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HARASSMENT BY THE MEDIA arrow Date: 05/1/2002

Protection from Harassment

Can the media be held liable for a publication under the statute which was enacted to outlaw stalking?  The answer to that is yes, and that is set out in a very informative recent Court of Appeal judgment (Esther Thomas v (1) News Group Newspapers (2) Simon Hughes 18 July 2001 unreported) which addressed the issue.  Lord Phillips' leading judgment considers whether in certain circumstances the press could be guilty of/liable for harassment under the provisions of the 1997 Protection from Harassment Act.  Here are the relevant provisions of the 1997 Act:

1. 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 harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(3) Subsection

(1) does not apply to a course of conduct if the person who is 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.

2. Offence of Harassment

(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence.'

The section then goes on to deal with the civil remedy.

3. Civil remedy

(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

4. Interpretation of this group of sections

(1) This section applies to the interpretation of sections 1 to 5.

(2) References to harassing a person include alarming the person or causing the person distress.

(3) A 'course of conduct' must involve conduct on at least two occasions.

(4) 'Conduct' includes speech.'

The Claim

The very unusual circumstances giving rise to the County Court action which was the subject of the Court of Appeal judgment concerned a woman who had been the subject of articles in The Sun newspaper which she said had caused her to be harassed within the meaning of the 1997 Act.  Lord Phillips' judgment arose from the refusal of the first instance judge to accede to the newspaper's application to strike out the Particulars of Claim pursuant to Part 3 of the CPR, or to give judgment in the newspaper's favour pursuant to Part 24.  The action arose from the addition of The Sun which contained an article written by the second defendant entitled 'Beyond a joke – fury as police sergeants are busted after refugee jest'.

The Claimant, described in the article as 'a black clerk' was said to have complained about the way some police officers had treated a Somali woman, which she had considered racist.  It was said that as a result of her complaint, two officers were disciplined and demoted.  The article generated a number of letters supporting the police officers, and critical of the Claimant in the action.  As the Particulars of Claim set out, this also resulted in 'a lot of furious letters from its furious readers.  Bishopsgate Police Station received race hate mail (three letters) addressed to [the claimant] the same day.

The Particulars of Claim then sets out the claimant's case for harassment as follows:

'The articles written by Mr Hughes, approved of by the Editor and published by the newspaper amount to a course of conduct which amounts to harassment of the Claimant.  The article was written in an indignant tone which was designed to elicit a reactions.

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 4 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 articles caused the Claimant to be terrified and scared to go to work.  She felt vulnerable to being physically attacked at work or en route to and from work.  The Claimant has since transferred by her own choice to a new place of work.'

The Impact of the Human Rights Act

The arguments of the newspaper that is a matter of statutory interpretation, the meaning of 'harassment' in the 1997 Act could not extend to a series of publications in a newspaper were rejected.  However, what Lord Phillips described as 'the heart of the appellant's case' was the interpretation and application to the 1997 Act of the Human Rights Act 1998 ('the HRA'), and Article 10 of the European Convention on Human Rights ('the Convention') which the HRA incorporates into the English law.

After quoting Article 10, and Section 12(4) of the HRA (which obliges the court to have 'particular regard to the importance of the Convention rights to freedom of expression'), Lord Phillips referred to the 'mass' of domestic and European jurisprudence concerning the importance which the courts must attach to freedom of the press.

Lord Phillips observes (perhaps a trifle wearily) 'over the last year this court has become extremely familiar with Strasbourg jurisprudence'.

To get a flavour of this jurisprudence, Lord Phillips quoted from the judgment of Nielsen and Johnson v Norman (1999) 30 EHRR 878 at paragraph 43:

The test of 'necessity in a democratic society' requires the Court to determine whether the 'interference' corresponded to a 'pressing social need', whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient.'

Lord Phillips also quoted the observations of Lord Steyn in Reg v Home Secretary, Ex p Simms (2000) AC 126:

'Freedom of expression is, of course, intrinsically important: it is valued for its own sake.  But it is well recognised that it is also instrumentally important.  It serves a number of broad objectives.  First, it promotes the self-fulfilment of individuals in society.  Secondly, in the famous words of Holmes J (echoing John Stuart Mill), 'the best test of truth is the power of the thought to get itself accepted in the competition of the market:' Abrams v United States [1919] 250 US, 616 630 per holmes J (dissenting).

Thirdly, freedom of speech is the lifeblood of democracy.  The free flow of information and ideas informs political debate.  It is a safety valve; people are more ready to accept decisions that go against them if they can in principle seek to influence them.  It acts as a brake on the abuse of power by public officials.  It facilitates the exposure of errors in the governance and administration of justice of the country.'

Lord Phillips observed that the HRA required him both to interpret domestic legislation in a manner compatible with Convention rights (HRA Section 3), and not to interpret 'harassment' in a way which restricts freedom of speech (HRA Section 12).  He observed the references by the newspaper to US decisions in relation to the First Amendment of their Constitution (which guarantees freedom of speech).  He also observed that both parties to the appeal 'recognise the importance of the right of freedom of expression and, in particular, press freedom'.

The Arguments

In his skeleton argument for the newspaper, Desmond Browne QC submitted that interpretation of the term 'harassment' contended for by the respondent 'means that newspapers and broadcasters will be caught in the net of Section 1(1) simply on the basis that articles they publish cause the subject distress… Such a wide definition raises the spectre that legitimate subjects in newspaper reportings will be able to ask any country court for an injunction to restrain publication leaving it up to the newspapers to satisfy a country court judge that the terms of the article are reasonable.  In turn, that raises the practical reality that unless the newspaper submits its proposed article to the Court in order to demonstrate its reasonableness…the injunction will be granted.  Such a situation is intolerable and represents a state of affairs little short of judicial censorship and be called prior restraint: it is manifestly contrary to Article 10'.

Desmond Browne QC also contended that the conduct complained of by the respondent was reasonable, leading Lord Phillips to conclude that he needed to address two questions:

1. What facts have to be alleged in order to plead an arguable case of harassment;

2. What is the nature of the defence that the conduct was reasonable?'

On the issue of harassment, Lord Phillips observed that Section 7 of the 1997 Act does not provide a comprehensive definition.  He, however, attempts his own definition:

It describes conduct targeted at an individual which is calculated to produce the consequences described in Section 7 [of the 1997 Act] and which is oppressive and unreasonable.'

Lord Phillips goes on to observe that reasonableness will depend upon the circumstances of the particular case.  Dismissing what appears to have been a 'straw man' argument in Desmond Browne QC's skeleton, he affirms the entitlement of the press to publish material 'notwithstanding that it could be foreseen that such conduct was likely to cause distress to the subject of the article', observing that the issue here is that the complaint is not of distress but of harassment.

On the complaint that the publications were racist, the first instance judge had held that:

'It seems to me that the colour of the Claimant's skin had no bearing whatever on the matters reported unless it was to be implied therefrom that it was because of her race that the Claimant had taken the action she did, action at which The Sun newspaper profoundly disapproved.'.

The Judgment

After considering the submissions of leading counsel on this and other issues, Lord Phillips concluded as follows:

'The Sun did not disassociate itself from its readers' letters.  The opinions that these expressed were in line with the tone of the article that had provoked them.  The letters were critical both of the complaint and of the punishment of the sergeants for allegedly racist remarks and, thus, inevitably, made comments about racism.  However, none of the letters ostensibly suggested that the conduct of the respondent which was criticised was attributable to her race.  It seems to me that these letters add to the respondent's case that the appellants were pursuing a course of conduct which they could foresee was likely to cause her distress, but do not, when taken in isolation, add to the respondent's case that this course of conduct was racist.

When the three publications are considered together, however, and for the reason I have given, I am satisfied that the respondent has pleaded an arguable case that the appellants harassed her by publishing racist criticism of her which was foreseeably likely to stimulate a racist reaction on the part of their readers and cause her distress.

Mr Browne argued that, if the test of whether a series of publications constitutes harassment is to turn on the question of whether the conduct of the publisher is reasonable, this test will lack the certainty that the Strasbourg court requires if it is to find that a restriction on freedom of expression is prescribed by law.  On my analysis, the test 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.  This is a familiar test and not one which offends against Strasbourg's requirement of certainty.'


Although it is not so qualified in the US, Article 10 qualifies the right (and privilege) of freedom of expression set out a paragraph 1, with the 'duties and responsibilities' set out at paragraph 2.  Any freedom enjoyed by any individual or class must be qualified where the exercise of that freedom can or does impinge on other related and valuable freedoms, i.e. those that are 'necessary' in a democratic society.

The article quoted on behalf of the newspaper includes two obviously relevant and appropriate restrictions, namely for the protection of 'public safety' and 'prevent of disorder or crime'.  Harassment falls into both of those categories.  Consequently this Court of Appeal judgment is absolutely in line with Article 10, and accordingly its decision to allow the respondents to take this issue to trial was surely a right one.

Jonathan Coad

This article was first published in the Entertainment Law Review, January 2002.

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