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Since the first great technological discovery (fire), people have learned that any technology can be used for both good (cooking, heating) and bad (arson). In the 50 years or so that the Internet has existed, and in the 30 years of the World Wide Web, this has proven to be no less true. Unfortunately, for all the miracles these tools have brought, like lampreys they have been accompanied by malevolent forces.
Canadian customary law still deals with the basics of dealing with internet-based errors (see e.g. Google Inc. versus Equustek Solutions Inc. 1, Douez versus Facebook, Inc. 2 and Uber Technologies Inc. versus Heller3). These include cyber defamation and cyber abuse, which in a viral moment can gain international reach.
Recently, Justice David Corbett of the Ontario Supreme Court made a significant contribution to the development of cyber resources by recognizing the illicit act of harassment in Internet communications in Caplan against Atas 2021 ONSC 670.
The 65-page decision is remarkable in many ways, so the story is the subject of a lengthy New York Times article4. Our focus is on the procedural significance of this groundbreaking decision.
“Exceptional Malicious Harassment and Defamation Campaigns”
The facts of the case are novel. You and the procedural history of the case are long and tangled. Only the bare bones can be distilled here. The defendant Nadire Atas plagued her victims and the courts. Justice Corbett’s decision was the 46th confirmation (excluding “additional handwritten notes”) 5 issued by the Court.
Ms. Atas had been a real estate agent in the 1990s. By 2021, she had been named as a defendant in numerous lawsuits from numerous plaintiffs. She was charged with defamation and harassment, was despised, detained for 74 days, and declared an angry trial lawyer. As Justice Corbett put it, “Serious mental illness must be underlying it [Ms. Atas’] Behavior ”.6
Ms. Atas had been at the end of a mortgage enforcement process. After that, she began years of systematic campaigns aimed at inflicting emotional and psychological damage on anyone she held a grudge against. The list of victims is long: unfavorable litigants, former employers, their family members, their own lawyers, even the New York Times journalist.
The campaigns were vicious: hate mail and postings about professional misconduct, pedophilia, sexual crime, and even abuse of a recently deceased family member. Justice Corbett described cyberstalking as the “perfect pastime” of Ms. Atas.7 Ms. Atas enjoyed the trial and the endless conflict and enjoyed the misery and costs it caused her adversaries. “Your lack of empathy is sociopathic,” said His Honor.8 Your preferred weapon? The Internet.
Analysis of the situation
Judge Corbett found that Ms. Atas’ wrongdoing fell within the gray area of civil and criminal law. The law had not responded adequately to their actions. An answer had to be given that (a) rebukes Ms. Atas and (b) discourages others from such behavior.9 While compensation is the usual primary goal of the civil justice system, Ms. Atas has been insolvent. The goals of deterrence and prevention have thus been addressed. They focus on addressing the motive for such malicious acts and creating practical barriers to prevent their repetition
Justice Corbett acknowledged that the courts have been asked to recognize new types or expand old ones to adequately respond to online harassment and hate speech that has only increased in the age of internet communication.11 While the Defamation and Privacy Act has some recourse to behavioral goals such as that of Ms. Atas are usually not enough to stop or control them.12 Therefore, the courts must recognize the unlawful act of harassment in internet communications.
Recognize the illegal act
The spread of online harassment has been described as “shocking” by Justice Corbett. Approximately 31% of Canadian social media users were harassed in 2016.13 Online harassment poses a double threat: it violates the legal rights of its victims and has a significant impact on mental health .14
While the need to address the phenomenon was clear, Justice Corbett identified a potential obstacle: the Appeals Court for Ontario’s 2019 Merrifield Ruling v Canada (Attorney General) .15 The Merrifield court refused to recognize a tort of harassment. It considered the illicit act of deliberately causing mental suffering to be a sufficient means. However, the appeals court left an opening:
“While we do not rule out the development of a properly designed tort that could be used in appropriate contexts, we conclude that Merrifield has not presented any compelling reason to recognize a new tort of harassment in this instance.” 16 [Emphasis added.]
This is the “appropriate context,” said Justice Corbett. The intention to inform Ms. Atas’ conduct went beyond the mere murder of her targets. She wanted to “molest, molest, and molest” both the primary victims and their caring victims in order to cause further fear, apprehension and misery.17 The illicit act of defamation was inappropriate here. Nor was it the illicit act of causing mental suffering. The latter would have required the plaintiffs to have suffered visible and detectable diseases as a result of Ms. Atas’ behavior. The Court had not received any evidence of such damage. 18
In the particular circumstances of the present case, something new was required: the illicit act of harassment in Internet communications. Justice Corbett accepted the plaintiffs’ proposal to take the test for this tort from American case law and identified these three elements:
- the accused who engages in malicious or reckless communication behavior that is so outrageous in character, duration and extreme extent that it goes beyond all possible limits of decency and tolerance;
- The communication behavior was conducted with the intention of causing fear, anxiety, emotional upset, or to question the plaintiff’s dignity. and
- The claimant suffered such damage as the defendant intended. 19
The resulting agent
Given Ms. Atas’ bankruptcy, compensation would not have been an appropriate remedy. Instead, Justice Corbett focused on restricting Ms. Atas’ ability to repeatedly harass the plaintiffs. First, he issued an injunction to Ms. Atas, which prohibited her from using the Internet to carry out attacks against the targets themselves, their families, business partners and other victims. However, he did not go so far as to order Ms. Atas entirely from the Internet
Rather than instructing Ms. Atas to remove her objectionable content from the Internet – an empirical exercise in vain given Ms. Atas’ ungovernability – Justice Corbett ordered that the title of the postings be transferred to the plaintiffs, with additional orders allowing them to do so Have the content removed. This means would eliminate the need for further contact between the plaintiffs and Ms. Atas, thereby helping to end the overall conflict
Justice Corbett’s order was broad enough to allow relatives, but not non-parties, to enforce it and prevent future harassment by Ms. Atas.22 Although plaintiffs requested an apology from Ms. Atas, Justice Corbett stated that it was not the case would be appropriate in this case. 23
Caplan v. Atas offers complexity of facts and laws that cannot be summarized easily. It is a remarkable exercise in terms of legal compassion, analysis, boldness, and spirited creativity. Justice Corbett’s recognition of the illicit act of harassment in internet communications is based, in our opinion, on fact and law. Applicable law did not provide plaintiffs with sufficient recourse. Circumstances called for a new remedy in the context of modern society.24 Justice Corbett responded admirably to the cry. We believe that every appeal test will and should come to the same conclusion.
1 2017 SCC 34 (CanLII),  1 SCR 824.
2 2017 SCC 33 (CanLII),  1 SCR 751.
3 2020 SCC 16 (CanLII).
4 https://www.nytimes.com/2021/01/30/technology/change-my-google-results.html, accessed on February 4, 2021.
5 Caplan v. Atas, 2021 ONSC 670 para. 22.
6 Ibid. 3.
7 Ibid. 2.
8 Ibid. 3.
9 Ibid. 92.
10 Ibid. 97.
11 Ibid. 99
12 Ibid. 104.
13 Ibid. 163.
15 2019 ONCA 205.
16 Ibid. 53.
17 Up, para. 168.
18 Ibid. Paragraphs 169-70.
19 Ibid. 171.
20 Ibid. 220.
21 Ibid. 228
22 Ibid. 241.
23 Ibid. 227.
24 Ibid. 174.
The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.