The Court in Caplan v Atas, 2021 ONSC 670, created a new tort of internet harassment, indicating that the torts of defamation and intrusion upon seclusion will not always capture cyber-bullying, or provide the remedies needed to address the wrong created by the conduct. Justice Corbett noted that “this court’s response is a solution tailored for these cases [internet defamation and harassment] and addresses only the immediate problem of a lone publisher, driven by hatred and profound mental illness, immune from financial constraints and (dis)incentives, apparently ungovernable except through the sledgehammer response of incarceration.”[1] How widely applicable the tort of internet harassment will be remains to be seen. However, the court has filled a gap in the law in terms of providing a remedy for people who are subject to cyber-bullying.
Justice Corbett sets out the long history of internet harassment, and decades long multitudinous actions, motions and procedural steps, that formed the background of the three summary judgment and one default judgment motions for defamation, harassment and other claims commenced by the various plaintiffs against the defendant, Atas. The court provides this summary of the facts in the opening paragraphs:
Cyber-stalking is the perfect pastime for Atas. She can shield her identity. She can disseminate vile messages globally, across multiple unpoliced platforms, forcing her victims to litigate in multiple jurisdictions to amass evidence to implicate her, driving their costs up and delaying the process of justice. Unrestrained by basic tenets of decency, when she is enjoined from attacking named plaintiffs, she moves her focus to their siblings, their children, their other family members and associates, in a widening web of vexatious and harassing behaviour.
Serious mental illness must underlie this conduct: what person of sound mental health would throw away more than a decade of her life, her material prosperity, and risk her liberty, for such paltry visceral satisfaction: the obsession seems clear. When this conduct is placed alongside the apparent grievances that have spurred Atas on, the disproportionality – even as apparently apprehended by Atas herself – is so unbalanced as to impugn her grasp on reality: what mentally sound person would devote so much time and energy to such negative unproductive activities? And then one must consider some of the persons Atas has been willing to attack to cause harm to her primary victims: persons unknown to her, used by her as ammunition to hurt others. Her lack of empathy is sociopathic.[2]
Tens of thousands of pages of evidence were filed in support of the motions. The court found that the impugned publications were published on the internet; the publications were defamatory; the publications were intended to harass the people against whom they are targeted; and, the publications were part of long-term campaigns to harass and defame the targeted victims.[3]
Justice Corbett reviewed the development of statutory protections available in other common law jurisdictions to protect against the effects of cyber-bullying, and to provide the victims with remedies. He concluded that the tort of harassment in internet communications should be created in Ontario. The following elements will need to be established by the plaintiff (adopted from American case law):
- the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration and extreme in degree;
- so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and,
- the plaintiff suffers such harm.[4]
The court has set a considerable bar for the plaintiff to meet in order to make out the tort of harassment in internet communications. It remains to be seen what kind of evidence will be accepted to meet the test, and the requirements to prove its authenticity.
The tort brings with it ancillary questions that will need to be considered by the court. Given that the defamatory or harassing comments may be posted on internet platforms that are not under the jurisdiction of the Ontario court, extra-jurisdictional issues will arise for plaintiffs in having the court’s judgment enforced. In some American jurisdictions, an affirmative finding of falsity is required before the offending publications will be ordered to be removed. Justice Corbett was able to reach a conclusion of falsity of the statements on the basis of judicial findings in the underlying litigation. Other statements were patently false without any evidentiary foundation.
Another question is how the Court of Appeal will treat the new tort of harassment in internet communications. As noted by Justice Corbett, the Court of Appeal in Merrifield v Canada (Attorney General), 2019 ONCA 205, refused to recognize a tort of harassment in the employment context. It did however go on to state that it was not foreclosing the development of the tort, but reserving that for an appropriate context.[5]
Justice Corbett stressed the need for regulatory oversight to address the rise in and concerning impact of cyberbullying:
… it is clear that the law needs better tools, greater inter-jurisdictional cooperation, and greater regulation of the electronic “marketplace” of “ideas” in a world with near universal access to the means of mass communication. Regulation of speech carries with it the risk of over-regulation, even tyranny. Absence of regulation carries with it the risk of anarchy and the disintegration of order. As should be clear … a situation that allows someone like Atas to carry on as she has, effectively unchecked for years, shows a lack of effective regulation that imperils order and the marketplace of ideas because of the anarchy that can arise from ineffective regulation.[6]
The Caplan decision is a call for the provincial government to address the current gap in protection afforded by legislation to address cyber-bullying.
[1] Caplan v Atas, 2021 ONSC 670 at para 6.
[2] Ibid at para 2-3.
[3] Ibid at para 73.
[4] Ibid para 171.
[5] Merrifield v Canada (Attorney General), 2019 ONCA 205 at para 53.
[6] Ibid para 6.
