Grossly offensive?

Trick of the Tail

Someone is getting prosecuted under the Post Office (Ammendments) Act 1951 for sending a 'Grossly Offensive' text message.

Can someone please tell me where to find the definition of 'Grossly Offensive'?

Thanks

A.

Procrastastudy

Contrary to popular belief I can research legislation! This doesn't really answer the OPs question however - you'll need to find cases on how this was interpreted by a judge. So the simple answer is there is probably not somewhere you can just find a definite answer. The statute can be found at http://www.irishstatutebook.ie/1951/en/act/pub/0017/print.html. Perhaps you could give an example of what was written?

13.—(1) If any person—
(a) sends any message by telephone which is grossly offensive or of an indecent, obscene or menacing character;
(b) sends any message by telephone which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or
c) persistently makes telephone calls without reasonable cause and for any such purpose as foresaid;
he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.
(2) A contravention of this section shall be deemed to be an offence under the Act of 1908.

benway

FYI, section 13 has been amended to the following through the Communications Regulation (Amendment) Act 2007

13.—(1) Any person who—

(a) sends by telephone any message that is grossly offensive, or is indecent, obscene or menacing, or

(b) for the purpose of causing annoyance, inconvenience, or needless anxiety to another person―

(i) sends by telephone any message that the sender knows to be false, or

(ii) persistently makes telephone calls to another person without reasonable cause,

commits an offence.

(2) A person found guilty of an offence under subsection (1) is liable on conviction―

(a) if tried on indictment, to a fine not exceeding €75,000 or to imprisonment for a term not exceeding 5 years, or to both, or

(b) if tried summarily, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months, or to both.

(3) A contravention of this section is an offence under the Post Office Act 1908.

(4) On convicting a person for an offence under subsection (1), the court may, in addition to any other penalty imposed for the offence, order any apparatus, equipment or other thing used in the course of committing the offence to be forfeited to the State.

(5) In this section, ‘message’ includes a text message sent by means of a short message service (SMS) facility.”.

I'm not aware of the meaning of the phrase "grossly offensive" having been subject to judicial consideration - I think the Oxford English Dictionary would be as good a place as any to start looking for a definition - statutes should be interpreted according to their ordinary meaning, unless there's a particular reason not to, or some phrase has become defined as a term of art:

Budd J in Rahill v Brady wrote:

in the absence of some special technical or acquired meaning the language of a statute should be construed according to its ordinary meaning and in accordance with the rules of grammar. While the literal construction generally has prima facie preference, there is also a further rule that in seeking the true construction of a section of an Act the whole Act must be looked at in order to see what the objects and intention of the legislature were; but the ordinary meaning of words should not be departed from unless adequate grounds can be found in the context in which the words are used to indicate that a literal interpretation would not give the real intention of the legislature.

Much would come down to the particular judge's idea of what constitutes a grossly offensive, indecent, obscene or menacing message - there's quite a degree of scope there, but you get the idea of the kind of thing.

Moral of this story - sending c*ck shots by text message to girls you don't know is always a bad idea.

ResearchWill

Thats an interesting one, but what was Grossly Offensive, 100 years ago may be pretty funny now. So I would assume it would be the reasonable man test, but an interesting one for a judge to figure out.

Cant find any Irish Cases, but the House of Lords in 2006 DPP v Collins Held , allowing the appeal, that the purpose of section 127(1)(a) was to prohibit the use of a service provided and funded by the public for the benefit of the public, for the transmission of communications which contravened the basic standards of society; that the proscribed act was the sending of the message of the proscribed character by the defined means, and the offence was complete when the message was sent; that it was for the court, applying the standards of an open and just multiracial society and taking account of the context and all relevant circumstances, to determine as a question of fact whether a message was grossly offensive; that it was necessary to show that the defendant intended his words to be grossly offensive to those to whom the message related, or that he was aware that they might be taken to be so; that the defendant's messages were grossly offensive and would be found by a reasonable person to be so; that although section 127(1)(a) interfered with the right to freedom of expression under article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, it went no further than was necessary in a democratic society for achieving the legitimate objective of preventing the use of the public electronic communications network for attacking the reputations and rights of others; and that, accordingly, since the messages had been sent by the defendant by means of a public electronic communications network, he should have been convicted of an offence under section 127(1)(a) (post, paras7 -11 ,13 -17 ,21 -24 ,26 -27 ).

Trick of the Tail

That's interesting Will, thanks.

And it wasn't cock shots, it was apparently text messages, and to an adult not a teenager, but I don't know the exact content. It was over a year ago but only now coming to court.

A.

Carawaystick

were the txt messages sent from a phone or from a webpage?

Peregrinus

I imagine that the prosecution would not be brought if the recipient of the message had not complained to the police. So presumably (s)he was grossly offended by the message, and will say so at the trial.

The question will come down to, was that reaction a reasonable one? Would we expect a reasonable person receiving such a message to be grossly offended by it? But the starting point for this consideration will be the adknowledged existenc of an actual person who actually was grossly offended.

Zambia

13.—(1) Any person who—

(a) sends by telephone any message that is grossly offensive, or is indecent, obscene or menacing, or

(b) for the purpose of causing annoyance, inconvenience, or needless anxiety to another person―

(i) sends by telephone any message that the sender knows to be false, or

(ii) persistently makes telephone calls to another person without reasonable cause,

commits an offence.

Depending on the reader the reaction could be gauged. example sending a holocaust joke to a elderly Jewish person I would consider Grossly Offensive. However sending it to me I would just find in poor taste and on a touchy day offensive. I would consider myself reasonable.

Trick of the Tail

Carawaystick wrote: »

were the txt messages sent from a phone or from a webpage?

From a phone.

benway

Not sure the phone/webpage distinction would really make any difference, given the new subsection 5 - "a text message sent by means of a short message service (SMS) facility" would surely include webtexts.

Zambia wrote: »

Depending on the reader the reaction could be gauged. example sending a holocaust joke to a elderly Jewish person I would consider Grossly Offensive. However sending it to me I would just find in poor taste and on a touchy day offensive. I would consider myself reasonable.

The test in Collins seems to be whether the person being referred to would be grossly offended - in that case the four people who heard the accused's racist ranting were at worst slightly depressed, none claimed to be offended.

But, the Court found that the standard of "(w)hat is offensive has to be judged (very much as the justices, by considering the reaction of reasonable people, judged it) by the standards of an open and just multi-racial society."

Seems to be a slightly odd approach - a message can be criminally offensive, without anyone actually having been offended. Perhaps I'm wrong, but I think the formulation as a whole grants a broad discretion to Judges.

Finding the mens rea element to be quite intriguing as well, kinda overlooked it in my first post, will obviously have to be present given C.C. - is it me, or is there a contradiction between an objective/reasonable man standard of offensiveness and a subjective standard of intent? Being aware that comments might reasonably be taken as grossly offensive by some unknown person or category of persons seems a pretty nebulous standard to me.

@alinton, wasn't meaning to comment or presume about your mate's case - a friend of mine is being sent c*ck shots repeatedly by a guy she doesn't even know, she hasn't gone to the cops ... yet ... but I was just checking up on this the other day.

At a glance, I thought the indecency element would be pretty cut-and-dried ... still kinda think this. Again, the mens rea would be interesting, would have thought that it would entail knowing or being reckless as to the image being objectively indecent:

Oxford English Dictionary wrote:

not conforming with generally accepted standards of behaviour, especially in relation to sexual matters

I certainly can't see how that element could be interpreted otherwise, I don't see how the recipient's judgment of the message could be read into that part of subsection 1.

Which makes me wonder whether, by that logic, consenting adults sending *intimate portraits* between themselves would also be guilty of an offence under Section 13? Could it be viewed as a kind of volenti non fit injuria / implied consent situation as between sender and recipient? Or would doing something like that even be beyond the bounds of accepted sexual behaviour between a couple? Or could it go the way of R v Brown, that consent is not a defense? And what if a third party saw these messages? Would it even matter so long as the "reasonable man" would have seen them as indecent?

Definitely trickier than it appeared at first glance ... would be interesting to see how the Irish Courts reconcile this.

Victor

benway wrote: »

Which makes me wonder whether, by that logic, consenting adults sending *intimate portraits* between themselves would also be guilty of an offence under Section 13?

I think there are separate issues at hand. In the case of a consenting couple, your problem would be that there would be no complainant.

However, it is notable that there are few or no commercial services of the like here.

benway

Disgruntled ex-lover following a break-up, say? Or a mischievous/officious/concerned third party who happened to come across the message on their phone?

Trick of the Tail

benway wrote: »

Disgruntled ex-lover following a break-up, say? Or a mischievous/officious/concerned third party who happened to come across the message on their phone?

The former, I think, and possibly the latter too!


A.

Victor

alinton wrote: »

Can someone please tell me where to find the definition of 'Grossly Offensive'?

Sending dead baby jokes to your mates if "offensive" (or potentially so).

Sending dead baby jokes to some grieving parents is "grossly offensive".