Striking a balance - Malicious Communication Act and free speech
There has been an increasing number of prosecution of persons using Twitter and other social media platforms in respect of online abuse of others, particularly public figures. In cases where the prosecution is in respect of public figures there is a real issue in respect of the right to free speech.
So, to what extent is someone protected over adverse comment that could be said to be free speech? To answer that question it’s worth looking at the history and legal position in this tricky area.
The legislation sets out the position clearly:
Section 1 of the Malicious Communications Act 1988 sets out the following offence
1. Offence of sending letters etc. with intent to cause distress or anxiety.
(1) Any person who sends to another person—
(a) a [letter, electronic communication or article of any description] which conveys—
(i) a message which is indecent or grossly offensive;
(ii) a threat; or
(iii) information which is false and known or believed to be false by the sender; or
(b) any [article or electronic communication] which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
But it is obvious from the date of the Act (1988) that this predates the digital age, especially social media sites such as Twitter. Therefore, to understand how the Act is used it is worth considering the history.
The genesis of the Act
The Act was intended to deal with ‘poison pen’ letters, and was brought forward as a Private Member’s Bill in 1988 following the Law Commission’s ‘Report on Poison-Pen Letters’. During the Bill’s second reading, three strands of the debate are apparent. The first being that MPs accept language directed at them which is above and beyond that which ordinary members of the public should expect to deal with. Mr Andy Stewart MP was the Bill’s sponsor. He noted on 12 February 1988 that:
We accept such [poison pen] letters as part and parcel of our job, but, nevertheless, many innocent people and their families have had their lives completely ruined by such mail and have had no redress. In a civilised society that cannot be tolerated.
And Mr Hugo Summers MP stated:
As Hon. Members have said, we receive malicious and unpleasant communications. I do not mind that, provided that I know who sent them. We are fair game in this place. People can write us hard and unpleasant letters and, provided that they are not gratuitously unpleasant, we can handle them.
The second strand was closely related, and related to fears that freedom of speech could be curtailed to an unwarranted extend by the Bill. Mr Greg Knight MP stated:
We must remember that while we wish to prevent unnecessary distress, we live in a free society where free speech, vigorous debate and the strong expression of opinion should not be discouraged.
The third strand that arises from the debate is that the purpose of the Act is to punish the malicious purpose of any perpetrator, rather than the mere form of the message. John Patten MP, Minister of State at the Home Office noted:
The essence of the behaviour that my Hon. Friend seeks to outlaw, what makes it criminal rather than merely undesirable, is the malicious purpose in the mind of the perpetrator. That is where it starts. We are not after the form; we are after the perpetrator. That is the key to the Bill.
The human rights element
Parliament has enacted particular safeguards in respect of the second strand, the importance of freedom of expression.
The Human Rights Act 1998 incorporates the provisions of the European Convention on Human Rights into domestic law, including Article 10. Article 10 reads:
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The primacy of Article 10 is articulated by section 12 HRA 1998, which requires the Courts to have ‘…particular regard to the importance of the Convention right to freedom of expression…’.
The importance attached to Article 10 has been recognised independently by domestic Courts, which have noted that freedom of expression is ‘the primary right in a democracy’ (McCartan Turkington Breen v Times Newspapers  2 AC 277, 297 per Lord Steyn.).
More generally, Sedley LJ has observed:
Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. (Redmond-Bate v DPP  HRLR 249)
The Strasbourg Court holds a similar zealous interpretation of Article 10. It enjoys a special status under the Convention, and the Court has variously stated that it:
is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society. (Handyside v United Kingdom  1 EHRR 373, )
Freedom of expression constitutes one of the essential foundations of a democratic society subject to paragraph (2) of Article 10. It is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference but also to those that offend, shock or disturb. Freedom of expression as enshrined in Article 10 is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established. (Sunday Times v United Kingdom No (2)  14 EHRR 123)
Strasbourg provides differing levels of protection to different types of speech. The category which attracts the strongest level of protection is political speech, in which it recalls that ‘there is little scope under Article 10(2) of the Convention for restrictions on political speech or on debate of questions of public interest’ (Wingrove v. United Kingdom, (1997) 24 EHRR 1, ).
Political speech directed against politicians will attract an even greater level of protection, something which was explicitly noted by Mr Summers MP relating to the first strand (paras. 2-3 above). The Strasbourg Court stated in Lingens v. Austria (1986) 8 EHRR 407:
…freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention. The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.
The Divisional Court similarly observed in Percy v DPP  EWHC Admin 1125 at , that conduct which could distress some people might be expected to be “water off a duck's back” to another.
The operation of the Act
The mental element
This relates to strand 3, namely that the purpose of the Act is to punish a perpetrator for his malicious intent, not his actual words. This entails that an offence under s. 1 is only made out where the defendant has ‘acted with a specific purpose in mind’ (Chambers v DPP  1 WLR 1833, ).
In the particular context of s. 1, this means that the Crown must make you sure that the purpose, or one of the communicator’s purposes, in sending the message is that it should cause distress or anxiety to the recipient or to any other person to whom he intends that it should be communicated to. In respect of specific intent under s. 1 Malicious Communications Act 1988, Lord Brown of Eaton-Under-Heywood stated in Collins v DPP 1 WLR 2223 that that particular intent requires that the sender:
Must intend it to cause distress or anxiety to its immediate or eventual recipient ().
Whether the recipient was actually caused anxiety or distress is not a constituent element of the offence.
The position of specific intent under s. 1 MCA is in contrast to an offence under s. 127(1)(a) of the Communications Act 2003, which does not require that a message be sent with any requisite intent, and looks instead primarily at the content of the message:
(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.
There, with basic intent:
a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender (Collins  1 WLR 2223, ).
The message itself
- The contents of the communication or actus reus of the offence is sending a message, the contents of which is indecent, grossly offensive, a threat, or is information which is false. These elements are specific to each particular offence, and are not discussed in this note.
The CPS Guidelines on Prosecuting Cases sent via Social Media may be viewed here.
Communications are assessed by their content, and placed into one of four categories:
Communications which may constitute threats of violence to the person or damage to property.
Communications which specifically target an individual or individuals and which may constitute harassment or stalking, controlling or coercive behaviour, disclosing private sexual images without consent, an offence under the Sexual Offences Act 2003, blackmail or another offence.
Communications which may amount to a breach of a court order or a statutory prohibition.
Communications which do not fall into any of the categories above fall to be considered separately, i.e. those which may be considered grossly offensive, indecent, obscene or false.
Based on the content of the alleged tweet in question, which included a reference to hanging, I have assumed that the relevant category in consideration is Category 1.
The effect on the recipient
In relation to Category One, the guidance continues:
Threats of violence to the person or damage to property may also fall to be considered under section 1 of the Malicious Communications Act 1988, which prohibits the sending of an electronic communication which conveys a threat, or section 127 of the Communications Act 2003 which prohibits the sending of messages of a "menacing character" by means of a public telecommunications network
Prosecutors are specifically urged to refer to words of Judge LCJ in Chambers v DPP 1 WLR 1833, :
The telephone operator in the 1930s and 1940s may not have believed that the person using the telephone to threaten violence would or could implement the threat, but that would not extinguish its menacing character. After all a message which cannot or is unlikely to be implemented may nevertheless create a sense of apprehension or fear in the person who receives or reads it. However unless it does so, it is difficult to see how it can sensibly be described as a message of a menacing character. So, if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision, for the very simple reason that the message lacks menace.(The underlined section is quoted in the CPS Guidance. The fuller quote is provided for context).
This passage is referring to an offence under s127 Communications Act, and particularly the sending of a message of a ‘menacing’ character. However, the CPS Guidance appears to quote this passage with reference to prosecutions under both that Act, and the Malicious Communications Act. The general point of this passage – that the effect of the message on the recipient can colour the description of that message - should be considered whether to initiate a prosecution under s. 1 also, for example in assessing whether the message contained a ‘threat’.
The reference to the effect of the communication on the recipient is also referenced in respect of the public interest test. This guidance is in the context of Category 4 cases (where the message is grossly offensive, indecent, obscene, or false), however, it is submitted that it is of general import. The Guidance states:
In considering the public interest questions set out in paragraph 4.12 of the Code, prosecutors should have particular regard to paragraph 4.12(c) and the question asked about the circumstances of and harm caused to the victim, where the communication is targeted at a particular person. If there is clear evidence of an intention to cause distress or anxiety, prosecutors should carefully weigh the effect on the victim, particularly where:
- The victim was at the time a person serving the public.
- There are coordinated attacks by different people or there is a campaign of abuse or harassment against the victim, sometimes referred to as "virtual mobbing".
- The offence is repeated.
The Guidance also contains a specific section relating to the context of the message. Whilst this appears to be applicable to Category 4 cases. Again, however, it is submitted that it also contains guidance of general import. The guidance notes:
Context is important and prosecutors should have regard to the fact that the context in which interactive social media dialogue takes place is quite different to the context in which other communications take place. Access is ubiquitous and instantaneous. Banter, jokes and offensive comments are commonplace and often spontaneous…
prosecutors should only proceed with cases under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 where they are satisfied there is sufficient evidence that the communication in question is more than:
- Offensive, shocking or disturbing; or
- Satirical, iconoclastic or rude comment; 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.
The dicta of Lord Bingham of Cornhill in Collins is also referenced, specifically whether:
[there is anything] in the content or tenor of [the] messages to soften or mitigate the effect of [the] language in any way
The Guidance has specific passages relating to Article 10 ECHR concerns. Again, this are stated to apply to Category 4 cases. The guidance is as follows:
…no prosecution should be brought under section 1 of the Malicious Communications Act 1988 or section 127 of the Communications Act 2003 (Category 4 cases) unless it can be shown on its own facts and merits to be both necessary and proportionate.
A prosecution is unlikely to be both necessary and proportionate where:
- The suspect has expressed genuine remorse;
- Swift and effective action has been taken by the suspect and/or others for example, service providers, to remove the communication in question or otherwise block access to it;
- The communication was not intended for a wide audience, nor was that the obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question; or
- The content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression.
A decision to launch a prosecution for an offence under s. 1 Malicious Communications Act should be considered carefully. The intent of the Act was to sanction only those who directed messages with knowing and malicious intent to cause the intended recipients distress or anxiety. Supporting the objective of the Parliamentary drafters is the strong protection given to both political speech, and speech directed against politicians by the European Convention on Human Rights, the Human Rights Act, and the common-law.
The spirit of the above should be reflected in the CPS Guidance on Prosecuting Social Media Offences, and it should, therefore, be read in the light of the same, particularly any references in the guidance which appear to relate to Category Four offences. It is possible to draw from guidance related to those particular offences general guidance which is supportive of the general importance attached to free speech, and which should therefore be considered when commencing a prosecution for any category of offence. Any prosecutor should therefore consider:
- The intent of the sender
- The effect, or potential effect, on the intended or actual recipient(s);
- The context of the message; and
- The subsequent actions of the sender.
Before deciding that a Prosecution should be commenced.
Quentin Hunt has extensive experience in dealing with cases of this sort, he has advised and acted in cases of high import, including cases involving the online abuse of MPs via Twitter.
If you find yourself requiring advice or representation in respect of a matter of this sort you may contact Quentin for a no obligation conversation about your case.
POSTED: Monday, May 28, 2018