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Harassment by Journalists and Photographers.

April 29, 2012

We have previously written about the Protection from Harassment Act 1997 and how the act has been used against journalists as an alternative or alongside Libel and Privacy claims. If you require advice call Carruthers law today. Why not have a look at our section on Defamation.

Clause 4 (Harassment) of the Code of Practice enforced by the PCC says that

  • “journalists must not engage in intimidation, harassment or persistent pursuit” and that 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”.

There are also similar provisions in the Ofcom code to deal with harassment by journalists and photographers.

The Protection from Harassment Act 1997 provides

 “ Prohibition of harassment

(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.”

The act provides for a criminal and civil offence. It must be conduct that has occurred on two or more occasions.

Repeated door-stepping or questioning by journalists, photography, video surveillance and pursuit by reporters or paparazzi could all constitute harassment under PFHA 1997. Publication of an article or photograph obtained from the above could then form the second incident to constitute the course of conduct. It is not necessary for the victim to suffer alarm or distress from, or even be aware of the activities leading to publication at the time they were happening. If the conduct would be considered harassment by a reasonable person in possession of the same information then it may come within the act.

Thomas v News Group Newspapers Ltd & Anor [2001] EWCA Civ 1233.

In this case the publication of an article in The Sun was held could amount to harassment.

On 6 July 2000  The Sun published an article,

“Beyond a Joke – Fury As Police Sarges Are Busted After Refugee Jest”.

  • “Two police sergeants have been demoted to constables over a ‘private’ remark about an asylum-seeker. Mark Purvey and John Saunders also face losing a total of more than £100,000 after their pay and pensions were cut.”

The article named the Claimant and described her as a “black clerk”

A follow-up article was published in The Sun which included the following passage about the three officers who had been disciplined:

  • “All three were hauled in front of a disciplinary tribunal after a black civilian clerk complained about a series of exchanges at Bishopsgate last July.”

The following week the paper published readers letters attacking the Claimant for making the complaint. The Sun then had a campaign to raise money to pay the fine of the constable. The Claimant then got hate letters sent to her by readers at her work address.

The proceedings by the Claimant claimed the following;

  • The course of conduct caused the Claimant to be harassed by the Sun’s readers.
  • The course of conduct of itself amounted to harassment.
  • The Claimant claims damages for breach of section 3 of the Protection from Harassment Act 1997.
  • The course of conduct was not reasonable.
  • The Claimant did not have to be described as being black nor should her name and place of work be published.
  • The facts stated in the articles were not accurate. In fact, the police officers were found guilty of race discrimination after both the Claimant and PC Bidmead, and others, gave evidence against the officers.
  • The article incited racial hatred.

The Judge said that generally the 1997 Act would not render such conduct unlawful. Press criticism, even if robust, does not constitute unreasonable conduct and does not fall within the natural meaning of harassment. He stated that a pleading, which does no more than allege that the defendant newspaper has published a series of articles that have foreseeably caused distress to an individual, will be susceptible to a strike out on the ground that it discloses no arguable case of harassment.

The judge outlined the test which requires the publisher to consider whether a proposed series of articles, which is likely to cause distress to an individual, will constitute an abuse of the freedom of press which the pressing social needs of a democratic society require should be curbed.

He considered that in this case it was arguably not reasonable to refer to the Claimants colour and the newspaper had not distanced itself from the readers letters. In the first ruling of its kind and because of the serious circumstances, the Court held that harassment can occur by repeated newspaper publication.

Howlett v Holding [2006] EWHC 41 (QB)

The Claimant was a former Labour councillor in Essex. The Defendant had, over some years, flown banners behind his aircraft directed at the Claimant and/or referred to her in derogatory terms.

She had  brought two actions for libel which had been successful. The Defendant continued to fly banners so  she sought an injunction to restrain further banners and leaflets as constituting harassment of her under the Protection from Harassment Act. The Defendant had also put the Claimant under surveillance The Claimant obtained an interim injunction and sought to have it made permanent.

In granting a permanent injunction the  judge  followed the case of Thomas v News Group Newspapers Ltd holding that the right to free speech can constitute harassment.

The impact of the Defendants exercise of his right to freedom of expression was objectionable because of the impact it had on the Claimants privacy and psychological well being.

Balancing convention rights and using the principle of proportionality the Claimants rights took precedence over the Defendants.

AMP v Persons Unknown [2011]

In the Technology and Construction Court, harassment under the 1997 act was included among claims, including the right to privacy and claims under the Copyright, Designs and Patents Act 1988.

The case illustrates the way that the courts are adapting and being innovative in the face of new technologies and behaviours.

In October 2008, Sienna Miller commenced proceedings against Big Pictures Limited and Darryn Lyons for harassment. The  course of conduct was daily door stepping and pursuit of her by the defendants photographers over a period of 3 months.

The Claimant did not apply for an interim injunction, but for a speedy trial because her life was being made intolerable and the court should resolve the issue quickly for the sake of both parties. The case 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 undertakings to the court not to doorstep at her home or 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. Lily Allen and Amy Winehouse have also succeeded in obtaining interim injunctions providing similar protection from such conduct.

The advantage of such a claim which can be run alongside or separately to a defamation claim is that the fact that the words may be true is no defence if the conduct amounts to harassment.

The limitation is also 6 years as opposed to one for defamation.

Unlike defamation it  would be possible to obtain a pre publication injunction even if the newspaper were going to defend the claim on grounds of justification.

For advice as to harassment, privacy, libel and defamation claims call Carruthers Law today or fill in one of our enquiry forms.