Malicious Communications Act vs Section 127: What is the Difference?

Two people send abusive messages online. The first posts a single grossly offensive tweet. The second sends a series of targeted messages to a specific person, each designed to cause maximum distress. The first is charged under s.127 (6 months). The second under the Malicious Communications Act (2 years). The difference is not the words — it is what the prosecution can prove about the sender's state of mind.

Disclaimer: General information, not legal advice.

Jurisdiction: England and Wales.

The Critical Difference: Purpose vs Awareness

Under s.127, the prosecution must prove the sender was aware of the character of the message. Under the MCA, they must prove the sender sent it with the purpose of causing distress or anxiety. Awareness is enough for s.127. Purpose is required for the MCA. In Connolly v DPP [2007] EWHC 237 (Admin), the High Court confirmed the purpose element is genuinely narrow — the prosecution must prove causing distress was the sender's actual purpose, not merely a foreseeable consequence.

How the CPS Chooses

If the evidence shows the sender intended to cause distress — multiple messages, specific targeting, explicit language — the MCA may be appropriate, and the 2-year maximum reflects greater culpability. If the evidence shows a grossly offensive message was sent but purpose cannot be proved, s.127 is the charge. Section 127 dominates because it asks less of the prosecution.

Practical Takeaways

1. "I did not mean to upset them" does not help with s.127. Awareness is enough.
2. "I did not mean to upset them" does help with the MCA. Purpose is everything.
3. Targeted, persistent abuse is more likely to be charged under the MCA.
4. The MCA carries four times the maximum sentence. Get a solicitor.

Sources

• Communications Act 2003, s.127 — legislation.gov.uk
• Malicious Communications Act 1988 — legislation.gov.uk
• Connolly v DPP [2007] EWHC 237 (Admin)
• CPS Social Media Guidelines — cps.gov.uk