 |
Article Story:
HARASSMENT BY THE MEDIA
|
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.'
Comment
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.
<< back to articles
|