‘Stalked’ by the news

If you say something that somebody else doesn’t like, you can be accused of harassment, bullying or invading somebody’s private life.

A whole range of UK organisations have devised codes of conduct designed to make people watch what they say and not offend others. This outlook is codified in the Protection from Harassment Act 1997. If you act in a manner that causes somebody to feel harassed, alarmed or distressed, you can be fined or imprisoned. You could also face charges for invading somebody’s privacy under Article 8 of the Human Rights Act (1998).

A recent case in point has been brought by Bob Crow, general secretary of the Rail, Maritime and Transport Union (RMT) and organiser of the recent London Underground strikes. At the beginning of October 2002, Crow’s lawyers wrote to the editor of the London Evening Standard, warning the newspaper that Crow would seek a high court injunction and damages unless it ceased ‘unlawful harassment’.

Crow claims that the newspaper breached his right to privacy under the Human Rights Act after a reporter and photographer turned up at his home and allegedly told him that they had been ordered to follow him all weekend. The Standard denied it (1). But whatever actually took place, is it legitimate for public figures like Bob Crow to use the law in this way?

When the Protection from Harassment Act was brought in, it was commonly known as a ‘stalking law’, and justified in terms of protecting individuals in exceptional cases – if they were being persistently pursued by somebody whose words or actions they found frightening. The Human Rights Act was also justified in terms of protecting relatively powerless people from having their privacy invaded by others.

Both these laws had problematic implications for free speech. They elevated the impact of words and images, suggesting that they are on a par with physical assault; and they allowed for the impact of words and images to be defined in terms of people’s subjective, emotional reactions. If somebody feels harassed, or feels that their privacy has been invaded, this is enough to claim that they have been harassed, or that their privacy has been invaded. Words and images are equated with actions that can cause people physical damage.

The way legislation on harassment and human rights is written offers a wide remit to plaintiffs and the courts to legislate against all kinds of behaviour, including speech. Politicians and legislators often claim that these Acts are not supposed to be used to restrict free speech, yet there is a creeping tendency for the law to be used in an increasingly intrusive way.

In the case of Esther Thomas v News Group International Newspapers Ltd and Simon Hughes in 2001, the Court of Appeal ruled that the Sun newspaper had harassed Thomas, a police clerk, by publishing articles about her action against two police sergeants. Thomas had brought a case against the sergeants for racist jokes that they allegedly made about a Somalian woman at a police station.

The Sun’s articles described Thomas as a ‘black’ clerk, included reference to readers’ comments against her actions, and asked readers to send cheques to help one police officer pay a fine. Thomas argued she had been harassed, distressed and too terrified to return to work as a result of the articles, and the hate mail that she subsequently received. The Sun was also accused of invading Thomas’ privacy, by publishing details of her place of work.

While Appeal Court judges made reference to the importance of free speech, they ruled that Esther Thomas had been harassed by the newspaper because the articles were ‘foreseeably likely to stimulate a racist reaction on the part of their readers and cause her distress’. They added that this satisfied the ‘test’ that an ‘abuse of the freedom of the press’ had occurred (2). There was no doorstepping involved, or ‘stalking’ by the press of one individual – it was the words of the article that were seen as the cause of harassment.

This case established the extent to which words can be equated with actions – and the impact this has upon press freedom. If an article can be seen to harass somebody because it has caused the subject of its criticsm to be distressed, and may have prompted its readers to send letters that also caused distress, this is tantamount to seeing a news article as the equivalent of a punch in the face.

Another disturbing development in the use of the Protection of Harassment Act, and the Human Rights Act, has become the extent to which these laws are increasingly relied upon by public figures to restrict reportage of their lives and work. The Protection from Harassment Act and the Human Rights Act may purport to be about protecting the powerless individual from feeling threatened or distressed by other people or organisations, but in practice they are becoming useful ways for influential figures to control what journalists say about them.

In a high-profile case earlier in 2002, the supermodel Naomi Campbell scored an ambiguous victory against The Mirror newspaper. The Mirror published details of her attendance at a drug rehabilitation clinic and photographs of her walking in a street after a meeting. She said she felt ‘angry, betrayed, violated’ by the coverage.

The judge, Mr Justice Morland, concluded that the law of confidence could be extended to take account of Campbell’s right to privacy under Article 8 of the Human Rights Act. The Mirror was considered to have invaded Campbell’s privacy not by publishing the fact of her drug therapy, but details about it, and photographs taken in a clandestine way. The Mirror was fined £3500.

This week, on 14 October, this verdict was overturned on appeal. The Appeal Court judges considered that the Mirror was justified in publishing the photograph and the details of Campbell’s drug therapy, as part of a journalistic package proving that she had lied about her drug addiction.

For some, the Appeal Court’s judgement was taken as an indication that, when it comes to public figures’ attempts to use privacy legislation to censor news stories that they do not like, the balance remains in favour of free speech. In fact, the Appeal Court judgement merely affirmed the notion that, one way or the other, it should be up to the courts to determine what can and cannot be said. There is no principle of free speech here: the way judges rule in privacy cases seems to depend on how sympathetic they are to the plaintiff.

Naomi Campbell is not the only celebrity to have brought claims of privacy invasion against the press, on the grounds that she did not like what was published. Celebrities can be expected to try any means at their disposal to control the image of themselves that is presented to the world. But when figures like union leader Bob Crow start playing the game, things get even worse.

Bob Crow apparently took exception to the way a journalist and photographer from the London Evening Standard allegedly hung around outside his home and asked his son questions (3). Public figures such as Bob Crow need privacy just like the rest of us – and no doubt Crow did find this experience unpleasant. But how has his privacy been invaded?

Journalists, like anyone else, should be entitled to hang around public spaces – which include the public highway outside your home. Journalists, like anyone else, should not be prevented from asking questions of people in the street. If the Evening Standard’s journalist and photographer had barged into Crow’s home, that would be one thing. If they hung around outside demanding questions and photographs, they were doing their job.

After all, the journalists were only present because Bob Crow is a public figure. He is a public figure because he was, at the time, organising a series of strikes that would have a significant effect on thousands of London transport workers and millions of passengers. His actions and what he thinks are newsworthy; and the journalists were finding out information about and the views of a public figure at the centre of a newsworthy story. In any meaningful sense, this cannot possibly be equated with stalking – but the law allows such an equation to be made.

In arguing that the behaviour of journalists on a public street is an invasion of his privacy, Crow has followed in the footsteps of other public figures who have tried to reinterpret public places as private places. These include Anna Ford, the BBC newsreader who complained – in vain – to the Press Complaints Commission that photographs taken of her on a public beach were an invasion of privacy; and Naomi Campbell, who won her original case partly on the basis of photographs taken in a public street.

Bob Crow has no reason to like Evening Standard journalists. They have accused him and his supporters of ignoring a revolt against the strike, planning the strike on 11 September (which Crow denies (4)) and intimidating those who wish to work (5). In a piece labelled ‘The Crow Files’, the newspaper wrote, ‘It is no coincidence that the bull-necked, bullhorn-voiced Mr Crow is an ardent support of Millwall football club, whose thuggish fans rejoice in their unpopularity. “No one likes us, we don’t care”, they sing from the terraces…which these days might as well be the slogan of Mr Crow and the RMT’.

Yet by threatening to use the Protection Against Harassment Act and the Human Rights Act, Crow is attempting to answer his critics by presenting himself as a victim of intrusion into his private life.

It should be up to editors to decide what counts as important information when commenting on public figures, rather than the courts. While some of us might view Anna Ford’s nudity or Naomi Campbell’s drug habits as trivial information that we could do without, the views of a union leader about a major strike hardly counts as tittle-tattle.

And it should be up to union leaders to defend their views against the harshest of critics – or if not, to ignore them. When it comes to the workplace, trade unions are already adept at playing the victim card – using notions of bullying, harassment and health and safety to score points where they might otherwise fail. But when these arguments are extended to media coverage of workplace conflicts, one wonders how low they can go.

Tessa Mayes’ spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’ will be published on spiked on 22 October.

Read on:

spiked-issue: Privacy

(1) ‘Paper stalking me, says boss of rail union’, Guardian, 2 October 2002

(2) Court of Appeal judgement on the case of Esther Thomas v News Group International Newspapers Ltd. and Simon Hughes, 2001

(3) ‘RMT boss threatens action over “stalking”‘, The Times, 3 October 2002

(4) Standard story on LUL strike date completely untrue, says Bob Crow, RMT website, 2 October 2002

(5) ‘Tube Rebels Defy Bullies’, London Evening Standard, 2 October 2002