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Malicious Communications Offences

In the age of the Internet, what you send and say online is forever. This is especially important in jurisdictions like England, where your messages can land you in deep trouble with the law.

Offences of this category are dealt with by the Malicious Communications Act of 1988, which makes it a crime to send certain types of messages to other people. This article will help you understand exactly what a malicious communication is, what happens if you are charged with an offence of malicious communication, and what you can do about it. Want to read more about malicious communications defences or case examples? Find more information here (defences in detail) and here (case examples)

What is classed as a malicious communications offence?

The Malicious Communications Act 1988 (MCA) makes it a crime to send a letter or electronic message that is indecent or grossly offensive, constitutes a threat, or which conveys information that is false and known or believed to be false by the sender, where the purpose is to cause distress or anxiety.

The focus is more on whether the sender had the intention to cause distress and anxiety than it is on the impact the message had on the recipient.

Communications Act 2003

Though not a malicious communication per se, a person will also be guilty of a crime under the Communications Act of 2003 if they send a message by means of a public electronic communications network that is grossly offensive or of an indecent, obscene or menacing character, or cause any such message or matter to be so sent.

They will also be guilty if they, for the purpose of causing annoyance, inconvenience, or needless anxiety to another, send by means of a public electronic communications network, a message that they know to be false, causes such a message to be sent, or persistently makes use of a public electronic communications network. This rather complex sounding offence encompasses a broad array of actions to do with abusive messaging.

The offences under the MCA and the Communications Act are very similar. However, the offences under the Communications Act are broader and do not require the same intention to cause distress and anxiety that the malicious communications offences do. The latter would also apply to all social media posts.

Examples of malicious communications

  • A disgruntled citizen sends a letter to the government threatening to burn down their local library.
  • Sending pornographic images without the consent of the recipient. This may qualify as a variety of other crimes, too.
  • Making racist comments on a person of colour’s social media page. The Crown Prosecution Service (CPS) says that a blog post or comment on a page would not be the same as sending a malicious communication. However, a comment in response to someone else or targeting someone else will likely qualify.
  • A friend sends a message on a group chat saying that a mutual friend in the group cheated on her boyfriend, when this is known by the sender to be untrue.
  • Sending ‘fake news’ – a popular trend of sharing viral news articles that convey incorrect information, if the intention is to cause distress or anxiety – may also qualify.

Why can’t I say whatever I want?

You may be familiar with your right to freedom of speech. At first glance, you might think that laws like the MCA are taking this right away from you. However, what is happening is that the law is trying to balance your rights with the protection of other people’s rights. With rights come responsibilities, and the law is imposing this responsibility on you by way of the MCA. This is the responsibility to respect others, in the type of society we all want to live in. In other words, you can say what you want, but you could get punished for it if your intention is to cause harm or distress, or other prohibited categories of messaging intent.

When the CPS is deciding whether to pursue a charge of malicious communication, it must take into account your right to freedom of expression. A court will also think about your freedom of expression when deciding whether to convict, especially when it is based on messages that are indecent or grossly offensive, as these can be very vague terms with different meanings for different people.

What is the maximum sentence for committing a malicious communications offence?

Sending a malicious communication is a serious offence. If you are found guilty of sending a malicious communication, you can receive a prison sentence of up to two years or a fine of any amount, or both.

It is also important to remember, too, that a criminal record may affect your career prospects, as it shows up on background checks. This is not a legal sentence, but it has serious impacts you should consider.

What types of evidence are used in malicious communications cases?

First and foremost, there must have been a communication sent. The prosecution will have to prove this, and that you were the sender, beyond a reasonable doubt. They will also have to prove that the message was indecent or grossly offensive, a threat, or demonstrably false, depending on what is claimed by the alleged victim. Lastly, they will have to prove your intention: that it was to cause distress or anxiety.

Apart from the sending of the message, which can easily be proven in a day and age where electronic bookmarks are kept for every piece of data sent and received, the prosecution faces a difficult task of proving the crime occurred. This is especially so when it is claimed that the message was indecent or grossly offensive, which would require the court to make a ‘value judgment’, which they shy away from especially given the human rights considerations in the case of malicious communications, as already discussed.

In addition, your intention must have been to cause distress or anxiety, for which the main evidence will be your own oral testimony. And while this will be challenged in court by the prosecution, it is important that you are honest, as lying under oath constitutes the crime of perjury, which is a far more serious crime.

What are the applicable malicious communications defences?

It is a defence to show that, if making a threat, the threat was to reinforce a demand made on reasonable grounds and that you believed the threat was a proper way of reinforcing the demand.

It would be a defence to show that the message was not indecent or grossly offensive or was not false or that you did not know or believe it was false. However, it is difficult to prove this defence because what is indecent or grossly offensive is ultimately up to the judge and/or the jurors.

It would also be a defence to show that your intention was not to cause distress or anxiety. If it was your intention to cause something else other than distress or anxiety, you may not be convicted for the crime. It is important that you have the facts to back this claim up. Therefore, it is important to discuss your options with your legal team who can help you to make sense of the facts and prepare a detailed defence for malicious communications offences.

General defences

General defences apply to most crimes. Whether they apply to any particular case is complex and you should seek the advice of a solicitor to review all your options.

Duress: You could rely upon the defence of duress if you were threatened by a person or a set of circumstances to send the malicious communications. The court will consider many factors, including how serious you thought the consequences might be if you did not commit the offence. For instance, if you were told that you must send the message or else you would be seriously harmed, you may have a defence.

Insanity: Here, you need to show you were of unsound mind at the time the offence occurred. This requires the evidence of medical experts, which can be expensive. You would have to show that, because you were of unsound mind, you lacked what is called ‘criminal capacity’ to commit the crime you are accused of.

Intoxication: If at the time of the offence you were too drunk or drugged to appreciate what you were doing was wrong, you may have a defence. However, this really only applies if you were involuntarily drugged at the time of the events. You would not be able to rely on the defence if you got drunk or drugged in order to commit the offence.

Mistake: If you were genuinely mistaken as to the facts at the time you sent the communication, you may have a defence. You cannot rely on your mistaken understanding of the law as a defence, though, and you cannot use misunderstanding the situation as an excuse for other poor behaviour linked to the crime.

Where to get further help

If you or a loved one has been accused of a malicious communications offence, undoubtedly you will want to receive the best legal assistance possible. The team at Stuart Miller Solicitors is experienced in malicious communications crimes and is here to help you with understandable and accessible legal advice and realistic guidance on your options. Contact us today for a no-obligation consultation.


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