s127(1) of the Communications Act 2003 makes it a criminal offence to send (or cause to be sent) “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“.
The offence can only be prosecuted on summary complaint, and the maximum penalty is a £5,000 fine.
“sends…[or] causes…to be…sent”
This means the message does not need to reach its intended recipient for the offence to be committed. The offence is completed when the act of sending is complete.
“public electronic communications network”
This is defined in s151 of the 2003 Act as “an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public“.
This means using a keyboard or speaker (e.g. telephone / internet).
“a message or other matter”
A message can be from Twitter, internet forums, WhatsApp, iMessage, Facebook Messenger, etc.
“grossly offensive or of an indecent, obscene or menacing character”
The issues is when does a message cross the line between “offensive” (which is ok) and “grossly offensive” (which is not)?
That depends, the leading case in the UK on s127(1) offences is the 2006 case of DPP v Collins
“It is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. Usages and sensitivities may change over time. Language otherwise insulting may be used in an unpejorative, even affectionate, way, or may be adopted as a badge of honour (“Old Contemptibles”). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates”
Lord Bingham at paragraph 9
DPP v Collins also makes clear that “it must be proved that the respondent intended his words to be offensive to those to whom they related or be aware that they may be taken to be so“
To base criminal liability on whether the recipient found the message grossly offensive or not would be “an unforeseeable contingency” (paragraph 8).
The courts are left to determine whether, in context, a particular message or communication was intentionally grossly offensive, indecent, obscene or menacing character, according to the standards of the day.
There are several recent examples of high-profile s127 prosecutions, such as the “Twitter Joke Trial” and, closer to home, “M8 Yer Dugs a Nazi”. These examples show how s127(1) of the 2003 Act has been applied in practice.
Another example of how s127(1) is applied by courts today is found in the 2016 case of Brown v PF Ayr.