Section 127 of the Communications Act 2003: Threat or Menace?

Lilian Edwards1
Section 127 of the Communications Act 2003 , once one of the more obscure provisions of the
cybercrime world, has had a good workout lately2. Famously, Paul Chambers, delayed at
Doncaster Airport and frustrated at possibly not getting to see his girlfriend, 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!!"3.
After a long period of civil liberties campaigning, support from celebrities and comedians and
sustained outrage among the Twitterati sub nom #TwitterJokeTrial, on the third attempt, an
appeal court4 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 as well as the very people it might offend and
indeed identified with the real name of the author, is clearly not meant to be taken seriously and
thus is neither menace nor threat for any reasonable person.
Meanwhile, however, s 127 prosecutions continue or are urged on by a public increasingly fed up
with an increasing variety of online racist bullies, trolls, stalkers etc. For example, in early 2012
racially motivated tweets posted relating to the footballer Stan Collymore5 were also prosecuted
under this legislation. In late September 2012, calls again were heard to prosecute Neil
Swinburne, 29, under s 127 for putting up a Facebook page which appeared to praise Dale
Creggan who is accused of the murder of two policeman. He was arrested and charged by the
Greater Manchester police, apparently under s 127. Meanwhile on the very same day, 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 Daniel
Thomas, who had made trollish and homophobic tweets about the Olympic diver Tom Daley6,
the DPP 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 Handyside7 which says
1

Professor of E-Governance, University of Strathclyde. The piece first appeared in slightly different form on
Professor Edwards blog Pangloss, http://blogscript.blogspot.co.uk/ .
2
Parliamentary questions reveal 2,671 prosecutions under s 127 between 2003 and 2008 see
http://www.theyworkforyou.com/wrans/?id=2010-06-14c.1905.h . One assumes numbers may now be much
higher given recent publicity.
3
This writer hopes the journal can dare quote this in full now the prosecution has been overturned,
4
Chambers v DPP [2012] EWHC 2157 (QB).
55
See http://www.guardian.co.uk/technology/2012/mar/21/man-racially-abused-collymore-twitter-sparedprison .
6
See http://www.guardian.co.uk/technology/2012/sep/20/footballer-tom-daley-tweet .
7
(1976) 1 EHRR 737.

Electronic copy available at: http://ssrn.com/abstract=2200166

that freedom of expression includes the right to say things that "offend, shock or disturb the state or
any sector of the population" before concluding that prosecution in the Daley case would not be
appropriate.
We therefore now await the promised guidance. But as the editor of this journal has cogently
pointed out8, guidance on its own is simply not good enough. The law itself must have a quality
of predictability and certainty, otherwise the rule of law is in jeopardy. This is especially true of a
criminal provision which has the potential to chill freedom of expression in a democratic state.
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 scope to apply to any "public
telecommunication system" (a necessity following the demise of the state monopoly telephone
network). This phrase itself was stolen quite inappropriately from EC telecoms law and causes
problems of its own debated in Chambers (see further below).
The legislative history of s 127 is usefully narrated in DPP v Collins9 (para 6), a case involving a
man who made repeated telephone calls to his local MP's office asking for him to do something
about the "black bastards" and similar even more unpleasant terms. He was charged with
sending "grossly offensive" messages under s 127. On appeal to the House of Lords, the charge
against Collins was upheld but the interest for present purposes lies in LJ Bingham's analysis at
para 7 of what the purpose of s 127 is.
It is crucial here, parenthetically, to note that s 127 is hardly a lone legislative bulwark against
Internet trolls and harassers. There is actually an abundance of law to deal with what the CPS
calls communication offenses or alternately public order offenses10. Indeed so much law is
available to charge social media content that appears to offends the (or a) public that it is often
hard to find out from journalistic coverage exactly what legislation is being used, though the
majority of cases involving Twitter do seem to use s 127. For example, in another current
controversial case, 19-year-old Azhar Ahmed has been convicted 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. It appears s 127 Communications Act 2003 was used to
charge, but such cases could however also fall under the Public Order Act 1986 (POA), s 18 .
By contrast , when Liam Stacey, a 21-year-old biology undergraduate made racially aggravated
comments (ie tweets) about another footballer, Fabrice Muamba, he was apparently charged

See Editors Blog, 26 September 2012 at http://www.scl.org/site.aspx?i=bp27827 /

[2006] UKHL 40 .
10
See CPS Guidance at http://www.cps.gov.uk/legal/a_to_c/communications_offences/#an11 / and
http://www.cps.gov.uk/legal/p_to_r/public_order_offences/ .
9

Electronic copy available at: http://ssrn.com/abstract=2200166

under the Crime and Disorder Act 11 before being sentenced to 56 days in jail. Other sections of
the POA are also potentially relevant to social media comments : notably s 4A which deals inter
alia with threatening, abusive or offensive words which cause intentional harassment, alarm
or distress.
The Protection Against Harassment Act 1997 (PAHA), which operates slightly differently in
England and Scotland, has been used successfully on several occasions to charge trolls who send
repeated upsetting or vile messages to users on sites like Facebook and Twitter. The PAHA
prescribes that any two "acts" which form a course of harassing conduct can be charged as a
crime. These provisions were recently used by, eg, Nicola Brookes, who, to great
publicity, won a Norwich Pharmacal order against FB in order to reveal the true names of, and
start proceedings against, her online trolls under the 1997 Act. 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.
Finally there also exists (albeit in England and Wales only), the Malicious Communications Act
1988 which though little mentioned in recent social media cases still exists and is of significance
as a contrast to s 12712. Again a pre-Internet statute, its original target seems to have been poison
pen letters13, although it was updated in 2001 to apply to "electronic communications" - oral
or otherwise14 But the speciality of the 1988 Act is that it is intended to apply only to one-toone exchanges and not to one to many broadcasting. It explicitly prescribes that the
communication must be "sent to another person" . So the 1988 Act would not apply to Paul
Chambers telling the world at large about his frustration at Doncaster Airport, nor (say) the
racist bullies who left tweets for Fabrice Muamba and Stan Collymore but also distributed them
to the world.
Thus, returning to LJ Bingham in Collins, in para 7 he observed the existence of the 1988 Act
and thus deduced that the purpose of s 127 was "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".
A lot can be unpicked from this interesting dictum. LJ Bingham is here partly making the
distinction raised above between an offense of sending criminal content to one person (intended
to be covered by the MCA) and broadcasting it one-to-many (which he sees as within the scope
of s 127). This was relevant for the Collins case as the people whom the communications might
reasonably have grossly offended were seen as , generally, people of ethnic background - who
had not personally received the calls - as opposed to the MPs staff, who had. Accordingly it was
11

See http://www.guardian.co.uk/technology/2012/mar/27/twitter-racism-taking-on-twacists . The most

relevant section appears to be s 32 which involves racial aggravation of an offense under the PAHA 1997
(infra).
12
Note though that the 1984 Act s 43 was replaced and abolished by s 127 of the 2003 Act.
13
See LC Report No 147 (1988).
14
See s 1(2A)(a) inserted by the Criminal Justice and Police Act 2001.

held that under s 127 it was not necessary for the actual recipients of the communication to have
been grossly offended.
But the judge was also clearly aware that the preceding ancestor statutes to s 127 originated from
a time of state monopoly services over post and phone when it would have been impossible for
an ordinary person using only ordinary postal or phone facilities to broadcast. This was true
even at the time of the Telecommunications Act 1984 which is the first of the statutes in
question to use the phrase public telecommunication system" since the Internet could not be
regarded as publicly available in the UK before the early 1990s15. What LJ Bingham seems to
home in on then was that s 127 as originally formulated back in 1935, was not just about public
morality but also about not wasting public money on transmitting material which was unpleasant
to the public. As such, the words used extend to categories of speech which are wider than the
bare minimum acceptable in democratic society. Section 127 is readable as extending to
criminalise what would now be permitted speech in public using the Handyside test. The
proximate reason s 127 is thus more restrictive than the ordinary criminal law on speech not via
electronic means, is because it involved a public facility such as the postal service, or later, prederegulation British telecoms services16.
Yet this justification for the broad extent of s 127 ( and its ancestor s 43 of the 1984 Act) no
longer exists in the cases surveyed above such as Chambers, Swinburne and Thomas. Twitter is
a private service run on private servers. So is Facebook. People use the Internet to access it,
which, at most now involves the use (sometimes) of the facilities of former public utilities. In
essence, however, the experience of tweeting is as privately funded and devoid of public expense
now as the experience of walking into Marks and Spencers or Le Gavroche.
In Chambers, this point was indirectly raised with a defence run that Twitter was not a "public
electronic communications network" . However this defence was dismissed by the lower court
in Chambers and not re-addressed by the Appeal court. Crown Court Judge Davies had 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 definition... 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).
This is, with respect to the honourable judge, where we part company. Defining Twitter and its
ilk as public telecommunications networks (PCNs) raises serious problems merely in terms of
the bad fit with the EC Telecoms Framework and the complex web of laws and definitions
associated with it and implemented into UK law. Watson and Ingram noted in this journal that
defining social networks as PCNs implies a great many duties on to them supervised by Ofcom
including universal service, maintaining 999 emergency numbers, data retention for law

15

Wikipedia cites Pipex as the UKs first ISP operating dial up from 1991.See
http://en.wikipedia.org/wiki/Internet_in_the_United_Kingdom .
16
Walden also notes that this does not appropriately describe our modern liberalised .. communications
industry and therefore seems unsatisfactory: I Walden Computer Crimes (OUP, 2007) at 3.199.

enforcement agencies and so forth 17. In EU speak, social networks are not PCNs but providers
of information society services giving them a far less regulated status with benefits such as
immunity from liability for third part content subject to respecting notice and takedown. But
more than this to define Twitter as a PCN is also to imply that the public authorities have a right
to censor speech on Twitter more than that they are permitted generally to do so by Handyside.
This seems neither right nor appropriate.
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 broadcasting (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 communications domain.
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, defence
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 wording18 and
extend the Malicious Communications Act to apply to the whole of the UK19. That deals with
one-to-one abusive electronic communication which has been acknowledged as a social ill since
the days when all we had was the post and the telephone20. Then stop, and have a decent debate
about how to regulate one to many communications on the Internet and especially on social
media. Such a debate needs to take into account excessive use of the PAHA and the POA as well
17

See Watson and Ingram The Twitter Joke Judgment: The Law with Unintended Consequences? Computers
and Law 17 August 2012 at http://www.scl.org/site.aspx?i=ed27370 .
18
A point not even canvassed here is whether s 127 should properly be used to control offensive images on
the Internet given a variety of other legislation which already deals with such images. See Parliamentary
response at http://www.theyworkforyou.com/wrans/?id=2008-04-22c.195543.h .
19
It is instructive here to compare the recent Irish case of Matthews where s 13 of the Post Office
(Amendment) Act, 1951 was used to prosecute a man for leaving grossly offensive messages on the social
network Bebo. The prosecution was originally successful but later quashed because the Act intended to apply
to nuisance phone calls had been extended well beyond what the explicit words allowed , despite their having
been amended in 2007. The case illustrates the dangers of confusing these two legal problems. See
http://www.tjmcintyre.com/2008/07/bebo-bullying-and-law.html?m=1 .
20

Indeed there is the beginning of a worrying trend to over extend legislation to deal with perceived
gaps in the law regulating one-to-one transmissions as well. See recently R v GS [2012] EWCA Crim
398 so far only available in full at http://obscenitylawyer.blogspot.co.uk/2012/07/no-words-wereharmed-in-writing-this.html where the Court of Appeal found that a message sent one-to-one by
IRC could constitute a breach of the the Obscene Publications Act 1959 .

as s 127. And it needs to happen soon: the promised guidelines are a sticking plaster but as we
all know, plasters do not stay on long. In essence here what is needed is a manifesto for altering
norms of behaviour on social media to reflect both the demands of a civilised world and
perfect opportunity the Internet offers to expand social participation - a debate which the author
suspects, will ultimately have almost nothing to do with law.