Malicious Communications

Malicious Communications

The Malicious Communication Act 1988 governs the law which criminalises certain types of communication.

Under section 1 of the Act, a person is guilty of an offence if they send an electronic communication, letter, or article of any description to another person that falls into any of the following categories: a false message, an indecent or grossly offensive message, a threatening message, or an article or electronic communication that is wholly or partly of an indecent or grossly offensive nature.

The sender must have intended to cause anxiety or distress to the recipient or another person who they intend to communicate the message to.

It is important to note that this offence can be committed online or through other forms of communication. With most investigations today involving social media or electronic communication, this offence can be applied to alleged online trolls.

Malicious Communications Offences

The Malicious Communications Act 1988 (MCA) criminalises sending offensive communications that can be written, verbal, or electronic. While written before the widespread use of the internet, it is frequently used to prosecute social media offences.

For the offence be made out, the communication must convey a message that is:

1. indecent or grossly offensive message

2. a threat

3. Contain false information believed to be false by the sender.

The defendant must have intended to cause distress or anxiety to the recipient or another person they intend to communicate with.

The Crown Prosecution Service (CPS) advises that a blog or a comment posted on a website may not suffice as 'sending to another.'

The court will focus on the intention of the sender (rather than the impact on the proposed victim) and will consider the standards of a reasonable person's reaction to the communication, balance and uphold the values of a just and multi-racial society, yet also consider context and any other relevant circumstances.

Racially Aggravated Malicious Communications

Racially aggravated malicious communications occur when racial hatred, hostility, or intolerance motivates the offence. Sections 145 and 146 of the Criminal Justice Act 2003 provide for longer sentences for hate crimes.

What is Doxing?

Doxing or doxxing occurs when a cyber-attacker reveals the identity of an internet user and posts their personal details on a public forum on the internet, enabling other service users to troll them with malicious attacks.

Many people often feel revealing a person identity can be morally justified such as calling out a neo- Nazism or a registered sex offender, but incorrect identifications can have dangerous consequences and as such the CPS has confirmed that doxing will be prosecuted under the MCA when appropriate.

What happens if you found to be sending Malicious Communications?

Should the court determine that you have transmitted harmful messages, you will be found guilty and face consequences that may include a fine, imprisonment, or both.

Though the offence may not lead to imprisonment, the conviction could be revealed in a Disclosure and Barring Service (DBS) background check when you seek employment.

If you work in certain fields, such as those regulated by the Solicitors Regulation Authority or the Financial Conduct Authority, you would be required to disclose the conviction to your governing body. They would then assess whether you are still an appropriate person for your profession, which could lead to termination of employment.

What are the malicious communications Sentencing guidelines?

The Crown Court can impose a maximum sentence of two years imprisonment, a fine, or both for the offence.

If the matter is heard in the Magistrates Court, the maximum sentence is imprisonment for a period of up to 12 months, a fine, or both.

However, the Sentencing Council has yet to provide any guidance to the court regarding the factors that should be considered when deciding on a sentence.

Malicious Communication defences?

Section 1(2) of the MCA provides a defence if the defendant can prove that the threat was used to support a reasonable demand and they believed that it was a proper way of reinforcing it.

Another defence that is commonly used in cases of malicious communications is based on the defendant's intention. If the defendant's intention was not to cause harm or distress, but for some other reason, then their legal team will need to gather evidence to support their motivation for the communication.

There are also general defences that are applicable to the defendant and not the crime itself. Duress may be a defence if the defendant was forced or pressurised by a person or a set of circumstances to send the malicious communications. The court will consider the seriousness and the immediacy of the consequences that the defendant believed would happen if they did not commit the offence.

Insanity may also be a defence if the defendant was suffering from a mental health issue that affected their ability to reason and understand that the act they were doing was against the law.

Mistake may apply if the defendant was mistaken about certain factual circumstances, but they cannot rely on their mistaken understanding of the law.

In rare circumstances, the defence of automatism may be applicable if the defendant was not aware of their actions when committing the offence. However, if the defendant was under the voluntary influence of alcohol or drugs, they generally cannot rely on this defence.