Correct on the date of publication - 18 May 2026
Question:
If a person creates a recorded answerphone message for callers to leave a message after, and it contains something that is grossly offensive, would this amount to the offence of malicious communications when someone calls the person and hears the recorded answerphone message?
Answer:
This is dependent upon the specific circumstances as to which offences may be committed in each case.
Malicious Communications Act 1988
Section 1(1)(a) of the Malicious Communications Act 1988 creates an offence of sending a letter / electronic communication / article that conveys a message that is indecent or grossly offensive. For liability to arise under the offence, the sender of the grossly offensive message must also intend it to cause distress or anxiety to its immediate or eventual recipient.
Sending, for the purpose of the offence, includes references to delivering or transmitting and to causing to be sent delivered or transmitted, and sender shall be construed accordingly (see section 1(3)). Transmitting is not defined further but taking the ordinary meaning, this could be taken to include broadcasting or sending out a message. In our opinion, there is certainly an argument for ‘transmitting’ and therefore sending to have taken place in the scenario described.
It’s unclear whether the individual who applied the pre-recorded message intended to cause distress or anxiety to an immediate or eventual recipient. Similarly, it needs to be considered whether the message was 'grossly offensive' but we accept this depends on the context, not just on the content of the message. In R v Bussetti (2021) the Divisional Court held that, in order to cross the threshold for this offence, the message must have been 'not simply offensive but grossly offensive. The fact that the message was in bad taste, even shockingly bad taste, was not enough'. In the case of R (on the application of Lynsay Watson) v The Chief Constable of Greater Manchester Police (2025), it was held that for the term ‘grossly offensive’ to be satisfied there must be sufficient evidence that the communication in question, in its particular context, is 'more than offensive, shocking or disturbing' and goes 'beyond the pale of what is tolerable in society'.
This could be a case in which a message was just in bad taste but again, it would depend on the context. Based on the limited information provided, we would encourage discussion with the local CPS office who can make a conclusive determination whilst in possession of the full facts and circumstances.
Communications Act 2003
Section 127(1) and (2) of the Communications Act 2003 create offences regarding improper use of a public electronic communications network. Subsection 127(1) creates the offence of sending, by means of a public electronic communications network, a message or other matter that is grossly offensive or of an indecent, obscene, or menacing character. In the example given, the individual has used a public electronic communications network (accepted to cover phones). Menacing is not defined in the legislation, but the ordinary definition is as follows: 'suggesting the presence of danger; threatening'.
In relation to communications being 'menacing' - In the case of Chambers v DPP (2012), C was due to take a flight when he was informed the airport was closed due to adverse weather conditions. He posted a tweet noting that the airport was closed and stating, 'you've got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!'. He was charged with sending by a public electronic network a message of a menacing character, contrary to section 127(1)(a) and (3) of the Communications Act 2003. At trial, the court was satisfied that the tweet message was menacing per se and that an ordinary person seeing the tweet would see it that way and be alarmed. C appealed asking specifically whether the Crown Court had been correct to conclude that the messages sent by C had crossed the threshold of gravity necessary to constitute a message 'of a menacing character' so as to amount to a criminal offence within the meaning of section 127(1)(a) and (3) of the Act and whether the court had been correct to convict C on the evidence and sentence him as it had. The appeal court held that a message which did not create fear or apprehension in those to whom it was communicated, or who might reasonably be expected to see it, fell outside of section 127(1)(a) of the Act, for the very simple reason that the message lacked menace. Before concluding that a message was criminal on the basis that it represented a menace, its precise terms, and any inferences to be drawn from its precise terms, needed to be examined in the context in and the means by which the message had been sent. In this case, the message had not represented a terrorist threat, or indeed any other form of threat. The language and punctuation were inconsistent with the writer intending it to be or to be taken as a serious warning. On an objective assessment, the decision of the Crown Court that the tweet had constituted or included a message of menacing character had not been open to it.
Following the discussion in this similar case, we are of the view that whether or not an offence under subsection 127(1) had been committed would be a matter to decide on a case-by-case basis based on the full context of the voicemail being left and whether this could be seen as ‘menacing’ in its character.
Online Safety Act 2023
Section 181 of the Online Safety Act 2023 provides an offence of threatening communications. The offence is committed where a person sends a message conveying a threat of death or serious harm and intends that (or is reckless as to whether) someone encountering the message will fear the threat will be carried out. Sends is defined in section 182 as again, including transmitting by electronic means.
Should the voicemail have contained a threatening message of death or serious harm, with the intention to cause someone to fear the threat is to be carried out, then an offence under this Act may apply here.
As you can see, this is quite a serious offence so whilst there are some aspects that do appear to apply here, you would need to make a full case assessment against evidential charging standards referencing the reasoning for the persons actions etc.
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