Civil harassment and criminal harassment in the UK what is the difference
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What to do if you are being harassed online
In the UK, victims of harassment whether online or offline harassment can choose between taking action under civil harassment law and criminal harassment law.
Under UK harassment law, harassment is both a civil and a criminal wronging. It means that it can be handled by the police through the criminal courts or by yourself, as a victim of harassment, through the civil court. With harassment, it matters less whether the information published by the harasser is true or false. You can harass someone online by publishing information that is completely true.
Free speech in the UK is restricted so far as harassment is concerned and where free speech becomes harassment, the victim of the harassment can take legal action whether the allegations published are true or false. In some cases, the publisher of the harassing information might try to claim that there is a public interest in their publication, but then, they will need to demonstrate precisely how the public interest is being served by the persistent publication of information that harasses the victim.
You can harass someone by breaching their privacy. For example, posting private images of the victim on the internet may breach the victim’s privacy and at the same time involve an act of harassment. Furthermore, posting private images or videos on the internet may involve a number of other criminal and civil wrongdoings which may include harassment, breach of privacy, breach of your data, misuse of private information, and revenge porn. Some of these additional wrongdoings can only be dealt with by either the criminal courts or the civil courts, whilst harassment can be dealt with by either or both. When the shared private information is false, the harassment victim might also have a claim under defamation of character, in addition to a claim for breach of privacy.
Harassment often involves a breach of the victim’s privacy. In some cases, there would be a threat to breach the victim’s privacy but the threat itself or having the Sword of Damocles hanging over their head is enough to constitute harassment. In recent years, it has become more difficult to obtain an interim or an urgent injunction for harassment. Mainly because of freedom of speech concerns, judges are reluctant to grant an injunction for harassment where the harassment is concerning internet posts.
However, in relation to harassment that involves the victim’s breach of your privacy, it is still possible to apply and to be granted an emergency injunction, often without having to give prior notice to the harasser. Under English law, everyone is entitled to a right to private life, even if there are aspects of their private life, which are unpleasant, immoral or even harmful. Where the sharing of details about intimate relationships is concerned, if someone is about to share your private information, or has already shared it online, regardless of whether the information shared is true, the reasonable expectation to privacy exists in nearly all instances of intimate relationships.
There are many instances of breach of privacy where the disclosure of details of intimate relationships could lead to the grant of an emergency injunction. Whenever there is a significant breach of privacy and/or breach of personal data, the victim may be granted an injunction from the outset and without a trial. This is helpful if you are either trying to prevent the misuse of private information, or where the misuse of the private information or the breach of personal data that has already occurred, is still limited in scope.
An injunction in a criminal case is often referred to as a restraining order. Is harassment a crime? Yes. it is. Obtaining a restraining order through the criminal court in cases of online harassment could take a long time as the police need to first carry out a thorough investigation to gather evidence which would prove beyond reasonable doubt one’s guilt. The criminal justice system will then need to accommodate a potential trial date and this could take many months. The process of going through the criminal justice system, however, is entirely free.
It is not possible to bring a claim for breach of privacy or to claim damages through the criminal courts. Some harassment victims report that they have reported harassment to the police but that the police were unhelpful. Some have been told that because there was no physical threat, there was nothing the police could do to help. This advice by the police is inaccurate and it leaves the harassment victim with little choice but to take responsibility for resolving this situation independently through the civil courts.
Despite this, we advise that victims of harassment, in most cases, even if the likelihood of the police being effective in providing a solution is low. Given the police limited ability to handle these types of matters, the two other options that are left for you are to deal with the harassers through the civil court or leave matters as they are until the offenders decide to move on.
You can ask the court for an injunction under the Protection from Harassment Act 1997. The Protection from Harassment Act 1997 is exactly the same law, under which the criminal court may prosecute your harasser. You may bring, in addition to the claim of harassment, additional claims under other legal headings.
Under civil law of harassment, to succeed in bringing legal action for harassment, the claimant must meet the very same threshold, in terms of the elements of the wrongdoing, that exist under the criminal law. Whist under civil law it is sufficient to judge the strength of the evidence on the balance of probabilities rather than beyond reasonable doubt, the elements of the wronging; namely the persisting nature of the harassment and the intention to cause the victim to feel alarmed and distressed must still be established in the same way that it does under the criminal law.
Whilst, generally speaking, a civil court cannot send you to prison, there is one exception to this rule, which is proceedings for Contempt of Court for breach of an injunction. A breach of an injunction could result in legal action for Contempt of Court and is likely to result in a period of imprisonment.
For this reason, harassment injunctions tend to be extremely effective as they may last forever, could be obtained relatively quickly and they still carry the threat to the harasser that he or she might be imprisoned.
Do you need to inform your harasser ahead of an application for an injunction under the Protection from Harassment Act
In most cases, you will need to notify the harasser before you make your injunction application to the court. There are, though, some exceptions. Taking the civil court route to obtain an injunction for harassment, in most cases would mean that you need to first approach your harasser with a letter before legal action (a cease and desist letter), which would set out details of their wrongdoings.
You can include all the different headings, such as breach of privacy, breach of data, defamation of character and malicious falsehood in one single letter and then in one single civil court claim. A civil injunction can often bring a quick resolution to these types of matters but at the same time, although it is rare, some defendants can be extremely difficult, irrational or unreasonable, which means, a case, as good as it might be, could go on for some time.
Whilst it is possible to apply to the court for an injunction for breach of privacy and for harassment without giving prior notice to your harasser, it is often better to consider writing to the defendant first and sending them a detailed cease and desist letter prior to attending court. This is because the court is more certain to grant a privacy or a harassment injunction if the court is certain that the respondent had been notified about their wrongdoings and had not ceased and desisted with their harassing conduct.
If you were to attempt to apply for an injunction without giving prior notice to your harasser, the court might refuse our request and ask us to give notice to your harasser first and then come back for a hearing. This is likely to cause a delay and set you back emotionally and financially. On the other end, there are cases where there is a real concern that upon being notified of the intention to obtain a privacy or a harassment injunction against them, the harasser would escalate their harassing conduct or go on to publish private information.
Therefore, the decision, of whether to give the respondent notice of the injunction application, has to be considered on a case by case basis. In most cases, harassers are highly responsive to a letter before legal action or to a cease and desist letter. The letter before legal action gives the harasser an opportunity to resolve the matter without being taken to court.
Therefore, an effective harassment cease and desist letter should include certain conditions to which the harasser will need to agree and any agreement reached, should be then be put in a formal settlement agreement approved and signed by a judge.
In considering whether to take legal action against your harasser in a criminal court or whether to take civil action against them you should take into consideration the following factors:
- The speed by which you are wishing for the case to be concluded
- The amount of control you wish to have over the case
- Whether you want your harasser to be liable under criminal law or whether you want to obtain an injunction which would prevent them from harassing you directly or indirectly indefinitely
- The strength of the evidence that you have and the likelihood of the case not reaching the required high threshold that is required for a criminal conviction
- Whether you have additional claims to bring in addition to a claim for harassment
- Whether you are able to fund civil injunction proceedings