Section 127 Communications Act 2003 - Threat or Menace?

 EDIT: this piece brought in a lot of reaction, for which I am grateful. Partly as a result, a rather more tidied version can now be found here  which you are suggested to jump to (though do comment here!)

(The title , which I have used in various forms before, recalls J Jonah Jameson, the irascible boss of Peter Parker aka SpiderMan whom JJJ of course famously detested. "Spiderman: Threat or Menace?" was his favourite headline and I have been using it ever since, though perhaps never as appropriately as here.)

Anyway. Section 127 of the Comms Act 2003 , once one of the more obscure provisions of the cybercrime world, has had a good workout lately. Famously, Paul Chambers was accused and convicted of sending "by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character" (s 127 (a)) because he had sent a humorous and frustrated tweet  saying : ""Crap! Robin Hood Airport is closed. You've got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!".  (Pangloss can dare quote this in full now the prosecution has been overturned :-)

 After  a long period of #TwitterJokeTrial campaigning and on the third attempt, an appeal court saw sense and conceded that ""a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision [of the 2003 Act]". In other words, a joke issued to the world and indeed accessible with identification by the very people it might offend, is clearly not meant to be taken seriously and thus is neither menace or threat for any reasonable person.

Meanwhile, however, s 127 prosecutions continue or are suggested by a public increasingly fed up with racist bullies, trolls, stalkers etc online.  Yesterday a 29 year old man was arrested and charged by the Greater Manchester police, apparently under s 127,   for putting up a Facebook page which appeared to praise Dale Creggan who is accused of the murder of two policeman.

Also yesterday, the DPP, Keir Starmer, was driven by  the rise of s 127 prosecutions and apparent mounting calls for its catch-all use in any case of disturbing content on social media to declare that he would be issuing guidance on social media prosecutions. Asked to consider whether to prosecute an idiot who had made trollish and homophobic tweets about the Olympic diver Tom Daley (note the homophilic photo accompanying :-), the DPP has already correctly indicated that  s 127 is not  a free Joker card for prosecuting content which however upsetting to some, would normally fall with guarantees of freedom of expression in a democratic society. In particular he quoted the seminal ECHR case of Handyside (1976) 1 EHRR 737 which says that freedom of expression includes  the right to say things that "offend, shock or disturb the state or any sector of the population".

Why then, we might ask,  is s 127 drafted so widely? Partly because although it appears to be a modern post-Internet provision , its direct and very close antecedents actually date from long before the Internet era and even before Handyside. These antecedents include the Post Office (Amendment) Act 1935 (and two subsequent PO Acts)  - which dealt with messages sent by post and telephone  -  the British Telecoms Act 1981,  and  the Telecommunications Act 1984, s 43. Section 127 of the 2003 Act basically repeats the 1984 Act provision wholesale, itself almost a word for word repetition of these earlier Acts, changing only the ambiguous application to any "public telecommunication system" (a necessity following the demise of the state monopoly telephone network and the rise of the Internet, and nicked as a phrase from EC telecoms law) whose definition was debated  in Chambers (see further a para or two on..)

This legislative history is narrated in DPP v Collins (para 6), a very interesting decision on s 127, involving a man who made repeated  telephone to his local MP's office asking for him to do something about the "black bastards" - or similar terms.  He was charged with sending "grossly offensive" messages under s 127. On appeal to the House of Lords,  the charge was upheld but the interest for me lies in LJ Bingham's analysis at para 7 of whta s 127 is for.

It is crucial here, parenthetically,  to note that s 127 is not  a lone legislative bulwark against Internet trolls and harassers. Plenty of other legislation than s 127  is available to deal with  content on social networks  which  appears to offends the public . For example, in another current controversial case, 19-year-old Azhar Ahmed is currently facing charges of “racially aggravated public order offences” after he posted an angry Facebook status update about the reporting of the latest British Army fatalities in Afghanistan. Racially motivated tweets posted relating to Stan Collymore and  Fabrice Muamba have also been prosecuted under this legislation.The Protection Against Harassment Act 1997,  which operates slightly differently in England and Scotland, prescribes that  any two "acts" which form a course of harassing conduct can be charged  as a crime. These provisions have been used successfully to charge trolls who send repeated upsetting or vile messages to users on sites like Facebook and Twitter.   Nicola Brookes, eg, to great publicity,  recently won a Norwich Pharmacal order against FB to start procededings under the 1997 Act against her online trolls. An Adjournent Debate in Parliament on 17 September 2012  noted not only these but also the possibilities of using the Public Order Acts and the Computer Misuse Act.  Private civil damages can also be obtained both under the PAHA and by common laws like libel. All these options are well known and recorded in CPS guidance.

Most notably the Malicious Communications Act 1988 still exists  (unlike the 1984 Act s 43, which s 127 replaced)  though it does not extend beyond England and Wales,. Again though a pre-Internet statute, it was updated in 2001 by an amending Act to apply to "electronic communications" - oral or otherwise,  and  not just therefore applying to the poison pen letters which seem to have been the initial target. But the 1988 Act prescribes that the communication must be "sent to another person". It does not anticipate or apply to broadcast or one-to-many communications. These would have been the topic of the bradcastiong laws. And the ease with which a private individual  can nowadays be their own broadcaster using only a  Twitter account would not of course have occurred to the 1988 legislator. So the 1988 Act would not apply to Paul Chambers telling the world about his frustration at Doncaster Airport nor (say) the racists bullies who left tweets for Fabrice Muamba.

So, going back to LJ Bingham in Collins, in para 7 he observes the existence of the 1988 Act and thus deduces that the purpose of s 127 is "not to protect people against receipt of unsolicited messages which they may find seriously objectionable". Instead, it is "to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society".

This history can clearly be seen of course in the preceding ancestor statutes - which originate from a time of state monopoly services over post and phone.  What LJ Bingham seems to be acknowledging is that  s 127 as formulated way back when, was about not wasting public money on transmitting material which was unpleasant. As such, the  words used forbid categories of speech which would now be permitted speech  in public using the Handyside test - or to put it another way, would be allowed in any pub or park. The proximate reason s 127 is more restrictive than the ordinary law on speech not via electronic means, is  because it involved a public facility such as the postal service, or later, BT.<

Except now it doesn't, or only very  tangentially. Twitter is a private service run on private servers. So is Facebook. People use the Internet to access it, which, yes, involves (sometimes)  use of the facilities of former public utilities, but in essence, the experience of tweeting is as privately funded now as the experience of walking into M & S. In #TwitterJokeTRial, this point was raised  but  the position of the lower courts in Chambers  that  a tweet is sent via a "public electronic communications network" , was upheld .  There Crown Court Judge Davies agreed that "the fact that [Twitter] is a private company is in our view irrelevant" and "the mechanism by which [the tweet] was sent was a public electronic network and within the statutory defuinition... Twitter as we all know is widely used by individuals and organisations  to disseminate and receive information,,  it is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful" (para 23, [2012] EWHC 2157). Pangloss, I'm afraid, has to diagree.  If certain mesages shouldn't be broadcast to the public at at large because they are beyond what is allowed by Handyside then they  should be specifically provided for - by acts like the Race Relations Acts and the PAHA .  There should not be a general ticket to restrict speech online which would be lawful offline.

This, in my view, is the nub of what has gone wrong with s 127 lately.  Statute law designed:

 (a) primarily to regulate one-to-one communications, rather than one to many (whatever LJ Bingham said, it is clear almost all the wording of s 127 comes directly from statutes mainly intending to deal with malicious one-to-one phone calls or letters)  and
 (b) designed to safeguard a public utility built with public money

  is now being applied to a privately owned, publicly accessed, many-to-many  domain where, everyone agrees, the normal laws of the land relating to freedom of speech should apply - except that's just not how s 127 is written;  and interpreting it to come out that way, for both prosecutors, defense lawyers, and ordinary folk, is a bloody  and increasingly hard task.

There is an obvious way forward. Abolish s 127 with all its ambiguities and loose wording and extend the Malicious Communications Act to apply to the whole of the UK. That deals with one to one abusive electronic communication. Then stop, and have a decent debate about how to alter norms of behaviour on social media to reflect a civilised world - a debate which Pangloss suspects, will have almost nothing to do with law.