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New Tort of Internet Harassment Recognized in Ontario By Esther Shainblum and Luis R. Chacin On January 28, 2021, the Ontario Superior Court of Justice released its decision in Caplan v. Atas, recognizing a new common law tort of harassment in internet communications. The ruling emanated from a shocking, decades-long, international campaign of internet harassment and defamation against an “ever widening group of people”. In the four actions underlying this decision, the defendant, Atas, was found to have carried out “extraordinary campaigns of malicious harassment and defamation” against a vast number of people, including her own lawyers, the lawyers and agents (and their relatives) of a bank that foreclosed on two properties owned by Atas in the early 2000s, as well as a former employer, its successor, owners, managers and employees, and their siblings, children and other family members, adding up to as many as 150 victims. The court found that Atas carried these acts over the internet on a number of sites, including social media, while hiding her identity with false names and pseudonyms, unchecked, for many years, with the intent of causing emotional and psychological harm. The Court determined that the majority of the thousands of postings were seriously defamatory of the plaintiffs, with a few being “merely abusive” and that Atas had posted or caused them to be posted. The Court noted that Atas had already ignored court orders to stop posting online. The Court also determined that the existing privacy tort of intrusion upon seclusion was not applicable and that the existing tort of intentional infliction of mental suffering was not adequate to address the situation. The Court reviewed various reports and analyses regarding the prevalence and devastating impact of online harassment, which differs from other forms of harassment because it is an “unstoppable intrusion” that the perpetrator can perform from anywhere remotely and the victim has no escape in their own home or private domain. As well, stating that the facts of this case “cry out for a remedy” in the face of insufficient traditional remedies, and noting that the Court of Appeal in Merrifield v. Canada (Attorney General) had left the door open for the tort of harassment to be recognized in another case, the Court held that: [T]he 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. Based on American case law, the court proposed the following stringent test for the tort of harassment in internet communications: where 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. The Court held that the facts of these cases clearly met this stringent test. As previous court orders and even incarceration had been ineffective to stop the harassment, and as Atas was indigent and no monetary compensation would be possible, the court vested title to the postings in the plaintiffs with ancillary orders enabling them and other victims to take steps to have the content removed. The Court also granted a permanent injunction prohibiting Atas from any internet communications with respect to all plaintiffs and other victims of her defamation and harassment, together with their families, related persons and business associates, to prevent her from shifting her focus to a new set of victims. It is unclear whether these remedies will be sufficient to undo the harm caused by Atas to her victims and their reputations. However, this decision is an important step for the common law in Ontario and provides new and creative remedies that may assist victims of internet harassment. This case is also a reminder of the challenges and risks introduced by the internet and the need for the boards of directors of charities and not-for-profits with an online presence to ensure that they have appropriate policies and procedures in place to protect personal information as well as monitor and control the use of information technology by employees and volunteers, both within and outside of the workplace environment. Charities and not-for-profits should have appropriate social media and information technology use policies in place, as is increasingly becoming the norm in terms of governance. Such policies provide a set of rules and standards to govern how individuals employed by or associated with the organization conduct themselves online and allow the organization to hold them accountable for misconduct. |
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