A recent House of Lords case on an offence under the Communications Act 2003, s 127 may have important implications for all users and providers of electronic communication systems. Oliver Watson explains.
The facts of DPP v Collins  HL 40 are simply related. Between January 2002 and January 2004, Collins made a number of telephone calls to the office of his Member of Parliament in which he expressed his views on immigrants, asylum seekers and the provision of public support to aspirants to British citizenship. Collins spoke to his MP's staff and recorded answer phone messages; during both types of call Mr Collins made reference to the subjects of his complaints using the pejorative and racist phrases: 'wogs', 'pakis', 'black bastards' and 'niggers'.
A formal complaint was made, and Collins was prosecuted under the Communications Act 2003, s 127(1)(a), which says that a person is guilty of an offence if he sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent character. No surprises there. But, and this is where it becomes interesting, Collins was acquitted because the messages were not grossly offensive. The subsequent appeal by the DPP was overruled. The DPP then appealed to the House of Lords and on 19 July 2006 the Law Lords found for the DPP.
At first blush this might appear purely to be the prevailing of common sense. However, what the House of Lords held is not only relevant to the racist words used by Collins and the way that he communicated them, it also has ramifications for those who communicate by text-messaging, fax, e-mail, instant messenger chat or podcasting. The Communications Act 2003 defines public electronic communications network widely, both of the offences under s 127, that under s 127(1)(a) and the offence under s 127(1)(b) (causing a s 127(1)(a) message or matter to be sent), apply to communications sent over publicly available telecommunications networks. The s 127 offences are interesting also for the fact that, although the message or other matter must be sent or caused to be sent, it need not be received, and there is no mens rea requirement that the sender intended to offend the addressee or potential recipient.
The decisions of the court of first instance, and in the subsequent appeal in the Queen's Bench Division Divisional Court, turned on the distinction between messages that were offensive and those which crossed a further threshold of being grossly offensive. The messages sent by Collins were on both occasions deemed to have been offensive; Sedley LJ observed that 'to have found [Mr Collins'] messages to have been inoffensive would have been extraordinary'. However, Parliament's insertion of the word 'grossly' meant that the court of first instance had been right to consider and rule upon whether the messages had satisfied that criterion of the s 127(a) offence. Interestingly, whilst upholding the decision at first instance, Sedley LJ observed that, had the staff of the MP's office been members of an ethnic minority that 'it might well have been impossible, however stoically the hearer might have brushed it aside, to avoid the conclusion that the message was grossly offensive'.
In the House of Lords, the leading judgment of Lord Bingham reluctantly (but readily) disagreed with the standards of the particular 'reasonable person' used in the test applied by the lower courts. He observed that insulting terms might be adopted and used in an affectionate and unpejorative way - as a badge of honour - and offered the following clarification on the gross offensiveness element of the s 127(a) offence:
'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.'
Lord Bingham observed that there was nothing in the messages communicated by Collins that served to soften or mitigate their content, and had no hesitation in determining that they would be found by a reasonable person to be grossly offensive.
The s 127(1)(a) offence sits unhappily alongside the provisions of s 1 of the Malicious Communications Act 1988. Both can comprise the same actus reus (the sending of an electronic communication which conveys a message which is grossly offensive) but the s 1 offence applies equally to messages conveyed in an off-line format and, importantly, requires the sender to have intended for the message to cause distress or anxiety to the recipient or ultimate recipient of the message. In the off-line world, grossly offensive statements may be communicated to the like-minded but, according to Lord Brown (at ) 'the very act of sending the message over the public communications network (ordinarily the public telephone system) constitutes the offence [under s 127] even if it was being communicated to someone who the sender knew would not be in any way offended or distressed by it'.
It is now clear, if it wasn't before, that the particular pejorative and racist remarks made by Collins are capable of gross offence (subject to the possibility of other mitigating content that might prevent gross offence from being taken by the reasonable person). There remains, however, substantial doubt as to what other offensive names, phrases or vituperation might also cross the threshold of gross offence. The intention or recklessness of the sender (which must in part be evidenced by the overall content and effect of the message or other matter) is not a factor relevant to the determination of whether a s 127(1)(a) offence has been committed. This distinction between context and intention seems likely to prove artificial and troublesome in practice.
E-mail in particular – despite the warnings and rules of many employers – is a medium both for humour and a conversational style that can be conveyed onward with ease. Much humour involves one, or a combination, of the following ingredients: race, sex, sexuality and religion. Users of public electronic communications networks beware, each such ingredient is capable of being used to produce a funny or offensive result; it remains to be seen what the reasonable person is grossly offended by. As Lord Brown observed (at ):
'Quite where that leaves telephone chat-lines, the very essence of which might be thought to involve the sending of indecent or obscene messages such as are also proscribed by section 127(1)(a) was not explored before your Lordships and can be left for another day'.
Oliver Watson is a Solicitor in the Media IP and Commercial team at Wedlake Bell