APPENDICES
¶Protection from Harassment Act 1997 3.143 The Protection from Harassment Act 1997 (PHA) has potential application both to the conduct
of journalists, for example news-gathering activities by journalists and photographers, and also in relation to the actual content of publications.
¶3.144 The PHA provides that a person must not pursue "a course of conduct" which amounts to
harassment of another and which he knows or ought to know amounts to harassment of that other.264 A person "ought to know" conduct amounts 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.265 A course of conduct must involve conduct on at least two occasions.266
¶3.145 "Harassment" is not exhaustively defined in the Act, although the Act provides that harassment
includes alarming another person or causing that person distress.267 However, the Act does not require alarm or distress to be caused; harassment may be demonstrated by other means, for example, the use by the press of offensive or insulting words about a person's appearance or repeated mocking by a newspaper of a person's sexual orientation, or in relation to other characteristics protected by the Equality Act 2010. The lack of an exhaustive definition of harassment gives the courts scope to interpret the Act so as to give effect to the rights under Article 8 and Article 10 of the ECHR.268
¶3.146 Section 1(3) sets out the defences to a claim for harassment, and these include that the course
of conduct was pursued for the purpose of preventing or detecting crime, 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 in the particular circumstances the pursuit of the course of conduct was reasonable. In the context of the press seeking to rely on a reasonableness defence it has been held that the defence:269
"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".
¶3.147 Section 2 of the PHA provides that the course of conduct pursued in breach of section 1
will be a criminal offence. This is discussed in more detail at paragraph 4.129 of the Annex. Section 3 provides that 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. This has the effect that a civil claim can be brought to restrain an apprehended breach of section 1, by way of an injunction; or a claim can be brought after the conduct has occurred to seek damages for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.270 If a court grants an injunction restraining a person from pursuing any conduct which amounts to harassment and the claimant considers that the defendant has breached the injunction, he or she may apply for the issue of a warrant for the arrest of the defendant.271
¶s1(1)265 pp11-12, paras 44-46, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Tina- Weaver.pdf pp105-106, lines 20-21, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/ Transcript-of-Morning-Hearing-29-February-2012.pdf p37, lines 8-14, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-13-December-20111.pdf p3, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Supplemental-Witness-Statement-of- Hugh-Grant.pdf pp32-33, para 68, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lord- Macdonald-QC1.pdf p97, lines 16-22, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-29-May-2012.pdf p75, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH2-MOD300004683- MOD300004948-docs-53-104-and-MOD3000013794-MOD3000013796-doc-598.pdf pp50-51, Baroness Buscombe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-7-February-2012.pdf p8, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Carnegie-Trust.pdf s1(2)266 p4, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lloyd-Embley.pdf p31, para 64, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith- Surtees.pdf p42, lines 14-17, Tom Crone, ibid para 11, judgment of Mr Justice Tugendhat, Ting Lan Hong v XYZ and others [2011] EWHC 2995 QB, http://www. judiciary.gov.uk/Resources/JCO/Documents/Judgments/ting-lan-hong.pdf pp112-113, lines 5-2, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript- of-Morning-Hearing-5-March-2012.pdf p98, lines 1-15, Theresa May, ibid pp1-2, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-55. pdf pp95-96, lines 25-24, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Morning-Hearing-29-November-2011.pdf p16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-British-and-Irish- Ombudsman-Association.pdf s7(3)(a)267 p5, para 24, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Maria- McGeoghan.pdf pp65-66, lines 20-8, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Afternoon-Hearing-29-February-2012.pdf Part E, Chapter 3 p3, para 13; p4 para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Supplemental-Witness- Statement-of-Hugh-Grant.pdf p54, Sir Denis O'Connor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-without- fear-or-favour.pdf pp98-99, lines 22-7, Theresa May, ibid p2, ibid pp1-10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-V22.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Harriet-Harman-QC-MP-on- behalf-of-the-Labour-Party1.pdf s7(2)
1893¶Appendix 4 | Legal Materials
¶3.148 A limited number of claims have been brought against the press under the PHA on the basis
that actual publication amounts to harassment, although the case law thus far suggest that claimants have enjoyed limited success in relation to claims that publication amounts to harassment.
¶3.149 The principle of such a claim being brought was first addressed in Thomas v News Group
Newspapers Ltd in which News Group sought to strike out (as being unarguable) a claim for harassment based upon the publication of a series of articles in which the claimant, described as a "black clerk" was criticised for her involvement in a dispute over a racist comment at her place of work, and hate mail was subsequently received by the claimant in response to the article (the newspaper having published the claimant's name and address). The court stated that:272
"In general, press criticism, even if robust, does not constitute unreasonable conduct and does not fall within the natural meaning of harassment".
However, the Court of Appeal held that it was at least arguable that it was foreseeable that the publication of the articles complained of would lead Sun readers to address hostile letters to the claimant, causing her additional distress.
¶3.150 Recently, in Trimingham v Associated Newspapers Limited the claimant, who had worked
with and had an extra-marital affair with a well known politician, pursued a claim under the PHA.273 The basis of the claim was that the newspaper had engaged in a course of conduct which included publication of comments about the claimant's personal appearance as well as her sexuality, which she regarded as offensive, both in the articles complained of and in the readers' comments. The claimant sought damages, including aggravated damages, and an injunction against the newspaper ordering them to refrain from further publication which made reference to the claimant's sexual orientation unless relevant in a particular context distinct from her relationship with the politician and that the newspaper refrain from harassing the claimant.
¶3.151 Tugendhat J outlined that the correct approach was for the court to ask the following
questions: (1) was the distress that the claimant suffered the result of the course of conduct, in the form of speech? (2) if so, ought the defendant to have known that that course of conduct amounted to harassment? (3) if so, has the defendant shown that the pursuit of that course of conduct was reasonable? To both questions (1) and (2) the Court noted there are subsidiary questions: namely was the claimant a purely private figure or not and, either way, was she in other respects a person with a personality known to the defendant such that it ought not to have known that the course of conduct amounted to harassment?
¶3.152 Tugendhat J also set out guidance in relation to the interpretation of a course of conduct
consisting of speech which is alleged to be pejorative of a claimant: he did so by adopting the guidance provided by the Court of Appeal in Jeynes v News Magazines Ltd dealing with the meaning of words alleged to be defamatory:274
1894"The governing principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable [person] is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of