In this guide, we take a look at what harassment is and how to stop it
Harassment of any type can be a distressing experience if are a victim of it; or a difficult problem to deal with if a family member or employee has been accused of it.
To be able to deal with harassment it is firstly important to understand it, Our simple guide looks at the different types of harassment, the burden of proof required to prove it and steps that can be taken to stop it.
Harassment – What is it?
The key definition of harassment is found in the Protection from Harassment Act 1997 which provides that ‘a person may not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other.
There is plenty of scope for bringing various different types of conduct within this definition.
One of the key issues that needs to be determined is what is a course of conduct. This is set out in statute again and it involves, in relation to the same person, conduct on at least two or more occasions; or in the case of conduct in relation to two or more people, conduct on at least one occasion in regard to each of them.
What conduct can count as harassment?
Actions such as stalking, up-skirting and other conduct that has been in the media, are now reasonably well recognised as potential harassment. However, one of the most important forms of conduct which is not always considered is speech. This can include written media and most importantly, in the current climate, can include social media publications.
Not only is there a right to be protected from harassment in a written or verbal form, there is a right to freedom of speech. A court has to perform a balancing act and conduct has to be sufficiently serious before it can be found to be harassment. For that reason, while claims can be brought for harassment alone, generally people do not regard something truthful being said about them, which is in the public domain and not private, as being harassing. And for that reason often claims are brought in conjunction with defamation claims; or misuse of private information claims.
How do I make a claim for harassment?
You must be able to show a course of conduct as above;
You must be able to show if it is targeting an individual;
Importantly it has to be calculated to and does cause alarm, fear or distress; and
There must be conduct that is oppressive and unreasonable as opposed to merely unattractive, unreasonable or regrettable.
As mentioned above only two actions can be enough to bring a claim but the content of the action however is still critical to establish a claim for harassment. It does not mean that will always be the case however and the fewer the events and the longer the time between them the less likely it is that they will amount to harassment. Recent judicial authority uses the helpful terms ‘persistent and deliberate’ and they are a good guide.
What if someone says they didn't know their actions were harassment?
It is not enough for someone to say they didn’t know. There is an objective test and key is often whether someone ought to have known their conduct was harassing. It is a test however judged against not that specific individual as few defendants will ever say that they knew that they were causing alarm or distress to a claimant.
If a claim succeeds is someone found ‘guilty’?
No, there are three particular defences to a course of conduct which would otherwise be harassing and those are:
- it was for the purposes of preventing or detecting crime;
- it was under some rule of law or to comply with some other requirement imposed upon a person; or
- that in the particular circumstances pursuing that course of conduct was reasonable.
When it comes to defences, inevitably for the vast majority of defendants, it is the third defence that needs consideration.
What does to pursue a course of conduct being reasonable mean?
Again this is an objective test and it is assessed at the time that the conduct took place and because reasonableness depends upon the circumstances of each individual action and it is therefore very much dependent upon specific facts. For a start however, a court will always look at the exact type of conduct be it physical, publication of words or otherwise; the timing of it; the frequency of the conduct.
What are the consequences of a claim if it is successful? Is a harassment claim worth bringing or something to worry about?
The answer is yes.
In the first place financial damages can be awarded for anxiety caused and any financial loss that might have been suffered; but to be a claimant you do not need to have suffered financial loss.
Most people’s main concern is stopping harassment first and getting some sort of recompense second and an injunction is a legal way of saying someone must not do something and is one of the most common remedies people seek.
How do I get an injunction to stop harassment?
if you are dealing with something not involving speech then it is the traditional requirements for an injunction that must be met, this is a matter of whether there is a serious question to be considered and where the balance of convenience lies – for more information on this burden you can see our guide to injunctions. If it was involving speech then you also engage the right to freedom of speech of a publisher.
Is it true that you cannot get an injunction for defamation where someone says they have a defence. What is the difference here?
This is a very complicated issue but the ultimate difference is between the form of what is said and the manner in which it is said; this is one reason why claimants and their lawyers have in recent years sought to use claims for harassment; claims for data protection and other rights to succeed in getting injunctions where otherwise they might have failed.
Courts have suggested that (with the assistance of lawyers) that some degree of self-help is potentially to be expected. The courts address this as follows; the first step is for example some self-resilience trying to shrug off unpleasant messages or comments which are part of day to day irritations and annoyances; secondly if communication is specifically directed towards someone then take advantage of practical options available to prevent unwanted contact – that can relate to the platform on which communications are made or other various tools for blocking content which might mean it is not necessary for a court to grant an injunction unless these have been explored.
So, can I try to get harassment stopped myself?
The short answer is yes but as explained above, people speaking also have the right to free speech and many platforms such as Twitter, YouTube, Facebook or any other platform have to not only respect that but they also set great store by that freedom of expression and generally involvement of lawyers is necessary to succeed; unless the harassment is so blatant and so serious as to be so obvious that a strong claim lies there.
For more information or to consult us about a harassment claim, please contact Daniel Jennings.
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