In Caplan v. Atas, 2021 ONSC 670, Justice Corbett broke new ground and determined there is a tort of internet harassment.
The facts are quite detailed and involved. Briefly, the defendant, Nadire Atas, engaged in a “vile campaign of cyber-stalking” against the plaintiffs to exact revenge for “longstanding grievances”. Broadly speaking, Atas posted content online stating that the plaintiffs are (variously) dishonest, incompetent, negligent, unethical, and fraudulent, and in some cases are prostitutes, “sluts”, sexual predators and guilty of sexual criminality. Other posts did not have factual allegations but nevertheless contained abusive or insulting comments. All comments were either false or empty statements of moral condemnation. The comments were disseminated online over the internet on sites that did not monitor or control the posted content – e.g., Reddit, Pinterest, Facebook, Lawyerratingz, Blogspot, etc.
The plaintiffs sued Atas in four separate actions that were consolidated. The plaintiffs were represented by the same counsel. Atas was self-represented. The plaintiffs all sued Atas in defamation. In two of the actions, the plaintiffs plead common law harassment, among other causes of action. One of the central issues was whether there is, in fact, a common law tort of internet harassment in Ontario.
Justice Corbett analyzed what is being done in other jurisdictions to combat the “challenges of the internet age of communication” – online harassment, bullying, hate speech and cyber-stalking. England has the Protection from Harassment Act 1997. New Zealand passed the Harmful Digital Communication Act in 2015. The Intimate Image Protection Act came into force in 2016 in Manitoba and Nova Scotia introduced the Intimate Image and Cyber-Protection Act in 2018. While similar legislation does not yet exist in Ontario, the Law Reform Commission of Ontario has published a consultation paper about defamation and the internet and a working paper about defamation, breach of privacy and other claims concerning offensive online content.[1]
His Honour also reviewed studies about the prevalence of online harassment and the effects of it on its victims (including damaged self-esteem, being afraid for their lives and safety, being afraid to leave their homes, high risk of depression, anxiety, increased risk of victims harming themselves, etc.). He was acutely aware, from the studies, that online harassment is different from other forms of harassment because victims cannot escape it by entering their homes and because the harassing can be done anywhere remotely. Justice Corbett also understood that technology has enabled bullies to victimize others by, for example, releasing intimate photos or videos without consent.
His Honour also directly addressed Merrifield v. Canada (Attorney General).[2] The trial judge in that case appeared to have recognized the common law tort of harassment in an employment context.[3] The Court of Appeal, however, overturned the decision. It did not recognize what would have been a new tort because (a) intentional infliction of mental suffering was a sufficient remedy under the circumstances, and (b) it was not provided with any foreign judicial authority that would support the recognition of the new cause of action. However, the Court of Appeal expressly did “not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts…”
In this case, existing remedies were not sufficient to address the defendant’s behaviour. This addressed the first concern in Merrifield against recognizing the new tort. For example, the tort of intrusion upon seclusion did not apply to any of the publications. While Atas used images of some of the plaintiffs in posting her offensive content, those images were already on the internet and therefore the plaintiffs’ privacy was not breached by the defendant. Intentional infliction of mental suffering did not apply either because none of the plaintiffs had suffered a visible and provable illness, which is an element of the tort. Defamation did not cover all the publications because some of it did not allege facts though the content was still abusive or offensive.
Additionally, there was judicial authority to support the recognition of harassment as a civil cause of action. This addressed the second concern in Merrifield against recognizing the new tort. The US, for example, has recognized a common law tort of harassment and relatedly, there has been legislation enacted in Manitoba, Nova Scotia, New Zealand and England to address either online harassment or harmful internet communication generally. Also, Justice Corbett noted that harassment is a criminal offence and it is well understood in family law.
As a result, it was held that the tort of internet harassment should exist. According to Justice Corbett, the facts of the case cried out for a remedy.
It was held that the test is as follows, which was taken 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.
Without question tort law has been expanding its causes of action to account for the modern age and to cover at least some of the void space between criminal and civil remedies. Since 2012, the courts have developed the common law torts of breach of privacy, public disclosure of private facts, and now internet harassment to supplement existing torts such as private nuisance, and intentional and negligent infliction of mental suffering. Let’s hope the law will continue to be fluid and progressive as our social landscape continues to rapidly change – so that victims can be properly protected and have recourse to appropriate remedies.
[1] See Caplan v. Atas, 2021 ONSC 670 (CanLII) at para 101. The papers are ‘Defamation Law in the Internet Age’ from November 2017 and ‘The Relationship between Defamation, Breach of Privacy and Other Legal Claims Involving Offensive Internet Content’ by David Mangan in July 2017.
[2] Merrifield v. Canada (Attorney General), 2017 ONSC 1333.
[3] Merrifield v. The Attorney General, 2017 ONSC 1333 (CanLII), overturned by Merrifield v. Canada (Attorney General), 2019 ONCA 205 (CanLII).
