Out-Law Guide 3 min. read
09 May 2023, 12:09 pm
The PHA creates both criminal and civil criminal offences where there has been “a course of conduct which amounts to harassment of another” which the defendant “knows or ought to know amounts to harassment”.
Under the PHA an objective test is applied: a person will be deemed to have known that their conduct amounted to harassment “if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other”.
While “harassment” is not defined in the PHA, it does say that it includes “alarming the person or causing the person distress”. Further guidance was given by the High Court in a 2010 case between Bruce Dowson and others and the Chief Constable of Northumbria. Mr Justice Simon said in that case that a harassment claim will only succeed if an individual can show that the conduct:
Mr Justice Simon also held that a line should be drawn between conduct that is unattractive and unreasonable and that which can be described as torment of the victim “of an order which would sustain criminal liability” - that is, that the alleged misconduct must be sufficiently serious to attract criminal liability to give rise to either a civil or criminal offence under the PHA.
Mr Justice Simon also found that the conduct had to be targeted "at the claimant" - however, the Court of Appeal has since confirmed that claims can also be brought by individuals other than the target of a course of conduct who were nevertheless "foreseeably, and directly, harmed" by it.
In addition to the offence of harassment which causes alarm and distress, the PHA creates a separate criminal offence of putting people in fear of violence. A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against them is guilty of an offence if they know or ought to know that the course of conduct will cause the other so to fear on each of those occasions.
A prosecution for either offence will only succeed if there is proof of harassment. There must also be evidence to prove the conduct was targeted at an individual and was calculated to alarm or cause that individual distress, and that conduct was oppressive and unreasonable.
A person accused of harassment has three potential defences under the PHA:
The remedies available to a claimant for harassment are damages and an injunction. Damages can include an award for anxiety caused by the harassment and any resulting financial loss. When considering an application for an injunction, the court will take into account the likelihood of future harassment regardless of prior conduct since the injunction will only be granted where the need for it exists at the day of the hearing. The breach of an injunction for harassment constitutes a criminal offence.
A person found guilty of committing a criminal offence may be imprisoned for a term not exceeding six months, or a fine, or both.
While the PHA provides for both criminal and civil harassment claims, there are strong reasons why a claimant might pursue the civil route - not least because the claimant retains control of the situation, rather than handing the matter over to the authorities. Taking the civil route also allows claimants to bolster their position by arguing other privacy-based causes of action alongside their harassment claim.
In a media context, although it is possible in theory to bring claims for harassment in relation to newspaper publications, to do so successfully requires the claimant to establish that there has been a "conscious or negligent abuse of media freedom". This is an extremely high threshold to meet, and both attempts to bring harassment claims against newspapers before the English courts to date - the Dowson case, and a case brought by PR adviser Carina Trimingham - have been unsuccessful.
Civil harassment claims have, however, been successfully deployed alongside other privacy-related causes of action: for example, to prevent photographers from pursuing and photographing individuals without their consent; and to procure the removal of reputationally damaging, offensive and threatening material published online.