Dear Colleagues,

I agree that the Act might apply. The Court of Appeal in two decisions last year visited the question of the nature of the conduct which may establish harassment. In Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (Jacob LJ began with the Denningesque phrase 'It is one of the glories of this country that every now and then one of its citizens is prepared to take a stand against the big battalions of government or industry.'), the Court held that the course of conduct must be grave, but the test is whether it amounts to 'oppressive and unacceptable conduct', and whether the conduct is of a standard worthy of justifying criminal sanction. In Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 concerned a claim in respect of sustained workplace bullying. The Court of Appeal held that the primary inquiry is whether the conduct is 'oppressive and unacceptable'. On the facts of the case, the Court held that, although a finding of harassment should not be frequently found in the context of the workplace:

The account of victimisation, demoralisation and the reduction of a substantially reasonable and usually robust woman to a state of clinical depression is not simply an account of "unattractive" and "unreasonable" conduct (in Lord Nicholls' words) or "the ordinary banter and badinage of life" (in Baroness Hale's words) [referring to Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34]. It self-evidently crosses the line into conduct which is "oppressive and unreasonable".

The Court also made clear that although malice is not a necessary ingredient of the wrong, the presence of malice makes it easier to establish that the relevant conduct is oppressive and unacceptable.

Depending on the particular conduct of which Jason is thinking, I should have thought that defamation might also be a possible cause of action.

Best wishes,

James

--

James Lee

Lecturer

Director of the LLB Programme

Birmingham Law School

University of Birmingham

Edgbaston

Birmingham

 B152TT, United Kingdom

Tel: +44 (0)121 414 3629

E-mail: j.s.f.lee@bham.ac.uk

________________________________

From: A.P. Simester [simester@nus.edu.sg]

Sent: 14 June 2010 09:20

To: Osuji, Onyeka; Jason Neyers; obligations@uwo.ca

Subject: RE: Protection from Harassment Act 1997 & bullying

I would think it likely that the Act applies. The scope of what counts as 'harassment' is undefined and there seems not reason why it could not reasonably be thought to include this kind of case. Section 1(2) in effect provides that if a reasonable person [i.e. the magistrate] would interpret D’s course of conduct as amounting to harassment, then that course of conduct is harassment.

Andrew

________________________________________

From: Osuji, Onyeka [O.K.Osuji@exeter.ac.uk]

Sent: 13 June 2010 21:13

To: Jason Neyers; obligations@uwo.ca

Subject: RE: Protection from Harassment Act 1997 & bullying

The Act might apply. In Thomas v News Group Newspapers [2001] EWCA Civ. 1233, a claim was sustained against a newspaper for distress and anxiety caused by a series of publications revealing the identity and workplace of a police officer. The police officer was attacked for reporting her colleagues’ racist and discriminatory conduct against an asylum seeker.

Onyeka

Dr Onyeka Osuji

Lecturer in Law

University of Exeter

School of Law, Cornwall Campus

Penryn Cornwall TR10 9EZ UK

Telephone: +44 (0)1326 253783 (Internal: 2783)

Fax: +44 (0) 1326 254267

Email: O.K.Osuji@exeter.ac.uk

Web: http://www.exeter.ac.uk/cornwall

________________________________________

From: Jason Neyers [jneyers@uwo.ca]

Sent: 11 June 2010 18:36

To: obligations@uwo.ca

Subject: ODG: Protection from Harassment Act 1997 & bullying

Dear Colleagues:

Would the Protection from Harassment Act 1997 be wide enough to protect

a person from teenage cyber-bullying in the form of posting embarrassing

pictures and demeaning comments about another teenager on the web as a

form of revenge for some perceived slight?  I am thinking of the kind of

behavior that does not involve threats of physical violence. Does anyone

know of any cases dealing with this issue?

Cheers,

--

Jason Neyers

Associate Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435