Harassment is the moral panic of the last 3 years, especially cyber harassment or cyber bullying as it is known. The Protection from Harassment Act has been around for 19 years but only recently have we seen the explosion of anti-harassment injunctions and prosecutions. One can only assume that the internet age and the development of communication has led to the thousands of cases that have been investigated by the Police and the numerous other civil cases initiated (as the Protection from Harassment Act contains a civil remedy as well as a criminal sanction).
You would assume therefore that the definition of harassment is pretty simple as lawyers and law enforcement seem so happy to bandy it around. However when the statute is read, it is not as simple as you would assume. Essentially harassment requires two actions that amount to harassment and where the harasser knows or ought to know that that conduct amounts to harassment of the other. To ascertain if he knew it would amount to harassment the court will assess whether a reasonable person in possession of the same information would think of it as harassment. On this basis before conduct can be actionable as harassment it must occur more than once, cause alarm or distress and be regarded by the reasonable person as being conduct that is harassment.
How do you define what alarm or distress is?
You cannot. It is entirely subjective. A hardened construction worker is unlikely to get distressed by somebody shouting a swear word at him and then sending a message repeating the expletive However a mother of two children may find such conduct alarming and distressing. So it is not surprising therefore that many people are now trying to use this legislation as a tactic in litigation or in long running disputes.
Who is the reasonable man?
It has been used in the law to define how people should act for centuries and the common historical example was the man on the Clapham Omnibus (although this, of course, is now entirely outdated. Therefore a Judge must not only decide if it was reasonable conduct but must also decide if any information that the potential harasser held changes the issue of the reasonable man).
It is not surprising therefore when the Police have to consider the Act and have to quickly assess situations that mistakes will be made. The recent news story involving the teenage girl, Emma Raymond, who was arrested for harassment on school property and then held in custody before having her tablet and phone confiscated, is an example of how this legislation can be either manipulated or confused. No charges were brought against Ms Raymond and instead the complainant was charged with perverting the course of justice.
The risk of disproportionate civil litigation arising from this legislation is as great as the Police or the CPS not determining the defining factors of harassment properly. Instead of focussing on substantive causes of action people are now using this legislation as satellite litigation to distract from the main arguments.
Do not get me wrong: there are, of course, many cases of legitimate concern that have blighted victims’ lives. However I fear that as the modes of communication get larger, along with people’s egos, and until the courts simply say ‘get over it’, the use of anti – harassment injunctions will continue to grow and clog up the already under resourced courts.
If you would like further information on any of the above, please email firstname.lastname@example.org or contact us on 01732 525923. You can also visit our dedicated Harassment page providing further information around the service we offer.
Article by Mark Edmonds, Associate, Griffin Law