Police handling of online posts has come under intense media scrutiny this month, after three senior police chiefs urged the government to reform the law. Met Police Commissioner Sir Mark Rowley warned that officers should not be used as “arbiters of Twitter” and called for a sharper focus on genuine “real-world threats.” The debate is often framed as a free speech issue. Civil liberties group Big Brother Watch has described the laws as “vague and ripe for abuse, enabling people to weaponise the police against those whose views they dislike.”
This article explores the current law, recent examples of overzealous arrests, and whether there are areas that need reform.
The Patchwork of Offences
Many of the problems the police face in this area are, to some extent, self-inflicted. Under the most commonly used provision, s.127 of the Communications Act 2003, the threshold for what is “grossly offensive” is higher than many officers appreciate. Parliamentary guidance makes it clear that messages should be more than merely “offensive, shocking or disturbing” and that the “expression of unpopular opinions, banter or humour, even if it is distasteful or painful” is not criminal. By applying this threshold properly, some of the concerns would be addressed.
Nevertheless, an issue remains within this legislation in that an offence is also committed by sending a “menacing” message – a term which is poorly defined and open to an overly broad interpretation. In one recent case, I represented a teenager who was interviewed by the police for sending a “menacing” message to another student, which made a vague threat that he would “go mad” if the bullying of his sister was to continue. This investigation should never have happened, and a clearer statutory definition of “menacing” would help prevent such overreach.
This complexity is compounded by the fact that the law draws distinctions depending on where and how a message is made. The same words shouted in a public place may be prosecuted under the Public Order Act, expressed online as a one-off under the Communications Act, Malicious Communications Act or, in serious cases, the Online Safety Act. If repeated and directed at an individual, it may fall under the Harassment Act. The result is a patchwork system where identical conduct can trigger entirely different offences depending on context.
Because of overlapping criminal offences, questions of what is “offensive” are not always central to the high-profile cases of alleged overreach. In September 2025, TV writer Graham Linehan, best known for Father Ted, was arrested at the airport for reportedly posting on X:
“If a trans-identified male is in a female-only space, he is committing a violent, abusive act. Make a scene, call the cops and if all else fails, punch him in the balls.”
It could be argued that an offence under the Serious Crime Act 2007, sections 44–46 (“encouraging the commission of another offence” – in this case assault) was committed. In practice this provision is rarely used for prosecution, but it shows that focusing solely on the Communications Act would not necessarily solve the problem.
Another example illustrates how easily ordinary disputes can escalate into criminal investigation. In January 2025, two parents in Hertfordshire were arrested for reportedly sending WhatsApp messages to their child’s primary school. A closer look at the facts reveals that there was a wider background: the parents were accused of sending numerous messages which upset staff. It is likely that the police were considering a possible offence of harassment via a course of conduct, rather than malicious communication. The definition of “harassment” is not fixed in law, but case law says the conduct must be “oppressive and unacceptable.”
Conclusion
The perception of what is “grossly offensive” will inevitably change over time with evolving standards in society. Although the test is technically objective (would a reasonable person find the message “grossly offensive”), in practice it leaves officers making subjective calls at the outset of an investigation. That is why proper training and clear guidance are essential, so police are aware of the high threshold and can avoid wasting resources on trivial cases.
Parliament should also urgently revisit the definition of “menacing,” which currently sets too low a bar and has led to disproportionate investigations of young people and ordinary citizens.
There will always be an inherent tension between freedom of expression and the need to protect from harm. If officers are to be used less as the “arbiters of Twitter,” there should be a policy shift towards tackling repeated and targeted online abuse under the Harassment Act, avoiding the need to judge the level of offence caused by individual comments. However, harassment offences also require careful judgment. The law expects conduct to reach a level of seriousness that goes beyond ordinary disputes or unwanted messages, and that bar is often applied too low in practice. Without better training and a clearer understanding of these thresholds, disproportionate arrests are likely to continue.
For detailed guidance on defending allegations arising from online messages or social media activity, visit our dedicated page: Malicious Communication & Social Media Offences Solicitors
About the Author
Nathan is a Partner and Solicitor in Reeds’ Private Crime Team. He specialises in defending clients accused of malicious communications and other online offences and regularly submits written representations to the police and CPS, arguing against prosecution.
