By Adam Speker QC & Chloe Strong
10 Apr 2014
One of the sessions at the 5RB Conference on 30 September 2014 will be on the “Right to be left alone, harassment or privacy or both?” 5RB‘s Adam Speker and Chloe Strong discuss harassment and news-gathering.
Qn: The Press Gazette reported last week that police had served a harassment notice on a journalist who was seeking a comment from a convicted fraudster. What is a harassment notice?
Robert: They are known as Police Information Notices (‘PINs’) or Harassment Warning Notices. They are not provided for under the Protection from Harassment Act 1997 (‘the Act’) and do not in themselves constitute any kind of formal legal action. They are not formal cautions and signing one does not imply that the alleged harassment has taken place. The aim of getting someone to sign a PIN is to make it clear in possible future legal proceedings that the suspect was aware of the fact that future behaviour constituted harassment. That is because the offence requires a course of conduct and that the alleged perpetrator knows or ought to know that the course of conduct amounts to harassment.
What do you make of the story?
Adam: The reported facts are concerning but it is unclear whether it is a one-off or happens more often to journalists. In Huntingdon Life Sciences v Curtin Eady J expressed concern that the Act could be used to hamper investigative journalism or restrict legitimate protest.
Chloe: Whilst the Act has been applied in a wide variety of factual situations, to constitute harassment conduct must be ‘oppressive and unacceptable’, as explained by Lord Nicholls in Majrowski v Guys. What was reported does not sound oppressive and unacceptable but the danger of the police acting as reported is that it has a chilling effect. If you are warned by the police that your actions might be harassing of an individual you may say, well why risk a second attempt to contact someone, it may lead to me being arrested for harassing someone. And if you cannot contact someone and seek their side of a story, you may have difficulties establishing a public interest defence.
Robert: The difficulty lies in the fact that the police must investigate a complaint. However, journalists acting in a professional manner, merely seeking to provide the subject of a story with the opportunity to comment, should not feel intimidated. Their conduct is not likely to cross the boundary ‘from the regrettable to the unaccceptable’ as explained by Lord Nicholls. Moreover, there are potential defences available: of reasonable conduct under s1(3)(c) and, of preventing or detecting crime under s. 1(3)(a) of the Act, a defence considered recently by the Supreme Court in Hayes v Willoughby and which the CPS’s guidance on harassment suggests could be relied upon by investigative journalists. Clearly this will depend on the circumstances of the case. It is worth noting that Parliament has considered that people should be protected in their homes from harassing conduct. There are offences under sections 42 and 42A of the Criminal Justice and Police Act 2001 to protect individuals from harassment at home that are in similar terms to the Act and might catch journalists and photographers.
Qn: When can the Act be used against journalists?
Adam: When their actions are genuinely harassing. We have seen attempts to use the Act both in respect of what is published in newspapers – Thomas v News Group and Trimingham v ANL – and in relation to news-gathering activities for instance, in the Hugh Grant baby case and by Harry Styles to stop paparazzi photographers. There have been cases where publications have been held to be harassing or have justified the court granting an interim injunction (eg Georgilliades v Etzin; Howlett v Holding and Bloom v Robinson-Millar) but only one where the Act has been used successfully in respect of media articles published. That was Levi v Bates, but the case was unusual. There was a history between the parties. It has been more successful when relied upon to stop paparazzi. Tugendhat J said in Trimingham that, ‘There are a number of cases where interim injunctions have been granted against journalists and photographers to prohibit them from door stepping, or besetting, the home of a person they wished to photograph or interview. A recent example is AM v News Group Newspapers Ltd & Ors  EWHC 308 (QB). There is little doubt that news gathering in that way can amount to harassment.’
Chloe: In Thomas, it was held that publication of articles in a tabloid newspaper was capable of amounting to harassment but it was also stressed that, in general, press criticism, even if robust, did not constitute unreasonable conduct and did not fall within the natural meaning of harassment. The claim failed in Trimingham. The court held that references to the claimant’s sexuality were not pejorative and whilst references to her clothes and appearance were insulting and offensive the language was not sufficiently distressing to be considered oppressive or amount to harassment.
Robert: There hasn’t been to date, to my knowledge, any prosecution of a journalist under the Act but the first is unlikely to be far off. Some individuals who are plagued by paparazzi are known to think that civil remedies are not sufficient and are looking at the possibility of mounting private prosecutions where they feel that the police have failed to act.
Qn: Other than an injunction or a prosecution is there anything else that subjects of news stories can do if they feel they are being harassed?
Chloe: The Editors’ Code of Practice includes specific anti-harassment provisions. Whether or not the Code provides any kind of effective protection against harassment is debatable. There are some who have written to the PCC thanking them for their swift action (consisting of a ‘desist’ email sent by the PCC to media outlets) that has, they say, avoided ‘media scrums’ forming outside their houses (such as Chris Tarrant when he separated from his wife). However, there are others who clearly believed that they needed to resort to the Act instead to provide more comprehensive protection.
Adam: This aspect of the PCC’s work has garnered more praise than the rest and letters complaining about door-stepping from the PCC have been known to work. Quite a few witnesses at the Leveson Inquiry spoke favourably about the PCC’s work in this area. It remains to be seen what the position will be under any new regulator. Broadcasters have to comply with their own codes. For instance, the BBC Code refers to door-stepping as part of the right to reply process and has editorial guidelines on door-stepping without a prior approach.
Qn: What should a journalist who is investigating a story do if he or she receives a PIN?
Robert: The Metropolitan Police’s guidance on the use of PINs makes clear that where a journalist denies the alleged behaviour and there are no reasonable grounds to support or corroborate the allegation of harassment it is not appropriate to issue a PIN as the allegation may be false. PINs should ordinarily be provided in person and the journalist will be contacted and invited to the police station to receive one. At this stage, prior to the PIN being formally issued, consideration should be given to obtaining legal advice and having a representative attend the police station with them, as it may be possible to make representations to the police which avoid the PIN actually being issued. If it is issued then since it has no legal force, there are no formal rights of appeal. However, a journalist aggrieved by the issuing of a PIN should in the first instance lodge a formal complaint with the force concerned and thereafter the Independent Police Complaints Commission.
Further information on the 5RB Conference can be found here