What’s the law?
Sending threatening or malicious messages using a public electronic communication, such as via email or instant messaging, may amount to an offence under the Protection from Harassment Act 1997, as well as other legislation. This applies to threatening messages sent by email, and other forms of electronic communications.
Both criminal penalties and civil remedies are potentially available to recipients of malicious or threatening emails. Under section 1 of the Protection from Harassment Act 1997, a person must not pursue a course of conduct which amounts to harassment, and which he knows or ought to know amounts to harassment. Under s1A of the 1997 Act, a person must not pursue a course of conduct:
- which involves harassment of two or more individuals, and
- which he knows or ought to know involves harassment of those people, and
- by which he intends to persuade anyone (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
What is harassment?
Conduct for the purposes of the 1997 Act amounts to harassment if it causes a person alarm or distress. Conduct can even include speech. It would therefore appear that causing harassment by email could be relatively easy. For instance, sending two threatening emails which causes the recipient alarm or distress is probably enough for the offence to be made out, and sending one threatening email to two people may also be sufficient for an offence to have been committed.
Note that evidence of harassment by email (and other means) can be used as evidence if the perpetrator is accused of stalking under the new stalking offences under sections 2A and 4A of the 1997 Act.
What does ‘course of conduct’ mean?
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 people, conduct on at least one occasion towards each of those individuals.
In the context of emails, for an offence under section 1 – at least two emails must be sent to the same person. For an offence under s1A, sending the same email to two people 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.
What is ‘knowledge’?
Under s2 of the 1997 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.’ The test is, therefore, an objective one, ie. would a reasonable person consider the email communications to be harassment?
Are there any defences available?
There are specific defences to a charge of harassment:
- the course of conduct was pursued for the purpose of preventing or detecting crime
- the court of conduct was pursued under an enactment or rule of law, or to comply with any condition or requirement imposed by any person under any law
- that in the particular circumstances the pursuit of the course of conduct was reasonable
The defendant must prove the defence on which they rely on the balance of probabilities. If the defendant claims that the conduct was for the purpose of preventing or detecting crime, the defendant must rationally believe that their activity was for this purpose, otherwise the defence will fail.
What is aggravated harassment?
Section 4 of the 1997 Act creates the more serious offence of aggravated harassment, where the course of conduct causes another to fear violence on at least two occasions, and/or the offence was religiously or racially aggravated. The courts view this offence very seriously, even when committed by email, and there will be a sentence uplift on conviction of an aggravated offence under the 1997 Act.
In R v Norman (2003), the defendant sent many emails, using various aliases, to a radio journalist. Many of the emails were racist, and some included threats of violence. Upon conviction for racially aggravated harassment the defendant was sentenced to 18 months’ imprisonment (reduced on appeal) and a restraining order under s5 of the 1997 Act was made.
It is also an offence under section 1 of the Malicious Communications Act 1998 to send an indecent, offensive or threatening electronic communication (or letter or other article) to another person. In practice, the police usually charge the perpetrator under the 1997 Act because the available sentences are higher, and the court can also impose a restraining order preventing the defendant from contacting their victim again.
What civil remedies are available?
Injunctions and damages are available to a victim of email harassment, however, it is expensive to go down this route. You can ask the court for an injunction, whether or not the perpetrator has been convicted in the criminal courts. You can also seek compensation for the harm you have suffered as a result of email harassment.
The advantage of seeking civil remedies is that the burden of proof is lower: you only have to prove harassment on the balance of probabilities in order to secure a civil remedy.