Malicious communications
Section 127 of the act makes it an offence to send a message that is grossly offensive or of an indecent, obscene or menacing character over a public electronic communications network. [9] The section replaced section 43 of the Telecommunications Act 1984 and is drafted as widely as its predecessor. [10] The section has been used controversially to prosecute users of social media in cases such as the Twitter Joke Trial and Facebook comments concerning the murder of April Jones. [11] Section 127 is a summary offence, [12] so it is tried in a magistrates court with no right to jury trial.
On 19 December 2012, to strike a balance between freedom of speech and criminality, the Director of Public Prosecutions issued interim guidelines, clarifying when social messaging is eligible for criminal prosecution under UK law. Only communications that are credible threats of violence, harassment, or stalking (such as aggressive Internet trolling) which specifically targets an individual or individuals or breaches a court order designed to protect someone (such as those protecting the identity of a victim of a sexual offence) will be prosecuted. Communications that express an "unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some and painful to those subjected to it" will not. Communications that are merely "grossly offensive, indecent, obscene or false" will be prosecuted only when it can be shown to be necessary and proportionate. People who pass on malicious messages, such as by retweeting, can also be prosecuted when the original message is subject to prosecution. Individuals who post messages as part of a separate crime, such as a plan to import drugs, would face prosecution for that offence, as is currently the case. [13] [14] [15]
Revisions to the interim guidelines were issued on 20 June 2013 following a public consultation. [16] The revisions specified that prosecutors should consider:
- whether messages were aggravated by references to race, religion or other minorities, and whether they breached existing rules to counter harassment or stalking; and
- the age and maturity of any wrongdoer should be taken into account and given great weight.
The revisions also clarified that criminal prosecutions were "unlikely":
- when the author of the message had "expressed genuine remorse";
- when "swift and effective action ... to remove the communication" was taken; or
- when messages were not intended for a wide audience.
More recently, Section 127 has been used to prosecute those alleged to have sent grossly offensive messages on a public electronic communications network, such as WhatsApp, but which were not visible to an audience beyond the intended recipients. In 2022, a serving police officer and a former constable each received 12-week prison sentences for sending racist, misogynistic, ableist, and homophobic messages to a WhatsApp group. The group was uncovered as convicted murderer, and former police officer, Wayne Couzens had been a member. [17] Six more former police officers, retired at the time of the offensive communications, pleaded guilty to a similar but unrelated WhatsApp group in September 2023. [18] Such prosecutions are not without controversy since they treat encrypted messages, by their nature only visible to intended recipients, as public because they are sent using publicly available instant messaging platforms, rather than because the individual messages themselves are visible to the public. [19] Andrew Tettenborn, a British legal academic, has argued that this criminalises speech which would not be illegal if spoken aloud in private conversation. [20]
The Law Commission, a public body which reviews and recommends changes to the law, recommended that Section 127 be replaced in the Online Safety Bill, a proposed Act of Parliament first drafted in 2021 and as of 2023 still being debated by MPs, by new offences which were more targeted in their approach. This was intended to update legislation passed prior to the widespread use of instant messaging and to reduce concerns about limits on the freedom of expression. [21] The proposed changes were dropped by the government in January 2023. [22]
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The Director of Public Prosecutions (DPP) is the head of the Crown Prosecution Service (CPS) and the third most senior public prosecutor in England and Wales, ranking after the attorney general and solicitor general.
Hate speech laws in England and Wales are found in several statutes. Expressions of hatred toward someone on account of that person's colour, race, sex, disability, nationality, ethnic or national origin, religion, gender reassignment, or sexual orientation is forbidden. Any communication which is threatening or abusive, and is intended to harass, alarm, or distress someone is forbidden. The penalties for hate speech include fines, imprisonment, or both.
R v Paul Chambers, popularly known as the Twitter Joke Trial, was a United Kingdom legal case centred on the conviction of a man under the Communications Act 2003 for posting a joke about destroying an airport on Twitter, a message which police regarded as "menacing". The conviction in the Magistrates' court was widely condemned as a miscarriage of justice, but was upheld on appeal to the Crown Court. Chambers appealed against the Crown Court decision to the High Court, which would ultimately quash the conviction.
Eleanor Poppy Miranda de Freitas was an English woman who committed suicide three days before the commencement of her trial for perverting the course of justice for allegedly making a false accusation of rape. Her death prompted a debate over whether prosecuting people accused of making a false accusation of rape could deter rape victims from reporting the crime, as well as whether it was appropriate to prosecute vulnerable individuals.
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