Criminal offences committed via social media have skyrocketed in the last decade and continue to rise year on year. With the widespread use of TikTok, Instagram, Snapchat, Facebook, Whatsapp and X (previously Twitter), there has been a fundamental shift in the way evidence can be gathered to bring prosecutions. This is turn has led to a huge increase in police investigations, which begin via a request for a voluntary interview or, if evidence needs to be seized, the arrest of a suspect.
This is a specialist area with several piece of overlapping legislation. Given the possible consequences of receiving a criminal record, we strongly recommend obtaining expert legal advice if you are accused of any communication offence. In some instances, we can submit representations that no formal criminal sanction is appropriate in order to preserve your clean record.
We are able to assist you wherever you are in the country and can offer both face-to-face and virtual meetings.
Obtaining legal advice at an early stage is crucial. If you would like to discuss any aspect of your case, please email us at [email protected] or contact us here. Alternatively, you can phone 0333 240 7373.
Defences and Related Offences
People often contact us after sending messages online that they did not realise could amount to a criminal offence. Situations we commonly see include:
- Messages sent during a personal dispute, relationship breakdown, or other stressful periods.
- If two or more messages are sent, police may consider whether a separate offence of harassment has been committed. Malicious communications and harassment are therefore often mentioned together by the police.
- Messages sent to public figures, organisations, or individuals via social media or messaging platforms to express disapproval or to ‘troll’. In some instances, personal factors such as autism or neurodivergence are important in understanding the full circumstances.
There are various criminal offences which cover threatening, abusive or obscene communications online, including under the Malicious Communications Act, the Communications Act, and the Online Safety Act. Where there have been at least two instances of contact, the offence of harassment may also be alleged under the Protection of Harassment Act.
S.127 Communications Act 2003 – Sending a communication that is either grossly offensive, or of an indecent, obscene, or menacing character
This is the offence most commonly prosecuted in cases involving alleged malicious communications. Prosecutions often turn on whether the message meets the high threshold required for it to be considered ‘grossly offensive’.
What is ‘grossly offensive” in law?
The term ‘grossly offensive’ is not closely defined in law – and therefore is an area which is open to legal argument and requires professional judgment. The case law states that it is a high bar and that the court must apply the standards of ‘an open and just multi-racial society’.
The prosecution must also prove that the offender intended that his message be grossly offensive or that he was aware at the time of sending that it might be taken to be so by a reasonable member of the public. It is worth noting that posting a message generally to social media, not for the attention of a specific individual or group, is still an offence.
What is ‘menacing’ in law?
If the allegation involves alleged ‘menacing’ content, the case law states that it must create ‘a sense of apprehension or fear’ (Chamber v DPP). This is a noticeably lower bar for the prosecution to prove.
The suspect must also have intended the message to be of a menacing character or have been aware of a risk that it may create fear or apprehension in any reasonable member of the public (Chambers v DPP [2012] EWHC 2157, approved in DPP v Kingsley Smith [2017] EWHC 359 (Admin).
S.1 Malicious Communications Act 1988 – Sending a communication which is indecent or grossly offensive.
The offence under s.1 requires that the communication is ‘grossly offensive’ as above. However, the suspect must have intent for the message to cause distress or anxiety to the recipient. This differs from the above offence under s.127, and means that it is often considered more difficult to prove.
The right to freedom of expression is an important consideration – prosecutors must consider whether the communication crosses the threshold at which interference with the right to freedom of expression (Art. 10 ECHR) is necessary and proportionate.
s.179 The online safety Act 2023 – false communication
This offence is committed by sending a message which conveys information that the person knows to be false. The person sending the message must intend to cause non-trivial psychological or physical harm to a likely audience. However, it is a defence to show a reasonable excuse for sending the message.
S.181 The online safety Act 2023 – Threatening communication
A person commits an offence if they send a message which conveys a threat of death or serious harm, and at the time of sending it, the person intended the recipient to fear that the threat would be carried out or was reckless as to whether the recipient would fear that the threat would be carried out.
If the allegation involves a threat of serious financial loss, it is a defence for the person to show that the threat was used to reinforce a reasonable demand, and the person reasonably believed that the use of the threat was a proper means of reinforcing the deman
The range of defences available will depend on the specific charge, whether under section 1 of the Malicious Communications Act 1988 or section 127 of the Communications Act 2003.
Message not “grossly offensive”
For both offences, the prosecution must prove that the message meets the high statutory threshold of being “grossly offensive” (or indecent). Parliament deliberately set this threshold at a high level. Committee guidance makes clear that prosecutions under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 will generally only be appropriate where a communication goes beyond being merely rude, offensive, shocking or disturbing.
The guidance also states that the expression of unpopular opinions, banter or humour should not be criminalised, even where it is distasteful or painful. In practice, this high threshold is sometimes misunderstood, leading to unlawful arrests or unnecessary investigations.
Lack of evidence as to who sent the message
The police may seek to rely on IP address data, device evidence or social media account information to prove authorship. In some cases, this evidence is unclear, incomplete or does not meet the required standard of proof. Careful analysis is often needed where accounts are shared, devices are accessible to others, or attribution relies heavily on screenshots alone.
No intent to cause distress or anxiety
This defence applies specifically to section 1 of the Malicious Communications Act 1988, which requires proof that the message was sent with the purpose of causing distress or anxiety. Where a message was sent as a joke, sarcasm or emotional reaction, or where the sender has relevant vulnerabilities such as autism, learning difficulties or other forms of neurodiversity, the issue of intention may be central to the defence.
Allegations of malicious communications and related offences are often investigated by way of voluntary interviews under caution. If the police have asked to interview you, we strongly recommend obtaining specialist legal advice. Decisions made at interview can play a fundamental role in determining the outcome of the case.
We always seek to obtain as much information as possible from the investigating officer before an interview takes place, including details of the messages relied upon, the evidence said to link them to the suspect, and the officer’s initial assessment of the case. Following the interview, we can make representations for a low-level outcome such as a community resolution or caution. Where an allegation is denied, we can set out detailed arguments challenging the strength of the evidence.
We routinely see individuals, including school-aged children, interviewed on the basis of social media posts or messages that clearly do not meet the legal threshold for a malicious communications offence. In some cases, suspects are invited to accept cautions or other disposals in circumstances where this is inappropriate.
We provide clear, honest and non-judgmental advice. We robustly defend our clients’ interests and focus on securing the most favourable outcome available in each case.
We understand that it can be intimidating to contact a defence solicitor, especially if you have never faced an allegation before. Our friendly team is always happy to receive enquires and set up an initial consultation, which can be either in person or virtually over Microsoft Teams. We always provide a clear quote, outlining our fees, which can be either fixed or on our hourly rate.
If you would like to discuss any aspect of your case, please email us at [email protected] or contact us here. Alternatively, you can phone 0333 240 7373
Frequently Asked Questions
The prosecution must prove, beyond reasonable doubt, that the defendant intentionally sent the message.
Typically, the evidence relied upon will include mobile phone messaging evidence, such as WhatsApp messages, IP address data, evidence that the relevant account was registered to a particular individual, or material showing that the message was sent from a social media or messaging account linked to the suspect. This may include account details containing the suspect’s personal information, login data, or platform records connecting the account to a specific device or user.
We cover most police stations, Magistrates Courts and Crown Courts nationwide, including these areas:
- London
- Oxford
- Reading
- Bristol
- Cardiff
- Manchester
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