Main offences under harassment law
Sending a threatening or malicious message using a public electronic communications network, including sending such a message by email, can comprise an offence under the Communications Act 2003. Additionally, the Protection from Harassment Act 1997 can apply to threatening messages sent by email or by other forms of communication. Both criminal penalties and civil remedies are given. Under s1 of the Protection from Harassment Act 1997 a person must not pursue a course of conductwhich amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. Following an amendment to this Act by s125 of the Serious Organised Crime and Police Act 2005, a new s1A has been inserted, which states that a person must not pursue a course of conduct:
which involves harassment of two or more persons, and
which he knows or ought to know involves harassment of those persons, and
by which he intends to persuade any person (whether or not one of those mentioned above) –
not to do something that he is entitled or required to do, or
to do something that he is not under any obligation to do.
Course of conduct
Under s3 of the Protection from Harassment Act 1997, as amended by s125 of the Serious Organised Crime and Police Act 2005, a course of conduct must involve, in the case of conduct in relation to a single person, conduct on at least two occasions in relation to that person, or in the case of conduct in relation to two or more persons, conduct on at least one occasion in relation to each of those persons.
When applied to email we can note the following: for s1 at least two emails must be sent to the same person, where for s1A sending the same email to two persons counts as a course of conduct. However, the conduct does not need to be the same on both occasions. So, sending somebody a threatening email and later sending them a threatening text message would satisfy the requirements of s1. Under s7, conduct includes speech.
Under s2 of the Act ‘the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.’ In other words, the test of whether a person ‘ought to know’ is objective.
Other elements of harassment and examples of the offence being committed by email
Under s7 of the Act references to harassment include alarming a person or causing them distress. In the light of the Act, an email offence seems relatively simple to commit. Sending two threatening emails which would objectively cause the recipient alarm or distress is probably enough for the offence to be made out. Alternatively, sending one threatening email to two people would also be sufficient.
Section 1(3) provides a number of specific defences to a charge of harassment, namely that the course of conduct was pursued for the purpose of preventing or detecting crime, or pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or that in the particular circumstances the pursuit of the course of conduct was reasonable. Establishing a defence is done on a balance of probabilities.
Section 4 of the Protection from Harassment Act 1997 creates the more serious offence of aggravated harassment, where the course of conduct causes another to fear violence on at least two occasions. The courts view this offence very seriously, even when committed by email. In R v Norman  the defendant sent many emails, using various aliases, to a radio journalist. Many of the emails were racist and made reference to the journalist being a Jew, and some included threats of violence. Upon conviction for racially aggravated harassment the defendant was sentenced to 18 months’ imprisonment and a restraining order under s5 of the Act was also made. The sentence was reduced to 12 months on appeal, the Court of Appeal considering the mitigating factors that the defendant had apologised to the victim and was of previous good character.
Several injunctions have been granted for harassment by email. In Chelsea and Westminster Healthcare NHS Trust v Redmond  an injunction and restraining order were granted against a man who had published offensive allegations about the claimant on his website and who had sent the claimant’s staff various emails. Similarly, in Chiron Corp Inc v Avery  an injunction was granted against animal rights activists who had sent one of the claimant’s employees over 300 threatening emails as part of an ongoing campaign against companies conducting tests on live animals.
Mention should also be given to the common law offence of incitement, that is, persuading another person to commit a criminal offence. Incitement can be carried out by email, text message, or on a website or blog. For example, in R v A  the defendant was convicted of inciting a child, through text messaging, to engage in sexual activity.