On 1 June 2020, the Times reported on a landmark ruling involved an aspiring lawyer who won £15,000 in damages, after she sued her uncle following a malicious Facebook post.
The woman successfully claimed that her uncle’s post revealed, to six other family members, she had been treated “for mental health and self-harm” and that this amounted to a breach of her privacy. In what was a long-running family row, the uncle added that his mother, the niece’s grandmother, should “leave them [the niece and her mother] to the police — what’s going on with getting the injunction against the 2 sick bitches”.
The post was to a private Facebook group, was said to be online for only three hours and was seen only by an estimated 35 people; nonetheless, it doesn’t take very long to read, and the genie cannot be put back in the bottle. The judge identified the genie as the claimant’s privacy and autonomy over her medical records and/or medical information; he neatly drew the distinction between matters that may be deeply personal, inherently private and often kept secret whilst, on the other hand, not being something to be embarrassed about.
The ruling is likely to have wide ramifications in the civil courts, demonstrating that posts on Facebook and other social media that amount to an unwarranted invasion of a person’s privacy will be actionable Further to this, it reflects that the courts will uphold Article 8 rights to privacy and such rights outweighs the poster’s Article 10 rights to freedom of expression.
So much for the civil cause of action and consequences, are there criminal consequences for malicious social media posts and what qualifies?
Unlike harassment or assault which can be both a civil and criminal matters, there is no obvious translation across from breach of privacy to a criminal offence. Therefore, a different analysis is required, and by reference to the two offences applicable to this area of conduct, found in the Malicious Communications Act 1988 and the Communications Act 2003 respectively.
Malicious Communications Act 1988
Section 1 of the Malicious Communications Act 1988 (“MCA”) provides that it is an offence for any person to send to another person:
a) A letter, electronic communication or article which conveys a message which is indecent or grossly offensive; a threat; or information which is false and known or believed to be false by the sender; or
b) Any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature.
if his purpose or one of his purposes in sending it that it should cause distress or anxiety to the recipient or to any other person he intends that the content should be communicated to.
Breaking that down:
a. Electronic communication: electronic communications include any message (including oral communication) sent by means of an electronic communications network, which would include Facebook and WhatsApp message as well as older electronic means such as fax machines.
b. Sent to another person: ‘Sending’ is ordinarily understood but is put beyond doubt by section 1(3) MCA which states “(3) In this section references to sending include references to delivering or transmitting and to causing to be sent, delivered or transmitted and “sender” shall be construed accordingly.” Accordingly, any transmission or delivery of a communication, be it to a website, social media platform, or directly to an individual, will constitute the act of ‘sending’.
For a s.1 MCA offence to be committed, the message must be sent to another person. However, there is nothing in the MCA that confines ‘person’ to human persons (unlike, for example the Protection from Harassment Act 1995, section 7(5)) and therefore the Interpretation Act 1978, section 5 and Schedule 1 applies and “‘person’ includes a body of persons corporate or unincorporated”. There is no requirement that anyone received it or that the person receiving the sent communication was any particular person or the sender’s intended recipient.
Therefore, a blog or comment posted on a website has been sent to a person (the hosting body) and in turn to many persons whether a private group or the general public.
c. The nature of the message or electronic communication:
i. Indecent or grossly offensive: It will ultimately be for a jury to assess the character of the communication against an objective test in today’s society; it is not determined by whether a person considers themselves offended or takes offence, which is a different thing entirely. It is no surprise that racially derogative terms have been found to be ‘grossly offensive’[1]. However, there need not be a message as such, the communication itself may qualify: in a case in which the defendant sent photographs of aborted foetuses to pharmacies which stocked the “morning after pill”[2] it was held that “grossly offensive” and “indecent” are ordinary English words and do not bear some special meaning; there is no exception for political or educational issues.
ii. A threat: Subsection (2) provides that it is not an offence if used to reinforce a demand made on reasonable grounds and he believed, and had reasonable grounds for believing, the use of the threat was a proper means of reinforcing the demand; or
iii. False Information: it has to be false information which the sender knows or believes to be false. Information is wider than statements within a message and can include the identity of the sender or of the account. CPS Guidance in this area provides “The act of setting up a false social networking account or website, or the creation of a false or offensive profile or alias could amount to a criminal offence, depending on the circumstance.”
d. Mental Element: the MCA requires the defendant to act with a specific purpose (or one of his purposes); namely that in sending the communication it should cause distress and anxiety to the recipient, or any other person whom he intends, that it or its contents or its nature should be communicated. It has been held that “a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender.”[3]
Section 127 Communications Act 2003
Two lesser offences are found in s. 127(1) and (2) of the Communications Act 2003 (CA), which provides that it is an offence to (1) send (or causing to be sent) by means of a public electronic communications network a message or other matter that is (a) grossly offensive or of an indecent, obscene or menacing character (s.127(1)); or (b) for the purpose of causing annoyance, inconvenience or needless anxiety either sending (or causing to be sent) a message or that he knows to be false or persistently making use of a public electronic communications network (s127(2)).
The principal differences compared to the MCA are that the ss.(1) offence is strict liability since it does not require a consideration of the sender’s purpose, the message or matter can be ‘menacing’ (as opposed to a threat) and does not have to be sent to another person – merely sent.
In respect of the ss.(2) offence, it has to be proved the sender knew (and not merely believed) the message is false and also the harm threshold in the sender’s purpose is far lower than in the MCA – annoyance, inconvenience or needless anxiety are far lower tests than the ‘distress or anxiety’ test in the MCA. Under subsection (2), the persistent use of the public network with that purpose is an offence, so even a polite message or no message repeatedly (persistent use of public communications network) sent with that purpose can be an offence.
This is a summary only offence with a maximum sentence of six months’ imprisonment. Guidelines indicate that for the highest category of offending the starting point is still 9 weeks’ custody with a range from a high-level community order to 15 weeks’ custody.
If we therefore consider the particular facts of the civil case mentioned at the beginning of this article, might it amount to a criminal offence? Applying the tests in the MCA, the message was not indecent or grossly offensive nor was it a threat or false (it was a breach of privacy because it was true). As to the CA, it was not grossly offensive, or of an indecent, obscene or menacing character (subsection 1) or a message he knew to be false. The ‘persistent usage’ test was probably aimed at the mischief caused in denial of service situations or similar; whilst it might be argued that a frequent tweeter or Facebook poster was doing so for the purpose of annoyance, inconvenience or to cause needless anxiety, it would be difficult to take that a step further and argue that frequent user ‘persistently makes use of a public electronic communications network’. Persistent usage is not the same as frequent usage.
The particular circumstances under discussion arise out of a breach of privacy claim which would not naturally translate across into criminal action and they are atypical; the circumstances do not obviously point to a criminal offence under either Act. However, the ground for objecting to most media posts would be found in more mainstream objections, for which these offences largely and readily cater.
Identifying that a post might be a criminal offence is just the beginning, since it can often be difficult to engage the attention of the police or State authorities to investigate these sorts of offences given they are so widespread; victims are repeatedly being referred to the Civil Courts or provided no assistance. As a result, private criminal prosecutions are becoming more popular as a means of holding to account, in the criminal sphere, those who are contravening the law.
If you have been the victim of online abuse, please do contact us for a free initial consultation.
Andrew Marshall
Ashley Fairbrother
17 June 2020
[1] DPP v Collins [2006] UKHL 40
[2] Connolly v. DPP [2007] EWHC 237 (Admin); [2007] 2 Cr.App.R. 5, DC,
[3] DPP v Collins 2006 UKHL 40, Bingham LJ at [12]
