The offences
There are two principal offences. Section 1 of the Malicious Communications Act 1988 covers sending a letter, electronic communication or other article conveying a threat, an indecent or grossly offensive message, or information known or believed to be false, with the intention of causing distress or anxiety to the recipient. Section 127 of the Communications Act 2003 covers the improper use of a public electronic communications network — sending a message or other matter that is grossly offensive, indecent, obscene or menacing.
Cases increasingly involve social media, text messages and emails. The two offences overlap, and prosecutors choose between them depending on intent and the means of communication.
Defences
- No intention to cause distress or anxiety (section 1 of the 1988 Act)
- The message was not, objectively, grossly offensive, indecent, obscene or menacing
- Reasonable conduct, or conduct pursued to detect or prevent crime
- Factual dispute over authorship, account ownership or context
- Freedom of expression considerations where the message is political, artistic or satirical comment
Sentencing
Section 1 of the Malicious Communications Act 1988 is triable either-way and punishable by imprisonment. Section 127 of the Communications Act 2003 is summary-only. A restraining order can be imposed on conviction or, in some circumstances, on acquittal. Where the conduct also amounts to harassment or stalking, the more serious charge may be preferred.
Frequently asked questions
It can be. If the message conveys a threat, or is grossly offensive, indecent or menacing, and (for the 1988 Act) was sent with intent to cause distress or anxiety, it may be a criminal offence.
Harassment requires a ‘course of conduct’ — at least two occasions. A single message can amount to malicious communications even where it is not part of a course of conduct.
Yes. Section 127 of the Communications Act 2003 applies to messages sent over a public electronic communications network, which includes social media posts, texts and emails.
A restraining order can be imposed on conviction, and in some circumstances on acquittal, where it is necessary to protect a person from harassment.