s127(1) of the Communications Act 2003 (which applies to the whole UK) makes it a criminal offence to send (or cause to be sent) “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“.
“sends…[or] causes…to be…sent”
This means that the message in question does not need to reach its intended recipient (e.g. a WhatsApp message is deleted after sending) for the offence to be committed. The offence is completed when the act of sending is complete.
“public electronic communications network”
This is defined in s151 of the 2003 Act as “an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public“.
In other words, if the communication apparatus involves members of the public using a keyboard or speaker (e.g. telephone / internet), odds are it’s covered by this definition.
“a message or other matter”
A message is a message is a message. Twitter, internet forums, WhatsApp, iMessage, Facebook Messenger, OG SMS etc.
“other matter” presumably includes pictures, videos, Snapchat, TikToks, audio etc. If you can send it electronically to someone else, it’ll be covered here.
“grossly offensive or of an indecent, obscene or menacing character”
The words used in the legislation are difficult to define objectively. For example, when does a message cross the line between “offensive” (which is fine) and “grossly offensive” (which is not)?
The short answer is “it depends”. The leading case in the UK on s127(1) offences is the 2006 House of Lords (the precursor to the Supreme Court) case of DPP v Collins:
“The parties agreed with the rulings of the Divisional Court that it is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. I would agree also. Usages and sensitivities may change over time. Language otherwise insulting may be used in an unpejorative, even affectionate, way, or may be adopted as a badge of honour (“Old Contemptibles”). 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 those to whom it relates”Lord Bingham at paragraph 9
DPP v Collins also makes clear that “it must be proved that the respondent intended his words to be offensive to those to whom they related or be aware that they may be taken to be so“ (paragraph 21). To base criminal liability on whether the recipient found the message grossly offensive or not would be “an unforeseeable contingency” (paragraph 8).
So, the courts are left to determine whether, in context, a particular message or communication was intentionally grossly offensive, indecent, obscene or menacing character, according to the standards of the day.
Unsurprisingly, in an age where almost everybody carries the sum of human knowledge and the depths of human depravity (in space grey or rose gold) in their pocket, post-ironic jokes break bread with dank memes, and the far-right fights with teabags on Twitter among the dick pics. It’s difficult for the courts to keep up.
There are several recent examples of high-profile s127 prosecutions, such as the “Twitter Joke Trial” and, closer to home, “M8 Yer Dugs a Nazi”. I have no intention of adding to the commentary on cases such as these, and only cite them as examples of how s127(1) of the 2003 Act has been applied in practice.
For a less high-profile but brief and useful example of how s127(1) is applied by courts today (in the context of “menacing” messages), have a look at the 2016 case of Brown v PF Ayr.