Monday, April 14, 2014
Robin Callender Smith, University of London, Humanities, Social Sciences, and Law, has published Protection of Harassment Act 1997: From Anti-Stalking Crimes to Celebrity Privacy Remedies, at 5 Queen Mary Law Journal 23 (Spring 2014). Here is the abstract.
Anti-stalking legislation in the UK - created by the Protection from Harassment Act 1997 (PHA) which had its legislative roots as an anti-Domestic Violence measure - has become a potent weapon in the privacy armoury of the royal family andcelebrity celebrities generally. This development has created inevitable Article 8 and Article 10 tensions. There is an unusual duality within this Act that allows for criminal prosecutions and civil actions - on what are essentially the same facts - to proceed in parallel.Download the article from SSRN at the link.
Much of the phone-hacking activity alleged against Rupert Murdoch’s News International daily and Sunday newspapers - currently being tried at the Old Bailey in London - could have been prosecuted under this Act. There is no clearly-articulated public interest defence within the Act. Queen Elizabeth II has, for the last five years, warned photographers and the UK’s media that she may use either the civil or criminal aspects of this law to enforce her privacy rights…and Harry Styles (of the boy band One Direction) has recently used the Act to keep paparazzi on scooters away from him. Restraining Orders can be imposed even when criminal prosecutions fail. English law has accommodated the privacy paradox (the more famous you are, the more you want your privacy) - both through legislative adjustments and developing case law - in flexible ways that have allowed the PHA’s remedies to mature potently over the last 15 years in line with the ECHR’s Article 8 and Article 10 tensions.
From starting life an anti-stalking measure it has become one of the weapons of choice for celebrities seeking to protect their privacy from the media and paparazzi….but it is not just a one-way street. Carina Trimingham, the bi-sexual partner of the disgraced former English Cabinet Minister and MP Chris Huhne - unsuccessfully used the Act to sue a national newspaper which repeatedly (over 250 times) mentioned her bi-sexuality in news articles about Chris Huhne. Issues within this Act straddle the borderline between Article 8 privacy rights and Article 10 rights to freedom of expression in ways which only celebrities and the media could have had the resources to develop and explore in English law.