Civil Fraud Quarterly Round-Up: Q1 2021
“Beware! I bear more grudges than lonely High Court Judges”, warned Morrisey in his dark 1994 hit, “The More You Ignore Me the Closer I Get”. It has long been the case that some of the best known songs have more than a hint of the obsessive and a wink of the inner stalker about them. Over time, inhabiting such a role has become far easier. Online snooping, use of alternative online identities and personal information, that in the recent past may only have been available to the most committed of private detectives, are avenues readily available to anyone even vaguely computer literate. And with accessibility comes temptation. The sentiments felt by those who unexpectedly find themselves in opposition to the very person who was once their best friend, business partner, colleague or even loved one have not altered. But the environment in which we live in has, and thus, the law has developed to protect those who find themselves the victim of unwanted attention. If a relationship breaks down and conflicts arise, particularly if you once trusted and confided in that very same person, it can be tempting to respond in a way that in the short term feels justified but in the long term can be absolutely the wrong move and land you with unwanted legal bills and even in Court. Here are our top 7 Don’t for the broken hearted, be that in business or in pleasure.
7. Spies Like Us
Social media has created the opportunity to find out all manner of things about colleagues, our former friends, our ex-partners and our enemies. With only the most rudimentary of investigative detective work on Google or Facebook, an array of information is out there for sore and sorry eyes to mull over. There will be enticements such as lists of friends and associates, relationship updates (including the infuriating ‘It’s complicated’ status), photographs of that person having a great time (with ‘likes’ by an army of family and friends) and frankly, all of this can be very irritating when that same person is causing you sleepness nights. But those who give in to the temptation of relentless social media spying can find themselves drawn in to potentially perilous legal dramas. Whilst there may be nothing illegal about accessing publicly available information on the face of it, once a relationship has ended and the other party has stated that they no longer wish to have contact, continuing contact unilaterally or indirectly can sometimes lead to an increased inclination to contact that person again and again. Police guidelines when considering behaviour that may amount to stalking includes such seemingly ordinary endeavours as frequent calls or texts or “Gathering information on the victim by contacting people who know the victim, using public records etc”. So, do not post your own ‘update’ on their wall (Facebook or garden) detailing why this person has wronged you. Resist contacting their friends and families if you would not usually do so. Many harassment and defamation cases that can cause months of stress start very simply by contacting the friends, family and business contacts of the person to set the so-called relationship record straight. This, by extension, includes indirect contact via their friends and family and colleagues. However justified it may feel at the time, these actions can lead to a course of conduct that is contrary to the Protection Against Harassment Act 1997. The 1997 Act creates a number of offences which prohibit persons making unwanted contact. Also, if you happen to have access to any of that person’s passwords, do not access their accounts. This could be an offence under the Computer Misuse Act 1990 or the Communications Act 2003. There are circumstances where some unwanted contact will continue to be necessary because children are involved or there are unresolved legal matters. In those circumstances, a legal representative who will communicate on your behalf until matters are more settled will give you the comfort of knowing that your attempts to contact are appropriate and not be misconstrued as harassment. If you find, on the other hand, that you are the recipient of such behaviour, keep records and screen shots, and contact your legal representative if it becomes serious. If you take matters into your own hands, respond or engage with this conduct, you may weaken your legal position.
6. I just called to say ‘I Love You’
Who wouldn’t want to be the target of the circa ’78 Debbie Harry’s immortal threat, ‘I’m in the phone booth it’s the one across the hall. If you don’t answer I’ll just ring it off the wall’. Well, that was then. Repeatedly calling somebody, whether to tell them that you love them and want to get back together, sending gifts, putting money in their bank account, repeatedly apologising or asking to meet to talk it over can escalate into a harassment or stalking claim. Section 4A of the Protection from Harassment Act 1997 creates the offence of stalking involving fear of violence, serious alarm or distress. All that is required is that there must be:
(a) A course of conduct (which means at least two instances);
(b) Which amouts to stalking, which includes contacting or attempting to contact a person by any means;
(c) Which causes the victim serious alarm or distress which has a substantial adverse effect on the victim’s usual day-to-day activities.
The offences are wide enough to potentially encompass an accomplice, for instance, getting another person to contact the target of your anger or affection, or getting that other person to contact their friends, family or associates, may also amount to a course of conduct. And it goes without saying, don’t drink and dial.
5. Every breath you take
It may not feel like the sort of unrequited behaviour envisaged by S.4 of the Protection from Harassment Act. It may be just turning up to see if they are home so you can have a conversation, seeing whether they have got home alright or whether they have turned up to work if your calls have been unanswered, whether they are still going to that place that they always go to after the gym, or whether their car is in the driveway. Be careful. It may well be stalking. And on the subject of those who consider that they can operate with an ‘invisible touch’, think again, because section 127 (2) of the Communications Act 2003 deals with heavy breathers and silent callers! Here are a list of behaviours that police recognise as indicative of stalking;
4. Careless Whisper
Confidential and private information comes in many different guises. It may be a list of work contacts, client information, plans for a new website, financial information or it could be something quite different. Between friends it could be romantic information, details of medical issues and between ex-partners, as well as medical and financial information, it could be embarrassing intimate information such as sexual preferences or sexual history. Be aware of what’s private. Understand what is confidential. The nature of the information does not change when the relationship with the person who told you the information changes. Whilst you may have a competing right to exercise your freedom of speech or to confide in others about your personal experiences within relationships, you should always be extremely careful about what you say and who you say it to if you want to avoid a situation where the information you have related becomes actionable as a claim against you for breach of privacy or breach of confidence. If you are thinking of writing your memoirs, or information that may be private or confidential about any person, get advice first. There are ways to express yourself without putting yourself at risk of being sued.
3. I heard it through the grape vine
Information spreads very quickly, and it not unusual for such information to be published on Twitter, Facebook or somewhere else online, by a seemingly anonymous third party. It might be that it is tempting to try to get information out there about the person who has caused you harm in a way that avoids any fingers being pointed at you. You should be aware that online footprints are sometimes more easily traceable then one might first suspect. For example, if you set up a fake email account, your details may still be recoverable, and applications can be made against third parties such as AOL and Google to reveal your identity. Even where you have gone to great lengths to cover your tracks, even where emails have been deleted, there is a real risk that your actions may be detected. This can lead to you having to pay the costs, ultimately, of being tracked down. For instance, sending a bad reference to the new employers of an ex-employee who you have fallen out with, under the guise of a helpful alias, could lead to a claim against you for malicious falsehood or defamation, and form part of a course of conduct in harassment.
2. Tell me lies, tell me sweet little lies…
If you say something, even if it feels justified, that is untrue, malicious, damaging, or would cause the other person to be viewed by reasonable people as disreputable, you put yourself at risk of a claim in defamation made being made against you. Whilst the other person may have to show that they have suffered “serious harm” under the Defamation Act 2013, it is not yet clear quite what “serious harm” comprises of, and in certain instances, it may not apply anyway, so you should not be too reliant on the other person having suffered, in your view, little more than embarrassment. If you emailed your ex-friend’s work place and embellished some information about them, and as a result they lost their job, there could be very serious ramifications for you. If, for example, you slander your ex-partner by telling people that you suspect that they are no good at their job, struggled writing reports, and that you are expecting them to retire soon, and this gets back to them, you could end up with a Malicious Falsehood and slander claim against you, even if you considered those statements to be fair enough.
1. For Your Eyes Only…
In days of old, there was the Polaroid – a seemingly one-off almost instantly developed photograph that, if you could get your hands on it, could be permanently destroyed by the simply act of ripping it up, and as if by magic, it disappeared forever. How those sepia stained days have passed. There is nothing delicate about the giant that is the digital footprint. Once an image is out there it can take great efforts to remove it once and for all. The offence of Revenge Porn, that is the sharing of private, sexual materials, either photos or videos, of another person without their consent and with the purpose of causing embarrassment or distress is a serious one. It is not at all unusual for such images to be accompanied by private information about the subject or for these images to be used as a bargaining tool or for blackmail. Running a defence that the person ‘deserved to be exposed’ is highly unlikely to get the defendant anywhere except in more trouble, so, however broken hearted, threatening to publish or actually publishing private images is an absolute no no. Section 1 of the Malicious Communications Act 1988 deals with the sending of electronic communications which are indecent, grossly offensive, threatening or false, provided there is an intention to cause distress or anxiety to the recipient. Section 127 of the Communications Act 2003 makes it an offence to send or cause to be sent through a 'public electronic communications network' a message that is 'grossly offensive' or of an 'indecent, obscene or menacing character'. Where there is more than one incident, or the incident forms part of a course of conduct directed towards an individual, a charge of harassment should be considered. In the most serious cases, where intimate images are used to coerce victims into further sexual activity, other offences under the Sexual Offences Act 2003 will be considered. If you are being threatened at all by anyone who claims to have a private image of you, there are laws that can protect you, and action can be taken.
So, even if the soundtrack of your life feels more Lionel Richie then Lionel Bart, it is best to recover from a broken heart in less provocative ways than those listed above, especially if you wish to avoid heavy consequences. And again, remember, don’t drink and dial!
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