The Protection from Harassment Act 1997

The Protection from Harassment Act 1997 provides protection from harassment in a wide variety of disputes. Stalking, bullying at work, protection from the media, libel disputes.

The act is not only valuable against individuals but also companies, so a photographer as part of the paparazzi or an agency or occasionally a newspaper could be held to be harassing a party.

Only an individual can bring a claim under the act. However, it could be used to protect individual employees and directors from harassment.

Under the act 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 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.

It does not apply if the person who pursued it shows (a) that it was pursued for the purpose of preventing or detecting crime (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.

The act has a civil remedy. An actual or apprehended breach may be the subject of a claim in civil proceedings. Damages may be awarded for amongst other things any anxiety caused by the harassment and any financial loss resulting from the harassment:

References to harassing a person include alarming the person or causing the person distress. A course of conduct must be in relation to a single person and the conduct on at least two occasions in relation to that person. Conduct includes speech. The references to a person are references to a person who is an individual.

In Hayden v Dickenson [2020] EWHC 3291 (QB)  Mr Justice Nicklin extracted the following principles from the leading cases as to what amounts to harassment.

  • Harassment is a persistent and deliberate course of unacceptable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress.
  • The behaviour must reach a level of seriousness beyond irritations, annoyances, even a measure of upset, that arise occasionally in everybody’s day-to-day dealings with other people.
  • The conduct must cross the boundary between unattractive, and even unreasonable, and conduct which is oppressive and unacceptable. The gravity must be of a level which would sustain criminal liability. A course of conduct must be grave before harassment is proved.
  • Any course of conduct which causes alarm or distress does not automatically  amount to harassment.
  • The person ought to know that it involves harassment of another. If a reasonable person in possession of the same information would think the course of conduct involved harassment. The test is objective. It’s not swayed by the feelings of the claimant.
  • Those who are  subject to the harassment can include others who are foreseeably, and directly, harmed by the conduct of which complaint is made, so they can be described as victims of it.
  • Where the complaint is of a publication, the claim will engage Article 10.The act must be interpreted and applied with regards to the right to freedom of expression.
  • There is a tension between s.7(2) which provides that harassment includes alarming the person or causing the person distress and Article 10 which protects speech that offends shocks and disturbs.
  • Where Article 10 is engaged, the Court’s assessment must pay due regard to freedom of expression and the need for any restrictions to be necessary and proportionate. Harassment may engage the complainant’s Article 8 rights. The Court will have to assess the interference with those rights and the justification for it and proportionality. Conflict between rights under Article 8 and Article 10 is achieved through the “ultimate balancing test”
  • “First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. re S [2005] 1 AC 593.”

  • The context and manner in which the information is published are all-important. The harassing element of oppression is likely to come more from the manner in which the words are published than their content.
  • Even if the information is in the public domain it does not mean that a person loses the right not to be harassed by the use of that information.
  • Neither that the published information is or is alleged to be true. The truth of the words is likely to be a significant factor especially when considering an application for an  interim injunction.
  • Where the allegations are false, the public interest in preventing publication or imposing remedies after the event will be stronger. The fundamental question is whether the conduct has additional elements of oppression, persistence or unpleasantness which are distinct from the content of the statements. If so, the truth of the statements is not necessarily an answer to a claim in harassment.
  • Where the alleged harassment is by publication of journalistic material, nothing short of a conscious or negligent abuse of media freedom will justify a finding of harassment. These cases will be rare and exceptional.
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