Communications Act 2003
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Act 2003 (c. 21) is an Act of the Parliament of the United Kingdom.[1] The act, which came into force on 25 July 2003, superseded the Telecommunications Act 1984.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 Secretary Tessa 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]
Long title
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.
2003 c. 21
17 July 2003
17 July 2003 (partial)
The act had a large number of provisions, including the following:
Wi-Fi[edit]
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]
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:
The revisions also clarified that criminal prosecutions were "unlikely":
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]