Written by Hope Rea, 11th September 2023
Digital communication platforms are increasingly a part of our daily lives and this has caused the boundaries of personal expression, free speech and online behaviour to be tested by the courts. Malicious communications can include cyberbullying, harassment online or homophobic, racist, transphobic or misogynistic hate speech. The law is set out under the Communications Act 2003 and the Malicious Communications Act 1988.
The Communications Act 2003
Under s127 of the Communications Act 2003 it is an offence for someone to send a message or other matter that is grossly offensive or of indecent, obscene or menacing character.
The message does not need to actually reach the intended victim as the act of sending the message is sufficient. A ‘message’ will cover all forms of messaging so this can mean a text, email, Facebook message, an internet forum, Snapchat message or picture etc. Any image or message which has been sent electronically will be covered by this act.
The definition of ‘grossly offensive’ has been considered by the House of Lords in 2006 in which the Justices highlighted the standards of an ‘open and just multi-racial society’. It is for the court to determine whether in the context of the case the particular message was intentionally grossly offensive, indecent, obscene or menacing character, according to the standards of our open society.
Context is integral to these offences. For example, Paul Chambers made a Twitter post threatening to blow up the Robin Hood Airport because of frustrations due to flight cancellations. He was charged and convicted under s127 of the Communications Act 2003. The magistrates court and, during an appeal in the Crown Court understood the tweet to be menacing. The High court in 2012 quashed the conviction, understanding that Mr Chambers only intended to make a ‘silly joke’.
The Malicious Communications Act 1988
The Malicious Communications Act 1988 sets out the offence of sending letters or other electronic communication which conveys a grossly offensive message, threat or information which is false and known to be false by the sender. Under section 1(b) of the act, any communication which is in whole or part, indecent or grossly offensive. The communication must cause distress or anxiety to the recipient.
In 2014 the court applied the Malicious Communications Act 1988 in R v John Nimmo and Isabella Sorley. The offenders sent threatening tweets and abuse to the feminist campaigner who successfully campaigned for Jane Austen to be featured on the £10 note. The language used in the messages was deemed offensive and included threats of violence and rape. Nimmo was sentenced to 8 weeks in prison and Sorley received a 12 week prison sentence.
The Magistrates Court or the Crown Court?
Section 1 of the Malicious Communications Act is an either way offence and can be tried either in the Magistrates Court or the Crown Court. After being found guilty, a defendant may face a maximum sentence of 2 years’ imprisonment and/or an unlimited fine.
Alternatively, s127 of the Communications Act 2003 is a summary only offence so it can only be tried in the Magistrates Court and cannot be sentenced to more than 6 months imprisonment and/or an unlimited fine.
During sentencing the courts will consider the severity of the offence, these can be cases involving threats of violence or sustained harassment. The court will also consider the level of harm and impact caused to the victim.
Some aggravating elements which may indicate a higher level of culpability are:
- Targeting a vulnerable victim
- Use of threats or blackmail
- Threat to disclosure intimate material or sexually explicit images
- False calls to emergency services
- Hate based crime
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