Malicious Phonecalls
Introduction to the legislation
The two main pieces of legislation to be aware of are Section 43 of the Telecommunications Act 1984 and the Protection from Harassment Act 1997.
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The Legislation: Section 43 Telecommunications Act 1984
(1) A person who –
(a) sends, by means of a public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) sends by those means, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a message that he knows to be false or persistently makes use for that purpose of a public telecommunication system,
shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both.
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Interpretation
The offence therefore consists of either:
1) sending a message or other matter that is grossly offensive or of an indecent, obscene or menacing character,
2) sending a message known to be false for the purpose of causing annoyance, inconvenience or needless anxiety, or
3) persistently making use of a public telecommunication system for the purpose of causing annoyance, inconvenience or needless anxiety.
1. Sending a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.
These words all carry their ordinary meaning, and it would be a matter for the magistrates to decide whether the message was offensive, etc. on a case-by-case basis. However there is a definition for “obscene” used in the “Obscene Publication Act” which also applies here. A message is deemed to be obscene if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it!
It appears from the wording that a message which would be merely offensive would not constitute an offence – it must be grossly offensive. The same guidelines apply here as to those regarding sending letters or e-mails. If you phoned up a HLS worker and told them that you thought they were an animal murderer this may be offensive but not grossly so. On the other hand, if you likened them to a Nazi this might well be deemed to be grossly offensive. If you told them you would protest at the lab every day to let them know what you think this could not be deemed menacing, but if you promised a home demo it probably would be.
The borderline between what is acceptable freedom of expression and what constitutes an offence will not always be clear. The Human Rights Act 1998 applies to this act as it does to any other piece of legislation, so it must be interpreted consistently with your European Convention right to freedom of expression. But this is not an absolute right and it my be restricted in order to prevent crime or to protect the rights of others.
The law does not make it an offence to make phone calls in the middle of the night. However, the timing of the call could be a relevant factor for the court in deciding whether or not it was of an offensive or menacing character. For example, a court might construe a single silent phone call to be menacing at 2am but not at 2pm.
2. Sending a message known to be false for the purpose of causing annoyance, inconvenience or needless anxiety.
Note here that the offender must actually know the message to be false. So, for example, if you phoned HLS to convey the mistakenly held belief that Brian Cass’ wife had died you would not be guilty of an offence under this section if you actually believed this to be the case (even if such a belief were unreasonable).
The offender must also intend that “annoyance, inconvenience, or needless anxiety” is caused by sending the false message. It is not enough for the prosecution to show that such annoyance is the likely outcome of your phone call. If you can convince the court that you did not intend to cause annoyance, etc. then they must acquit you even if people were annoyed or inconvenienced by the call. Note the contrast here to Section 5 Public Order Act 1986, where the prosecution only need to prove that harassment, alarm or distress was likely to be caused.
3. Persistently making use of a public telecommunication system for the purpose of causing annoyance, inconvenience or needless anxiety.
This clearly covers situations where someone repeatedly calls the same number, for example in order to jam the phone line. No obscene words, etc. need to be said – the offence is constituted by the repeated phone calls themselves.
The repeated use need not be to the same number. If you spent the whole day ringing various extension numbers of a company in order to cause annoyance etc then the offence would be complete. An offence could also be committed under this section by someone making repeated silent phonecalls to a list of separate residential numbers.
All of the above offences could be committed by sending text messages from a mobile phone or by sending faxes. The technique of sending a black fax would not be covered by this section unless it was done repeatedly.
Notes
None of the offences listed above actually require there to be a victim who has been caused anxiety, etc. The offence is complete if your intention is to cause such anxiety. For example if you left a message on an answer-phone which was intercepted by the police before the “victim” heard it, you could still be liable.
All offences are triable in the magistrates’ court only, and are punishable by up to 6 months imprisonment.
Examples of behaviour which could constitute an offence:
– Repeated silent phone calls or text messages to an individual or numerous individuals (e.g. employees of a company)
– Ringing someone up with information you know to be false e.g. pretending to be someone you’re not and giving false information
– Sending a text message to an individual containing obscene or indecent language
– Phoning someone up and saying you will demonstrate at their house if they continue to work at HLS (menacing)
– Phoning someone up and telling them they are no different from Nazis working in a concentration camp (grossly offensive)
As with all legislation, the court has to interpret this law consistently with your human rights and must therefore have regard to your freedom of expression when deciding whether or not you have committed an offence.
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The Legislation: Sections 2 & 4 Protection from Harassment Act 1997
Section 2 of the Protection from Harassment Act 1997 makes it an offence to pursue a course of conduct which causes another person harassment, alarm or distress. Section 4 of the Act makes it an offence to pursue a course of conduct which puts another in fear of violence.
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Interpretation: Section 2 Protection from Harassment Act 1997
The prosecution would need to show that you had caused harassment, alarm or distress to another person on at least two occasions. The victim of the harassment would normally need to be the same person on each occasion, although the courts have ruled that the victims can be different if they are part of a definable, close-knit group.
This charge might be preferable where the prosecution cannot prove that you have sent a grossly offensive or indecent message, and simply need to show that you have caused harassment on more than one occasion.
Unlike under Section 43 you have a statutory defence that your conduct was reasonable in all the circumstances. For example, you could argue that you were provoked or that you were exercising your human right to protest.
Interpretation: Section 4 Protection from Harassment Act 1997
The prosecution would need to show that you had caused another to fear violence on at least two occasions. The victim would need to be the same person on each occasion.
Unlike under Section 43 you have a statutory defence under this section that your conduct was reasonable, but this is more restrictive than the defence available under Section 2 above. It must be “reasonable for the protection of yourself or another or for the protection of yourself or another’s property.”
Notes
Section 2 is triable before magistrates only and the maximum sentence is 12 months’ imprisonment.
Section 4 is “triable either way” – if you are convicted before magistrates, the maximum penalty is 6 months imprisonment, whereas if you are convicted by a jury the maximum penalty is 5 years imprisonment.
Unlike under Section 43, the prosecution do not have to show that you intended to cause harassment or fear of violence – they only need to show that a reasonable person would think that the conduct amounted to harassment/fear of violence.
Unlike under Section 43, Sections 2 and 4 require that there is an actual victim willing to give evidence that you have caused them harassment or put them in fear of violence. Where no victim is available to testify, then you are more likely to be charged under Section 43.
Writing letters and emails
Introduction to the legislation
There are two main pieces of legislation to be aware of when sending emails and letters. These are the Malicious Communications Act 1988 and the Protection from Harassment Act 1997.
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The Legislation: Section 1 Malicious Communications Act 1988
1. Offence of sending letters etc with intent to cause distress or anxiety.
(1) Any person who sends to another person:
(a) a letter, electronic communication or article of any description which conveys:
(i) a message which is indecent or grossly offensive;
(ii) a threat; or
(iii) 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,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
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Interpretation
Looking at Section 1 above you can see that the offence breaks down in to two parts. Firstly you have to send a letter, electronic communication, or article which conveys one of three things:
1) sending a message which is indecent or grossly offensive,
2) a threat, or
3) information which is false and known or believed to be false by the sender.
Secondly your purpose, or one of your purposes, in sending it is that it should cause distress or anxiety to the recipient or to anyone else to whom you intend that the contents be communicated.
1. Sending a message which is indecent or grossly offensive.
The words “indecent” and “grossly offensive” have no specific legal meaning, and it would be down to the magistrate to decide what would constitute an offence.
If you simply stated in a letter or email that you find what the laboratory worker does is offensive or wrong, then the you would not be guilty under this section. If you called them Nazis or paedophiles, this could be considered to be grossly offensive. But if you said that in your opinion, what happens in animal testing laboratories is comparable to what happened in concentration camps then this would, in our view, be fair comment. So long as your criticism does not become personally insulting, you should be ok.
Be aware that the section also makes it an offence to send an article of any description which is indecent or grossly offensive. This would cover the sending, for example, of excrement or pornography
2. A threat.
There is no legal definition of the word “threat” – it is down to police/magistrates to decide whether a particular piece of conduct amounts to a threat in the ordinary meaning of the word. One dictionary definition is: “a declaration or indication of an intention to inflict, punish or hurt”.
So you would have to be stating in an email or letter that something bad would happen to the recipient.
Example 1: “I find your work disgusting and think you should stop it right now”
This is not a threat. The recipient may be caused distress or anxiety by the letter, and the writer may even have intended this, but there is no sense in which the writer is saying that anything bad will happen to the recipient. They are merely stating their opinion about what they think of the worker’s job.
Example 2: “Stop working at the lab or we will hold a demo outside it”.
Here the writer is stating that they will do something of detriment to the worker – a protest outside the lab – unless their demands are met. So this could be construed as a threat, but even this is a borderline case. If it is clear that the demonstration will be peaceful, it will be hard for anyone to construe it as a threat. You are merely stating that if the worker continues to work there, you will exercise your right to protest peacefully at their workplace.
Example 3: “Stop working at the lab, or we will come and demonstrate at your house”.
This is clearly a threat and the sender could be convicted for making it, as no magistrate would regard a demonstration at someone’s home as a reasonable or lawful form of protest.
Example 4: A worker is sent a wreath or a coffin.
This section makes it an offence to send any article which conveys a threat. Sending a wreath or a coffin could be construed as a threat and would therefore constitute an offence.
It is probably best to write any letter in such a way so as to avoid any hint of a threat. If you state that you find what they do at HLS offensive, and that this is why you will continue to protest at the lab, this would not be threatening.
3. Information which is false and known or belived to be false by the sender.
Examples of how you could intend distress/anxiety by giving false information would be:
i) writing an email to someone, expressing disgust at what they do for a living, but giving the name and address of one of their neighbours. In this situation, the recipient could argue they were caused distress at the thought of being disliked by a neighbour, ie by the giving of their false details.
ii) sending a letter pretending to be someone you’re not informing the recipient that a family member has cancer – an obvious example of sending false information with the intent of causing anxiety.
Notes
In this case, the information must be false and known or believed to be false by the sender. So you might write to a worker stating that their company was about to close and that they would be out of work. If you could show that you had read this in the Financial Times, for example, you would not be guilty of an offence, even if the information turned out to be false. This is because you did not believe the information was false when you sent the letter/email.
In fact it seems that even if your belief (that false information is true) is wholly unreasonable, a court would still have to acquit you if you could convince them that this was your genuine belief.
To be guilty of an offence under Section 1, the law also states that the sender’s purpose, or one of their purposes, in sending it is that it should cause distress or anxiety to the recipient or to any other person to whom they intend that it or its contents or nature should be communicated.
It will be for the magistrates to decide on an individual case. Note that the distress and anxiety can be caused indirectly (e.g. if you send an email to a recipient’s spouse, intending that s/he shows it to their partner).
You would not be guilty of sending a threatening email if you could convince magistrates that your only purpose in sending it was to stop, in our examples, the suffering of animals and that it had not crossed your mind that anxiety and distress would be caused. However, the magistrates might take some convincing of this if you had sent something seriously threatening or grossly offensive. If you said that you were simply going to demonstrate within the law at their workplace, you could argue that your purpose was not to cause anxiety or distress, but simply to exercise your lawful right.
An offence under Section 1 is triable summarily (in the magistrates court) only, and is punishable by up to 6 months imprisonment.
The prosecution need not always have to produce a witness to show that they have been caused anxiety or distress in order to prove the offence. It is sufficient for them to show that you sent the message with intent to cause anxiety or distress. Obviously they would often use a witness to confirm that s/he had been sent the message, and sometimes they might need to do so.
A possible defence
Section 2 of the Malicious Communications Act 1988 provides a defence to a charge made under Section 1 that you have sent a message conveying a threat. It reads as follows:
(2) A person is not guilty of an offence by virtue of subsection (1)(a)(ii) above if he shows:
(a) that the threat was used to reinforce a demand [made by him on reasonable grounds]; and
(b) that he believed [and had reasonable grounds for believing] that the use of the threat was a proper means of reinforcing the demand.
Notes
This section is probably intended to cover people like bailiffs making demands for money and threatening court action if it is not paid. This section was amended, however, by Section 43 of the Criminal Justice and Police Act 2001, as part of the so-called “package of measures” introduced by the government to counter “animal rights extremists”. The amendments are the words inserted in square brackets.
Prior to the amendment, it was a defence to say that the threat made was to re-enforce a demand and that you believed that the use of such a threat was a proper way to re-enforce that demand. So, if your demand was the closure of an animal testing company and you believed that threatening to attack the worker as they left the lab was a proper means of re-enforcing your demand, then you would be not guilty of an offence.
But the effect of the amendment is that the demand – closure of the lab – must be a reasonable one, and that you had reasonable grounds to believe that threatening to attack the worker was a proper means to enforce the demand. You wouldn’t be able to show this of course, because you would be judged by the court not on what you actually believed, but on what the magistrates decided a reasonable person would believe. In legal language, there is now an objective rather than a subjective requirement on you to show that the threat was a proper means of re-inforcing the demand.
You could of course still argue under Section 2 that peaceful protest outside the lab was a proper way of re-enforcing your reasonable demand that the laboratory workers stop breaking the law.
FAQs
Q: Is sending someone a book on ‘death’ or arranging for them to receive wreath a threat?
A: Looking at Section 1(1)(a), it states that an offence is committed by anyone who sends a message letter, electronic communication or article of any description which conveys a threat. So if you sent someone a book on death or a wreath, a court could infer that a threat was conveyed by that article.
Q: How does the law stand on sending emails to people abroad, especially if they work for a company based in the UK (or with subsidiaries in the UK)? What about sending messages from outside of the UK?
A: The offence doesn’t require a “victim”. The prosecution only need to show that you sent the threat, etc. with intent to cause anxiety or distress. So the offence is committed as soon as you post the letter or send the e-mail. You could therefore be liable for sending letters anywhere in the world. But if you sent the letter from say Germany to the UK, then it would be out of UK jurisdiction as the offence had already been committed outside of the UK.
Q: Is there a distinction between sending emails to distinct individuals in a company or to a generic email address for the company; for example: between an email to john.smith@scumcompany.com or sales@scumcompany.com?
A: The law is not entirely clear on this. S1(1) states the offence is committed by a person sending to another person. So this suggests that you can’t commit the offence by writing to “sales@ukorg.huntingdon.com”. But a court might infer that your purpose in sending the letter would be that another person receives it at the other end. And so long as you intend that this recipient or any other person to whom you intend it is to be communicated is caused distress, then the offence is committed. You probably do not need to have a specific recipient in mind, so long as you intend that whoever receives the email is caused anxiety or distress.
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The Legislation: Sections 2 & 4 Protection from Harassment Act 1997
As above (see section on Malicious Phonecalls).
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The Legislation: Public Order Act 1986
You cannot be prosecuted under Sections 4, 4A or 5 of the Public Order Act 1986 for writing threatening letters or emails, as the threat is not immediate enough.