Many newspaper column inches have in recent months been dedicated to speculation about the potential implications for press freedom of the new Human Rights Act, which enshrines for the first time in UK law an individual’s right to privacy, counterbalanced by the right to freedom of expression.
What the media did not see coming until last week was the potential threat to their right to report offered by the Protection Against Harassment Act 1997. This law was introduced with the intention of offering legal redress to the victims of stalkers and the like.
While the media have always been aware that they could face civil action and indeed even criminal prosecution under the Act in gathering information, what they perhaps did not appreciate, until now, is that printed articles might also constitute harassment under the Act. In an unreported judgment earlier this month in the Lambeth County Court, this law was invoked against The Sun by one of the subjects of a series of newspaper reports seeking damages for harassment.
The Sun’s report concerned a police disciplinary hearing at which a clerk employed by the City of London Police had given evidence against other police officers. Her evidence had been that she had overheard the officers make allegedly racist remarks about a Somali refugee. Her evidence, backed up by another officer, led to the demotion of two officers and the imposition of a fine on a third. The Sun’s report of the story was published under the headline, "Beyond a joke – fury as police sarges are busted after refugee jest".
As a result of The Sun’s story, the clerk started to receive hate mail. Following its first story, the paper published a series of readers’ letters attacking the clerk. In a third article, The Sun invited readers to contribute money to pay off the fine imposed on one of the officers at the disciplinary hearing.
The clerk sued The Sun under the Protection from Harassment Act, claiming that the series of stories constituted harassment and caused her distress. The newspaper argued that the clerk’s action against it was without legal basis and asked the Lambeth County Court judge to dismiss the action or to give a ruling in the newspaper’s favour. The judge declined to do so. Instead he ruled that the Act did provide a remedy to the clerk, who, he said, was entitled to protection from harassment, including harassment by the press.
Because The Sun had published more than one article, this amounted to a "course of conduct", thus meeting one of the requirements under the Act.
The newspaper is appealing the decision to the Court of Appeal and it remains to be seen whether the higher courts will permit what is, in effect, a new cause of action against the media.
Diane Hamer is a member of Lovell’s Computers Communications and Media Unit
By Diane Hamer