Harassment is a term that one might more readily associate with the experience of long-suffering commuters during the recent tube strikes, rather than with that of the union leader who orchestrated them, writes Tiffany Evans.
However, Bob Crow, leader of the train drivers’ union, the RMT, is currently said to be inoking legislation, designed to prevent stalking, in an attempt to restrain the Evening Standard from acting in a way that he claims amounts to unlawful harassment.
The Protection from Harassment Act 1997 states that a person must not pursue a course of conduct that amounts to harassment of another and which he knows or ought to know amounts to harassment. Harassment is not specifically defined, but reference is made to a victim who suffers alarm or distress. At the time the act was debated, the Newspaper Society and others expressed concern at the breadth of the prohibition – but to no apparent avail.
In July 2001, The Sun published an article criticising Esther Thomas, a police clerk, for having brought complaints against police officers about their treatment of an asylum seeker. The article, which named Thomas and described her as a "black clerk", blamed her for the demotion of two officers and for the fine imposed on a third. Readers’ letters were published attacking her actions and a further article invited contributions to pay the fine.
Thomas claimed damages on the basis that the articles amounted to unlawful harassment under the act, stating that she had received racist hate mail as a result. The claim was groundbreaking in that she did not complain of direct, physical harassment.
The Sun argued that the case had no legal basis as written articles are not capable of constituting a course of conduct amounting to harassment. However, the judge ruled that a series of inflammatory or aggressive articles are capable of causing alarm or distress and can amount to the requisite course of conduct (a single article would not have been sufficient).
At appeal, The Sun contended that the broad interpretation given was incompatible with the right to freedom of expression under the Human Rights Act 1998. The argument was rejected: it was the effect on the victim that defined harassment, not the form of the conduct.
The case was heralded by many newspaper representatives who foresaw judges becoming "censors or licensors" of the press as a very dangerous precedent.
And if Bob Crow succeeds in his action, this prediction may yet turn out to be true.
Tiffany Evans is a trainee solicitor
in the media group at Lovells