Malicious communication offences are becoming increasingly common, particularly in the context of social media and online messaging. While many people believe that heated private messages or posts are unlikely to result in legal consequences, the law in England and Wales takes a firm stance on messages intended to cause distress, anxiety or fear. You can face prosecution even if the communication was sent only once, especially where the language used is threatening, grossly offensive or indecent.

The Malicious Communications Act 1988, the Communications Act 2003 and the Online Safety Act 2023 provide the legal basis for these offences. Under these laws, it is a criminal offence to send a message by post, text, email or any form of electronic communication if it is grossly offensive, threatening or contains false information, and was intended to cause distress or anxiety to the recipient. Such offences are treated seriously by the police and the courts, particularly when social media is used to spread false allegations or target someone in a sustained campaign.

Here, the expert criminal defence solicitors at JMW explain the most common examples that lead to prosecution, and what legal steps to take if you are accused of sending a message intended to cause distress or anxiety.

What are the most common examples of malicious communications?

Offences under the Malicious Communications Act and Communications Act can take many forms. The most common examples include:

• Threatening messages sent via text, email or direct message.
• Social media posts targeting someone with grossly offensive or indecent content.
• Sharing false information designed to create fear, panic or reputational harm.
• Messages targeting someone’s race, religion, disability or sexual orientation with abusive language or slurs.
• Repeated unwanted messages, forming part of a targeted campaign to intimidate or harass.
• Messages of a menacing character, even without an explicit threat of violence.

A single message may be enough to result in prosecution if it meets the legal threshold. However, repeated or escalating messages are more likely to be viewed as criminal in nature.

What does the law say?

The two key pieces of legislation used to prosecute these offences create a comprehensive range of offences with which you may be charged based on the behaviours described above:

• The Malicious Communications Act 1988 applies to the sending of letters, electronic messages or any other articles which are indecent, grossly offensive or threatening, where the intent is to cause distress or anxiety.
• Section 127 of the Communications Act 2003 covers communications sent via a public electronic communications network that are grossly offensive, indecent, obscene or menacing in character.
• The Online Safety Act 2023 created new offences for sending a message that conveys a threat of death or serious harm, updated the legislation on false messages, and raised the threshold for prosecution in some cases.

These laws consider not only the content of the message but the intent of the person sending it. The Crown Prosecution Service will only authorise a prosecution where there is sufficient evidence and where it is considered to be in the public interest.

What is the maximum sentence for malicious communications?

If you are found guilty, the maximum sentence depends on how the offence is charged and the specific legislation involved.

• Under the Malicious Communications Act, the maximum penalty is two years’ imprisonment, an unlimited fine or both.
• Under Section 127 of the Communications Act, the maximum sentence is six months’ imprisonment and/or a fine, but in aggravated cases, the offence can be escalated to a more serious charge with a higher potential penalty.

Cases can be heard in either the Magistrates’ Court or the Crown Court, depending on the severity and context of the alleged offence. Aggravating factors, such as a targeted campaign, harm caused to the intended victim or messages involving serious threats, may result in harsher penalties.

Sentencing is guided by the court’s view of the relevant circumstances, including the level of intent, the impact on the recipient and whether any mitigating factors apply. The courts do not need to prove physical harm occurred; it is enough that the communication was likely to cause distress or anxiety.

What should you do if you are being investigated?

If you are under investigation for sending malicious communications, it is essential to seek expert legal advice at the earliest opportunity. These offences are criminal, and a conviction can result in a prison sentence, loss of employment and long-term reputational damage. Social media content can be taken out of context, and it may not be immediately clear that a message could lead to criminal charges.

An expert solicitor from JMW can assess whether there is a realistic chance of prosecution, help you respond to police interviews and represent you in legal proceedings. We will also argue for mitigating circumstances where applicable, or challenge the interpretation of grossly offensive communications where the evidence is unclear.