In recent years, it has become clear that the Protection from Harassment Act 1997 (the “PFHA”), provides a much wider range of protection for victims of disturbing behaviour by others than was originally thought, it having first been designed to curb the activities of stalkers. In fact, in view of its subsequent wide interpretation, it is increasingly recognised as being, along with the Data Protection Act 1998, an “Article 8” statute, as its purpose is to protect an individual’s private life against the intrusion of others.
For some time, it has been accepted that an individual’s right to respect for his private and family life, his home life and his correspondence carries equal weight to the right to freedom of expression. Moreover, it is also now clear that the state has a positive obligation to protect individuals from media intrusion into their private lives. See the analysis by Lord Justice Buxton in McKennit v Ash  QB 73. However, the House of Lords has made it clear that there is no tort of invasion of privacy ( see Wainwright v Home Office  2 AC 406, Campbell v MGN  2AC 457, and the Court of Appeal in McKennitt v Ash) . Given this, an individual remains compelled to rely on a variety of causes of action in the event that their right to respect for their private life has been breached.
Whilst the claim for misuse of private information has widespread application, in particular as a response to the activities of the tabloid media, there are, nevertheless, significant limitations to this type of claim. In particular, the availability of a claim for misuse of private information depends on there being a publication (or threatened publication). As a consequence, intrusive activities prior to publication, or in the absence of publication will not give rise to such a claim.
Furthermore, the application of a claim for misuse of private information to outside activities (e.g. “street photographs”) is still uncertain and is even seen by some as controversial. In addition, the correct application in domestic law of the ECHR decision in Von Hannover v Germany in particular in relation to the extent of privacy protection for outside activities is also yet to be decided.
As a consequence, this article will consider the impact of the PFHA, in particular in cases involving the media, as well as the extent it can be used by an individual to protect their right to respect for their private life as an alternative to the more established causes of action.
PROTECTION FROM HARASSMENT ACT 1997
Although common law claims for harassment have been made in the past, claims in harassment are now covered by the PFHA Section 1 provides that
(1) A person must not pursue a course of conduct:-
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other. …
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.
Section 1(3) provides defences to such a claim if the course of conduct pursued for the purpose of preventing or detecting crime or if in the particular circumstances the pursuit of the course of conduct was reasonable.
Section 7 does not provide an exhaustive definition of “harassment” but says that references to harassing a person “include” alarming the person or causing the person distress. It appears there may be harassment under the PFHA even though no alarm or distress has been caused. In the House of Lords case of Majrowski v Guys and St Thomas’s  1 AC 224, Baroness Hale said:
“All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress: section 7(2). But conduct might be harassment even though no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.”
A “course of conduct” must involve conduct on at least two occasions and it may include speech. In addition a campaign of collective harassment by two or more people can also now amount to a course of conduct. One person can pursue a course of conduct by committing an act of harassment personally and by arranging for another person to commit another such act.
GENERAL APPLICATION OF THE PFHA
The PFHA has been used in a wide variety of situations, including claims against protesters. (See Huntingdon Life Sciences v SHAC  EWHC 522 (QB), NWE Power and anor v Carrol and others  EWHC 947 (QB) Smithkline Beecham and others v SHAC  EWHC 948 (QB)), photographers and those responsible for repeated anonymous postings on the internet (See Gentoo Group Ltd v Henratty  EWHC 627 (QB)), repeated racist remarks, repeated telephone calls, publications in newspapers (See Thomas v Newsgroup  EMLR 4), repeated unjustified threats of legal proceedings and threats to cut off gas supplies (See Ferguson v British Gas  EWCA Civ 46).
Harassment can also be caused by taking photographs of a person , the publication of defamatory allegations (see Howlett v Holding  EWCA 41) or the publication of private information or photographs. Consequently, repeated surveillance and pursuit by press photographers could constitute harassment. Furthermore a publication of a photograph of the target could constitute a separate instance of harassment if there was a previous course of conduct as well as a misuse of private information, owing to the fact that it had been published.
An employer’s vicarious liability can extend, as a matter of principle, to breaches of statutory duty by an employee even where the harassment was committed by his employee in the course of his employment (see Majrowski v Guys and St Thomas’s NHS Trust  1 AC 224).
ELEMENTS OF A CLAIM
Although Parliament did not define “harassment” in the PFHA, a number of principles have emerged since the PFHA came into force. The conduct must be sufficiently grave to justify criminal as well as civil sanctions (See Dawson v Northampton Police  EWCA 907 (QB)). Irritations, annoyances, and even a measure of upset may not be sufficient to amount to harassment.
The course of conduct must be genuinely offensive and oppressive (see Conn v Sunderland City Council  EWCA Civ 1492 and Dowson v Northumbria Police  EWHC 907 (QB)) and more than the mere banter and badinage of ordinary life. It is essential that the course of conduct must be targeted at the victim or victims and generally the offensive or oppressive conduct should cause alarm and distress to the victim at the time of the conduct. Where the conduct does not cause distress at the time, it must cause distress to the victim once it is discovered.
HARASSMENT IN THE MEDIA CONTEXT
In Thomas News Group Newspapers Ltd  EWCA Civ 1233) the Sun had published an article which reported on alleged racist misconduct by the police and that a civilian clerk had made a complaint over the same. This was followed by another article which included a number of readers’ comments and then a final article which complained about the punishments imposed on the police officers after “a civilian black clerk had complained about a series of exchanges at Bishopsgate last July.”
Initially, it was the Sun’s contention that the PFHA could not be applied to a series of publications in a newspaper. However, in the Court of Appeal it modified its stance and, relying upon Article 10 jurisprudence and the Human Rights Act 1998, contended that the PFHA could not generally be applied to press publications. It was agreed between the parties, and this was approved by the Court of Appeal, that before press publications are capable of constituting harassment, they must be attended by some exceptional circumstance which would justify sanctions and the resultant restriction on freedom of expression. It was common ground between the parties that such circumstances would be rare.
The parties also agreed that the publication of press articles, which were calculated to incite racial hatred against an individual, was an example of conduct which was capable of amounting to harassment under the PFHA. In the light of these concessions, and on the facts of the case, the Court of Appeal held that the respondent had pleaded an arguable case and, therefore, that the appellants had arguably harassed the clerk by publishing racist criticism of her which was foreseeably likely to stimulate a racist reaction on the part of their readers and, as a consequence, cause her distress. The Court of Appeal therefore refused the defendant’s application to strike out the action.
In view of this decision, a course of conduct which amounts to harassment may, therefore, include a media publication or broadcast as well as “speech”.
In Howlett v Holding, an injunction was granted to restrain “aerial harassment” surveillance of the claimant. The claimant had, prior to the application for an injunction, already brought two successful sets of libel proceedings against the defendant in respect of allegations of dishonesty made by him about her. In the second of those actions, the defendant had given evidence that he sought to cause the claimant ‘living hell’ as retribution for her daring to speak out publicly in her then capacity as a local councillor on the subject of a planning application pending at that time by the defendant’s company.
The claimant sought injunctive relief under the PFHA to restrain the defendant from harassing her generally, as well as in two more specific respects. Firstly, the claimant contended that, for some four to five years, the defendant had been flying banners from his aircraft near the claimant’s home, which were addressed to the claimant or which referred to her in abusive or derogatory terms; he had also dropped defamatory leaflets from time to time over the surrounding area. Second, the defendant himself revealed that he had had the claimant put under video surveillance at various times without her knowledge.
The defendant contended that an injunction restraining him from flying banners with messages would constitute an infringement of his Article 10 right to freedom of expression. In finding for the claimant Eady J said that in the light of recent ECHR decisions, Article 8 protected a person’s physical and psychological integrity and development with others so that:
“It may safely now be said that it is not possible for those who wish to intrude upon the lives of individuals through surveillance, and associated photography, to rely upon a rigid distinction being drawn in their favour between what takes place in private and activities capable of being witnessed in a public place by other people.”
This passage is substantially similar to paragraph 50 in the first instance decision by Eady J in McKennitt v Ash which was approved by the Court of Appeal in that case in December 2006.
The court in Howlett held that it was clear that the flying of the banners and dropping of leaflets by the defendant had caused the claimant alarm and distress. There was no doubt that the defendant’s Article 10 rights were engaged, however, it appeared that he wished to use his Article 10 rights in order to inflict damage on the claimant in a cruel and cynical way. Relying on the principles set out in Re S and therefore applying the ‘intense focus’ required by case law to the circumstances of the case, and addressing the issue of proportionality, the claimant was entitled to restrain the defendant’s acts of aerial harassment by injunction and the defendant’s surveillance of the claimant.
The effect of this judgment was to grant an injunction preventing repetition of defamatory allegations. The court held the defendant would not have been able to justify the defamatory allegations and therefore the judgment would not offend the rule in Bonnard v Perryman.
Regarding the issue of surveillance the court considered whether it was a necessary requirement to cause distress oralarm. The court held;
“The provision [in s.7(2)] has encouraged Mr Holding to argue that he is, in effect, entitled to have Mrs Howlett and her house watched as often as the whim takes him, and to have her followed in the street, and into shops and restaurants, provided any individual act of surveillance does not involve alarming Mrs Howlett or causing her distress. Meanwhile, he can derive satisfaction from her suffering the anxiety and uncertainty of not knowing when “big brother” will strike. There can be little doubt that such behaviour would constitute a “course of conduct” for the purposes of s.1(1) of the statute. ..
To keep someone on tenterhooks, knowing that she is likely to be watched as she goes about her daily life, seems to me remarkably cruel. Just because she does not know, in any given instance, that surveillance is taking place, it does not make it any the less distressing for her. What causes the distress is the awareness that secret surveillance is taking place, or is likely to take place at any moment. I see no reason why that form of besetting should fall outside either the spirit or the letter of the Act.”
This approach on distress is consistent with the subsequent House of Lords decision in Majrowski which was handed down a few months after Howlett. The critical point in this decision is that the course of conduct need not cause distress to the target at the time of the course of conduct. Although it appears possible following Majrowski that harassment could take place without alarm or distress ever being caused it is difficult to conceive that this could happen in practice..
ARTICLE 10 AND PUBLIC INTEREST
Injunctions under the PFHA can involve a serious interference with the Article 10 rights of defendants and s12 of the Human Rights Act 1998 is also relevant when considering any relief; such injunctions have been granted against protestors to prevent them from communicating with employees of organisations whose activities they find objectionable. However, in Heathrow Airport Ltd v Garman, taking into account Article 10 rights, the court refused to grant an injunction in harassment against protestors at Heathrow Airport.
It is clear that the exercise of the right to free speech could fall within the concept of harassment provided that other necessary ingredients such as unreasonable and oppressive conduct were present. A claim for harassment can engage both Article 8 and Article 10 rights and, as a result, a balancing exercise has to be carried out.
Where there is a compelling public interest and/or legitimate reason for the conduct such as exposure of criminal conduct, there may be a defence under section 1(3) of the PFHA, although an extended course of conduct may be more difficult to justify.
PRE-PUBLICATION HARASSMENT BY THE MEDIA
Claims for misuse of private information and libel both depend on there being publications to third parties of either private information or defamatory allegations. Such publication in the absence of any defence will give rise to a claim for damages and an injunction and possibly other remedies. But such claims are not available on the mere taking of a photograph or video footage.
However, repeated doorstepping at home, questioning, photography, videoing, pursuit and surveillance by journalists or photographers and combinations thereof may give rise to a cause of action under the PFHA as long as there is a course of conduct by journalists or photographers. The news organisation or photographic agency will be vicariously liable for the activities of its employees or agents and it is not necessary to show that it is the same employee responsible for each instance of harassing conduct.
The position is more complex when the journalists/photographers are freelance and do not appear to be acting as the agents of the organisation or agency, but it appears that this may be covered by section 7(3A) PFHA. Nevertheless, the Press Complaints Commission have stated that under the code of conduct Editors must take care not to use “non-compliant material from other sources”.
HARASSMENT BY PUBLICATIONS AND CLAIMS AGAINST THE MEDIA
Repeated defamatory publications or repeated publications of private information/ photographs or repeated publication of offensive and racist speech (or “hate speech”) may constitute a course of conduct sufficient to give rise to a potential claim for harassment for an injunction and /or damages.
The application of the claim for misuse of private information to the publication of everyday street photographs and the effect of the ECHR decision in Von Hannover v Germany has still not been resolved by the domestic courts and it has been suggested that the decision of the Court of Appeal in Murray v Big Pictures is limited to photographs of children.
However where there has been a harassing conduct culminating, as frequently happens, in photographs of the target in a state of severe emotional distress or anger caused or provoked by the harassment itself , the publication of such images may amount to an act of harassment itself as well as being an arguable misuse of private information. Such a proposition appears consistent with the PCC code of conduct. In September 2008, Sienna Miller brought a successful claim for misuse of private information against the Daily Star for the publication of a photograph of her being harassed by paparazzi and therefore in extreme distress in a foyer of a building in Los Angeles.
Harassment may also take place where a person has been a constant target of unlawful surveillance by the media akin to the activities in Howlett v Holding and/or unlawful accessing of private information. Such activities are currently the subject of investigation by the House of Commons Select Committee on Culture Media and Sport.
In October 2008, Sienna Miller commenced proceedings against Big Pictures Limited and Darryn Lyons for harassment and invasion of privacy. The claim relied upon a course of conduct of almost daily door-stepping and street pursuit of the claimant by the defendants’ photographers over the previous three months. One incident relied upon was a constant two day pursuit from London to the country and then to an airport. The privacy claim was in respect of 23 publications on the defendants’ websites either of photographs showing private activities, incidents of pursuit by car or otherwise or photographs showing distress caused by alleged acts of harassment. Ms Miller also relied upon the Defendants’ syndication to various newspapers and subsequent publication of similar such private photographs by those newspapers.
Although Ms Miller did not apply for an interim injunction, she successfully applied for a speedy trial of her claims on the grounds that her life was being made intolerable and the court should resolve the issue quickly for the sake of both parties. The defendants settled before trial and a settlement was announced in court. They agreed to pay damages of £37,000 for the harassment and invasion of privacy and gave detailed undertakings to the court not to doorstep at Ms Miller’s home or that of her family and friends, nor put her under surveillance or pursue her nor to take pictures of her in pursuit or in a state of distress. The surveillance provision in the order followed the precedent set by Howlett v Holding.
Within a few months of this settlement, the singers Lily Allen and Amy Winehouse succeeded in obtaining interim injunctions providing similar protection from similar such conduct although both included injunctions against unknown photographers.
It appears that irrespective of how the claim for misuse of private information continues to develop in this jurisdiction, claims in harassment go a long way to filling the remaining gaps in the patch-work system of remedies for the redress of infringements of privacy.
Indeed, given the flexibility of the PFHA and the wide interpretation the court has given to it, it is arguable that the law of harassment currently plays a significant and crucial role, along with claims for libel and the misuse of private information, in protecting personal privacy.
There is, of course, often an overlap between these three claims and many cases of intrusive media activity will give rise to a potential action under two or more of the three heads. However, there will always be situations where only one of the three causes of action is appropriate; if this is the case, it is important to consider whether there has been damage to an individual’s reputation through publication of defamatory allegations or through the exposure of private information or, alternatively, whether the real damage and distress has been caused through a course of conduct which prohibits the individual from living his or her private life/ home life as they would wish. If it is the latter, then it is the law of harassment which offers potential respite from the intrusive activities and protection for the individual’s right to respect for their private life.