Malicious Communications Act 1988
The Offence of Communication with Intent to Cause Distress or Anxiety
Section 1 of the Malicious Communications Act 1998 makes it an offence to send another person a ‘letter, electronic communication or article of any description’ which conveys:
- A message which is indecent or grossly offensive;
- A threat; or
- Information which is false and known or believed to be false by the sender.
Section 1 also makes it an offence to send another person ‘any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature’.
To have the mens rea of this offence, the defendant must have had the purpose of causing distress or anxiety to the recipient or to any other person he intends the content or nature of the message to be communicated to.
An electronic communication includes oral or other communications sent over an electronic communications network and any communication sent in electronic form. This includes any platform connected to the internet, such as Twitter: Chambers v DPP  EWHC 2157 (Admin).
‘Sending’ includes delivering and transmitting, as well as causing the transmission or delivery of a communication.
It is insufficient that a reasonable person would realise that the message would likely cause distress or anxiety. Rather, the defendant’s subjective purpose must be causing distress or anxiety. This test is unlikely to be met if the defendant intended his message as a joke: Chambers v DPP  EWHC 2157 (Admin).
The defendant will not have committed the offence of sending a threat under the Malicious Communications Act 1988 if:
- The threat was used to reinforce a demand made on reasonable grounds’;
- The defendant believed that the use of the threat was a proper means of reinforcing the demand; and
- The defendant had reasonable grounds for believing the use of the threat was a proper means of reinforcing the demand (s 1(2)).
Communications Act 2003
The Offence of Improper Use of Public Electronic Communications Network
Section 127(1) of the Communications Act 2003 makes it an offence to send (or cause to be sent) ‘by means of a public electronic communications network a message or other matter that is:
A message is grossly offensive if it tends to cause gross offence to those to whom it relates: DPP v Collins  UKHL 40. There is no requirement that the recipient actually be offended.
Indecent or Obscene
Indecency and obscenity ‘convey one idea, namely offending against the recognised standards of proprietary, indecent being at the lower end of the scale and obscene at the upper end of the sale’: R v Stanley  2 QB 327.
A message is menacing if it ‘creates fear or apprehension’ in the recipient or those reasonably likely to see it: Chambers v DPP  EWHC 2157 (Admin).
The mens rea of the offence is intention to be grossly offensive, indecent, obscene or menacing or subjectively foreseeing that communication might have this effect. This test is unlikely to be met if the defendant intended his message as a joke: Chambers v DPP  EWHC 2157 (Admin).
The Offence of Sending False or Persistent Communications
Section 127(2) of the Communications Act 2003 provides a second offence. The actus reus of the second offence is on of two acts:
- Sending ‘by means of a public electronic communications network, a message that he knows to be false’, or causing such a message to be sent; or
- ‘Persistently’ making use of a public electronic communications network.
To fulfil the mens rea, the defendant must have done the actus reus ‘for the purpose of causing annoyance, inconvenience or needless anxiety to another’.
Postal Services Act 2000
Posting Indecent or Obscene Matter
Section 85(3) of the Postal Services Act 2000 makes it an offence to send ‘by post a postal packet which encloses’:
- ‘any indecent or obscene print, painting, photograph, lithograph, engraving, cinematograph film or other record of a picture or pictures, book, card or written communication, or’
- ‘any other indecent or obscene article (whether or not of a similar kind to those mentioned in paragraph (a)).’
Section 85(4) of the Act adds the offence of sending ‘by post a postal packet which has on the packet, or on the cover of the packet, any words, marks or designs which are of an indecent or obscene character.’
Obscenity and indecency bear the same meaning as under the Communications Act 2003.