Shining the spotlight on malicious communications: a threat to freedom of expression?
As widely publicised in the media last week, four individuals were arrested after images of Donald Trump and Jeffery Epstein were projected onto Windsor castle. The footage of Trump and Epstein - a notorious financier who died in custody in 2019 - was seen projected onto an external castle wall, along with quotes and headlines about their relationship.
The four were held on suspicion of a number of offences, including malicious communications and public nuisance, over the projection of the US president and the late convicted sex offender ahead of the state visit to the UK.
Whilst some commentators have welcomed the forceful action taken by the police, other critics have hit back against the arrests, calling the police’s response “Orwellian” and “heavy handed” in the context of journalism and the right to free speech.
The Malicious Communications Act 1998
Whilst most people are familiar with the concept of public nuisance, this incident has thrown a spotlight onto a little-known piece of legislation known as the ‘Malicious Communications Act 1998’ (MCA).
A person commits a criminal offence under the MCA if they send to another person a letter, electronic communication or article of any description which is indecent or grossly offensive. The mental element of this offence is the intention to cause distress or anxiety to the recipient or to any other person to whom he intends it be communicated. The offence is triable either way, with sentencing options including up to two years' imprisonment or a fine, or both if convicted on indictment.
Case law in this area dictates that the communication must be grossly offensive or of an indecent, obscene, or menacing character. The bar for what constitutes this type of behaviour is typically high, as demonstrated by the following cases (albeit both brought under Section 127 of the Communications Act 2003, but remain applicable to the MCA):
- In Chambers v DPP [2012] EWHC 2157, it was emphasised that the legislation is not designed to prohibit "satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it".
- In Connolly v DPP [2007] EWHC 237, the court held that the fact a message was sent for political or education purposes had no bearing on whether it was indecent or grossly offensive.
A Balancing Act: Free Speech
Even where an offence pursuant to the MCA is made out, the CPS guidance makes it clear that it will rarely be in the public interest to bring a prosecution given the potential impact on free speech. The guidance has particular regard to the right to freedom of expression under Article 10 of the European Convention on Human Rights. The protection afforded to individuals under Article 10 extends to communications that ‘offend, shock and disturb’ (Sunday Times v United Kingdom (13166/87) (1992) 14 EHRR 229).
Key Takeaways
Whilst there are significant challenges to bringing a successful prosecution pursuant to the MCA, the Trump/Epstein saga serves as a useful reminder that it remains a powerful lever for the police to activate should the need arise.
Thames Valley Police said the men have been released on conditional bail until 12 December while the investigation continues. Whether or not the arrests will result in successful prosecution remains unclear. On the face of it, the ‘electronic communication’ complained of is arguably neither indecent nor grossly offensive; it is merely a photograph of two people next to each other (albeit undoubtedly with an innuendo meaning that can be derived from the surrounding context). This case is also unique in that the ‘communication’ in question is a projection; the Judge will have to decide whether a projection onto a wall counts as a communication within the scope of the MCA. Given that the language (and current application) of the MCA appears to capture communications sent between individuals, it will be interesting to see whether the scope is widened to capture public incidents of this nature.
The four were held on suspicion of a number of offences, including malicious communications and public nuisance, over the projection of the US president and the late convicted sex offender ahead of the state visit to the UK.
