Imagine your company’s employees are the target of a campaign of activist intimidation, or members of your board are being subjected to aggressive door-stepping by the press. What could you do to protect them? What legal recourse would the victim or your company have?
This article assesses the protections offered by the law of harassment to corporations and their employees in such scenarios, examining the contours of the law where the rights of individuals to protest, gather information or express themselves freely intrudes upon, in Louis Brandeis’s famous formulation, the ‘right to be let alone’1.
Although the Protection from Harassment Act (PFHA) 1997 was originally conceived to restrain the activities of stalkers, like the Data Protection Act 1998, it is gaining increasing recognition as an ‘Article 8’ statute, creating certain privacy-type rights. It was introduced in Bill form in December 1996 in preference to a Private Members’ Bill that sought to criminalise stalking, but (as then-Home Secretary Michael Howard MP pointed out) created strict liability offences while offering no ‘safeguards for journalists or others whose legitimate activities were similar to the actions that amounted to stalking’2.
The Act that resulted instead is broad enough to encompass myriad activities that fall some way outside any but the most meaninglessly elastic definitions of ‘stalking’, with certain carve-outs to protect journalists, protestors or activists3. Following the enactment of the Human Rights Act 1998, which compels the judiciary to have regard to the European Convention on Human Rights in applying the law, the courts will balance the Article 8 rights of the individual victim of harassment, where they are engaged under the PFHA 1997, against any countervailing rights of the perpetrator(s) under Article 10 (freedom of expression) – or indeed, in cases involving protest or activism, Article 9 (freedom of thought, conscience and religion) and Article 11 (freedom of peaceful assembly and association).
Civil tort of harassment
PFHA 1997 includes two broad prohibitions on harassment. 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’.
The chief novelty of PFHA 1997 compared with its predecessors4 is that, in addition to harassment being a criminal offence (s2), a victim of harassment may also pursue a civil claim – which is often preferable to criminal proceedings (s3(2)). (In addition to the complainant losing control of the proceedings, introducing the stain of criminality to the reputation of, for example, an activist or campaigner at least raises the question of whether a person in public or corporate office might not have used the excessive might of the criminal law to quash voices of protest or dissent. And raising such a question may, to many minds, be enough to settle it.)
In such a claim, damages may be awarded for any resulting anxiety and financial loss, as well as any other demonstrable harms caused (s3(2)). Furthermore, injunctive relief is available for any actual ‘or apprehended’ (ie anticipated) breach (s3(1)).
Harassment of a group
The second prohibition, introduced by the Serious Organised Crime and Police Act 2005, was intended to capture behaviour that causes alarm or distress to individuals, or a group of individuals, to the extent that they are deterred from carrying out lawful activities5. This – so explains the 2004 governmental ‘progress report’ – was enacted to quell the ‘rise in extremist activity’ at the time, which included a prolonged campaign of intimidation against contractors building a controversial biomedical research centre at Oxford University, long-standing activist action directed at ‘a family-run guinea pig farm’, and the notorious campaign against Huntingdon Life Sciences (HLS)6,7,8.
Section 1(1A) thus provides that a harassment offence occurs where the alleged perpetrator harasses two or more individuals with the intention of persuading any person (whether or not one of those mentioned above):
- not to do something that they are entitled or required to do; or
- to do something that they are not under any obligation to do.
This provision catches not only animal rights extremists, but any other protesters or activists targeting different employees within a company in an attempt to persuade the individuals that they should not work for that company because of the work that company does, or the contracts that it has with other companies9.
Although a corporate entity cannot be the ‘victim’ of harassment, under the new s3A, either the individual employees could apply for an injunction to protect themselves from harassment, or the company could apply for an injunction to protect its employees10.
What is ‘harassment’?
In PFHA 1997, harassment is rather circuitously defined as a ‘course of conduct which amounts to harassment’ that the alleged harasser ‘knows or ought to know would amount to harassment’ (ss1 and 7(3)). A ‘course of conduct’ requires at least two instances of harassment, although in respect of the ‘activist’ s1(1A) each instance may be directed at different people.
PFHA 1997 explains that the person ought to know that the conduct in question amounts to or involves harassment if a reasonable person would think it amounted to or involved harassment (s2). It is thus a defence if the harasser can show that the course of conduct was, in the circumstances, objectively reasonable (s1(3)(c))11. The extent of a journalist’s compliance with the professional code would be relevant in determining this (see ‘PCC Code’ below).
While the term ‘harassment’ is not itself defined, it ‘includes’ ‘alarming the person or causing the person distress’ (s7(2)). The court thus looks at the effect of the conduct, rather than the range of conduct capable of constituting harassment.
In Majrowski v Guy’s and St Thomas’ NHS Trust , Lord Nicholls further explained:
‘Courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the conduct must be of an order which would sustain criminal liability under section 2.’
The Press Complaints Commission (PCC) Editors’ Code of Conduct also prohibits harassment by PCC-‘regulated’ media organisations, their staff and contributors. Clause 4 provides:
- Journalists must not engage in intimidation, harassment or persistent pursuit.
- They must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on their property when asked to leave and must not follow them. If requested, they must identify themselves and whom they represent.
- Editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources.
This, like several other areas of the Code, such as the clauses on privacy and intrusions into the lives of children, is where an exception may be made where journalists or editors can demonstrate a public interest in not following the letter of the Code. (This also, unlike almost all the other areas that the Code regulates, is where the PCC has had success to a degree that might even merit praise. Following the revelations of the Leveson inquiry, the adjective ‘toothless’ has come to function almost like a Homeric epithet before the word ‘PCC’.) Although there are defences of ‘reasonableness’ – which is judged by objective standards, rather than the journalist’s or editor’s – and for the detection or prevention of crime, there is, significantly, no public interest defence under the PFHA 1997.
Vicarious liability will attach to the media organisation or picture agency for the harassing activities of its employees or agents. Sensibly and usefully, it is not necessary that the employee was responsible for each act or instance of harassment. Furthermore, in Majrowski, the House of Lords held that the perpetrator can be a corporate body.
Harassment and the media
The new offence (and civil tort) was not intended to restrict a person’s right to protest lawfully, nor to restrict the right of the press to investigate the subject of a story. However, both protest and journalistic activity can be caught by the Act where the conduct becomes, in Lord Nicholls’ phrase, ‘oppressive and unacceptable’.
It is clear that repeated door-stepping or questioning by journalists, photography, video surveillance and pursuit by reporters or paparazzi could all constitute harassment under PFHA 1997. Subsequent publication of an article or photograph so obtained could form the second incident to constitute the ‘course of conduct’. It would not be necessary for the victim to suffer alarm or distress from, or even be aware of, the antecedent activities leading to publication at the time they were happening12. This is not as paradoxical as it may at first seem.
In Howlett v Holding , the defendant had put the claimant, a former Labour councillor in Essex, under secret video surveillance13. The defendant argued that because s7(2) PFHA 1997 refers to ‘alarming the person or causing the person distress’, the claimant must be aware of the harassment at the time it was happening. Mr Justice Eady sensibly held that awareness that secret surveillance is taking place or is likely to take place at any given moment (or, as he phrased it, ‘not knowing when “big brother” will strike’) was quite sufficient to cause the requisite alarm and distress for the purposes of the Act: knowledge of any particular incident was not necessary. The House of Lords case of Majrowski, handed down a few months after Howlett, also made it clear that the victim or target of harassment need not suffer alarm or distress at the time of the harassment. In making out a claim for harassment, actual publication can thus be the proverbial straw that breaks the camel’s back. This gives PFHA 1997 some advantages over claims for misuse of private information or defamation where they would be available as an alternative.
Harassment v misuse of private information
Mr Justice Eady observed in Howlett that, under PFHA 1997, there should be no rigid distinction between private surveillance or photography and the same acts done in public.
This circumvents some of the more problematic aspects of the Article 8 privacy/breach of confidence case law, which requires that the claimant have a reasonable expectation of privacy in the information they are seeking to protect. Such a claim would be prevented where, for example, the incident happened outdoors or in public in such a way that there could be no reasonable expectation of privacy, or where the incident happened in what would, to any reasonable onlooker, seem private circumstances, but judicial caprice has held not to be: for example, in Theakston v MGN Ltd  (whether for underlying reasons of public policy or judicial priggishness, it is not known) a brothel within a private flat in Mayfair, closed off, as one might expect, to the prying eyes of passersby, was found not to be a ‘private’ place at all. Furthermore, where an individual incident or photograph, for example, would alone be insufficient to found a claim based on misuse of private information, it could form part of a continuum of harassing behaviour that, taken collectively, would permit a claim under PFHA 1997.
Harassment v defamation
Where there may be a related or concurrent defamation claim, the chief advantage of a claim under PFHA 1997 is that there is no defence if the words published (or intended to be published) are true, provided the antecedent conduct amounts to harassment (see Law Society & ors v Kordowski ). Usefully PFHA 1997 also circumvents the rule in Bonnard v Perryman  that states that where a defendant in a defamation action intends to raise a defence at trial, the court will not impose prior restraint on publication unless it is clear that no defence will succeed. By framing a claim in terms of harassment, the claimant could, in certain circumstances, obtain that jurisprudential unicorn: a pre-publication libel injunction. The limitation period is also greater, at six years, than the one-year period in which to bring a defamation claim (s6).
Harassment by publication
In Thomas v News Group Newspapers Ltd & anor , the Court of Appeal ruled that harassment can be by repeated newspaper publication. In this case The Sun published a series of articles and letters that concerned one Ms Thomas, a police clerk, who had submitted a complaint against four colleagues that led to the demotion of two of them and a £700 fine for a third. The complaint concerned comments the officers made to a Somali asylum-seeker who asked for their help after she had been robbed. According to Ms Thomas, one officer said: ‘What is this country coming to? We let everyone in’, to which a second replied: ‘They should be shot. That’s the quick and easy way to get rid of them’. The third added: ‘She found her own way here from Somalia; why can’t she find her own way back?’ The Sun called this exchange a ‘refugee jest’.
The newspaper’s first article named Ms Thomas and described her, gratuitously as the judge at first instance found, as a ‘black’ clerk. The following week the newspaper published a selection of readers’ letters attacking Ms Thomas for the complaint. With what might be thought uncharacteristic charity and public-spiritedness, The Sun followed this with an article soliciting donations from kindly readers to pay the constable’s £700 fine. Not content with contributions in the form of letters and cash donations, indignant readers – the flames of their ire no doubt fanned by articles that The Sun admitted were ‘strident, aggressive and inflammatory’ – penned hate mail to Ms Thomas at her work address (The Sun helpfully identified the station at which she was clerk). In the first ruling of its kind and in light of the serious circumstances, the Court of Appeal held that harassment can occur by repeated newspaper publication.
In the recent injunction application of AMP v Persons Unknown  in the Technology and Construction Court, harassment under PFHA 1997 was included among a salad of other claims, including the right to respect for privacy under Article 8 and the Human Rights Act 1998, and claims under the Copyright, Designs and Patents Act 1988. The applicant’s mobile phone, containing photographs of an ‘explicit sexual nature… taken for the personal use of her boyfriend at the time’, had been lost or stolen and fallen into unknown hands. After what appears to be a botched blackmail attempt, the photographs found their way onto BitTorrent.
The claimant was granted an order against Persons Unknown who were sharing the files (the ‘seeders’). From the seeders’ IP addresses alone, she was able to use the relatively rapid non-party disclosure procedure under CPR31.17 to obtain their contact details from their internet service providers. The virtually anonymous seeders were thus identified and each served with the order, causing the entire network to wither user by user. The case is not quite as landmark or far-reaching as some reports suggest: for example, The Daily Mail, under the near-Orwellian subheadline ‘BitTorrent users who share the files will be monitored and could face immediate arrest’, reported that: ‘anyone who downloads the… images using a BitTorrent “peer-to-peer” file-sharing service could face prosecutifon’ and ‘Unlike other injunctions, which require lawyers to go back to court to serve a contempt of court order against those who flout the rulings, downloaders face immediate arrest’ (emphasis added). However, it does show some novelty in providing an effective way of regulating an area where privacy is being threatened by technology almost to the point of surrender.
The breadth and elasticity of the civil tort of harassment and the pragmatism of the courts in applying it have given it an impressive record in protecting a wide spectrum of privacy-type rights. As technology continues to develop and modes of interaction change, so too will the means of carrying out harassment. What is clear from the developing PFHA 1997 case law is that, at least so far as harassment is concerned, the law is able to keep up with the diversity and eclecticism of the changing digital landscape.
By Laura Tyler, senior associate and Phil Hartley, trainee, Schillings.
- Olmstead v United States (1928).
- 287 HCDeb 781, 17 December 2006.
- It should be noted that the Parliamentary record shows that the open contours of PFHA 1997 were ‘fully intended’: Carter-Ruck on Libel and Privacy (6th ed, 2010) at 23.59.
- Namely, the Public Order Act 1986 and the Criminal Justice & Public Order Act 1994, which created ‘harassment, alarm and distress’ offences similar to those under PFHA 1997, and the Malicious Communications Act 1988 which, as originally enacted, made it an offence to send an indecent, grossly offensive, threatening or knowingly false ‘letter or other article’ with the purpose of causing anxiety or distress, but was revised in 2001 to encompass malicious communications online
- Section 125(2).
- Home Office Circular 34/2005: http://www.homeoffice.gov.uk/about-us/corporate-publications-strategy/home-office-circulars/ circulars-2005/034-2005/.
- See Oxford University v Webb .
- The ‘conduct’ in the above cases included arson attacks, criminal damage to property and threats. Perhaps the most sinister incident of a ten-year campaign against HLS, which brought the company to the brink of collapse, was the beating of its managing director with pickaxe handles, even though the company was, as the law requires, testing new drugs on animals before they could be declared safe for human use.
- Home Office Circular 34/2005: http://www.homeoffice.gov.uk/about-us/corporate-publications-strategy/home-office-circulars/ circulars-2005/034-2005/
- DPP v Dziurzynski  and see the definition of ‘person’ in PFHA 1997 s7(5).
- There is also a defence if the alleged harasser shows that the course of conduct was pursued for the purpose of preventing or detecting crime; or in compliance with statute or common law (ss3(a) and (b) PFHA 1997).
- Howlett v Holding .
- In this case, which falls towards the more bizarre end of the spectrum of PFHA 1997 cases, the defendant had, in addition, flown a plane over Essex for five or six years with a banner trailing from the back referring to the claimant in ‘abusive and derogatory terms’. The defendant had also conducted a campaign of leafleting the people of Essex and its environs, from said plane, with presumably similar abusive and derogatory missives. The defendant admitted in an earlier libel complaint that his purpose was to make the claimant’s life a ‘living hell’.
AMP v Persons Unknown  EWHC 3454 (TCC)
Bonnard v Perryman  2 Ch 269
DPP v Dziurzynski  EWHC 1380 (Admin)
Howlett v Holding  EWHC 41 (QB)
Law Society & ors v Kordowski  EWHC 3185 (QB)
Majrowski v Guy’s and St Thomas’ NHS Trust  UKHL 34
Olmstead v United States (1928) 277 US 438
Oxford University v Webb  EWHC 2490 (QB)
Theakston v MGN Ltd  EWHC 137 (QB)
Thomas v News Group Newspapers Ltd & anor  EWCA Civ 1233