Section 127 of the Communications Act 2003 is a notorious blot on the statute book, epitomised by the ultimately unsuccessful prosecution of Paul Chambers (the Twitter Joke Trial) under the first limb of the section. That concerns messages of a grossly offensive, indecent, obscene or menacing character sent by means of a public communications network under section 127(1).
That provision is such a mess that the Director of Public Prosecutions had to devise a set of social media prosecution guidelines in attempt to avoid criminalising a substantial proportion of the population.
The second limb of this provision, section 127(2), is less well known. It provides that
A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
This is also extraordinarily broad.
This limb was originally designed in the 1930s to catch a particularly unpleasant type of hoaxer who would send telegrams to people informing them that a relative was seriously ill (see Hansard). Now, like the first limb, it can catch tweets. (Tweets qualify because they are sent across public telecommunications networks.)
Putting aside the potential for the second limb to catch all sorts of harmless pranks, we can have some fun with it.
Consider the tweet that forms the title of this post: “This tweet is a Section 127 offence.” Could that tweet fall (however theoretically) within the second limb of Section 127?
The first requirement is that the message be false. If the tweet is not an offence under Section 127, its message is false. But if it is false, then Section 127 can bite. But if that means the tweet is an offence, then the message is true and the tweet cannot be an offence. (For self-referential paradoxes, see here)
Is the tweet sent for the purpose of annoying another? Hardly (and indeed ‘another’ may suggest something targeted at a particular person). However a substantial section of the population detests logical puzzles and paradoxes and may conceivably be annoyed to discover that they have been lured into such a maddening game by following the link to this post in the tweet.
Finally, section 127 requires that the sender knows the message to be false. The tweet’s assertion that it is an offence under Section 127 is both preposterous and, by virtue of that falsity, potentially caught by section 127; and so (putting annoyance on one side) in turn possibly true. I’ll leave to the philosophers whether I know to be false a message that I believe to be false, yet which endlessly loops through truth and falsity.
This post originally appeared on the Cyberleagle blog and is reproduced with permission and thanks