Harassment, Unwanted Letters and Telephone Calls
Under the Telecommunications Act 1984, it is a criminal offence to leave grossly offensive messages over telephone or make indecent or obscene or menacing telephone calls or calls which cause annoyance, inconvenience or needless anxiety. The criminal courts may in certain circumstances treat such harassment as grievous bodily harm if psychological damage results. If the perpetrator is known and is persistent in making calls the courts are increasingly willing to grant injunctions to prevent this type of harassment. It is also established that the making of numerous obscene telephone calls to a considerable number of people may be conduct capable of constituting a public nuisance.
It was previously hoped that the courts would be willing to develop the law of nuisance - the legal category into which many of these claims fall - so as to grant rights of protection to people in respect of property which they do not own. This would have enabled the law to move towards openly protecting domestic privacy. However, this advance was halted by a decision of the House of Lords. The Protection from Harassment Act 1997 (PHA) attempted to remedy this gap in the law. The PHA makes it a criminal offence to pursue a course of conduct which amounts to harassment of a person. The PHA also creates a civil statutory tort of harassment, which enables a person to obtain a civil court injunction to stop harassment occurring and to claim damages where appropriate. This is a very important piece of legislation which can potentially provide protection in neighbourhood disputes, cases of racial harassment, bullying at work, confrontation with the media or stalking, as well as hate mail and persistent unwanted telephone calls.
Harassment is not defined in the PHA and so it will be a matter for assessment based on the facts in each case. It is important to note that there must be a ‘course of conduct’ in order to bring a claim. This means that there must be at least two incidents representing harassment - more than one telephone call - and the person who is carrying out the harassment must know or ought to know that it would amount to harassment. It has been established that a publication of a series of newspaper articles by a newspaper can constitute a course of conduct amounting to harassment.
The PHA was amended by the Criminal Justice and Police Act 2001 with effect from 1 August 2001 to make it clear that the PHA protects an individual from collective harassment by two or more people. This amendment remedied a potential loophole where two or more people each carried out only one act of harassment.
The Home Office has issued guidance to the police on the PHA explaining its importance in protecting people from harassment. The guidance is contained in Home Office Circular 28/2001: ‘Protection from Harassment Act’.
Hate mail is usually anonymous, but if it can be traced the sender can also be prosecuted under the Malicious Communications Act 1988 which makes it an offence to send a letter or other article which conveys an indecent or grossly offensive message or a threat, or which contains information known to be false and the purpose of the letter is to cause distress or anxiety. The category of communications covered by the Malicious Communications Act 1988 has been expanded by the Criminal Justice and Police Act 2001 to include electronic communications or articles of any description. This new definition will cover hate telephone calls, emails or text messages. The defence to such an offence has also been amended so that it will be necessary to show that a demand made in such a communication was made on reasonable grounds, and the person making it held an honest and reasonable belief that the threat made was a proper means of reinforcing that demand.
Prior to the Unsolicited Goods and Services Act 1971, ‘inertia selling’ was common. The technique was to send goods to customers who were then charged for them if they did not go to the trouble of returning them. Regulation of inertia selling is now covered by the Consumer Protection (Distance Selling) Regulations 2000 which came into force on 31 October 2000. Under these regulations, a recipient of unsolicited goods may keep them as free gifts. The regulations also make it an offence for a sender to try and obtain payment for such goods. The Unsolicited Goods and Services Act 1971 continues to make it an offence to send obscene or indecent books, magazines, leaflets or advertising material describing or illustrating human sexual acts.
Relatively new forms of harassment of a similar type include faxing, emailing and text messaging. These types of persistent harassment can be annoying and distressing. If you are subject to this form of harassment, you should consider reporting the matter to the police for the purposes of a criminal prosecution under the Malicious Communications Act 1988 or the PHA, as well as considering bringing your own action under the PHA. In the case of faxes or text messages, you can also contact your telephone service provider and request them to assist in tracing the source of the unwanted faxes and texts. In the case of emails, you can also contact your ISP for a similar purpose. If the irritating e-mails are marketing ‘spam’, and sent from Europe, they may be covered by the Privacy and Electronic Communications (EC Directive) Regulations 2003. They came into force in the UK on 11 December 2003. The Regulations make e-mail marketing ‘opt-in’ in many cases (the recipient must have given prior consent) and provide greater privacy protection in cyberspace. The Information Commissioner is in charge of enforcing these Regulations.
