Harassment (C) Flashcards
What are the 5 stages for harassment?
- Has the defender embarked upon a COURSE of CONDUCT?
- Did that course of conduct harass, or cause “alarm and distress” to P?
- Did D intend to harass P, or was D’s conduct objectively harassing?
- Does D have a valid defence?
- What remedy should P claim?
Step 1: a course of conduct?
PROTECTION FROM HARASSMENT ACT 1997.
- s8(3) ‘a course of conduct must involve conduct on at least two occasions’.
Sunderland City Council v Conn [2008] IRLR 324.
- Conduct must cross into ‘harassment’ to be capable of forming part of a course of conduct.
Marinello v Edinburgh City Council 2011 SC 736.
- Do gaps in time matter?
- So long as the acts are sufficiently close in character, they’re part of the same course of conduct.
Step 2: did that course of conduct harass, cause alarm and distress?
s8(3) “harassment” of a person includes causing them alarm or distress.
- Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224.
- Lord Nicholls ([30]): “irritations…. arise at times in everyone’s day-to day dealings with other people. Courts… able to recognise the boundary between conduct which is… unreasonable, and conduct which is oppressive and unacceptable”
- Baroness Hale ([66]) court must draw the line between “the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour”.
s8(1) a person must not pursue a course of conduct which amounts to harassment of another and:
- is intended to amount to harassment of that person; or
- occurs in circumstances would appear to a responsible person that it would amount to harassment of that person.
TWO-PRONG MENTAL TEST.
- P must either show that D intended to harass him (subjective test).
- If P cannot do that, must show that D’s conduct is objectively harassing.
Step 3: did D intend to harass P, or was objectively harassing?
Targeting a third party? (Levi v Bates [2016] QB 91).
- Conduct: various articles in match day programmes making allegations, publishing address and phone numbers; announcement on radio asking anyone who sees him to report it to the police.
- Could his wife sue?
- Held: YES.
- “acts need not be targeted at the pursuer; so long as they are targeted at an individual” ([26-30]).
- BUT: claims can only be made by those who would foreseeably and directly be harmed ([34]).
Covert harassment? (Gerrard v Eurasian Natural Resources Corporation [2020] EWHC 3241 (QB) 90).
“Accordingly, if acts such as following, monitoring electronic communications, and watching and spying do not amount to the particular kind of harassment which constitutes stalking in circumstances where the perpetrator
(1) conceals those acts,
(2) has no intention that they should be discovered by the victim, (3) reasonably believes that they will not be discovered (for example, because they are carried out with skill and care), that would greatly cut down the protection for victims which the PHA provides.”
Social media?
Davies v Carter [2021] EWHC 3021 (QB).
[69] ‘A person may be liable… for harassment which they do not undertake directly but which they aid, abet, counsel or procure, where they provide active support and encouragement “behind the scenes”, and by showing continuing approval for a course of conduct or its means of operation’.
[84] conduct amounted to harassment because:
- Significant and unpredictable volume. Across different social media platforms. Repeated contacting of third parties. P had to delete entire social media presence.
Sube v News Group Newspapers [2020] EWHC 1125 (QB).
[65], per Warby J:
(1) ‘techniques of reporting, including the tone and editorial decisions about content, are matters for the media and not the Court to determine’.
(2) ‘nothing short of a conscious or negligent abuse of media freedom will justify a finding of harassment’.
(3) ‘It will be a rare or exceptional case in which these criteria are satisfied, in relation to media publication.’
Employment?
Employer may be vicariously liable for a course of conduct perpetrated by an employee.
- Majrowski; Dickie v Flexcon Glenrothes 2009 GWD 35-602 (against employee).
- Ferguson v British Gas [2010] 1 WLR 785 (against third party)
Stage 4: valid defence?
s8(4) defence if D can show conduct was:
(a) authorised by, under or by virtue of any enactment or rule of law.
(b) pursued for the purpose of preventing or detecting crime.
(c) (in the particular circumstances), reasonable.
8(4)(b).
- Hayes v Willoughby [2013] 1 WLR 935.
- Actions must be rationally connected to purpose of the prevention or detection.
- EDO v Campaign to Smash EDO [2005] EWHC 2490 (QB).
- Alleged crime must be specific and immediate/imminent.
8(4)(c).
- Hourani v Thomson [2017] EWHC 432 (QB).
- Freedom of speech consideration?
- Khan v Khan [2018] EWHC 241 (QB).
- Pursuing a reasonable grievance?
- Canada Goose v Persons Unknown [2020] 1 WLR 417.
- Freedom of peaceful protest?
