“The value of freedom of expression and the need for some restrictions on that freedom have long been recognized as central to a living and healthy democracy and, frankly, to any decent society. (…) The Internet has upset that balance.”
With that said, Ontario Supreme Court Justice David Corbett set the stage to create a new tort to address “Deficiencies in the Current Legal Responses to Internet Defamation and Harassment.”
Lawyers agree that this is an interesting precedent, but many wonder if it was necessary.
“If you look at the funds ordered, they could all have been ordered under slander,” says Hilary Young, a law professor at the University of New Brunswick. “This is where the legislation could be best.”
The verdict in Caplan v. Atas is the culmination of nearly two decades of online harassment and ongoing legal battles between a self-represented defendant and attorney and their families who she believes have wronged.
The court ruled that the relentless nature of this particular harassment in this case did not necessarily match the established modes of defamation, harassment, or seclusion intrusion.
For one thing, the accused – penniless and unable to pay damages – was confident of judgment and had shown no willingness to obey court orders. She had already spent 74 days in prison for despising the court for disregarding procedural orders.
Asher Honickman, founding partner of Jordan Honickman Barristers and co-founder of Rule of Law Lawyers and the Runnymede Society, says the ruling is a positive example of how common law can gradually and prudently evolve to keep pace with changes in society.
“This new illicit act turns the focus away from suffering and puts it more on behavior,” says Honickman, who was not involved in the case. “It has to be extreme enough to go beyond any limits of propriety and tolerance. That is the difference between harassment now and the old illicit act of intentionally causing mental distress. You don’t need just one case where someone intends to need you this serial stalker pattern really. “
According to Honickman, the new online harassment has a high threshold. It is therefore unlikely that the floodgates will be opened for new litigation. It was made so narrow 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 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 assumption that the defendant has an undiagnosed mental illness.
“I don’t think there’s a need to comment on their sanity and steer it in a direction it didn’t need to go,” says Ha-Redeye. “That being said, the behavior here is exaggerated, but it is behavior and behavior that stems from the fact that this person himself has been involved in extensive legal disputes for several years and is directed against 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 occurs in this particular context, doesn’t really focus on where we see the greatest weaknesses in society and the greatest harm associated with online harassment,” says Ha-Redeye.
Ha-Redeye also asks whether the court was really unable to apply existing instruments, for example under the Defamation Act, to the case. He also believes the new illicit act is under scrutiny in anti-SLAPP filings that may 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 bridge the gap between defamation and seclusion,” says Marr of the invasion of privacy. “It’s about communication behavior on the Internet … For example, doxing people cannot be viewed as defamatory, and breaking into seclusion can depend on where they got the information from.”
However, it will be difficult to pass an objective test of situations “beyond any reasonable limits of propriety and tolerance” and beyond established tests for “highly offensive”.
Young, who says she long wondered how to deal with these online harassment-related issues, takes a similar view. “A judge will not make a common law rule based on extreme facts in the same way that a legislator who ponders the subject more broadly 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 threshold for demonstrating the illegal act will be lowered at some point.
The resources developed in the context of the judgment are also interesting. Because the defendant is believed to be safe, Judge Corbett imposed a permanent disposal. The court also gives plaintiffs the title in the offending postings and prepares orders so they can take steps to remove the content. It’s a creative tool, says Young. “I don’t know if this is owned at all so there are some questions there,” she adds. “Vesting titles could have 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 repeat it or award damages instead in future cases.
“It is not uncommon for lawyers to be supervised to ensure that certain activities (such as an Anton Piller injunction) are being carried out,” 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.