Offensive Messaging…

only a matter of time
The Law Lords have been thinking about what “grossly offensive” means, and that will have repercussions for the mobile business – the police say they’re prepared to prosecute text message senders under the Communications Act 2003, says Anne Mizzi.
The highest court in the land has, for the first time, considered what makes a message sent by means of a public electronic communications network “grossly offensive” – and therefore capable of amounting to the crime of “making improper use of a public electronic communications network”, which was outlawed under the Communications Act 2003.
The Law Lords have made it clear that people who leave offensive telephone and other messages can and will be held responsible.
They have also attempted to clarify how bad a message needs to be in order to be caught by the provisions.
It is a tricky situation and the Lords have successfully tread the line between explaining which standards of behaviour will not be tolerated and left enough flexibility to allow them to reflect changing attitudes in future.
The case they considered was that of Leslie Collins from North West Leicestershire. Mr Collins had allegedly made a number of telephone calls to the offices of his MP, David Taylor, and left racially offensive telephone messages using language that was described by Lord Bingham, who gave the leading judgment, as being “beyond the pale of what is tolerable in our society”.

The Communications Act makes it a crime to send or cause to send a message or other matter that is “grossly offensive or of an indecent, obscene or of a menacing character” by means of a public electronic communications network.
A “public electronic communications network” is a transmission system for conveying signals using electrical, magnetic or electromagnetic energy that is provided wholly or mainly for the purpose of making electronic communications services available to members of the public.
This offence is designed to deal with “nuisance” calls but the definition is wide enough to include messages sent by means other than telephone.
So far, the courts have not been asked to consider messages sent using other media. But it is just a matter of time before they do.
That’s the case particularly because the police have already indicated that they consider the offence may apply to messages sent not only over business and residential fixed lines, but also mobile telephones, text messages, voicemails, BT answer phone messages, pagers, multimedia and messages received over the internet (e.g. by email).
It is clear from Lord Bingham’s judgment that the aim of the particular offence is to prevent a service provided and funded by the public, for the benefit of the public, for the transmission of communications from being used in a way that contravenes certain   basic standards.
He also ruled that it does not matter whether such a message is actually listened to or received. It is also not necessary for a recipient to be personally offended by the message.
The court will consider whether the message uses terms that show an intention to insult the people to whom the message relates or where facts known to the sender about an intended recipient render or are likely to render the message peculiarly offensive to that recipient.
Whether a message is grossly offensive is a question of fact. The courts will judge this on how a hypothetical reasonable person would react. They will also review the message according to the standards of an “open and just multi-racial society.”


"The courts have not yet been asked to consider SMS messages. But it is just a matter of time before they do …"


Lord Bingham said: “Usages and sensitivities may change over time … 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.”
The Collins case is interesting because it reveals how the courts will work out whether a message is offensive enough to amount to a crime under the Communications Act. Although they have left themselves with enough flexibility to be able to reflect changing morality and standards of society, they have helpfully provided some guidance on what approach they will take.
It remains to be seen where future courts draw the line. Although judges will have to follow the Lords’ approach, this ruling gives them enough discretion to make their own decision about whether the line is crossed in a particular case.
Although some will no doubt question whether the courts (as opposed to Parliament) are best placed to make such decisions, in the absence of more guidance from Parliament, it is important that the courts have enough flexibility to be able to deal with the cases they hear in a just and fair manner.
And to do this it is quite right that they apply the standards of an open and just multi-racial society, read the message in context and bear in mind current usages and sensitivities.

Anne Mizzi is a solicitor in the Media and Technology team at Shepherd and Wedderburn, London 
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