“The value of freedom of expression and the need for some restrictions on that freedom have long been considered central to a vibrant and healthy democracy and, frankly, to any decent society (…) The Internet has upset that balance.” . “
And with that said, Ontario Superior Court Judge David Corbett set the stage to create a new tort to address “inadequacies in the current legal responses to libel and harassment on the Internet.”
Lawyers agree that this sets an interesting precedent, but many wonder if it was necessary.
“If you look at the funds ordered, they could all have been ordered under defamation,” says Hilary Young, a law professor at the University of New Brunswick. “This is the area where the legislation is best suited.”
The verdict in Caplan versus Atas is the culmination of nearly two decades of online harassment and ongoing litigation between a self-represented defendant and attorney and their families who she believes have wronged.
The court found that the relentless nature of this particular harassment in this case does not necessarily fit into the established offenses of libel, harassment, or seclusion.
On the one hand, the penniless and incapable of damages, the defendant was confident of judgment and had shown no willingness to obey court orders. She had already spent 74 days in jail for disobeying the court for defying procedural orders.
Asher Honickman, founding partner at Jordan Honickman Barristers and co-founder of both the Advocates for the Rule of Law and the Runnymede Society, says the ruling is a positive example of how common law can gradually and carefully evolve to keep up with Changes in society.
“This new illicit act takes the focus off the suffering and puts it more on the behavior,” says Honickman, who was not involved in the case. “It has to be so extreme that it exceeds all limits of propriety and tolerance. That is the difference between harassment now and the old crime of deliberately inflicting emotional stress in order to cause psychological stress. You really need this serial stalker pattern. “
According to Honickman, the new online harassment crime act has a high threshold. It is therefore unlikely that the floodgates will be opened for new litigation. It was drafted so narrowly that the behavior complained of must be egregious and should therefore be strictly applied.
Omar Ha-Redeye of Toronto’s Fleet Street Law also admits that the new tort is a response to the failure of existing laws to provide adequate protection for this type of harm. However, he has reservations about the verdict, beginning with the judge’s presumption that the defendant has an undiagnosed mental illness.
“I don’t think there’s a need to comment on her mental health and steer it in a direction it didn’t need to go,” says Ha-Redeye. “Other than that, the behavior here is exaggerated, but it is the behavior and behavior that stems from the fact that this person himself has been involved in extensive legal disputes for many years and has targeted lawyers.”
The way the judicial system has treated the defendant over the years and contributed to their mental health could be a factor, Ha-Redeye adds. He doubts that the illicit act will have the deterrent effect it wants.
“This illicit act, which comes up in this particular context, does not really focus on where we see the greatest weaknesses in society and the greatest harm in terms of internet harassment,” says Ha-Redeye.
Ha-Redeye also questions whether the court really could not apply the existing instruments, for example under the Defamation Act, to the case. He also believes the new tort is under review as part of anti-SLAPP filings, which could limit it.
According to Devan Marr, an attorney at Strigberger Brown Armstrong LLP in Toronto, the challenge will be how to use the test in the future.
“It seems to fill the gap between defamation and seclusion,” Marr says of the invasion of privacy. “It deals with communication behavior on the Internet … For example, doxing someone cannot be viewed as defamatory, and breaking into seclusion may depend on where they got the information from.”
But it will be difficult to pass an objective test of situations that are “outside of all reasonable limits of propriety and tolerance” and that go beyond the established tests for “highly offensive”.
Young, who says she has long wondered how to deal with these online harassment-related issues, shares a similar view. “A judge will not make a common law rule on very extreme facts in the same way that a legislator who ponders the subject would legislate on it,” she says. “It’s not that you should wait forever and stop developing common law, but there are consequences.”
The question is whether the high detection threshold for the illegal act will ultimately be lowered.
The remedies developed in the context of the judgment are also interesting. Since the defendant is believed to be safe to say, Judge Corbett has imposed permanent injunction. The court also transfers ownership of the disputed postings to plaintiffs and issues orders so that they can take steps to remove the content. It’s a creative remedy, says Young. “I don’t know if this is even owned, so there are some questions,” she adds. “The title of ownership could have more far-reaching consequences.”
Plaintiffs had requested that the court appoint an amicus curiae or independent regulatory attorney to ensure that the offensive statements are removed, which Marr says is unique. However, it is unclear whether courts will emulate this in future cases or instead award damages.
“It is not uncommon for supervisory lawyers to ensure the activities (carried out), as in the case of an injunction from Anton Piller,” says Marr. “So I wonder if we’ll see that in cases like this to deal with service providers and clean up the internet.”
Dale Smith is an employee based in Ottawa.