lOMoARcPSD|8858615 Torts-harrassment - Lecture notes on tort of harassment Introduction to Obligations (University of Kent) Studocu is not sponsored or endorsed by any college or university Downloaded by Inzi Ulhaq (inziulhaq.law@gmail.com) lOMoARcPSD|8858615 Torts Harassment Protection from Harassment Act 1997- provisions of 1997 act s2 creates a criminal offence of harassment- seemed to be working due to number of prosecutions s3 gives a civil remedy for harassment (injunction and/or damages for inter alia anxiety caused by harassment and any financial losses) - Seeking injunction from preventing a person from harassing - Seek financial remedies- any damages for distress/anxiety which is caused by the harassment and any loss that has caused by the harassment. Who is a ‘harasser’ / what is ‘harassment’? s1(1): ‘A person must not pursue a course of conduct a) which amounts to harassment of another, and b) which the defendant knows, or ought to know, amounts to harassment of the other’. s1(2) further provides that the defendant ought to know that his/her conduct amounts to 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 another’. The test is objective- would a reasonable person believe that what they are doing would amount to harassment. What is harassment? Interpretation section- s7 gives detail of what harassment might be s7 gives guidance on how to go about interpreting the other sections So, needs to be referenced when using the Act s7(2) provides that “references to harassing a person include alarming the person or causing the person distress”. The act does not provide an absolute definition of what harassment is so it could provide an action. Understandable- as it keeps its open doesn’t reoffence harassment. Undefined, but of sufficient seriousness for criminal liability. Thus, not merely annoying, aggravating, unattractive, unreasonable or regrettable. Has to be “oppressive and unacceptable” in context Downloaded by Inzi Ulhaq (inziulhaq.law@gmail.com) lOMoARcPSD|8858615 - See Majrowski v Guy’s & St Thomas’s NHS Trust (2006) HL Harassment and bullying pf a male employee by a female supervisor The supervisor is critical and always singles her out. Set out unrealistic work targets and threatened to meet with disciplinary actions if he did not perform Court found there was harassment- oppressive actions Thomas v News Group Newspapers Ltd [2001]: “harassment is … a word which has a meaning that is generally understood”. Hayes v Willoughby [2013]: “an ordinary English word with a well understood meaning”. What is harassment? What is the course of conduct- key criteria in establishing harassment. s7(3) defines a “course of conduct” as involving conduct on at least two occasions this means that a one-off act is not enough to establish harassment and to bring a claim into the 1997 act. Time gap – three months (Pratt v DPP [2001] – “close to the line”- court considered the two incidents which were three months apart were ‘close to the line’ were too long of a gap between the incidents to be considered harassment. s7(4) says that this may include speech… Law Society v Kordowski [2011] The Defendant set up the ‘Solicitors From Hell’ website in 2005, following a dispute with a firm of solicitors that he had instructed in various property and benefits matters. From the outset the website enabled and encouraged members of the public to publish negative comments about solicitors and other legal professionals under cover of anonymity. By 2011 the website contained over 900 separate posts and received over 1 million web hits every month. The majority of comments contained allegations of negligence, professional misconduct or criminal behaviour. Although the site presented itself as a public interest forum, there was evidence that the Defendant had attempted to extract money from some lawyers who found themselves ‘named and shamed’ on the forum. Legal action was brought against Kordowski- libel, breach of data protection act 1998, and harassment. On the issue of harassment?- one question was asked was in terms on the cause of conduct- could it be established where a posting had been made to a website where one posting has been made to an individual solicitor. Downloaded by Inzi Ulhaq (inziulhaq.law@gmail.com) lOMoARcPSD|8858615 The judge held that the publication on a website is an ongoing feature and the words that were on the website were causing distress and alarm and this was known to have been made in 2 occasion. The cause of conduct was established Injunction was awarded to prevent continuous publication of the website. Examples of harassing conduct Whether 1997 act protect companies as well as individuals? • Persistent following (but NB stalking as criminal offence) • Door-stepping by journalists • intimidating public demonstrations (Daiichi UK v Stop Huntington Animal Cruelty [2004]) • company experimented on animal and campaigners wanted to stop them and so sent them threatening letters, telephone calls, called them paedophiles, intimidating visits to staff’s homes. • Court granted injunctions to individuals and denied injunctive relief to corporate claimant- found legislation didn’t cover companies. • Demonstrations outside abortion clinics – Ealing Council Public Spaces Protection Order- prevent protestors from going within 100m of the clinic. ` • IT generated threats and bills (Ferguson v British Gas [2009]) Court of appeal- striking out hearing- defendant’s seeked to have the claimant’s actions struck out in the point of law British Gas recognised their behaviour was poor but believed their behaviour didn’t meet the threshold of harassment. The lead judgement: Ferguson v British Gas [2009] ‘It is one of the glories of this country that every now and then one of its citizens is prepared to take a stand against the big battalions of government or industry. Such a person is Lisa Ferguson.’ Lord Justice Jacob - - Lisa Ferguson stopped being a customer in 2007 From Aug. 2006 to Jan. 2007- they were sending her bills, threatening letters, threatening to cut gas supply, threatening to start legal proceedings and threatening to report her to credit report agencies. She wasn’t their customers and tried sending them letters. Harassment was a civil and criminal wrong and the conduct has to be serious. Held that the conduct was oppressive and unacceptable Downloaded by Inzi Ulhaq (inziulhaq.law@gmail.com) lOMoARcPSD|8858615 They rejected the argument about British Gas- who said they shouldn’t be held responsible for their own computers. The company eventually settled with Lisa Ferguson. • Persistent (unreasonably) demands for payment of debts • Newspaper articles (Thomas v News Group Newspapers Ltd [2001]) • Abusive letters • Uploading explicit photos of C on internet (AMP v Persons Unknown [2011]) • Bullying in workplace (Majrowski v Guy’s and St Thomas’ NHS Trust [2006] ) • Bombarding C with texts/emails (APW v WPA (2012)) • Conduct during neighbour dispute designed to distress (eg loud music; banging on walls) AMP v Persons Unknown [2011] Phone stolen with intimate images on it Make me a friend or else!!! Injunction under Article 8 and 1997 Act Review of the 1997 Act Home Office Research Study No. 203 (2000) – ‘An evaluation of the use and effectiveness of the Protection from Harassment Act 1997’. 1997 Act not being used to deal with ‘classic’ stalking Downloaded by Inzi Ulhaq (inziulhaq.law@gmail.com) lOMoARcPSD|8858615 The act was used primarily in low level harassment between neighbours and between partners- had it been effective in original purpose which was stalking? Independent Parliamentary Inquiry into Stalking Law Reform (February 2012) recommended a specific offence of stalking be created - Considered that the 1997 act was problematic, and it was a weakness- being used for low level harassment problems. - 2012 concluded that a specific offence of stalking needed to be introduced. Specific Stalking Law Protection of Freedoms Act 2012, S111 • (1) After section 2 of the Protection from Harassment Act 1997 (offence of harassment) insert— . “2A Offence of stalking • (1) A person is guilty of an offence if • (a) the person pursues a course of conduct in breach of section 1(1), and • (b) the course of conduct amounts to stalking • (2) For the purposes of subsection (1)(b) a person's course of conduct amounts to stalking of another person if • (a) it amounts to harassment of that person • (b) the acts or omissions involved are ones associated with stalking, and • (c) the person whose course of conduct it is knowing or ought to know that the course of conduct amounts to harassment of the other person…” Stalking Done in amendment of 1997 legislation- inserted a new clause A person would be guilty of offence of stalking if they pursue a cause of conduct that amounted to staking. S. 2A (3) – Following examples of acts or omissions which are ones associated with stalking: (a) Following a person (b) Contacting, or attempting to contact a person by any means (c) Publishing any statement or other material (i) relating or purporting to relate to a person, or (ii) purporting to originate from a person. (d) Monitoring the use by a person of the internet, email etc. (e) Loitering in any place, public or private (f) Interfering with any property in the possession of a person (g) Watching or spying in a person Downloaded by Inzi Ulhaq (inziulhaq.law@gmail.com) lOMoARcPSD|8858615 New Legislation Stalking Protection Act 2019 – introduces a Stalking Protection Order Criticism of the Protection from Harassment Act 1997 1. It requires the harassment to be a “course of conduct”, defined (in s7) to mean conduct on at least 2 occasions - so would not work in Wilkinson or Janvier situation Is the code of conduct sufficient? 2. S7(2): harassment might include ‘alarming …or causing distress’ and S1(2) says it must be such that the harasser ‘knows or should have known that it amounts to harassment of another’ >>> unsatisfactory? The standard of the reasonable harasser- the standard should be based upon a reasonable person in the position of the party who is facing the harassment and not based upon the person who is carrying out the alleged harassing act- criticism 3. One final criticism/question – what conduct is excluded from the definition of harassment? (S1(3)) - a ‘reasonable’ course of conduct?? - which activities? Hayes v Willoughby [2013] http://ukscblog.com/case-comment-hayes-v-willoughby-2013-uksc-17/ Claims under the Equality Act 2010 Some protection of harassment is supported by the Equality Act. A long and convoluted Act- consolidates a wide range of • S.26 provides (another) definition of harassment: • (1) unwanted conduct relating to protected characteristic (age, disability, gender reassignment, race, religion, belief, sex, sexual orientation) • (2) Conduct has purpose or effect of violating victim’s dignity or “creating an intimidating, hostile, degrading, humiliating or offensive environment” for the victim • No need for a “course of conduct” Limits of the Equality Act • Only available against some classes of persons, including: • Employers, providers of public services, those who perform public functions, people who dispose of or manage premises, providers of education S.26 Equality Act Downloaded by Inzi Ulhaq (inziulhaq.law@gmail.com) lOMoARcPSD|8858615 Section 26(2) – harassment found where: (a) A person engages in unwanted sexual conduct (b) That has the effect of violating a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for the victim. Government Equalities Office – consultation exercise on sexual harassment in the workplace (Closed October 2019) Downloaded by Inzi Ulhaq (inziulhaq.law@gmail.com)
