Section 10 of the Online Safety Act 2023 (“the Act”) introduced new communication offences[1] and repealed certain sections of the Malicious Communications Act. Those offences came into force on 31 January 2024 (Online Safety Act 2023 (Commencement No.3) Regulations 2024 (SI 2024/31)).
Two of those offences are particularly important for lawyers practising in fraud and business crime – the offence of sending false communications and the offence of sending threatening communications.
Background
The Act received Royal Assent on 26 October 2023 and contains a range of measures intended to improve online safety in the UK, including duties on platforms about having systems and processes in place to manage harmful content on their sites, including illegal content.
The offences in the Act can be broadly divided into three groups:
- An offence relating to the new requirement to report Child Sexual Exploitation and Abuse (CSEA) content to the National Crime Agency (NCA) in section 69 of the Act – this offence is not yet in force;
- Offences in Part 7 of the Act, which relate to Ofcom’s enforcement powers – these came into force on 10 January 2024;
- Offences in Part 10 of the Act (the communications offences) – these came into force on 31 January 2024.
False or Threatening
- False Communications: A person commits a false communications offence if they send a message conveying information that they know to be false, and at the time of sending it they intend the message to cause non-trivial psychological or physical harm to a likely audience (i.e. someone who could reasonably be foreseen to encounter the message or its content) and they have no reasonable excuse for sending the message (s.179)[2].
- This offence is intended to replace the offence in section 1(a)(iii) of the Malicious Communications Act 1988 and (for England, Wales and Northern Ireland) the offence in section 127(2)(a) and (b) of the Communications Act 2003, both of which have been repealed by section 189 of the Act[3].
- If several or many people are the “likely audience” then it is not necessary that the person intended to cause non-trivial psychological or physical harm to any of them in particular (or to all of them).
- Non-trivial psychological or physical harm is not defined in the Act. Prosecutors should be clear when making a charging decision about what the evidence is concerning the suspect’s intention and how what was intended was not “trivial”, and why. Importantly, there is no requirement that such harm should in fact be caused, only that it be intended.
- Proceedings for the false communications offence may be brought within 6 months of sufficient evidence in the opinion of the prosecutor, and after no more than 3 years after an offence has been committed.
- This is a summary only offence, which carries a maximum penalty of 51 weeks imprisonment or a fine (or both).
- Some entities are exempt from committing a false communications offence under s.180 of the Act[4]:
- a recognised news publisher;
- the holder of a licence under the Broadcasting Act 1990 and 1996 in connection with anything done under the authority of the licence;
- the holder of a multiplex licence in connection with anything done under the authority of the licence;
- the provider of an on-demand programme service in connection with anything done in the course of providing such a service;
- anyone in connection with the showing of a film made for cinema to members of the public.
- Threatening Communications: A person commits a threatening communications offence if they send a message conveying a threat of serious harm (death, serious injury, rape, assault by penetration, or serious financial loss), and intends that (or is reckless as to whether) someone encountering the message will fear the threat will be carried out (s.181)[5].
- It is important to note that the statutory definition of serious harm includes serious financial loss (s.181(2)(d)).
- Significantly, the threatening communications offence captures threats where the recipient fears that someone other than the sender of the message may carry out the threat.
- Serious financial loss is not defined in the Act, therefore what constitutes “serious” financial loss will be a matter of fact and degree in the individual circumstances of each case.
- With respect to threats of serious financial loss, it is a defence for a sender to show both that the threat was used to reinforce a reasonable demand and that they reasonably believed the threat was a proper means of reinforcing the demand. If evidence is adduced which is sufficient to raise the defence, the Court must assume the defence is satisfied unless the prosecution can disprove the defence to the criminal standard.
- This offence is aimed at capturing criminal behaviour that would fall short of one covered by the offence contained in s127(1) of the Communications Act 2003, namely sending or causing to be sent a communication that is either grossly offensive, or of an indecent, obscene or menacing character (taken to mean creating a sense of apprehension or fear: Chambers v DPP [2012] EWHC 2157[6]).
- This offence replaces the offence in section 1(1)(a)(ii) of the Malicious Communications Act 1988 (sending a message which conveys a threat). However, s.127(1) of the Communications Act 2003 and s.1(1)(a)(i) of the Malicious Communications Act 1988 (the offence of sending a message that is indecent or grossly offensive) both remain in force.
- The offence is triable either way and has a maximum penalty of five years’ imprisonment, or a fine, or both.
Interpretation
For both offences, a person “sends a message” if they send, transmit or publish a communication (including an oral communication by electronic means), or if they send, give to an individual, a letter or a thing of any description.
A provider of an internet service by which a message is sent is not to be regarded as a person who sends a message simply by virtue of being an internet service provider. The word “encounter” in relation to a message should be interpreted as read, view, hear, or otherwise experience the message.
For the purposes of the offences, it does not matter if the content of the message is created by the person who sends it. A message can consist of or include a hyperlink to other content. For the online context, the date on which a person commits an offence is the date on which the message is first sent.
Extra-territorial Application
The offences established by sections 179(1) (false communications) and 181(1) (threatening communications) can be committed outside the United Kingdom, but only by an individual who habitually resides in England, Wales or Northern Ireland, or by a body incorporated or constituted under the law of England, Wales or Northern Ireland. Courts in England and Wales and Northern Ireland will have jurisdiction over an offence under sections 179 or 181 that is committed outside the United Kingdom.
Corporate Liability
An officer of a body corporate can, where appropriate tests are met, be held criminally liable when the body corporate commits an offence under sections 179 or 181. An “officer” means a director, manager, associate, secretary or other similar officer, or a person purporting to act in any such capacity.
Additional Considerations for Prosecutors
The prosecutor’s charging decision should articulate the rationale for the selection of charges, and address any interference with the suspect’s ECHR rights, for example right to freedom of expression. Article 10 of the European Convention on Human Rights (“ECHR”) expressly protects speech that offends, shocks, and disturbs – “Freedom only to speak inoffensively is not worth having”: Redmond-Bate v DPP [2000] HRLR 249 [20] per Sedley LJ. Prosecutors should only proceed with communications offences where the interference with freedom of expression is necessary and is proportionate[7]. Relevant ECHR considerations must form part of both stages of the Code Test review.[8]
The Crown Prosecution Service has issued guidance stating that prosecutors should consider the following, non-exhaustive factors, and should only proceed if they are satisfied there is sufficient evidence that the communication in question is more than:
- Offensive, shocking, or disturbing; or
- Satirical, iconoclastic, or rude comment; or
- The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it; or
- An uninhibited and ill thought-out contribution to a casual conversation where participants expect a certain amount of repartee or “give and take”;
- This is with reference to “contemporary standards… the standards of an open and just multi-racial society“, assessing whether the particular message in its particular context is “beyond the pale of what is tolerable in society“: for guidance on those terms, see DPP v Collins [2006] UKHL 40[9], Chambers, Smith v ADVFN [2008] 1797 (QB).
Conclusion
It is an unfortunate reality of modern life that we are all increasingly susceptible to receiving false or threatening communications. With the advent of social media, we have never been more reachable by our friends and family – or by criminals. Investigating and prosecuting offences involving false or threatening communications can be difficult. They require lawyers who can identify which law best encapsulates the alleged offending while also considering the proportionality of, and motivation for, such prosecutions.
EMM has the experience and knowledge necessary to both investigate and prosecute these offences on behalf of private individuals and entities. Those who are turned away by the police and state prosecution authorities should know that they have a constitutional right to bring a private prosecution.
Amelia Clegg
27 March 2024
[1] The Act also introduced other communications offences which are not addressed in this article, including two new offences that are specially targeted at sending or showing flashing images with the intention of causing harm to a person with epilepsy where “harm” means a seizure, or alarm or distress, and an offence of encouraging or assisting serious self-harm.
[2] https://www.legislation.gov.uk/ukpga/2023/50/section/179/enacted
[3] https://www.legislation.gov.uk/ukpga/2023/50/section/189/enacted
[4] https://www.legislation.gov.uk/ukpga/2023/50/section/180/enacted
[5] https://www.legislation.gov.uk/ukpga/2023/50/section/181/enacted
[6] https://www.bailii.org/ew/cases/EWHC/Admin/2012/2157.html
[7] For a recent case considering the directions that were required to ensure that s.1 of the Malicious Communications Act 1988 (relating to criminal conduct which predated the Online Safety Act 2023) was a proportionate interference with a defendant’s Article 10 ECHR right, see R v Casserly [2024] EWCA Crim 25[7].
[8] https://www.cps.gov.uk/legal-guidance/communications-offences
[9] House of Lords – Director of Public Prosecutions (Appellant) v. Collins (Respondent) (parliament.uk)
