The Protection from Harassment Act 1997 (“1997 Act”) has been in force for over fifteen years.  During that time, there have been surprisingly few reported civil cases.  However, the number of claims under the 1997 Act may begin to increase, due mainly to two factors.

  1. Social Media

The first is fairly obvious: social media.  Barely a week goes by without a media story of a teenager sitting in his or her bedroom, anonymously harassing a celebrity (or perhaps not so anonymously).  This type of harassment is not, however, confined to celebrities.  Most of us are now online in some manner (with many of us feeling grateful that the internet did not exist when we were teenagers).  It is not difficult to conceive how personal difficulties between two people could easily escalate into inappropriate on-line behaviour.  

So what is “harassment”?  The definition (in respect of Scotland) is contained in section 8 of the 1997 Act:

  1. Every individual has a right to be free from harassment and, accordingly, a person must not pursue a course of conduct which amounts to harassment of another and—
  1. is intended to amount to harassment of that person; or
  2. occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.”

This is fairly straightforward, perhaps with the exception of what “course of conduct” actually means.  We are told at subsection 8(3) that a “course of conduct” must involve conduct on at least two occasions.

On this basis, two abusive messages on Facebook, Twitter or the like could constitute a course of conduct under the 1997 Act.  It is for this reason that it seems likely these claims will become more popular as time goes on.

2.         Harassment Amounting to Domestic Abuse

The second reason the number of claims may increase is due to the introduction of a new section 8A into the 1997 Act.  Headed “harassment amounting to domestic abuse”, this section was added by the Domestic Abuse (Scotland) Act 2011 and has been in force since 20 July last year.

Section 8A is particularly far-reaching.  The definition of harassment in relation to domestic abuse is amended with the result that a person need not engage in a course of conduct: simply one episode of harassment is enough to be caught under this section.  “Conduct” for these purposes includes “presence in any place or area”.

In other words, it may be enough to claim harassment under section 8A if an ex-partner is standing outside one’s place of work on one occasion only (assuming, of course, that his or her presence there is intended to amount to harassment).

Rather unhelpfully, “domestic abuse” is not defined and so it will be for the courts to establish, in due course, exactly what is covered.

So far there are no reported cases under this section and it is difficult to determine whether or not there will be any great raft of claims.  Family practitioners may be sceptical but only time will tell.