Section 127 of the Communications Act 2003 is a pivotal piece of legislation in the UK that addresses the misuse of public electronic communications networks. I have found that this section has been increasingly used by prosecution authorities in this age of widespread use of social media, where online communication is ubiquitous. An analysis of the Act shows that people must be increasingly careful in respect of the use of language and intent when making use of Internet based communication.

Section 127 of the Communications Act 2003- the ‘elements’ of the Offence

When the prosecution is launched the prosecutor must prove the offence to the criminal standard which is that the offence must be proved so that the magistrates or jury are sure, or beyond reasonable doubt. In order to do this the prosecution must prove, to that standard, the elements of the offence. If one or more of these elements is not proved, then the prosecution will be unsuccessful and the defendant will be acquitted. Section 127 of the Communications Act 2003 criminalises two distinct types of behaviour:

1. Section 127(1): Improper Use of Public Electronic Communications Network 

This subsection makes it an offence to send or cause to be sent a message or other matter that is grossly offensive, indecent, obscene, or menacing through a public electronic communications network. The elements include: 

• The message must be sent or caused to be sent by the defendant.
• The message must be transmitted via a public electronic communications network (e.g., social media, text messages, or emails).
• The content of the message must be grossly offensive, indecent, obscene, or of a menacing character. 

The courts have interpreted "grossly offensive" broadly, focusing on the impact the message would have on a reasonable person. Notably and importantly, the sender's intent is not a required element; the offence is committed if the message meets the threshold of being grossly offensive, regardless of the sender's intention.

2. Section 127(2): False Messages and Persistent Misuse

This subsection criminalises sending false messages or persistently making use of a public electronic communications network to cause annoyance, inconvenience, or needless anxiety. The elements are: 

•   Sending a message known to be false.
• Persistent misuse of the network with the intent to cause annoyance, inconvenience, or anxiety. 

Unlike Section 127(1), intent is relevant here, as the prosecution must prove that the defendant knowingly sent false information or acted with the purpose of causing harm.

Potential Defences to a Prosecution under Section 127

Every case will be different, and I have found that for each potential offence under section 127 there may be a different legal or factual defence. It is strongly advised to seek experienced legal advice if one is charged or faces charge for a section 127 offence. Defendants facing charges under Section 127 may rely on potential defences, that include: 

Lack of Knowledge or Intent- for Section 127(2)

For charges under Section 127(2), a defendant may argue that they did not know the message was false or that they did not intend to cause annoyance, inconvenience, or anxiety. 

Freedom of Expression under Article 10 of the European Convention on Human Rights (ECHR)

 Defendants may invoke Article 10 ECHR, which protects freedom of expression. However, this right is not absolute and may be restricted if the communication is deemed harmful or offensive. Courts will balance the right to free speech against the need to protect others from harm. 

A Contextual Defence

The context in which the message was sent may be used as a defence. For example, a message that appears offensive on its face may be justified if it was sent in a specific context, such as satire or artistic expression.  For example- airport case.

A Factual defence

The defendant may choose to argue that as a matter of fact either they were not responsible for sending the message in question or that the message in question was not grossly offensive indecent or obscene for the purposes of s127(1). Or they could argue that the message was not incorrect or that they did not know that it was incorrect, for the purposes of section 127(2).

Each case is of course different on its face but an example of a factual defence being successfully run is a case that I dealt with involving allegedly racist abuse of the footballer Marcus Rashford over Twitter. I was able to argue that the defendant left his phone unattended at a house party following an England football match and that it was not the defendant but must have been somebody else at the party who used the handset to send the racist abuse. This argument was accepted by the court, and my client was acquitted.

Technical Issues

 A defendant may argue that that the message was sent due to a technical error, such as hacking or a compromised account. 

A comparison with Section 1 of the Malicious Communications Act 1988

While both Section 127 of the Communications Act 2003 and Section 1 of the Malicious Communications Act 1988 address harmful communications, there are key differences between the two provisions: 

Scope of the Offences

Section 127 of the Communications Act 2003 applies specifically to messages sent via public electronic communications networks. Whereas section 1 of the Malicious Communications Act 1988 covers communications sent by any means, including letters, emails, and social media, but focuses on communications intended to cause distress or anxiety. 

Mens Rea or the Mental Element to the offence 

For Section 127(1), intent is not required; the offence is committed if the message is grossly offensive, regardless of the sender's intent. For Section 127(2), intent is relevant.  In Section 1 of the Malicious Communications Act proof is required that the sender intended to cause distress or anxiety. 

Venue, penalties and time limits

Section 127 of the Communications Act 2003 is what lawyers call a summary only offence, this means that the offence can only be tried in the Magistrates Court. The maximum penalty for a defendant convicted of such an offence is 6 months imprisonment and stroke or an unlimited fine. Section 1 of the Communications Act 1988 however, is an either way offence this means that the matter can be tried in either the Magistrates Court or the Crown Court depending upon the complexity and severity of the case and the decision of the court and the parties involved. In the Magistrates Court the penalty is the same as the Communications Act offence, six months imprisonment and/or an unlimited fine. Whereas in the Crown Court the maximum penalty is more severe, a two year potential period of imprisonment and or an unlimited fine.

There is a time limit of six months from the commission of the offence to when somebody is charged for any summary only offence. As a result, in respect of Communication Act offences, many offences can be time barred due to the fact that the six-month period has elapsed. On the other hand, there is no time limit for the bringing of a prosecution under the Malicious Communications Act as it is an either way offence.

I have found that this has led to some defendants being charged with the potentially more serious offence under the Malicious Communications Act, simply because the matter would be out of time for the Communications Act offence. If this is the case, and the wrong offence has been charged, then a lawyer may wish to make applications to the prosecution and court in respect of the propriety of the prosecution. If you face these circumstances, it may be advisable to seek specialist legal advice.

Conclusion

Many say that Section 127 of the Communications Act 2003 say that the Act plays a crucial role in regulating online and electronic communications in the UK by criminalising grossly offensive, indecent, obscene, or menacing messages, as well as false or persistently annoying communications.

Those who argue against the provision would say that prosecution authorities are far too quick to prosecute individuals under this section and that dissection is a dangerous method of the state suppressing political satire, valid arguments and free speech.

Whatever the position, as digital communication continues to evolve, this provision will remain central to the prosecution authorities addressing the challenges of online behaviour and trying to ensure accountability in this digital age.

Quentin Hunt is a criminal defence barrister who specialises in defending cases under both the Communications Act and the Malicious Communications Act. He has defended in many high profile cases involving Premier League footballers, members of parliament and others. He specialises in arguing cases that involve infringements of the right to free speech and free expression involving arguments under the Human Rights Act. He accepts instructions both through solicitors and directly from members of the public. 

If you are accused of a communications offence or if you face prosecution for such an offence, then you may wish to instruct an experienced advocate to give you a corner. You may contact Quentin for free, no obligation discussion about your case.