Harassment versus academic free speech

Short answer

No, not automatically. A university cannot use “free speech” or “academic debate” as a blanket excuse to ignore conduct that meets the legal definition of harassment. But the answer is genuinely nuanced: freedom of expression and academic freedom are legally protected, and some deeply offensive speech is lawful even though it upsets people. The key is whether the specific conduct crosses from protected expression into unlawful harassment. Universities have to balance these competing rights rather than treating either as absolute.

What counts as harassment in law

Under section 26 of the Equality Act 2010, harassment is unwanted conduct related to a protected characteristic (age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation) which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Three points matter. First, the conduct must be related to a protected characteristic. Second, if the effect (rather than purpose) is relied on, the law applies an objective test: it must be reasonable for the conduct to have had that effect, taking into account the complainant’s perception and all the circumstances. This means that mere subjective offence is not enough on its own. Third, sexual harassment and less favourable treatment for rejecting or submitting to it are covered separately.

There is also a criminal and general civil dimension. The Protection from Harassment Act 1997 covers a course of conduct amounting to harassment, and separate criminal offences can apply to incitement to racial or religious hatred and threatening behaviour.

Why free speech is not a complete defence

The Higher Education (Freedom of Speech) Act 2023, together with the general duties on universities to secure freedom of speech within the law and to protect academic freedom, means universities must not suppress lawful speech. Article 10 of the European Convention on Human Rights protects expression, including ideas that offend, shock or disturb.

However, these protections are for lawful speech. The Cambridge governance guidance and the wider legal position make clear that harassment, victimisation and unlawful discrimination are not protected. Speech that constitutes unlawful incitement to racial or religious hatred, threats to kill, encouragement of terrorism, defamation, or that is otherwise unlawful, falls outside the protection. So “freedom of speech within the law” expressly excludes conduct that is itself unlawful, including Equality Act harassment.

The 2023 Act does not repeal the Equality Act. A university must reconcile both: it cannot lawfully punish genuinely protected speech, and it cannot lawfully leave genuine harassment unaddressed.

The genuinely difficult middle ground

The Equality and Human Rights Commission guidance for higher education providers is directly on point. It says that views expressed in teaching, debate or discussion on matters of public interest, including political or academic communication, are unlikely to be seen as harassment even if deeply offensive to some listeners, because Article 10 protects them.

This is where a university can legitimately treat something as academic debate. Examples might include a lecturer setting out a contested academic position, a structured debate on a controversial political or ethical question, or the expression of a philosophical belief in the course of discussion. Offence alone, or disagreement with a viewpoint, does not make conduct harassment.

The picture changes where the conduct is targeted at an individual or a group because of a protected characteristic, is gratuitous or personalised rather than genuinely part of academic content, is persistent, involves slurs, intimidation, or demeaning treatment, or occurs in a context (such as a supervisory or teaching relationship) where the power dynamic and captive audience make it more likely to create a hostile environment. The more the conduct looks like a personal attack rather than the exchange of ideas, the weaker any free speech or academic freedom argument becomes.

The factors that decide which side of the line conduct falls

When assessing whether something is protected debate or unlawful harassment, the relevant considerations include:

1. The content and context: was it genuinely part of teaching, research or debate on a matter of public interest, or was it gratuitous?

2. Whether it was targeted at a particular person or group, or was a general expression of a view.

3. Whether it was repeated or a one-off, and whether the person continued after being asked to stop.

4. The manner and language used, including whether slurs, threats or intimidation were involved.

5. The setting and relationship, for example a compulsory seminar or a staff-student power relationship, versus a voluntary public debate.

6. Whether it was objectively reasonable for the conduct to have the effect complained of, not just whether someone was upset.

What this means for a complaint

If you are complaining to a university and it responds by dismissing the matter as free speech or academic debate, that response is only sustainable if the conduct really was protected expression. You are entitled to have the university actually apply the section 26 test to the specific facts, rather than use free speech as a reflexive shield.

A university that fails to investigate or address genuine harassment may itself be exposed. It owes duties under the Equality Act (including potential liability for the acts of its staff, and the public sector equality duty), and its own student and staff conduct policies will normally prohibit harassment. The Office for Students regulates harassment and sexual misconduct in the sector, and the relevant ombudsman for student complaints in England and Wales is the Office of the Independent Adjudicator for Higher Education.

Practical next steps

1. Gather and preserve evidence: what was said or done, exactly, when, where, by whom, in what setting, and any witnesses, recordings, emails or messages. Precise wording and repetition matter for the legal test.

2. Identify the protected characteristic the conduct relates to, and articulate the effect it had and why that effect was reasonable in the circumstances.

3. Raise it through the university’s harassment or student complaints procedure in writing, framing it explicitly against the Equality Act section 26 definition and asking the university to apply that test to the facts rather than dismiss it generically as free speech. Ask for a reasoned decision.

4. If the internal outcome is inadequate, request a completion of procedures letter and consider a complaint to the Office of the Independent Adjudicator (for students), and consider whether to notify the Office for Students where there is a systemic failing.

5. Consider whether there is a potential Equality Act claim. Discrimination and harassment claims against a higher education body are generally brought in the County Court (not the employment tribunal, unless you are an employee), and there are strict time limits, ordinarily six months for such claims, so take note of dates early.

What would change the answer

The outcome depends heavily on facts you have not yet set out: exactly what was said or done, whether it was in genuine academic or teaching content, whether it targeted an individual, whether it was repeated, the relationship between the people involved, and whether you are a student, member of staff, or visitor. If the conduct was a general expression of a contested viewpoint in a debate, the free speech and academic freedom protections are strong. If it was targeted, personal, persistent, or involved slurs or intimidation connected to a protected characteristic, the free speech label is unlikely to succeed as a defence.

If you tell me precisely what was said or done, in what context, your status at the institution, and how the university has responded so far, I can give you a much more specific assessment of whether it is likely to fall on the protected side or the harassment side of the line.