Protection from Harassment Act 1997 (PHA)
Harassment is not specifically defined under the PHA, but it provides that “references to harassing a person include alarming the person or causing the person distress” (section 7(2)).
“Where … the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day to day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the conduct must be of an order which would sustain criminal liability under section 2.”
The law’s definition of harassment is wide-ranging and is not exhaustive, providing the opportunity for judgment on a case-by-case basis. In general, a person must not pursue a course of conduct which amounts to harassment of another, or which they ought to know amounts to harassment of that other.
There is, therefore, considerable scope for a wide range of claims against individuals and organisations. For example, if an individual has suffered harassment in the workplace they may choose to pursue action for damages under the Protection from Harassment Act rather than at an Employment Tribunal.
If found guilty of an offence under the Protection from Harassment Act 1997, the defendant is liable to face imprisonment up to 6 months, a fine not exceeding level 5 on the standard scale (up to £5,000), or both. The legislation also allows the issuing of restraining orders.
If the defendant has a restraining order placed against them and they subsequently do anything they are prohibited from doing under the injunction, they may be sent to prison for up to 5 years.
Damages may be awarded to the victim for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
Malicious Communications Act 1998
Further to the Protection from Harassment Act, there is also legislation to prevent harassment involving malicious communications either through the post, by telephone, fax, cyber-stalking or by SMS messages sent to mobiles.
Under this legislation it is an offence to send an indecent, offensive or threatening letter, electronic communication or other article to another person and under section 43 Telecommunications Act 1984 it is a similar offence to send a telephone message which is indecent offensive or threatening. Both offences are punishable with up to six months imprisonment, a fine, or both.
Breach of privacy
Breach of privacy claims have recently become much more common by virtue of recent judge-made extensions to English law, leading on from the Michael Douglas v Hello Magazine and Naomi Campbell judgments, through to the Max Mosley and Madonna proceedings.
Although there is no express right to privacy under English common law – and therefore no civil action available for a purported breach of such a right – there are a number of rights that, in various ways, relate to privacy. These have been used in recent years to the same effect as a dedicated privacy law. Some possible approaches are outlined below.
Breach of confidence
Traditionally, to bring a claim for breach of confidence, the claimant had to establish that there was a confidential relationship between the claimant and the defendant.
However, to bring a claim for misuse of confidential information, the claimant must only establish that he had a reasonable expectation of privacy in relation to the information in question. The relationship with the defendant is not particularly relevant. If successful, a claimant can have an injunction issued against publication.
Human Rights Act 1998
In 1998 the European Convention on Human Rights was incorporated into UK law. Article 8(1) of the Convention states that “everyone has the right to respect for his private and family life, his home and his correspondence.” Data Protection Act 1998
The law relating to data protection holds relevance to nearly everyone’s privacy in the modern technological world. The Data Protection Act sets out eight rules by which people must comply when they collect, store, retrieve or organise data. In addition to those rules, the Act gives people further rights – such as the right to prevent others from using your personal data in a way that causes damage or distress. The Act also includes provision for individuals to recover compensation from someone (a processor of data) who has used your personal data in breach of the rules set out in the Act.