What is the difference between harassment and defamation in English courts

If I am both harassed and defamed online, which claim is best to bring

If you are harassed and defamed online you will find there are many similarities between defamation and harassment. Yet, English law treats them in very different ways. Social media often joins the two together, because harmful posts can damage a person’s reputation and also create a pattern of behaviour that causes distress. The intention of the perpetrators might also be to cause both types of harm to the victim at the same time. For a victim, the challenge comes from knowing which cause of action may offer the stronger remedy and which legal route the courts may expect you to follow.

What is the right jurisdiction in defamation and harassment cases

What is the difference in limitation period between harassment and defamation

How do judges decide whether the conduct you suffered is truly harassment or defamation

What are the differences in available defences in cases of harassment and defamation

How the two claims, for harassment and defamation interact in real situations

What really separates the harassment from defamation

What is the right jurisdiction in defamation and harassment cases

Jurisdiction is often a key issue in online cases. Defamation usually follows where the publication causes the most damage to reputation. If someone posts a false statement about you on a global platform, the court often looks at where your reputation exists and where people who know you have read the material as well as where the main publication took place.

Harassment, on the other hand, looks at the place where the behaviour affects you, the victim. If you live in England and you receive repeated threatening messages or harassing posts, the court in England will normally accept the claim even if the person behind the behaviour lives abroad.

Courts take a wide view of the impact on the victim. They also look at whether the behaviour forms a course of conduct that links to England through the distress it causes. In other words, the court assumes that the wrongdoing is done where the victim is located rather than where the harassing posts had been posted. These different tests mean you may find that one claim can run in England while the other may not.

This can influence your overall strategy from the very start and may provide you, a victim of harassment and defamation with more options than you think.

What is the difference in limitation period between harassment and defamation

Time limits to bring a claim also differ in cases of harassment and defamation in England. A defamation claim must usually start within one year of the first publication. Judges treat this period strictly although the law gives them some discretion.

Harassment, on the other hand has a longer limitation period because it deals with ongoing behaviour. A fresh act of harassment within the last six years can bring the entire course of conduct into the claim. This makes harassment attractive where defamatory material remains online for a long time. However, judges do not usually permit a claim for harassment to become a way to sidestep the one year limit for defamation.

If the real substance of the complaint is damage to reputation rather than distress, the court may say that you should have brought a defamation claim in time. The court will look at the gist of the conduct and whether it is more likely to fall under defamation or under harassment.

This is a difficult and not always a straight forward decision to make. Different judges might come to a different conclusion. You should therefore ensure that you frame any claim for harassment and defamation in a way that would make it more likely that a reasonable judge would accept it as harassment, particularly if you bring the claim outside of the defamation limitation period.

How do judges decide whether the conduct you suffered is truly harassment or defamation

Judges try to look closely at the true nature of the wrongdoing. If the main harm comes from false statements that spread to others, the claim would leans more towards defamation. If the main harm comes from repeated behaviour such as direct messages, repeated online tagging or ongoing attempts to cause fear or humiliation, the claim is likely to lean more towards harassment.

The judges may also look at the intention of the perpetrator – was the conduct intended to cause reputational harm or to cause the victim harassment and distress? So a judge will need to look at intention, pattern of behaviour, repetition, tone of communication, attempts to intimidate and the emotional effect on the victim.

What are the differences in available defences in cases of harassment and defamation

Defamation has several well established defences such as reasonable belief, honest opinion and publication in the public interest. A defendant may also argue that the words do not refer to the claimant, that they do not carry the meaning the claimant suggests or that they do not cause serious harm.

Harassment has far fewer defences so it is harder to defeat a claim for harassment that a claim for defamation. A defendant can argue that the behaviour took place for a lawful reason or that it served a legitimate purpose, for example where someone has a legal duty to make contact or when the alleged harassment form part of a legitimate whistle blowing activity.

Importantly, truth does not operate as a defence to harassment because the claim focuses on conduct rather than accuracy. It means you can harass someone by telling a truth about them, if you do so repeatedly and in a matter that intends to cause them distress. This is why harassment claims are more likely to succeed in cases where defamation might fail.

How the two claims, for harassment and defamation interact in real situations

A common scenario involves a false post on social media. If the post falsely accuses you of criminal conduct, it is likely that you have a claim for defamation. If the person continues to repeat the accusation, tags you in new posts or on various platforms, messages your friends or tries to embarrass you in front of your workplace, the behaviour may form a course of conduct that could also amount to harassment. In this case, both claims may run side by side.

A second example involves a campaign of direct messages. Someone may message you late at night, threaten you, monitor your online activity or try to draw you into unwanted conversations. Nothing in the messages may be false, so defamation does not arise. However, the repeated contact causes serious distress, which makes it harassment. You may choose harassment alone because it targets the behaviour rather than the content.

A third scenario involves old defamatory posts that remain online. You may discover the posts after the one year limitation period has passed. You might try to frame the matter as harassment, but if the posts are few, old and not part of a fresh ongoing course of conduct, the court may say that this is really a defamation complaint. In that case, using harassment to work around limitation might not succeed.

What really separates the harassment from defamation

To put it in simple terms, defamation protects your reputation in the eyes of others whilst harassment protects your right to live free from fear and distress. Social media often blurs these lines, but the court would assess the main aim of the behaviour and the reason you bring the claim.

When both areas, harassment and defamation, overlap, you need careful advice. Correct strategy would ensure that what you want to achieve, can in fact be achieved whilst minimising the risk of the court striking out the claim.

If you face harassment and defamation online, it makes sense to book a consultation with one of our expert lawyers. It is for a fixed fee and you will get a clear initial advice and guidance.

Defamation Solicitors, Instagram Defamation, Harassment and Defamation, Starting a defamation claim, Social media harassment

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