There are various criminal offences which cover threatening, abusive or obscene communications via social media, 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
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 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.
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 suspect must have intent for the message to cause distress or anxiety to the recipient.
There is no statutory definition of what constitutes a ‘grossly offensive’ communication. Each case must be assessed on its merits, considering the content of the communication and the context in which it was sent.
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. 187 The online safety Act 2023 – Sending unsolicited nudes (‘cyber-flashing’ / sending ‘dick pics’) – sending photographs or film of genitals
The offence is committed when a person intentionally sends a photograph or film of any person’s genitals to another person. The suspect must intend that the recipient will see the genitals and be caused alarm, distress or humiliation.
The offence is also committed if the suspect sends a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether the recipient will be caused alarm, distress or humiliation.
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 demand.
s.183 Online Safety Act 2023 – sending/showing flashing images electronically (sometimes known as epilepsy trolling)
A person commits an offence if they send a communication, which includes flashing images, and has no reasonable excuse for sending the communication. In addition, it must be reasonably foreseeable that an individual with epilepsy would be among the individuals who would view it, and the suspect must intent that the individual would suffer harm as a result of viewing the flashing images.
s. 184 Online Safety Act – Offence of encouraging or assisting serious self-harm
A person commits an offence if they act to encourage or assist the serious self-harm of another person, and they intended to encourage or assist that harm. The ‘act’ includes communication in person, messages online and publishing material.
