An 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.
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Parliament of the United Kingdom.[1] The act, which came into force on 25 July 2003, superseded the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 SecretaryTessa 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
The act had 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.
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".
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
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
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 in the
Online Safety Bill, a proposed
Act of Parliament first drafted in 2021 and as of 2023 still being debated by
MPs, by new offences which were 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 proposed changes were dropped by the government in January 2023.[22]
The
Digital Economy Act 2010 amended the Communications Act 2003, giving Ofcom the responsibility of enforcing regulations concerning Internet copyright breaches.
The
Audiovisual Media Services Regulations 2014 amended the Communications Act 2003 to set out statutory and legal obligations for media distributors of on-demand content. The regulations define the content that can legally be distributed under an
R18 certificate and make it a criminal offence to not adequately restrict access to such content to those aged over 18.[23]
Notable prosecutions
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.[24] However, after a strong public outcry[25] and three appeals,[26] the case was eventually overturned.[27]
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.[28]
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.[29][30]
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".[31][32][33] 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.[34] He was fined £800 at Airdrie Sheriff Court on 23 April 2018.[35]
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.[36][37] Her conviction was quashed on appeal in February 2019.[38][39]
2020: Kate Scottow was convicted in February 2020 for tweeting transphobic insults. This conviction was quashed on appeal in December 2020.[40]
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.[41]
^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.
ISSN0267-3231.
S2CID143521816.