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1. Interpretation
2. Message or other matter that is grossly offensive, or of an indecent, obscene or menacing character
3. Sending a message known to be false for the purpose of causing annoyance, inconvenience or needless anxiety
4. Persistently making use of a public telecommunication system for the purpose of causing annoyance, inconvenience or
   needless anxiety
5. Points to note on Section 43
6. Examples of behaviour which could be prosecuted under Section 43
7. Defences

1. Section 2 Protection from Harassment Act 1997
2. Section 4 Protection from Harassment Act 1997
3. Points to Note on Sections 2 and 4

• (a) sends, by means of a public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
• (b) sends by those means, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a message that he knows to be false or persistently makes use for that purpose of a public telecommunication system,

• a) sending a message or other matter that is grossly offensive or of an indecent, obscene or menacing character,
• b) sending a message known to be false for the purpose of causing annoyance, inconvenience or needless anxiety, or
• c) persistently making use of a public telecommunication system for the purpose of causing annoyance, inconvenience or needless anxiety.

We shall look at each of these in turn.

• These words all carry their ordinary meaning, and it would be a matter of fact for the magistrates to decide whether the message was offensive etc in any given case. However there is a definition for “obscene” used in the Obscene Publication Acts which also applies here. A message etc is deemed to be obscene if its effect is such as to tend to deprave and corrupt persons who are likely having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it!
• It appears from the wording that a message which would be merely offensive would not constitute an offence – it must be grossly offensive. The same guidelines apply here as to those to follow regarding sending letters or e-mails. If you phoned up an HLS worker and told them that you thought they were an animal murderer this may be offensive but not grossly so. On the other hand, if you likened them to a Nazi this might well be deemed to be grossly offensive. If you told them you would protest at the lab every day to let them know what you think this could not be deemed menacing, but if you promised a home demo it probably would be.
• The borderline between what is acceptable freedom of expression and what constitutes an offence will not always be clear. The Human Rights Act 1998 applies to this act as it does to any other piece of legislation, so it must be interpreted consistently with your European Convention right to freedom of expression. But this is not an absolute right and it my be restricted in order to prevent crime or to protect the rights of others.
• The law does not make it an offence to make phone calls in the middle of the night. However the timing of the call could be a relevant factor for the court in deciding whether or not it was of an offensive or menacing character. For example, a court might construe a single silent phone call to be menacing at 2am but not at 2pm.

2.c Sending a message known to be false for the purpose of causing annoyance, inconvenience or needless anxiety

• Note here that the offender must actually know the message to be false. So for example, if you phoned HLS to convey the mistakenly held belief that Brian Cass was dead you would not be guilty of an offence under this section if you actually believed this to be the case (even if such a belief were unreasonable).
• The offender must also intend that "annoyance, inconvenience, or needless anxiety" is caused by sending the false message. It is not enough fo the prosecution to show that such annoyance is the likely outcome of your phone call. If you can convince the court that you did not intend such annoyance etc, then they must acqut you even if people were annoyed or inconvenienced by the call. Note the contrast here to Section 5 Public Order Act 1986, where the prosecution only need to prove that harassment, alarm or distress was likely to be caused.

2.d Persistently making use of a public telecommunication system for the purpose of causing annoyance, inconvenience or needless anxiety

• This clearly covers situations where someone repeatedly calls the same number, for example in order to jam the phone line. No obscene words etc need to be said - the offence is constituted by the repeated phone calls themselves.
• The repeated use need not be to the same number. If you spent the whole day ringing various extension numbers of a company in order to cause annoyance etc then the offence would be complete.
• An offence could be committed under this section by someone making repeated silent phonecalls to a list of separate residential numbers.
• All of the above offences could be committed by sending text messages from a mobile phone or by sending faxes. The technique of sending a black fax would not be covered by this section unless it was done repeatedly.

2.e Points to note on Section 43

• None of the offences listed above actually require there to be a victim who has been caused anxiety etc. The offence is complete if your intention is to cause such anxiety. For example if you left a message on an answer-phone which was intercepted by the police before the “victim” answered it, you could still be liable.
• All offences are triable in the magistrates’ court only, and are punishable by up to 6 months imprisonment. Like offences under Section 1 of the Malicious Communications Act 1988, these are not arrestable offences. So the police can only serve you with a summons to appear in court if they suspect you of an offence under this section.

2.f Examples of behaviour which could be prosecuted under Section 43

• Repeated silent phone calls or text messages to an individual or numerous individuals – eg employees of a company
• Ringing someone up with information you know to be false eg pretending to be a doctor from the hospital and saying that their spouse has been involved in an accident.
• Sending a text message to an individual containing obscene language (indecent or obscene)
• Phoning someone up and saying you will demonstrate at their house if they continue to work at HLS (menacing)
• Phoning someone up and telling them they are no different from Nazis working in a concentration camp (grossly offensive)

• There is no statutory defence that your conduct was reasonable, a defence which is available, for example, under the Malicious Communications Act 1988 or under Section 5 of the Public Order Act 1986. But, as with all legislation, the court has to interpret this law consistently with your human rights and must therefore have regard to your freedom of expression when deciding whether or not you have committed an offence.

• The prosecution would need to show that you had caused harassment, alarm or distress to another person on at least two occasions.
• The victim of the harassment would normally need to be the same person on each occasion, although the courts have ruled that the victims can be different if they are part of a definable, close-knit group.
• This charge might be preferable where the prosecution cannot prove that you have sent a grossly offensive or indecent message, and simply need to show that you have caused harassment on more than one occasion.
• Unlike under Section 43 you have a statutory defence that your conduct was reasonable in all the circumstances. For example you could argue that you were provoked or that you were exercising your human right to protest.
• Section 2 is triable before magistrates only and the maximum sentence is 12 months' imprisonment. It is an arrestable offence.

• The prosecution would need to show that you had caused another to fear violence on at least two occasions.
• The victim would need to be the same person on each occasion.
• Unlike under Section 43 you have a statutory defence under this section that your conduct was reasonable, but this is more restrictive than the defence available under Section 2 above. It must be "reasonable for the protection of yourself or another or for the protection of yourself or another’s property."
• Section 4 is triable either way. If you are convicted before magistrates, the maximum penalty is 6 months imprisonment, whereas if you are convicted by a jury the maximum penalty is 5 years imprisonment. It is an arrestable offence.

3.c Points to Note on Sections 2 and 4

• Unlike under Section 43, the prosecution do not have to show that you intended to cause harassment or fear of violence- they need only show that a reasonable person would think that the conduct amounted to harassment / fear of violence.
• Unlike under Section 43, Sections 2 and 4 require that there is an actual victim willing to give evidence that you have caused them harassment or put them in fear of violence. Where no victim is available to testify, then you are more likely to be charged under Section 43.
• For more information on the Protection from Harassment Act 1997, check out the section on harassment in our legal booklet. For up to date information on how the law is currently being applied in the courts, check our case law section