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Communications Act 2003

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Communications Act 2003
Act of Parliament
Parliament of the United Kingdom
Long titleAn Act to confer functions on the Office of Communications; to make provision about the regulation of the provision of electronic communications networks and services and of the use of the electro-magnetic spectrum; to make provision about the regulation of broadcasting and of the provision of television and radio services; to make provision about mergers involving newspaper and other media enterprises and, in that connection, to amend the Enterprise Act 2002; and for connected purposes.
Citation2003 c. 21
Introduced byTessa Jowell
Dates
Royal assent17 July 2003
Commencement17 July 2003 (partial)
Status: Amended
Text of the Communications Act 2003 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Communications Act 2003 (c. 21) is an Act of the Parliament of the United Kingdom.[1] The act, which came into force on 25 July 2003, superseded the Telecommunications Act 1984. The new act was the responsibility of Culture Secretary Tessa Jowell. It consolidated the telecommunication and broadcasting regulators in the UK, introducing the Office of Communications (Ofcom) as the new industry regulator. On 28 December 2003 Ofcom gained its full regulatory powers, inheriting the duties of the Office of Telecommunications (Oftel). Among other measures, the act introduced legal recognition of community radio and paved the way for full-time community radio services in the UK, as well as controversially lifting many restrictions on cross-media ownership. It also made it illegal to use other people's Wi-Fi broadband connections without their permission. In addition, the legislation also allowed for the first time non-European entities to wholly own a British television company.[2][3]

Provisions of the act

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The act has a large number of provisions, including the following:

  • Dishonestly obtaining access to the Internet with no intention to pay for the service was made a criminal offence.
  • Sending a malicious communication using social media was made a criminal offence.
  • The Independent Television Commission, Radio Authority, Office of Telecommunications, and Radiocommunications Agency were merged into Ofcom.
  • The telecommunications licensing regime was replaced by a general authorisation for companies to provide telecommunications services subject to general conditions of entitlement, while BT retained its universal service obligation.
  • It was declared an offence to "persistently make use of a public electronic communications network for the purpose of causing annoyance, inconvenience or needless anxiety". Ofcom subsequently developed policies to reduce the number of silent telephone calls.
  • The public service remit for Channel 4 was revised.
  • Broadcasters were required to make a proportion of television programmes outside the London area (defined as outside the M25).
  • Restrictions on ITV company ownership were lifted, aside from "public interest" test that was added as an amendment in the House of Lords. The result was the formation of a single entity ITV plc controlling all of the ITV franchises in England and Wales in February 2004.
  • The limit on the proportion of ITN that any ITV operating company could own was abolished.
  • Broadcasters were required to carry a "suitable quantity and range of programmes" dealing with religion and other beliefs, as part of their public service broadcasting.
  • Political advertising on television or radio was prohibited.
  • Ofcom given the responsibility to 'promote' media literacy.[4]
  • The Gaelic Media Service (now MG ALBA) was created "to secure that a wide and diverse range of high quality programmes in Gaelic are broadcast or otherwise transmitted so as to be available to persons in Scotland".
  • Community radio stations were recognised as a distinct third tier of radio alongside BBC Radio and commercial radio.
  • The authority for the BBC to collect the licence fee was set out.
  • Provision was made for the requirements for blind and deaf television viewers. This has subsequently included sign language, subtitles and audio description.
  • The Broadcast Committee of Advertising Practice was established as the regulatory body ensuring that advertising on radio and television is not misleading, harmful, offensive, or beyond the boundaries of taste and decency.

Wi-Fi

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It is an offence under section 125 of the act to obtain access to the Internet when there is no intention to pay for that service.[5] The legislation was intended to prevent the major defrauding of communications companies. Nevertheless, the individual practice of piggybacking (the illicit use of a Wi-Fi connection to access another subscriber's Internet service) was demonstrated to be a contravention of the act by R v Straszkiewicz in 2005.[6] There have been subsequent arrests for the practice.[7] Piggybacking may also be a breach of the Computer Misuse Act 1990. Section 125 of the act has been criticised for its vagueness, resulting in the possibility that many users of portable Wi-Fi enabled devices are inadvertently breaching it.[8]

Malicious communications

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Section 127 of the act makes it an offence to send a message that is grossly offensive or of an indecent, obscene or menacing character over a public electronic communications network.[9] The section replaced section 43 of the Telecommunications Act 1984 and is drafted as widely as its predecessor.[10] The section has been used controversially to prosecute users of social media in cases such as the Twitter Joke Trial and Facebook comments concerning the murder of April Jones.[11] Section 127 is a summary offence,[12] so it is tried in a magistrates court with no right to jury trial.

On 19 December 2012, to strike a balance between freedom of speech and criminality, the Director of Public Prosecutions issued interim guidelines, clarifying when social messaging is eligible for criminal prosecution under UK law. Only communications that are credible threats of violence, harassment, or stalking (such as aggressive Internet trolling) which specifically targets an individual or individuals or breaches a court order designed to protect someone (such as those protecting the identity of a victim of a sexual offence) will be prosecuted. Communications that express an "unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some and painful to those subjected to it" will not. Communications that are merely "grossly offensive, indecent, obscene or false" will be prosecuted only when it can be shown to be necessary and proportionate. People who pass on malicious messages, such as by retweeting, can also be prosecuted when the original message is subject to prosecution. Individuals who post messages as part of a separate crime, such as a plan to import drugs, would face prosecution for that offence, as is currently the case.[13][14][15]

Revisions to the interim guidelines were issued on 20 June 2013 following a public consultation.[16] The revisions specified that prosecutors should consider:

  • whether messages were aggravated by references to race, religion or other minorities, and whether they breached existing rules to counter harassment or stalking; and
  • the age and maturity of any wrongdoer should be taken into account and given great weight.

The revisions also clarified that criminal prosecutions were "unlikely":

  • when the author of the message had "expressed genuine remorse";
  • when "swift and effective action ... to remove the communication" was taken; or
  • when messages were not intended for a wide audience.

More recently, Section 127 has been used to prosecute those alleged to have sent grossly offensive messages on a public electronic communications network, such as WhatsApp, but which were not visible to an audience beyond the intended recipients. In 2022, a serving police officer and a former constable each received 12-week prison sentences for sending racist, misogynistic, ableist, and homophobic messages to a WhatsApp group. The group was uncovered as convicted murderer, and former police officer, Wayne Couzens had been a member.[17] Six more former police officers, retired at the time of the offensive communications, pleaded guilty to a similar but unrelated WhatsApp group in September 2023.[18] Such prosecutions are not without controversy since they treat encrypted messages, by their nature only visible to intended recipients, as public because they are sent using publicly available instant messaging platforms, rather than because the individual messages themselves are visible to the public.[19] Andrew Tettenborn, a British legal academic, has argued that this criminalises speech which would not be illegal if spoken aloud in private conversation.[20]

The Law Commission, a public body which reviews and recommends changes to the law, recommended that Section 127 be replaced with new offences that are more targeted in their approach. This was intended to update legislation passed prior to the widespread use of instant messaging and to reduce concerns about limits on the freedom of expression.[21] The Online Safety Act 2023 adopts this change by repealing section 127[22] and replacing it with two new offences: threatening communication and false communication[23] (as well as introducing a number of other new criminal offences).[24]

Amendments to the act

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Notable prosecutions

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  • 2012: Paul Chambers made a joke on Twitter in response to Robin Hood Airport cancelling flights. He said that unless the facility resolved the problem within a week, he would be "blowing the airport sky high". After an off-duty manager discovered the post, Chambers was arrested by anti-terror police. He was found guilty, lost his job and was ordered to pay a £385 fine and £600 in costs.[27] However, after a strong public outcry[28] and three appeals,[29] the case was eventually overturned.[30]
  • 2014: A Lincolnshire man was charged with being grossly offensive after posting a photograph of a police officer on social media, with two phalluses drawn on it. The offending picture was passed on to Lincolnshire Police, who arrested the 20-year-old. He was ordered to pay £400 in compensation to the officer in question, in addition to £85 costs and a £60 victim surcharge.[31]
  • 2017: R v Mwaikambo where a 43-year-old man posted one video and seven pictures of a victim of the Grenfell Tower fire to his Facebook account. Notable in this case was the rapidity of conviction: the fire occurred on 14 June and the case was heard but two days later. Mwaikambo was sentenced to three months in prison.[32][33]
  • 2018: Mark Meechan, a comedian and social commentator, was convicted under the Communications Act in 2018. He had made a video demonstrating how he had trained his girlfriend's dog to perform a Nazi salute upon hearing the phrase "Sieg Heil" and to respond to being asked if he wanted to "gas the Jews".[34][35][36] Even though Meechan said that he was not actually racist and that it was a joke intended to annoy his girlfriend, the court found him guilty of being "grossly offensive" on 20 March.[37] He was fined £800 at Airdrie Sheriff Court on 23 April 2018.[38]
  • 2018: A Merseyside woman was convicted under the Communications Act for posting rap lyrics on Instagram which were deemed 'racist', due to them including racially charged language. Chelsea Russell had used lyrics from a Snap Dogg song as a tribute to a boy who died in a road accident. She was sentenced to an eight-week community order, along with an eight-week curfew. She was also ordered to pay costs of £500 and an £85 victim surcharge.[39][40] Her conviction was quashed on appeal in February 2019.[41][42]
  • 2020: Kate Scottow was convicted in February 2020 for tweeting "transphobic" insults. This conviction was quashed on appeal in December 2020.[43][44]
  • 2020: Conservative Party candidate Joshua Spencer was sentenced to 9 weeks in prison under section 127 for sending threatening messages to Yvette Cooper and her constituency staff.[45]

See also

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Notes

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  1. ^ "Communications Act 2003". legislation.gov.uk. Archived from the original on 22 April 2014. Retrieved 23 April 2014.
  2. ^ UK Office of Communications [4.4.1] | ICT Regulation Toolkit Archived 23 June 2012 at the Wayback Machine
  3. ^ "Department for Culture Media and Sport – media ownership". Archived from the original on 17 August 2009.
  4. ^ Wallis, Richard; Buckingham, David (10 June 2013). "Arming the citizen-consumer: The invention of 'media literacy' within UK communications policy". European Journal of Communication. 28 (5): 527–540. doi:10.1177/0267323113483605. ISSN 0267-3231. S2CID 143521816.
  5. ^ "Communications Offences". The Crown Prosecution Service. Archived from the original on 18 May 2014. Retrieved 23 April 2014.
  6. ^ Jane Wakefield (28 July 2005). "Wireless hijacking under scrutiny". BBC News. Archived from the original on 2 March 2009. Retrieved 23 April 2014.
  7. ^ "Man arrested over wi-fi 'theft'". BBC News. 22 August 2007. Archived from the original on 24 October 2007. Retrieved 22 August 2007.
  8. ^ Stewart Mitchell (17 August 2009). "Vague Wi-Fi laws lead to legal risk for mobile surfers". PC Pro. Archived from the original on 27 July 2014. Retrieved 23 April 2014.
  9. ^ Neil Addison. "Harassment Law UK - Malicious Communications Offences". Harassment Law. Archived from the original on 9 October 2014. Retrieved 23 April 2014.
  10. ^ Professor Lilian Edwards (19 October 2012). "Section 127 of the Communications Act 2003: Threat or Menace?". The London School of Economics and Political Science. Archived from the original on 26 April 2014. Retrieved 23 April 2014.
  11. ^ Amanda Bancroft (27 April 2012). "Is the law criminalising 'improper' Twitter use a menace?". The Guardian. Archived from the original on 26 April 2014. Retrieved 23 April 2014.
  12. ^ "Social Media and other Electronic Communications". Crown Prosecution Service. 19 December 2022. Retrieved 16 December 2023.
  13. ^ "Country Reports on Human Rights Practices for 2012: United Kingdom". Bureau of Democracy, Human Rights and Labor, U.S. Department of State. Archived from the original on 1 January 2020. Retrieved 4 October 2013.
  14. ^ Dominic Casciani (19 December 2012). "Prosecutors clarify offensive online posts law". BBC News. Archived from the original on 31 October 2013. Retrieved 4 October 2013.
  15. ^ "U.K. sets out social media prosecution guidelines". CBS News (Associated Press). 19 December 2012. Archived from the original on 5 October 2013. Retrieved 4 October 2013.
  16. ^ David Barrett (20 June 2013). "Offensive online posts to escape prosecution if writers apologise, say new guidelines". The Telegraph (UK). Archived from the original on 26 October 2013. Retrieved 4 October 2013.
  17. ^ "Met Police officer Jonathon Cobban and ex-PC Joel Borders sentenced to jail for sharing offensive WhatsApp messages with Sarah Everard's killer | UK News | Sky News". 2 June 2023. Archived from the original on 2 June 2023. Retrieved 18 October 2023.
  18. ^ "UPDATE: Former officers plead guilty to communications offences following investigation into messages sent on WhatsApp". Mynewsdesk. 7 September 2023. Retrieved 18 October 2023.
  19. ^ "The criminalisation of private speech | Freddie Attenborough". The Critic Magazine. 22 August 2023. Retrieved 18 October 2023.
  20. ^ Andrew Tettelborn (18 August 2023). "WhatsApp messages shouldn't be criminalised". The Spectator. Archived from the original on 10 September 2023.
  21. ^ "Reform of the Communications Offences". Law Commission. Retrieved 18 October 2023.
  22. ^ "Online Safety Act 2023: Section 189", legislation.gov.uk, The National Archives, 2023 c. 50 (s. 189)
  23. ^ Ormerod, David; Perry, David, eds. (2024). Blackstone’s Criminal Practice 2025 (35 ed.). Oxford University Press. B18.31. ISBN 9780198924333.
  24. ^ Woods, Lorna; Antoniou, Alexandros (3 September 2024). "Is the Online Safety Act "fit for purpose"?". LSE Blogs.
  25. ^ Ed Vaizey (4 November 2014). "The Audiovisual Media Services Regulations 2014". Department for Culture, Media and Sport. Archived from the original on 21 November 2014. Retrieved 24 November 2014.
  26. ^ "Criminal Justice and Courts Act 2015: Section 51", legislation.gov.uk, The National Archives, 2015 c. 2 (s. 51)
  27. ^ "Wrong kind of tweet leaves air traveller £1,000 out of pocket", 11 May 2010 [dead link]
  28. ^ "#IAmSpartacus campaign explodes on Twitter in support of airport joker", 13 November 2010 [dead link]
  29. ^ "The "Twitter Joke Trial" returns to the High Court" Archived 18 July 2020 at the Wayback Machine, 22 June 2012
  30. ^ "Robin Hood Airport tweet bomb joke man wins case", 27 July 2012 [dead link]
  31. ^ Pocklington, Rebecca (6 February 2014). "Builder who drew PENISES on photo of police officer's head using Snapchat fined £400". mirror. Archived from the original on 25 June 2020. Retrieved 22 June 2020.
  32. ^ telegraph.co.uk: "Man jailed for sharing photo of dead Grenfell Tower fire victim on Facebook" Archived 22 December 2017 at the Wayback Machine, 16 June 2017
  33. ^ met.police.uk: "Man jailed for malicious communication offences" Archived 19 June 2017 at the Wayback Machine, 16 June 2017
  34. ^ "Count Dankula found guilty of hate crime after teaching pet pug 'Nazi salute'". Evening Standard. 20 March 2018. Archived from the original on 28 March 2018. Retrieved 20 March 2018.
  35. ^ The conviction of Count Dankula sets a dangerous precedent for freedom of speech Archived 28 March 2018 at the Wayback Machine The Independent, Shappi Khorsandi ,Friday 23 March 2018
  36. ^ Man arrested over 'Nazi salute dog' video Man arrested over 'Nazi salute dog' video Archived 28 June 2018 at the Wayback Machine 9 May 2016
  37. ^ "YouTuber found guilty of hate crime for teaching pet pug 'Nazi salute'". Evening Standard. Archived from the original on 21 March 2018. Retrieved 21 March 2018.
  38. ^ BBC News Archived 24 June 2018 at the Wayback Machine Man fined for hate crime after filming pug's 'Nazi salutes'
  39. ^ "Woman guilty of 'racist' Snap Dogg rap lyric Instagram post". BBC News. Archived from the original on 22 June 2018. Retrieved 20 April 2018.
  40. ^ "Woman who posted rap lyrics as tribute on Instagram guilty of sending offensive message". Liverpool Echo. Archived from the original on 21 April 2018. Retrieved 20 April 2018.
  41. ^ Docking, Neil (22 February 2019). "This teen with Asperger's was prosecuted - for Instagramming N-word rap lyrics". liverpoolecho. Archived from the original on 21 May 2020. Retrieved 18 April 2020.
  42. ^ Morton, Jack. "In win for free speech British teen prosecuted for posting rap lyrics on Instagram has conviction overturned | Albion Times". Archived from the original on 24 February 2019. Retrieved 18 April 2020.
  43. ^ Tominey, Camilla (17 December 2020). "Exclusive: People must have the 'right to offend' without facing a police investigation". The Telegraph. Archived from the original on 23 October 2021. Retrieved 24 August 2021.
  44. ^ Scottow v Crown Prosecution Service [2020] EWHC 3421 (Admin), [2021] 1 WLR 1828, [2021] WLR 1828, [2021] Crim LR 315, [2021] EMLR 13, [2021] 1 Cr App R 13, [2021] ACD 29, [2020] WLR(D) 684 (16 December 2020)
  45. ^ "Yvette Cooper: Knottingley man jailed over threats about MP". BBC News. 7 February 2020. Retrieved 6 August 2022.
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