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Adapting to an increasingly Virtual World: The New Common Law Tort of Internet Harassment

By February 9, 2021Employment Law
New Common Law Tort of Internet Harassment

On January 28, 2021, the Ontario Superior Court, issued a decision recognizing a new tort of internet harassment, Caplan v. Atas, 2021 ONSC 670. This is a significant decision in current times, especially considering the unfortunate reality of hateful communication over the internet and social media.

Facts

The defendant, Ms. Atas, engaged in decades of “extraordinary campaigns of malicious harassment and defamation carried out unchecked, for many years, as unlawful acts of reprisal.” The sustained harassment included unfounded allegations of pedophilia, hateful messages directed at the defendant’s former employer, adverse parties in litigation, former lawyers, and relatives of these individuals, including their siblings, spouses and children. The defendant’s behaviour continued for more than 15 years, despite bankruptcy, court orders, being declared a vexatious litigant and being incarcerated for contempt of court. 

The Decision

As noted by the Court, the remedies that could have otherwise been available to the plaintiffs were inadequate or inapplicable (referring, inter alia, to the torts of intentional infliction of mental suffering and invasion of privacy). The Court described the defendant’s behaviour as “sociopathic” and while Justice Corbett found that the defendant had defamed some of the plaintiffs, he also found that the defendant’s conduct was intended to go beyond defamation and was intended to “cause fear, anxiety and misery” and that “[the law’s response, thus far, has failed to respond adequately to Atas’ conduct”.

The New Tort of Internet Harassment

The Court adopted the American test for the tort of “harassment in internet communications”, noting this is a very “stringent test”:

  1. The defendant maliciously or recklessly engages in communications or conduct; so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;
  2. The defendant has the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
     
  3. The plaintiff suffers harm.

Justice Corbett specifically stated,

[168] In my view, the tort of internet harassment should be recognized in these cases because Atas’ online conduct and publications seek not so much to defame the victims but to harass them. Put another way, the intent is to go beyond character assassination: it is intended to harass, harry and molest by repeated and serial publications of defamatory material, not only of primary victims, but to cause those victims further distress by targeting persons they care about, so as to cause fear, anxiety and misery. The social science literature referenced above makes it clear that real harm is caused by serial stalkers such as Atas.

Remedies for this Cyber Tort

The decision and remedy must be considered in the context of the defendant’s poor financial situation, which meant that she was judgment-proof. The Court did not address what kinds of damages the internet harassment tort would attract. However, the Court imposed a permanent injunction against the defendant and focused on providing the plaintiffs a remedy to remove the offending content from the internet (by vesting title in the postings with the plaintiffs). This effectively means that the defendant’s internet content would become the property of the plaintiffs, which would in turn allow the plaintiffs to require third-party internet providers to remove the content.

Interestingly in this case, the Court’s order had a broad scope prohibiting the defendant from engaging in harassment and defamation of non-parties, as otherwise, the Court expressed concern that the defendant would simply shift her focus to a new set of victims and “[t]he cycle would be endless”. 

The continued development of cyber harassment law

Almost two years ago, in the employment context, the Ontario Court of Appeal declined to recognize a new common law tort of harassment at that time (Merrifield v. Canada (Attorney General) (leave to appeal to the Supreme Court of Canada later denied)). At that time, the Court of Appeal did not foreclose the development of a properly conceived tort of harassment in appropriate contexts.

The Court in Caplan v. Atas, distinguished the case before it from Merrifield, emphasizing that the facts in the Caplan case “cried out for a remedy”. The Court also recognized that this is a developing area of law. In making this ruling, Corbett J. recognized that the most appropriate solution would be legislative intervention, but in its absence, he considered the recognition of this tort to be the appropriate remedy to the inadequacies of the current legal response.

Take-Aways

The repercussions of the Caplan decision to the law in Ontario are yet to be seen. First, we must take a “wait and see” approach to determine if the defendant can pursue an appeal and if the Ontario Court of Appeal agrees with the trial decision.

Employers and employees should remain conscious of the effects of workplace harassment, whether it is actually in the workplace or online. Workplace parties must also remember that the workplace is not limited to physical spaces but can also extend to cyber spaces. The problems with online harassment, cyber bullying, cyber stalking and online hate speech are part of our current society, both inside and outside the workplace. Ultimately, the recognition of a new tort of online harassment is one effort to address these issues; however, it remains to be seen whether the courts will be willing to apply this tort to less egregious situations.