To qualify as ‘harassment’ the conduct must, under section 26(1)(b), ‘violate the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment’ for her. In deciding whether the conduct has had that effect, the decision-maker must take into account the victim’s perception under section 26(4)(a). This is a subjective test. The decision-maker must also take into account the other circumstances of the case and whether it is reasonable for the conduct to have that effect under sections 26(4)(b) & (c). This is an objective test.
In making this determination, the decision-maker must consider the implications of various rights, such as freedom of expression, as set out in Article 10 of the European Convention of Human Rights (ECHR). This is because, where possible, the 2010 Act must be read and applied in a way that is compatible with the ECHR, which was brought directly into UK law by the Human Rights Act 1998. Conduct should not be regarded as harassment, and no action should be taken on it, where this would breach the Article 10 rights of the person whose conduct is in issue, or of the organisation that is responsible for their actions. This will often require a delicate balancing of rights to be undertaken involving the legal concept of ‘proportionality’. It is important to note that the unlawful harassment section of the 2010 Act, like the highly context-sensitive IHRA definition and examples, needs to be sensitively understood and carefully applied. Context is critical in defining ‘harassment’ just as it is in defining ‘unwanted conduct’ as antisemitic: the need to exercise judgment cannot be avoided in either case.
It is particularly important to understand the difference between expression that is antisemitic and expression that is merely offensive. Expression that is ‘merely’ offensive, provocative, or insulting is protected under Article 10 ECHR as free speech and the 2010 Act will not ordinarily seek to regulate that speech where none of the protected grounds under the Act are engaged. On the other hand, expression that is racist and amounts to a form of hate speech is not protected by the ECHR. It is considered to be incompatible with society’s fundamental values of tolerance, social peace, and non-discrimination.
Racist expression has been found by the European Court of Human Rights to include antisemitic speech and conduct including Holocaust denial. And even where the speech, although antisemitic, nevertheless falls within the scope of the right to freedom of expression, it can still be restricted, as long as this is done in a proportionate manner. In short, ‘mere’ offense, provocation or insult is within the scope of the guarantee of free expression and will not generally engage the 2010 Act at all. Antisemitic speech, by contrast, will frequently fall outside the scope of the free speech guarantee altogether and no balancing of freedom of speech and equality rights will be required. But even where it does not fall outside the scope of the right altogether, antisemitic speech may still be regulated (through a balancing exercise), for example as ‘harassment’ under the 2010 Act.