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Beyond Defamation: Ontario Court Recognizes New Tort of Internet Harassment

Beyond Defamation: Ontario Court Recognizes New Tort of Internet Harassment
February 11, 2021

In Caplan v. Atas (Caplan), Justice Corbett of the Ontario Superior Court of Justice (Court) granted the plaintiffs’ motions for summary judgment and default judgment, concluding that the defendant carried out egregious online campaigns of malicious harassment and defamation against the plaintiffs, their families and their associates over many years. Finding defamation law insufficient to address the defendant’s persistent and repetitive conduct, and in the absence of legislation to address the issue, the Court held it was time to recognize a tort of internet harassment.

THE BACKGROUND

Caplan dealt with four lawsuits against the defendant, Nadire Atas, claiming defamation and harassment. At issue were thousands of anonymous internet posts, published over many years on multiple online forums, accusing the plaintiffs, their family members, friends and associates of engaging in professional misconduct, fraud and sexual criminality.

In the course of the litigation, some of which spanned more than a decade, Atas had been declared a vexatious litigant and had multiple interlocutory injunctions issued against her to restrain her from, among other things, publishing statements of any kind about the plaintiffs on the internet. She had spent time in jail for contempt after violating court orders in other litigation.

THE DECISION

The plaintiffs brought motions for summary judgment and default judgment. The Court found in favour of the plaintiffs on summary judgment for defamation, holding that it was Atas who had published the defamatory posts about them, and that the factual statements contained in the posts were false. This last finding was to assist the plaintiffs in having the defamatory posts removed from certain forums in jurisdictions outside Canada.

The Court also concluded that Atas’ systematic campaign of repeatedly publishing vicious, malicious and defamatory falsehoods was undertaken with the intention to “harass, harry and molest” the plaintiffs and others close to the victims “to cause fear, anxiety and misery”.

Justice Corbett acknowledged that the Ontario Court of Appeal (OCA), in its 2019 decision in Merrifield, had declined to recognize a tort of harassment. However, the OCA had expressly not foreclosed the development of such a tort in the future and the Court held that the facts of this case “cr[ied] out for a remedy”.

The Court held that the circumstances of this case illustrated inadequacies in the current legal responses to internet defamation and harassment. Justice Corbett referred to the prevalence and detrimental impact of the “epidemic” of online harassment, canvassed legislative action in other common law jurisdictions to address the issue and noted the absence of such legislation in Ontario.

Additionally, unlike in Merrifield, the tort of intentional infliction of mental suffering did not provide an adequate remedy here. Justice Corbett took particular issue with the third prong of that test requiring that the defendant’s flagrant and outrageous conduct, calculated to produce harm, actually be shown to result in visible and provable illness. He held that the law must be able to provide an efficient remedy before the wrongful conduct reaches that point.  

The Court accepted the stringent test from American case law, proposed by the plaintiffs: the tort of harassment will be made out where the defendant maliciously or recklessly engages in 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. Accordingly, “[i]t is only the most serious and persistent of harassing conduct that rises to a level where the law should respond to it.” The facts of Caplan met that test.

REMEDIES

The Court noted the difficulty in devising an adequate remedy in circumstances in which a defendant is not deterred by ongoing litigation and has repeatedly refused to comply with court orders. Moreover, damages awards (including punitive or aggravated damages) were not a viable deterrent in this case: the defendant was impecunious and had made an assignment in bankruptcy on the eve of the motions, leading the plaintiffs to abandon their claims for monetary damages so that the proceedings could continue.

Ultimately, the Court granted a permanent injunction against the defendant, restraining her from posting anything about the plaintiffs, on the internet or elsewhere. Notably, the Court also restrained the defendant from posting about the plaintiffs’ friends, families and associates, anchoring this relief to the tort of harassment and the need to protect the plaintiffs from a wide range of wrongful conduct - including attacks on the plaintiffs through harm to those close to them. The Court further ordered a “vesting title to the postings” in the plaintiffs to enable them to seek to have them removed, rather than having to rely on the defendant to do so.

IMPLICATIONS

The facts of this case reflect circumstances that were not anticipated when traditional defamation law was developed. While cyberbullying, online hate speech and internet harassment may give rise to claims in defamation, the law may not always provide an adequate response. The development of the new tort of internet harassment is aimed at filling that gap, capturing wrongful conduct beyond defamatory communications, and enlarging the scope of relief available to victims. While it remains to be seen how the “stringent” test for this tort is applied in other factual situations, for now, it provides an important new legal tool for individuals who find themselves the target of malicious, persistent and outrageous harassment online.

For further information please contact:

Iris Fischer                  416-863-2408
Kaley Pulfer                416-863-2756
Alysha Li                     416-863-2506
 
or any other member of our Media & Defamation group.