Understanding the Law and the Remedies Available

Increasingly, solicitors are instructed where harassment takes place online, through social media, messaging platforms, anonymous emails, website reviews, and coordinated campaigns intended to intimidate or damage an individual’s reputation. The digital age has dramatically expanded how harassment can occur, with the expansion of Facebook, Instagram, TikTok and X, etc. These can include (but are not limited to):

  1. threatening text messages;
  2. unwanted social media contact; and/or
  3. coordinated online campaigns (i.e. revenge porn).

What is harassment?

The principal legislation governing harassment in England and Wales is the Protection from Harassment Act 1997 (“the Act“), enacted to apply to a wide spectrum of oppressive behaviour.

Section 1 of the Act provides that:

“A person must not pursue a course of conduct which amounts to harassment of another… and which he knows or ought to know amounts to harassment of the other.”

Two elements are fundamental:

  1. there must be a “course of conduct” (i.e. at least two occasions); and
  2. the conduct must be sufficiently serious to amount to harassment (rather than a mere annoyance or irritation).

But what amounts to a “course of conduct“?

While “harassment” is not defined in the Act, it does say that it includes “alarming the person or causing the person distress” and to have occurred on at least two occasions.

Furthermore, guidance was given by the High Court in 2010, where Mr Justice Simon said in that case that a harassment claim will only succeed if an individual can show that the conduct:

  1. has occurred at least twice (as per the Act);
  2. is calculated in an objective sense to cause alarm and distress; and
  3. is objectively judged to be oppressive and unreasonable.

The test for harassment is, therefore, an objective one (ergo, the Claimant’s own genuine belief and perception is just one factor which the court will consider when deciding whether to uphold the claim).

Civil or Criminal Harassment?

The Act creates both criminal and civil liability.

However, the threshold for a civil claim is more easily achieved as the claimant needs only to establish harassment on the balance of probabilities (i.e. 49 to 51).

Whereas a criminal claim would require the victim to prove harassment “beyond reasonable doubt” (a much higher threshold).

Furthermore, by advancing a civil claim, the victim maintains control of the matter, whereas they would be beholden to the authorities if pursued criminally. Taking the civil route also allows the claimant to bolster their position by arguing other privacy-based causes of action alongside their harassment claim (for example, misuse of private information, defamation, malicious falsehood, and breach of privacy).

Civil remedies

Injunctions

Perhaps the most valuable remedy, a successful injunction should prevent further harassment by order of the Court that prohibits:

  1. contacting the claimant;
  2. publishing material;
  3. encouraging third parties to harass; and/or
  4. communicating via social media.

Applications may be made urgently and, in appropriate cases, without notice. Furthermore, to breach an injunction may constitute contempt of court, punishable by imprisonment (up to five years), fines or seizure of assets, so it should be treated with the utmost seriousness.

Damages

Section 3 of the Act allows recovery for:

  1. anxiety;
  2. psychiatric injury;
  3. financial loss;
  4. any reputational damage (where appropriate); and
  5. any consequential losses flowing from the harassment.

Disclosure Orders

Where anonymous online abuse is involved, claimants may seek disclosure orders against internet service providers or platform operators to identify anonymous individuals before substantive proceedings commence (for example, IP address). Such an order is commonly referred to as a “Norwich Pharmacal Order” (although used in other civil matters where the defendant’s identity is unknown). As such, in the event of harassment online and by an anonymous source, there is a legal mechanism whereby disclosure can be ordered.

Practical considerations

For victims, early legal advice is often critical. Evidence should be preserved carefully, including:

  1. screenshots;
  2. emails;
  3. metadata;
  4. call logs;
  5. witness evidence; and/or
  6. evidence demonstrating the effect upon the victim.

Conclusion

Harassment law has developed considerably since the Act first came into force. The courts now recognise that sustained campaigns of intimidation are no less serious because they occur through smartphones or social media rather than face-to-face.

For individuals, prompt legal intervention can often prevent harassment from escalating and protect both reputation and well-being. If you think that you are the victim of harassment, please do not hesitate to contact James Day at james.day@wellerslawgroup.com or another member of the Dispute Resolution team for a no-obligation initial discussion.