Harassment by publication or libel? Understanding the difference and choosing the right legal claim

The internet has fundamentally changed the way disputes unfold. Allegations made on social media, online review platforms, blogs and websites can spread rapidly, causing significant reputational damage and personal distress. In some cases, individuals find themselves the subject of a sustained online campaign involving repeated false allegations, abusive commentary or persistent attempts to undermine their reputation.

When this occurs, one of the first questions to consider is whether the conduct gives rise to a claim in libel, harassment, or both.

Although there can be overlap between the two causes of action, they protect different legal interests, involve different legal tests and offer different remedies. Understanding these distinctions is essential when deciding how best to pursue a claim.

Different legal interests protected

The most important distinction is that libel and harassment protect different legal rights.

A claim in libel protects an individual’s or company’s reputation. The law of defamation is concerned with false statements that cause serious reputational harm.

A claim under the Protection from Harassment Act 1997, by contrast, protects an individual’s personal autonomy, dignity and psychological wellbeing. It addresses oppressive and unacceptable conduct directed at a person, regardless of whether that conduct damages their reputation.

This distinction explains why the same publication may amount to harassment even where it is not defamatory, and equally why a defamatory publication may not amount to harassment.

The practical consequence is that the focus of each claim is fundamentally different. Defamation asks whether a publication has lowered the claimant in the estimation of right-thinking members of society. Harassment asks whether the defendant has pursued an oppressive course of conduct which the law ought to restrain.

What is libel?

Libel is one form of defamation governed principally by the Defamation Act 2013. To establish a claim, it must generally be shown that:

• the defendant published a statement to at least one third party;
• the statement referred to the claimant;
• the statement is defamatory of the claimant;
• the publication has caused, or is likely to cause, serious harm to the claimant’s reputation; and
• no statutory or common law defence applies.

For bodies trading for profit, section 1 of the Defamation Act 2013 requires proof that the publication has caused, or is likely to cause, serious financial loss.

Accordingly, libel is primarily concerned with protecting reputation rather than personal distress.

What is harassment by publication?

Repeated publications can also amount to harassment where they form part of a course of conduct prohibited by the Protection from Harassment Act 1997.

Unlike libel, harassment is not principally concerned with whether statements are true or false.

Instead, the court considers whether there has been:

• a course of conduct involving at least two incidents;
• conduct directed at the claimant;
• behaviour amounting to harassment; and
• conduct which the defendant knew, or ought reasonably to have known, amounted to harassment.

Repeated publication of articles, blog posts, social media content, emails, videos or other communications may satisfy these requirements where they form part of a sustained campaign directed against the claimant.

The Protection from Harassment Act 1997 creates not only criminal offences but also an independent statutory tort, enabling victims to seek damages and injunctive relief through the civil courts.

Harassment requires a course of conduct

One of the most significant distinctions between harassment and libel is that harassment requires repetition.

A single defamatory newspaper article or social media post may found a libel claim, but it will rarely constitute harassment on its own.

Instead, there must be a course of conduct, generally involving at least two separate incidents.

Examples include:

• repeated defamatory blog posts;
• multiple social media publications;
• persistent online accusations;
• repeated publication of private information;
• ongoing emails copied to employers or clients;
• sustained campaigns encouraging others to contact or abuse the claimant; or
• coordinated publication across several platforms over an extended period.

The court considers the cumulative effect of the conduct rather than examining each publication in isolation.

The threshold for harassment is intentionally high

The courts have consistently emphasised that not every unpleasant, offensive or upsetting interaction amounts to harassment.

The Protection from Harassment Act 1997 creates both criminal offences and civil liability. Consequently, the threshold of seriousness is deliberately demanding. The Act did not intend to criminalise or impose civil liability for the ordinary irritations, disagreements or unpleasantness that arise in everyday life. Instead, the conduct must be sufficiently serious to be described as oppressive and unacceptable.

Whether conduct crosses that threshold is highly fact-sensitive. The court will consider:

• the frequency of the conduct;
• its duration;
• the surrounding circumstances;
• the defendant’s purpose;
• the cumulative impact upon the claimant; and
• whether a reasonable person would appreciate that the conduct amounted to harassment.

This higher threshold reflects the criminal overlap within the legislation. The courts are therefore careful to distinguish genuinely oppressive campaigns from robust criticism, isolated insults or ordinary disputes, even where those disputes are emotionally charged.

Truth matters more in libel than harassment

One of the greatest practical differences concerns the role of truth.

In libel proceedings, truth is a complete defence. If the defendant establishes that the defamatory allegation is substantially true, the claim will ordinarily fail.

Harassment operates differently. Even where individual publications are factually accurate, they may nevertheless amount to harassment if, viewed collectively, they form part of an oppressive course of conduct directed at the claimant. For example, repeatedly publishing truthful personal information for the purpose of intimidating, embarrassing or distressing another person could potentially amount to harassment despite the factual accuracy of the material.

Can the same publications give rise to both claims?

Yes, the same publications may support both a claim in libel and a claim for harassment.

A claimant is not restricted to a single cause of action merely because the wrongdoing takes the form of publications. Where repeated publications damage reputation while simultaneously forming part of a campaign designed to alarm, intimidate or distress the claimant, both causes of action may legitimately arise.

The overlap lies in the factual circumstances rather than the legal principles.

A publication that is defamatory will not automatically amount to harassment.

Likewise, a course of harassing publications will not necessarily satisfy the legal requirements for libel.

Each cause of action must independently satisfy its own legal test.

Which claim should a claimant choose?

The answer depends upon the nature of the wrongdoing and the remedy sought.

Where reputation is the primary concern

Libel will often be the more appropriate claim where:

• there is a single publication;
• the principal harm is reputational;
• vindication is an important objective;
• correction or removal of false allegations is the primary concern; or
• financial losses arise from reputational damage.

The central issue is whether the publication has caused serious reputational harm.

Where the conduct is persistent

Harassment may be the stronger claim where:

• publications form part of a continuing campaign;
• the claimant is being personally targeted;
• the principal harm is anxiety or distress;
• protection from future conduct is required; or
• the campaign extends beyond publication to include direct communications, surveillance or unwanted contact.

This frequently arises in cases involving former partners, neighbour disputes, business disputes and online abuse.

Advantages of a harassment claim

Harassment claims offer several significant practical advantages. Most importantly, the court has wide powers to grant injunctions restraining future harassment.

Such injunctions may prohibit:

• further publication;
• direct or indirect contact;
• attendance at specified locations;
• communication through third parties; or
• continued online campaigns.

Breach of an injunction may amount to contempt of court, exposing the defendant to fines, sequestration of assets or imprisonment.

Damages may also be awarded for:

• anxiety;
• distress;
• psychiatric injury;
• financial loss; and
• consequential losses flowing from the harassment.

Unlike libel, the claimant does not necessarily have to establish serious reputational harm.

Advantages of a libel claim

Libel remains the primary mechanism for protecting reputation.

Successful claimants may obtain:

• damages for reputational injury;
• vindication through a public judgment;
• removal of defamatory material where appropriate; and
• injunctive relief in suitable cases.

The court may grant an injunction requiring the removal of defamatory material or restraining its further publication where the legal test for injunctive relief is satisfied. In practice, however, many defamation disputes are resolved through negotiated takedown agreements, corrections, apologies or undertakings rather than contested injunction applications.

Strategic pleading – why many claimants pursue both claims

From a litigation perspective, the question is often not whether to pursue libel or harassment, but whether the facts justify pursuing both.

Defamation and harassment compensate different forms of harm. Defamation protects reputation. Harassment protects personal autonomy and freedom from oppressive conduct.

A claimant who has suffered both reputational damage and significant personal distress may therefore have separate losses capable of supporting different causes of action.

Pleading both claims can provide important strategic advantages. A claimant may seek damages for reputational harm under the Defamation Act 2013 while simultaneously obtaining injunctive protection under the Protection from Harassment Act 1997 to prevent the continuation of an abusive publication campaign.

In appropriate cases, further causes of action may also arise, including:

• malicious falsehood
• misuse of private information
• breach of confidence
• data protection claims under the UK GDPR and the Data Protection Act 2018

However, multiple causes of action should never be pleaded simply to increase pressure upon a defendant. Each claim must be supported by the facts and satisfy its own legal requirements.

Equally, the court will not permit double recovery. A claimant cannot recover separate awards of damages for the same underlying loss merely because several causes of action are available.

Practical considerations before issuing proceedings

When considering litigation arising from online publications, it is important to identify the true nature of the harm.

Questions commonly include:

• Is the primary injury to reputation?
• Has there been a sustained campaign rather than an isolated publication?
• Are the publications false?
• Is immediate injunctive relief required?
• Is the claimant primarily seeking compensation, vindication or protection from further conduct?

The answers to these questions will often determine whether libel, harassment or a combination of claims provides the strongest litigation strategy.