Harassment by publication

The Protection from Harassment Act 1997 was enacted principally to protect people against stalkers. However, the Act was drafted to cover a wider set of circumstances than the phenomenon of stalking, and there has been some debate as to how wide a set of activities will be caught by the criminal offence.

The media was concerned that the Act might affect the news-gathering activities of journalists. This is because by virtue of section 1, a person must not pursue a course of conduct which amounts to harassment of another, and which that person knows (or ought to know) amounts to harassment of the other. The test as to whether the harasser ought to know whether his conduct amounts to harassment is determined by asking whether a reasonable person in possession of the information he has would think the conduct amounted to harassment. It is clear from section 1(2) that “conduct” includes speech, although there must be at least two instances of the conduct at issue. Harassment is both a criminal offence and actionable in the civil courts.

In an action brought by someone described in The Sun as a “black clerk”, the subject of that article brought an action against News Group, the publishers of The Sun, amongst other things, on the basis that the description of her as a “black clerk” which caused a number of letters to be written by readers of The Sun amounted to harassment under the Act. The Sun published a number of vitriolic readers’ letters, and was therefore guilty of a course of conduct. The claimant alleged that she was the victim of hate mail as a result of the Sun articles, and since her name and place of work were published by The Sun, this amounted to both racism and harassment.

When an application by News Group to strike the action out failed, it went to the Court of Appeal, which held that despite the article 10 principle of freedom of speech, the action by the claimant did have a reasonable prospect of success, and should not therefore be struck out or dismissed.

It was not anticipated that the Protection from Harassment Act would be applied to publications by the media, but this judgment clearly indicates that in appropriate circumstances the Act can be invoked against the media where publication gives rise to “harassment”.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.