Public privacy

Courts may disagree over whether language is “grossly” offensive. In DPP v Collins [2006] UKHL 40 (19 July 2006) the House of Lords unanimously disagreed with two lower courts on this point. The defendant had left messages by telephone at his MP’s office, employing terms of racial abuse that were unquestionably offensive. The lower courts held that the messages did not cross the line between offensive and grossly offensive. The embarrassment of disagreeing with the lower courts was exacerbated because essentially the question whether the messages were “grossly” offensive was one of fact, to be determined by applying the standards of an open and just multi-racial society taking into account the context and all relevant circumstances (Lord Bingham, para 9) – standards which the lower courts should be particularly well placed to apply.

How had the lower courts gone wrong? Lord Bingham at para 13 concluded:

“Differing from the courts below with reluctance, but ultimately without hesitation, I conclude that the respondent's messages were grossly offensive and would be found by a reasonable person to be so.”

He agreed with Lord Carswell, who was a little more explicit about this (para 22):

“I felt quite considerable doubt during the argument of this appeal whether the House would be justified in reversing the decision of the magistrates' court that the reasonable person would not find the terms of the messages to be grossly offensive, bearing in mind that the principle to which I have referred, that a tribunal of fact must be left to exercise its judgment on such matters without undue interference. Two factors have, however, persuaded me that your Lordships would be right to reverse its decision. First, it appears that the justices may have placed some weight on the reaction of the actual listeners to the messages, rather than considering the reactions of reasonable members of society in general. Secondly, it was conceded by the respondent's counsel in the Divisional Court that a member of a relevant ethnic minority who heard the messages would have found them grossly offensive. If one accepts the correctness of that concession, as I believe one should, then one cannot easily escape the conclusion that the messages would be regarded as grossly offensive by reasonable persons in general, judged by the standards of an open and just multiracial society. The terms used were opprobrious and insulting, and not accidentally so. I am satisfied that reasonable citizens, not only members of the ethnic minorities referred to by the terms, would find them grossly offensive. "

The offence in question was held to require mens rea – an intention that the words be grossly offensive to those to whom they related, or an awareness that they may be taken to be so (Lord Bingham, para 11). But on the approach taken here, that state of mind need not be followed by actual offence taken by the recipient of the message. Indeed, it was held not to be necessary than anyone actually receive the message (para 8).

Consequently, the offence of sending a grossly offensive message could be committed without actually offending anyone. What makes it an offence is the fact that the social standards have been infringed. The offence is, on this interpretation, sending a message that would grossly offend a reasonable person if such a person became aware of it. That seems to be a bit of a stretch from the wording of the relevant legislation: s 127 of the Communications Act 2003[UK]:

“127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends 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; or
(b) causes any such message or matter to be so sent.”

The justification for the imposition of community standards is the public nature of the communication network, which would be fine if everyone had ready access to everyone else’s communications. In reality, of course, the network is no more public than words exchanged in a conversation between two people on the street.