Twitter and the Malicious Communications Act 1988

Two people have been arrested by South Yorkshire Police on suspicion of sending ‘malicious communications’ following a series of tweets to five MPs. The tweets were directed at Independent Group MPs Anna Soubry, Chuka Umunna, Angela Smith and Sarah Wollaston, and Labour MP David Lammy.

It is alleged that one of the individuals posted an image of a crossbow with the caption “We are ready for civil war, are you?.  It is alleged that a further tweet directed at Nottinghamshire MP, Ms Soubry, branded her a “traitor” and told her to “remember what happened to Jo Cox so be careful” after she referred to a petition calling for Brexit to be cancelled. The tweet went on to threaten “we dont want anyone getting hurt. U stirred up some hate”.

The individuals concerned tweeted from an account called “Sheffield and Yorkshire Direct Action Brexit Group”.

The offence of sending malicious communications is set out in Section 1(1) of the Malicious Communications Act 1988 and since the coming into force of the Criminal Justice and Courts Act 2015 on 13 April 2015, the offence is now triable either way (i.e. in the magistrates' court or crown court).

A person commits an offence if he or she sends to another person, a letter, electronic communication or article of any description which is:-

• Indecent or grossly offensive; or
• A threat; or
• False and known or believed to be false by the sender.

Unlike the offence of harassment, which requires a ‘course of conduct’ and cannot be established through a standalone communication, a person can in theory commit an offence of sending malicious communications through a single tweet or message.  An offence is committed as soon as the communication is sent and it does not even have to be received by the intended person (see section (1)3 of the Act). Equally there is no need for the communications network to be public and it therefore includes private message (unlike an offence under section 127 of the Communications Act 2003 which requires the forum to be public).

The offence is very much focused on the sending of the communication and malicious intent of the sender, rather than the impact on the recipient. What must be established, is that the sender had an intention to cause anxiety or distress to the recipient or to any other person to whom the sender intends it be communicated (section 1(b) of the MCA 1988). The offence is only made out where the sender has ‘acted with a specific purpose in mind’ (Chambers v DPP [2013] 1 WLR 1833, [36]).

The threshold for establishing that a communication is "grossly offensive" is necessarily high due to the potential impact on freedom of expression under Article 10 of the European Convention on Human Rights.  The fact that a communication is in bad taste or controversial will not necessarily be sufficient.  In DPP v Collins [2006] UKHL 40 it was held that it was a question of fact whether a message was grossly offensive, and that what was grossly offensive had to be judged by considering the reaction of reasonable persons and the standards of an open and just multiracial society, and that the words had to be judged taking account of their context and all relevant circumstances.  Additionally, the CPS Guidelines on prosecuting cases involving communications sent via social media make it clear that even where an offence appears to have been made out, it will often not be in the public interest to bring a prosecution.

The maximum sentence for the offence of sending malicious communications is two years imprisonment (on conviction on indictment).

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