In this feature we revisit some older posts which may still be of current interest.  This was first posted on 16 March 2010 and is the first part of a post in which Mark Thomson and Nicola McCann discuss the law and practice of harassment as applied to the media.

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 [2008] 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 [2004] 2 AC 406, Campbell v MGN [2004] 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 [2007] 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 PFHA

The PFHA has been used in a wide variety of situations, including claims against protesters. (See Huntingdon Life Sciences v SHAC [2007] EWHC 522 (QB), NWE Power and anor v Carrol and others [2007] EWHC 947 (QB) Smithkline Beecham and others v SHAC [2007] EWHC 948 (QB)), photographers and those responsible for repeated anonymous postings on the internet (See Gentoo Group Ltd v Henratty [2008] EWHC 627 (QB)),  repeated racist remarks, repeated telephone calls, publications in newspapers (See Thomas v Newsgroup [2002] EMLR 4), repeated unjustified threats of legal proceedings and threats to cut off gas supplies (See Ferguson v British Gas [2009] EWCA Civ 46).

Harassment can also be caused by taking photographs of a person , the publication of defamatory allegations (see Howlett v Holding [2006] 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.

Vicarious Liability

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 [2007] 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 Dowson v Northampton Police [2009] 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 [2007] EWCA Civ 1492 and Dowson v Northumbria Police [2009] 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.

Mark Thomson is a partner in Atkins Thomson, a founding editor of the Inforrm Blog and a member of the Inforrm Committee.  Nicola McCann is a solicitor at Atkins Thomson.