The House of Lords has clarified what makes a message sent by means of a public electronic communications network "grossly offensive" and therefore capable of amounting to a crime under the Communications Act 2003 ("Act").

Leslie Collins, a constituent of North West Leicestershire who held strong views on immigration and asylum seekers, had over the course of two years made a number of angry telephone calls to the offices of his MP, David Taylor, and left racially offensive telephone messages using pejorative terms for various races. Lord Bingham, who gave the leading opinion, branded Mr Collins' language as: "beyond the pale of what is tolerable in our society".

The Act makes it a crime to send (or cause to send) a message or other matter by means of a public electronic communications network that is "grossly offensive or of an indecent, obscene or of a menacing character". A "public electronic communications network" means an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public. In essence, what this means is that the "improper use" provisions in the Act will apply to messages sent over mobile or fixed line communications networks from voicemail messages to texts and emails.

The Law Lords, led by Lord Bingham, held that the aim of the law was not to protect people from unsolicited messages but to prevent the use of a service provided and funded by the public for the benefit of the public for the transmission of communications to contravene the basic standards of society.

Further the Lords ruled that it does not matter whether such a message is actually listened to or received and it is not necessary for a recipient to be personally offended by the message. It is a question of fact whether a message could be deemed grossly offensive. In judging this, the Lords ruled that a court would consider the reaction of a hypothetical reasonable person and the standards of an "open and just multiracial society."

Lord Bingham said: "Usages and sensitivities may change over time.... there can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to whom it relates."

A person will be criminally liable where a message is couched in such terms that it shows an intention to insult the people to whom the message relates or where facts known to the sender about an intended recipient render (or are likely to render) the message peculiarly offensive to that recipient.

The Lords decision came about after an appeal by Director for Public Prosecutions ("DPP"). The DPP failed in its original prosecution after Mr Collins was found not guilty by magistrates ruling that although his messages were offensive, they were not "grossly offensive".

Although the case here involved telephone messages, the ruling will also apply to all electronic messages sent over a public network. Organisations should therefore carefully consider guidelines on use of potentially racially offensive language when drafting their telephone, email and Internet use policies for employees in order to avoid any damage to their reputation should their employees abuse their communication systems while at work.

Anne Mizzi

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