Communications Act 2003 Section 127(1) covers offensive and threatening messages sent over a "public" electronic communications network. Since 2010 it has increasingly been used to arrest and prosecute individuals for messages posted to sites such as Twitter and Facebook. Section 127(2) covers causing annoyance by sending messages known to be false, which is one of the laws that hoax-999 callers can be prosecuted under.
As the result of controversial prosecutions of social-media users, the Crown Prosecution Service has drawn up guidelines seeking to limit the cases brought under Section 127.
The Director of Public Prosecutions' 'interim guidelines' (December 2012) for social media prosecutions include the use of Section 127. These attempt to limit the usage of Section 127, to cases which go beyond those which are "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".
Between 2003-07-25 and 2011-12-31 there had been 5316 people found guilty at magistrates courts in England and Wales of offences under section 127. These figures will include obscene telephone calls and text messages as well as internet-based communications.
|Conviction ratio %||67||73||69||73||79||78||78||(<64)|
Arrested in January 2010 for tweeting a joke about blowing Robin Hood Airport sky high. Conviction overturned on appeal.
- Twitter Joke Trial Wikipedia
Azhar Ahmed, a British Muslim from Yorkshire, was convicted for posting that British soldiers “should die and go to hell” on Facebook on the 8th March 2012. This was posted at a sensitive time, as two days previously six British soldiers had been killed by a roadside bomb in the deadliest single attack on British forces in Afghanistan since 2001. Ahmed was sentenced to 240 hours of community service and ordered to pay £300 costs. The sentence could have been higher, but was reduced because Ahmed removed the original post quickly once it was known that people (including a mother of one of the soldiers) had taken offence and because he had expressed contrition.
This is not just an issue of the over-application of Section 127, but also of free speech generally. Ahmed's comments, unlike other prosecutions, were strictly political - there were no racial undertones, no attempted unpleasant humour, nor humour which could have been misinterpreted as incitement to violence.
It is unclear where precisely on Facebook the message was posted, which does matter. If it had been posted on a tribute group to the soldiers, then it would certainly be a provocative message; however, a screen shot of the post seems to indicate that it was a personal status update, which could not reasonably be expected to be read by anybody other than Ahmed's Facebook friends. Considering that Section 127 hinges on the difference between "offensive" and "grossly offensive", the target audience of an electronic message must be considered.
The full passage which was originally posted and then removed is as follows:
- People gassin about the deaths of soldiers! What about the innocent familys who have been brutally killed.. The women who have been raped.. The children who have been sliced up..! Your enemy’s were the Taliban not innocent harmless familys. All soldiers should DIE & go to HELL! THE LOWLIFE FOKKIN SCUM! gotta problem go cry at your soliders grave & wish him hell because that where he is going.
Joshua Cryer given a two-year community order of 240 hours of community service for racist tweets directed at footballer Stan Collymore. He also had to pay £150 costs. Cryer intentionally sent Collymore provocative tweets in order to get Collymore to reply publicly. Considering the racial nature of Cryer's messages (one of which referred to Collymore as a "coon"), it seems strange that Cryer was convicted under Section 127 rather than the Race Relations Act. 
John Kerlen (who blogs and tweets under the name Olly Cromwell) was found guilty of sending a series of 'grossly offensive and menacing' tweets in April 2012 and given a restraining order. The first tweet was accompanied by a photo of Bexley councillor Melvyn Seymour's house, and read as follows:
- "Which cunt lives in a house like this. Answers on a postcard to #bexleycouncil."
- "It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual shit."
The conviction was overturned the following August when Judge Shorrock ruled that Kerlen had no case to answer, saying that "Nobody reading these remarks could have argued that this was a serious intention." Judge Shorrock upheld one part of Kerlen's restraining order, meaning that he cannot directly contact Seymour or Seymour's family until May 2017.
Thomas was arrested in August 2012 for posting a homophobic tweet about divers Tom Daley and Pete Waterfield. CPS did not prosecute: the tweet was aimed at friends and family and not intended to reach the divers, and after consulting Daley and Waterfield, DPP Keir Starmer ruled that the tweet was not so grossly offensive that criminal charges needed to be brought. It was also noted that Thomas expressed remorse and removed the tweet reasonably swiftly. The alleged tweet is as follows:
- if there is any consolation for finishing fourth atleast daley and waterfield can go and bum each other #teamhiv
This was the first case to prompt a response from DPP Keir Starmer about Section 127. He stated that new guidelines are needed and that a high threshold should be established for launching criminal action against digital communications which are written spontaneously. Most notably, he made the following statement on the nature of offence:
- The distinction [between "offensive" and "grossly offensive"] is an important one and not easily made. Context and circumstances are highly relevant and as the European Court of Human Rights observed in the case of Handyside v UK (1976), the right to freedom of expression includes the right to say things or express opinions “…that offend, shock or disturb the state or any sector of the population".
The DPP later said that the decision not to prosecute was made "in part because he had only around a hundred followers".
In a separate incident, a 17-year-old was given a harassment warning for sending Tom Daley a tweet accusing him of letting his deceased father down. However, this was covered by the Malicious Communications Act, not Section 127.
Dale Cregan fanpage
In September 2012, Neil Swinburne was arrested for creating an offensive Facebook "fan page" for Dale Cregan, who murdered two unarmed Manchester Police officers. Swinburne was released on bail, but faces a prison sentence of up to six months if found guilty.
On 8 October 2012 Matthew Woods was sentenced to 12 weeks imprisonment in a Young Offender Institution for posting offensive jokes about missing children April Jones and Madeleine McCann on Facebook. Woods' was arrested, ostensibly for his own safety, after a vigilante mob surrounded his family's house. No arrests of any of the vigilante mob, or of anybody who incited and organised the mob, have been reported.
Woods' comments included jokes such as Who in their right mind would abduct a ginger kid? and I woke up this morning in the back of a transit van with two beautiful little girls, I found April in a hopeless place. There were also sexually explicit comments which have not been published or disclosed beyond the Magistrates' Court.
As with Azhar Ahmed's comments, it is unclear where on Facebook the jokes were posted - it could have been in a tribute group for April Jones (in which case the comments could certainly be considered "grossly offensive") or as a personal status update (in which case the intended audience would have been Woods' friends, not Jones' family members).
- Matthew Woods deserves support as much as airport tweeter Paul Chambers, Guardian CiF, 2012-10-12
In a similar case to Matthew Woods, Sam Busby was charged under Section 127 for making offensive remarks about the April Jones case on Facebook. He received a six-week jail term suspended for 18 months and ordered to pay an £80 victim surcharge and keep to a 7pm-7am curfew for eight weeks.
- Facebook user avoids jail over April Jones comments, Guardian, 2012-11-07
Text of the Act
- 127 Improper use of public electronic communications network
- (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; or
- (b) causes any such message or matter to be so sent.
- (2) A person is guilty of an offence if, for the purpose 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 electronic communications network.
- (3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
- (4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).
History of section 127
Section 127 is derived from several much older laws, with the original intention of preventing people from wasting time and resources by sending messages over public service facilities, such as the Post Office and British Telecom when it was nationalised.
The first such law was section 10(2)(a) of the Post Office (Amendment) Act 1935, which made it an offence to send any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character. This was reproduced with only minor changes to punctuation in section 6(a) of the Post Office Act 1953. It was reproduced again in section 78 of the Post Office Act 1969, updating two terms: "by means of a public telecommunication service" replaced "by telephone", and "a message or other matter" replaced "any message". Section 49(1)(a) of the British Telecommunications Act 1981 elaborated further on section 78, and this was then repeated in section 43(1)(a) of the Telecommunications Act 1984, updating "system" with "service". Section 127(1)(a) of the 2003 Act is identical to section 43(1)(a), except that the 2003 Act updated the term "a public telecommunication system" to "a public electronic communications network".
It is inherently difficult to judge between what is offensive (but legal) and grossly offensive (and illegal). Keir Starmer, Director of Public Prosecutions, made the following statement in the wake of the Daniel Thomas case:
- ... the question for the CPS is not whether it was offensive, but whether it was so grossly offensive that criminal charges should be brought. The distinction is an important one and not easily made. Context and circumstances are highly relevant and as the European Court of Human Rights observed in the case of Handyside v UK (1976), the right to freedom of expression includes the right to say things or express opinions “…that offend, shock or disturb the state or any sector of the population”.
When a case is brought before a jury, the line between offensive and grossly offensive can be highly subjective and depend on the jury members' personal interpretations.
The purpose of section 127(1)(a) is not to protect people against the receipt of offensive messages - that is covered by the Malicious Communications Act 1988. Instead, section 127 (1)(a) was designed to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society. A letter dropped through the letterbox may be grossly offensive, obscene, indecent, or menacing, and may well be covered by section 1 of the 1988 Act, but it does not fall within section 127(1)(a).
The Communications Act 2003 was drawn up before the popularisation of social networking, and could not have foreseen how pervasive social networking would become in a short space of time. There remains ambiguity over what constitutes a public communications system. The original intent was to prevent the waste of public services funded by public money. Twitter and Facebook are "public" in the sense that they are free to use and open to view unless specified otherwise, they are not public services ; they are profit-making companies funded by investors and advertising.
During the Twitter Joke Trial, Paul Chambers' lawyers argued that there was no case to answer as Twitter did not constitute a public communications system in the nationalised sense. However, Judge Davies refuted this and argued that Twitter was based on the internet, which is a fundamentally public network - despite being provided by a variety of profit-making ISPs, rather than being funded by the public for the public. Chambers' conviction was overturned by the High Court, but the definition of a public communications network still needs clarification.
Sentencing has varied wildly in Section 127 convictions. Furthermore, the Magistrates' Court Sentencing Guidelines refer only to "caller" and "receiver" for Section 127 offences on page 42 - no mention is even made of communications made via the internet; it is arguably unreasonable to sentence people under guidelines which do not relate to the nature of their offence.
- The menace of section 127, New Statesman, 2010-11-17
- Is the law criminalising 'improper' Twitter use a menace?, Guardian. 2012-04-27
- Jaw-jaw and law-law: freedom of speech online, Guardian, 2012-10-09
- Section 127 Communications Act 2003 - Threat or Menace?, Lilian Edwards blog, 2012-09-21
- Matthew Woods Facebook conviction – we cannot keep prosecuting jokes, Index on Censorship, 2012-10-08
- Sick comments on Twitter are now, ludicrously, a criminal offence. So how come no one has arrested Frankie Boyle?, Telegraph, 2012-10-10
- DPP drawing up guidelines for Twitter and Facebook, Telegraph, 2012-10-10
- Unpopular Twitter accounts could escape prosecution for 'grossly offensive' tweets, Telegraph, 2012-11-13
- For God's sake – the DPP *still* doesn't understand how the internet works. Meanwhile, he's planning to censor it, Telegraph, 2012-11-14
- Top prosecutor warns troll-hunting cops not to choke courts, Register, 2012-11-13
- To ask the Secretary of State for Justice what plans his Department has to extend the imprisonment term for people found guilty of breaching section 127(3) of the Communications Act 2003.
- Online harassment
- Malicious Communications Act 1988
- Section 127 - legislation.gov.uk
- Improper use of public electronic communications network CPS advice
- Section 127 - Open Rights Group
- Interim guidelines
- [Article 19 reaction
- Azhar Ahmed, a tasteless Facebook update, and more evidence of Brtain's terrifying new censorship, Independent, 2012-10-09
- Stan Collymore Twitter race abuser Joshua Cryer sentenced