Section 127 is unnecessary. Other legislation covers the same ground so far as offensive material and harrassment is concerned. It is a charter for mischief makers.
On 12 March it was widely reported that a magistrates court in Wrexham convicted and fined one Darren Mattox for posting a message about his former girlfriend on Facebook. Apparently he had called her by an offensive name.
He was prosecuted for having done so under section 127 of the Communications Act, which makes it an offence to send "by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character". This is an odd provision. It is a legacy of the old Post Office Acts and has lurked, little used, in the bowels of communications legislation for 75 years. It does not apply to anything in the nature of a programme service, which is regulated under broadcasting law and, more recently, under provisions implementing the European AVMS Directive. But thanks to the ingenuity of the prosecuting authorities in Wrexham, a new dimension in Internet regulation in the UK has been opened up. Sending anything that falls within the scope of the section otherwise than as a programme service is a criminal offence.
There is room for more than one view about calling ex-girlfriends names but since the offence is also committed by sending something which is merely indecent, there are serious consequences for anyone sending content for posting on a social network or otherwise.
The threshold of indecency is lower than the standard that applies to most programme services. Under the AVMS Directive, for example, which introduces content regulation to on-demand services, all that is prohibited so far as adult material is that, where a service contains material which might seriously impair their development, children and young people will not normally see it. So it can be included so long as it is PIN-protected, for example. Section 127 goes much further. Anyone uploading anything even faintly prurient to a social networking or other site may find themselve being prosecuted. To put it another way, content regulation on the Internet does not stop at the boundaries of the AVMS Directive. On the contrary, it gets more stringent. Section 127 prohibits, for example, the uploading by means of a public telecommunication system (such as a standard BT connection) to any website of anything which falls within the ambit of the section.
It is sometimes hard to believe that the section should be taken seriously. In DPP v Collins, a House of Lords decision in 2006, their Lordships struggled to find a purpose for it, eventually holding that its purpose was to "prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society", thereby displaying a misunderstanding of the nature of network infrastructure that is almost comical. But they upheld Mr Collins' conviction and the Wrexham magistrates have convicted Mr Mattox so it is no laughing matter.
The upshot is that an old legacy of content regulation from another age has found new life in relation to the Internet. The indecency test in particular presents a hazard to anyone sending the mildest adult material over the Internet. In practice, the authorities will have no way of discovering much of it, when for example it is sent by e-mail, but anything uploaded to an accessible site is vulnerable.
This is legislation that should urgently be repealed or amended. It is a gift to mischief-makers, not to mention officious public authorities. It is in need of urgent legislative attention.