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Sep 15 2012

What makes a message grossly offensive?

Bernard Hurley did a very informative comment about the law under which Azhar Ahmed was found guilty of  “posting an offensive Facebook message.” It’s too informative to hide in comments so here it is.

Bernard Hurley

Ahmed was prosecuted under clause 127(1)(a) of the Communications Act 2003. The purpose of the act is to define the rôle of OFCOM and to regulate such things a local radio and indeed any services running over publicly funded or partially publicly funded electronic networks. Section 127 is buried in the middle of it and reads:

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)).

As far as I can tell, the intent of the legislation was to stop nuisance calls, but, as can be seen, it is very vague. The judgement is only in a magistrate’s court; personally I think it should be appealed. I think, Ophelia, you have put your finger on two legal problems. Which are:

(A) What precisely is a message in the context of services like Facebook?

and:

(B) What makes a message grossly offensive?

The second of these is dealt by the Law Lords decision in DPP vs Collins http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060719/collin.pdf In this case Collins had sent repeated telephone messages to his MP in which he called immigrants and asylum seekers “Wogs”, “Pakis”, “Black bastards”, and “Niggers”. One question at issue were whether, in the given context, this was grossly offensive or merely offensive. The context includes the fact that the actual recipient of the message was likely a secretary or an intern and that Collins did not know or care whether this person would be offended.

The Law Lords found for the DPP (i.e. the messages were grossly offensive) however the criteria they used look like a legal minefield to me:

“Usages and sensitivities may change over time … 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 whom it relates.”

As to (A) it seems that a message has to have a recipient or group of recipients. I’m not sure what the distinction is as regards Internet communications. Is there a distinction between a blog post and a comment on the blog? Is there a distinction between posting something on your status and posting the same thing on someone else’s timeline? I’m not sure what Ahmed did and why it was considered to be a message.

However there is another interesting part of DPP vs Collins. It is made clear that the aim of this particular offence is to prevent a service provided and funded by the public, for the benefit of the public, for the transmission of communications from being used in a way that contravenes certain basic standards. In the UK most of the land line and internet backbone is publicly funded and in practice it is difficult to avoid using them. However it is clear that the law does not apply to a companies private network, it it does not use these services. It would presumably not apply to a message sent over a completely privately owned mobile phone network either.

6 comments

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  1. 1
    Walton

    This is slightly surreal… section 127(1)(a) was the subject of my MSc dissertation. It’s good to see someone else paying attention to it.

    Collins is a very strange case. Lord Bingham said that the purpose of section 127(1)(a) was not to protect people from receiving messages that they find offensive. (That goal is already achieved by a different statute, the Malicious Communications Act 1981.) Rather, it was “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.” He added that “the actus reus of the offence… is the sending of a message of the proscribed character by the defined means.” So the offence is completed when the message is sent, whether or not the recipient was actually offended – indeed, whether or not the message was received by anyone at all. He also held that the question was whether the message was “grossly offensive” according to the standards of society in general, not whether the actual or intended recipient found it offensive. It’s up to the magistrates, applying the standards of “an open and just multiracial society”, to decide whether a particular message is “grossly offensive”.

    It’s obvious that this is potentially a very broad and sweeping prohibition. Following the Collins judgment, a legal scholar named James Annabelle pointed out that “…communications between two fully competent and consenting adults could be criminalised under s.127, for example, through their use of a telephone sex chat line, if the content of such communications were judged objectively to be grossly offensive or of an indecent or obscene nature.”

    The history of the provision is also interesting. It comes originally from the Post Office (Amendment) Act 1935, when it applied exclusively to telephone messages. It’s been re-enacted in several subsequent statutes, with slight changes in wording: the current version (enacted in 2003) applies to any “public electronic communications network”, which has been interpreted by the courts to include the Internet as well as the telephone network.

  2. 2
    julian

    Walton! I missed you :)

  3. 3
    kagerato

    The additional information from Bernard Hurley and Walton makes it abundantly clear to me that this is a “law for authority’s sake”. Specifically, a law created purely for the purpose of furthering the power and ambitions of authoritarians to selectively punish people they don’t like. They never bother to consider that they might fall out of power and have their own laws used against them.

  4. 4
    Brigadista

    Sorry if I’m repeating something that has been mentioned elsewhere, but isn’t this the same Act that Paul Chambers was charged under? As kagerato says, it’s worrying to think that a law that is liable to such subjective interpretation could be used as a kind of “when all else fails” provision to convict someone who has annoyed the powers that be.

  5. 5
    Walton

    Brigadista: Yes. Paul Chambers was charged and convicted under section 127 for allegedly sending a “threatening” message, although he has successfully appealed against his conviction.

  6. 6
    Tony C

    Walton: I am a student currently doing a project on laws surrounding offensive communications on the internet, specifically looking at section 127 of the Communications Act and the Malicious Communications Act. I’ve been trying to find sources to help define “grossly offensive” and would be really interested to hear about your research and what conclusions you came to.

  1. 7
    UK police policy on Cyberbullying, cyberstalking & online harassment

    [...] What makes a message ‘grossly offensive’? [...]

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