two offences.

127(1):A person is guilty of an offence if he-(a) sends by means of a public electronic communications network a

message or other matter that is grossly offensive or of an indecent, obscene or menacing character.

(b) Causes any such message to be sent.

Communications Act 2003.

Section 127(2).A person is guilty of an offence if, for the purposes of causing annoyance, inconvenience or needless anxiety to another, he-(a) sends by means of a public electronic communications

network, a message that he knows to be false,(b) causes such a message to be sent, or(c) persistently makes use of a public communications network.


• Section 127(1) and (2) bear a ‘striking similarity’ to the offence under s.1, MCA 1988.

• If we focus on s.127(1) (the more usual offence) then it looks much simpler.

127(1):A person is guilty of an offence if he-(a) sends by means of a public electronic communications

network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.

(b) causes any such message to be sent.


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Prosecutions under s.127, CA 2003

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Prosecutions under s.1, MCA 1988

MCA 1988 is now triable either-way with maximum

sentence of 2 years’ imprisonment.

Section 127 is triable only summarily and maximum

sentence is 6 months’

Communications Offences

“Public Electronic Communications Network”.• Quite a specific definition.• I could go into it, but I’m not a geek.• Short answer:

– The Internet is a ‘public electronic communications network’ (Chambers v DPP (2012)).

• Some controversy over that as it’s not owned by the State.– Intranets / Local Area

Networks will not be. D and V work with a company that has its own internal network and email system. D sends V an ‘instant message’ over the internal network that

is grossly offensive. No liability under s.127 as not a public communications system.

Had it been by email then there would be a conviction.

MCA 1988 could apply subject to fault element.

Communications Offence

• “Message” is more restricted than s.1, MCA 1988.– Pictures and sound likely to be within it.– Interesting question around a URL being sent that directs towards

something that is grossly offensive etc.• Probably causes the content to be sent (s.127(1)(b)).

• “Sent”– As with MCA 1988, the conduct is complete when message is

sent, and no requirement to receive (DPP v Collins (2006)).– Unlike MCA 1988 there is no requirement it is sent to another

person, so storing it on personal cloud or posting it to a blog etc. would suffice.

Communications Offences

• ‘Indecent’, ‘obscene’, ‘grossly offensive’ and ‘menacing’ are all words that are common in law.– ‘Indecent’ and ‘obscene’ are at opposite ends of a spectrum in

public propriety.– ‘Sex lines’: DPP v Collis (2006).– Menacing is fairly obvious. However, it is not whether V perceives

it in this way, as no victim required.– ‘Grossly offensive’ is measured against ‘reasonably enlightened,

but not perfectionist, contemporary standards’.• The word ‘gross’ makes clear that merely offensive material won’t

meet the threshold.


Fault element.• Nothing on the face of the legislation so courts have become

involved.• DPP v Collins (2006); Chambers v DPP (2012)

– Intent to send the message.– Intention that the message is indecent, obscene, grossly offensive

or menacing or is aware that a reasonable member of the public would view it so.

• s.127(2) has additional fault element surrounding intention to annoy, inconvenience or cause anxiety.


• Broadcast material is exempt from s.127.– What does ‘broadcast’ mean these days?– Online services are included but it again not clear what is covered

by this omission.• Is a vlogger creating an online broadcast?• Is a (private) messaging group where a person is updating members

on issues an online broadcast?– Never been tested in the courts.– OFCOM has suggested that YouTube content could be considered

an on-demand programme service.


• Summary offences must normally have information laid before the courts within six months’ of the incident.

• Criminal Justice and Courts Act 2015 extended the time limit to 3 years’. This significantly widens the reach of the offence and is designed to cater situations where


• Both the MCA 1988 and CA 2003 have extremely wide offences.

• “False” information…?

• Stephen Dure.– “Paedophile hunter”.– Alleged a person was a

paedophile when he knewthat he was not.

– Jailed for 15 weeks.Is that a crime?

Traditionally considered to be a

civil matter

Bad cases make bad Law

Chambers v DPP (2012)– Chambers was trying to visit his

girlfriend in Northern Ireland.– Adverse weather had caused delays a

week before due to travel.– Tweeted: ‘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!’

– Tweet was discovered by off-duty employee 5 days later who was searching for references to the airport.

– Initial police report was that it was a foolish remark.


Chambers v DPP (2012).– Police eventually decide to refer to CPS.– CPS decide to charge under s.127, CA 2003.– Chambers pleads not guilty as it is a joke.– He is convicted at Magistrates’ Court and appeals to the Crown

Court where his appeal is rejected.– All hell breaks loose in press.– Eventually proceeds to High Court as an appeal by case-stated.


Chambers v DPP (2012).– High Court confirms that Twitter (and therefore the rest of the

internet) is a public electronic communications network.– High Court accepted crime is complete at the time it was sent, but

suggested the impact of who read it is can be relevant.• Somewhat contradictory unless it is about showing whether the

threshold of criminality is passed.• Ultimately concluded that it was not menacing.

– Fault element was intention to be menacing or risk that ordinary members of the public would consider it menacing.

• Suggested that where it was a joke, even a joke in bad taste, then there may not be mens rea.

Other Contexts

• ‘Indecent’ is an extremely broad term.

• In DPP v Collins (2006) the HoLwondered what the position was with telephone sex-lines.

• What is the position with sexts? Either text or pictures?

Article 10, ECHR.

• Article 10 ECHR provides the right to ‘freedom of expression’ so where does this fit into offensive communications?

• It is a qualified right and so it is not absolute.

• It is widely considered to be one of the most important rights in the ECHR however.– ‘applies not only to “information” or “ideas” that are favourably

received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb’(Vereinigung Bildender Künstler v Austria (2007)).

CPS Prosecuting Guidelines

CPS suggests that a relevant communication should be more than:– Offensive, shocking or disturbing; or– Satirical, iconoclastic or rude; or– The expression of unpopular or unfashionable opinion about

serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it; or

– An uninhabited and ill thought out contribution to a casual conversation where participants expect a certain amount of repartee or “give and take”.

CPS Prosecuting Guidelines

When deciding whether a prosecution is in public interest, the following should occur:• The likelihood of re-offending.• The suspect’s age or maturity.• The circumstances of, and the harm caused to, the victim, including

whether they were serving the public, whether this was part of a coordinated attack, whether they were targeted because they reported a separate criminal offence.

• Whether the suspect has expressed genuine remorse.• Whether swift action has been taken by the suspect or others (e.g.

ISPs) to remove the communication.• Whether the communication was or was not intended for a wide

audience.• Whether the offence constitutes a hate crime.

Fallback options

• CA 2003 is often used as a fallback option.

• There are a number of other offences where CA 2003 can be a useful alternative.– Protection from Harassment Act 1997.– ‘Revenge Pornography’ laws.– Public Order Offences / Hate Crime Legislation– Obscenity legislation.

• Whether that is always appropriate is more questionable.

Offensive Communications:The Future.

• The Law Commission were asked to look at the issue of online communications.

• So far no formal consultation document or report.• However, noise from them is that s.127 and s.1 should be

repealed and replaced with a single offence.– Likely to cover both private and public communication systems.– Almost certainly will have some form of mental fault element.

• I suspect a compromise. Intent would be too hard. Recklessness is a possibility but ‘purpose’ has worked well.

– Probably either-way offence.– Trying to reconcile it with Article 10, ECHR will be difficult and I

suspect it will be left to the courts.

Prof. Alisdair A. [email protected]

Offensive Communications and the Law - PNLD · – Tweeted: ‘Crap! Robin Hood Airport is closed....

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