In recent years, social media has transformed from a small distraction for teenagers and students to the primary form of communication for the vast majority of people. The COVID-19 lockdown has even further broadened the popularity of social media communication. In fact, for many, social media has provided a lifeline to family, friends, and work.
But with the increased dependence (and fondness for) social media, comes additional risk as well. Facebook, Twitter, Instagram, Tik Tok and the swathe of other social media platforms may give access to the world, but they also enable the commission of a number of criminal offences – both intentionally, and by accident.
What is the law?
Today, a large number of criminal offences can be committed using social media, including sending communications. An offence may be committed under the Malicious Communications Act 1988 (in particular, section 1) and, or the Communications Act 2003 (s.127 (1) and (2).
The Malicious Communications Act 1988
Under this area of law, communication is defined as any person who sends a letter, electronic communication or article of any description to another person which conveys the following:
- A message that is indecent or grossly offensive.
- A threat.
- Information that is false and is known or believed to be false by the sender.
The importance of the sender’s mental state
- The sender’s purpose must be to cause distress or anxiety to the recipient. This is a key element of the offence and has a high threshold for the prosecution to meet when an individual is charged with this offence.
- A person can in theory commit an offence of sending malicious communications through a single tweet or message. An offence is committed as soon as the communication is sent and it does not even have to be received by the intended person.
- Equally there is no need for the communications network to be public and it therefore includes private message (unlike an offence under section 127 of the Communications Act 2003 which requires the forum to be public).
- The offence is very much focused on the sending of the communication and malicious intent of the sender, rather than the impact on the recipient. What must be established, is that the sender had an intention to cause anxiety or distress to the recipient or to any other person to whom the sender intends it be communicated.
What does indecent or grossly offensive mean?
- The threshold for establishing that a communication is “grossly offensive” is necessarily high due to the potential impact on freedom of expression under Article 10 of the European Convention on Human Rights.
- The fact that a communication is in bad taste or controversial will not necessarily be sufficient.
- There is case law which has established that it is a question of fact whether a message was grossly offensive, and that what was grossly offensive had to be judged by considering the reaction of reasonable persons and the standards of an open and just multiracial society, and that the words had to be judged taking account of their context and all relevant circumstances.
- It is very important to strike a balance between the Malicious Communication Act and free speech.
The Communications Act 2003
This covers the improper use of public electronic communications network and a person is guilty if they:
- Send any public electronic communications network a message or other content that is grossly offensive or indecent, obscene or menacing or;
- Cause any such message or content to be sent.
A person can also be found guilty of an offence under the Communications Act if they intend to cause annoyance, inconvenience or needless anxiety by:
- Sending a message that is known to be false via a public electronic communications network.
- Causing such a message to be sent.
- Persistently making use of a public electronic communications network.
Contrast between the two offences
It is worth noting that the mental element of the offence under the Communications Act is broader as it includes circumstances where a person should have awareness or recognition that sending the message may create fear or apprehension in any reasonable member of the public who reads or sees it. It is not necessary that the person intended to cause such fear or apprehension.
In addition, an offence will be committed under section 1(2) of the Communications Act where a person had specific intent to cause annoyance, inconvenience or anxiety with a message that is false.
An offence under the Malicious Communications Act requires the sending of a letter or electronic communication to another person (i.e. direct contact), an offence under the Communications Act 2003 may be committed by simply posting, reposting or sharing a communication. An offence may, therefore, for example be committed by retweeting particular content.
Do I have a defence?
Each case is unique and a defence should be fully explored with expert legal advice. It will be necessary to consider the nature of the content and whether it can be properly deemed as ‘grossly offensive’. In addition, detailed consideration and advice will need to be obtained in relation to the intention and purpose of the message.
A potential defence to charges under the Malicious Communications Act is to show that a threat was made to reinforce a demand that is made on reasonable grounds, in other words, a threat is a proper means to reinforce a demand. The aspect of both offences that the prosecution must prove is difficult to establish and thorough and robust legal advice is therefore essential.
What can happen if I am found guilty of this offence?
There are varying levels of seriousness and sentences. Someone who is charged with an offence may have their case heard in either the Magistrates’ or Crown Court depending upon the offence that is charged.
If a person is found guilty of an offence under the Malicious Communications Act 1988, they may be sentenced to a prison sentence of up to 6 months or a fine or both, following a conviction in the Magistrates’ Court, or a prison sentence of up to two years or a fine or both on conviction in the Crown Court.
A person found guilty of an offence under the Communications Act 2003 will be sentenced in the Magistrates’ Court and may receive a prison sentence of up to six months or a fine.
What should I do if I am accused of either of these two offences?
A criminal charge relating to malicious communications is always a serious allegation. It is therefore essential to seek expert legal advice. Additionally, the CPS Guidelines on prosecuting cases involving communications sent via social media make it clear that even where an offence appears to have been made out, it will often not be in the public interest to bring a prosecution. It is therefore very important to seek legal advice as representations to the prosecution on your behalf could halt charges.
Our experienced criminal defence solicitors are widely recognised as one of the leading criminal defence practices in the UK. If you need legal advice you can call us 24 hours a day on 0808 252 5231 or get in touch online.