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Ontario Acknowledges The Tort Of On-line Harassment – Litigation, Mediation & Arbitration

In Caplan v. Atas1, the Superior Court of
Justice recognized a new common law tort of online harassment. This
case reflects a departure from a recent decision of the Court of
Appeal for Ontario which overturned the recognition of a common law
tort of harassment2.

What you need to know

  • The defendant in this case had engaged in a long history of
    abuse and harassment over the internet. The court concluded that
    the available remedies available to the plaintiffs were inadequate
    and recognized the new tort of “harassment in internet
    communications”.
  • The test for the new tort is stringent. A plaintiff must show
    that that they suffered harm and that 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”3.
  • The decision represents a further step in the Ontario
    courts’ response to the profound harm that can be caused when
    harmful statements are published online, where they can fester and
    victimize their targets unchecked. While the decision is based on
    extreme facts, it demonstrates the courts’ willingness to find
    a remedy in the absence of internet regulation or legislation to
    address these consequences.
  • It is possible, although not probable, that corporations could
    rely on the tort of online harassment if they have been harmed by
    similarly outrageous and extreme online attacks.

Factual background

The decision concerned four cases brought against the defendant,
Nadire Atas, who used the internet “to disseminate vicious
falsehoods against those towards whom she bears grudges, and
towards family members and associates of those against whom she
bears grudges”4. The facts in this case are
extreme. The Court spared no words, finding Atlas’ behaviour to
be “sociopathic”5. There were as many as 150
victims of her “cyber-stalking” and “systematic
campaigns of malicious falsehood to cause emotional and
psychological harm”, some of which began as offline harassment
as early as the 1990s.

Atas suffered consequences as a result of her conduct, and the
prolonged litigation she had created: she was declared a vexatious
litigant, cited for contempt of court and imprisoned for 74 days
(plus a day in custody), became insolvent, and damaged her
reputation by way of numerous decisions in the public record
regarding her conduct. Undeterred, the Court described her as
“[u]nrestrained by basic tenets of decency, when she is
enjoined from attacking named plaintiffs, she moves her focus to
their siblings, their children, their other family members and
associates, in a widening web of vexatious and harassing
behaviour”6.

The plaintiffs in three of the cases moved for summary judgment,
and in the fourth moved for default judgment. Atas did not put
forward evidence on any of the motions, despite being given ample
opportunity to do so. From the plaintiffs’
“voluminous” record, the court concluded that most of the
thousands of online posts were defamatory of the plaintiffs and
were published by Atas. A minority were merely abusive comments
which could not ground liability in defamation. The Court found
that the sites on which the posts were published “may be
viewed almost anywhere in the world by anyone with access to the
internet”.

The Court went on to recognize the tort of online harassment,
finding that the law of defamation “provides some recourse for
the targets of this kind of conduct, but that recourse is not
sufficient to bring the conduct to an end or to control the
behaviour of the wrongdoer”7. In so doing, the
Court distinguished the Court of Appeal’s decision in
Merrifield v Canada (Attorney General)8, which
we previously summarized here. Unlike in Merrifield, the Court
found there was a compelling reason to recognize the tort in this
case, which we analyze below.

Damages

  • The Court ordered a permanent injunction barring Atas from
    disseminating, publishing, distributing, communicating or posting
    on the internet by any means with respect to all plaintiffs and
    other victims of her defamation and harassment, together with their
    families and related persons, and business associates. It did not
    foreclose a complete prohibition from posting on the internet for
    this type of behaviour.
  • The Court vested title to all the postings in the plaintiffs,
    with ancillary orders enabling them to have the content removed,
    recognizing that Atas would likely prolong the conflict between the
    parties if she was ordered to remove them.
  • No financial remedy was awarded. On the eve of the motions,
    Atas made an assignment in bankruptcy. The plaintiffs elected to
    withdraw their financial claims rather than stay the
    proceedings.

The patchwork approach to address online conduct

This decision is another in a line of cases in which the Ontario
courts have grappled with applying the existing common law to the
realities of the internet9. The internet has provided a
“means of mass communication” to those who seek to spread
defamatory statements or private information about their victims
with little recourse as the law tries to keep up. The Court quoted
at length from Jane Doe 464533 v. N.D., the 2016 decision
that recognized the tort of public disclosure of private facts:

In recent years, technology has enabled predators and bullies to
victimize others by releasing their nude photos or intimate videos
without consent. We now understand the devastating harm that can
result from these acts, ranging from suicides by teenage victims to
career-ending consequences when established persons are
victimized.

The Court acknowledged that online harassing, bullying, hate
speech and cyber stalking straddle criminal and civil law, and yet
while we know they are a significant problem and cause
“devastating harm”, there are few practical remedies
available to victims of these wrongful acts. While some common law
jurisdictions have legislated to fill the remedial gap (including
England, Australia, New Zealand), Ontario has not.

In the absence of legislation and presented with facts that
“cry out for a remedy”, the Court established the tort of
online harassment. However, the Court also recognized the fine
balance between freedom of speech and the necessary limit on that
freedom—a balance that the internet has “cast […] into
disarray”10. To maintain that balance, “only
the most serious and persistent of harassing conduct” rises to
the level necessary to ground the tort11.

Where does the tort of online harassment fit?

The Court set out a “stringent” test, based in
American case law, to establish the tort of online harassment. A
plaintiff must show:

  1. the defendant maliciously or recklessly engaged in
    communications conduct so outrageous in character, duration, and
    extreme in degree, so as to go beyond all possible bounds of
    decency and tolerance;
  2. the defendant had the intent to cause fear, anxiety, emotional
    upset or to impugn the dignity of the plaintiff; and
  3. the plaintiff suffered such harm.

Faced with the Court of Appeal’s decision in
Merrifield, which did not foreclose a “properly
conceived tort or harassment that might apply in appropriate
contexts”, the decision had to provide a “compelling
reason” to recognize the tort in this case12. The
Court found that the facts of this case were “very
different” from the facts of Merrifield, and the
existing law was not sufficient to address all aspects of Atas’
wrongful conduct. The distinctions drawn from existing torts are
summarized below:

  • Defamation. While the Court found Atas liable
    for defamation, it also found that in these types of cases
    “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”13. Traditional remedies in defamation are
    not sufficient to address this type of vexatious behaviour.
  • Intentional infliction of mental suffering.
    This tort is designed to address different situations than online
    harassment. Specifically, the requirement that the defendant’s
    conduct results in visible and provable illness is too high a
    standard to apply to injury from harassment. The Court commented
    that the law would be deficient if it did not provide a remedy
    until a victim of harassment suffered visible and provable
    illness.
  • Invasion of privacy. This tort is also
    designed to address different conduct: Atas had not invaded the
    plaintiffs’ private affairs or concerns. Instead, she caused
    harm by persistently publishing falsehoods about them.

While the Court considered whether the conduct could be remedied
by the above torts, it did not have the benefit of the decision in
Yenovkian v. Gulian14 at the time of the
hearing, which recognizes the tort of false light (we summarize the
decision here). The false light tort seemingly
addresses similar conduct: it is established where a person is
portrayed publicly in a false light, the false light is highly
offensive to the reasonable person, and the defendant had knowledge
or acted in reckless disregard of the falsity. In this case, the
tort of false light would not have addressed the harassment caused
by Atas’ attacks on a plaintiff’s friends and/or family
members. However, until a decision considers the interplay between
these two torts, thought should be given to which more accurately
fits the harm a plaintiff has suffered.

Can the tort apply to corporations?

While the facts of Atas centre on individuals targeted
with harassing conduct, it is not difficult to imagine similar
conduct aimed at a corporation. A disgruntled customer may take to
online forums, review websites and social media in an attempt to
destroy a business’ reputation. An activist shareholder may
similarly spread misinformation or harmful statements with the
intention of reducing a corporation’s value. In those
circumstances, can the corporation rely on the tort of online
harassment?

To begin, it would take equally outrageous facts as in
Atas to establish the tort on behalf of a
corporation—a few bad reviews on Yelp will not be sufficient.
The conduct aside, more difficulty would arise at the second and
third stages of the test: the types of harm that must be intended
and suffered are not typical of a corporation. A successful
pleading for online harassment against a corporation will have to
analogize the specific harm suffered by the corporation, perhaps a
diminished reputation or loss of goodwill, to the harm identified
in Atas (fear, anxiety, emotional upset, and impugned
dignity). While we do not foreclose the possibility that a business
could make out a case for online harassment, it will take the right
facts and some legal creativity.

Takeaways: pleading online harassment

As is often the case with novel torts, time will tell whether
the decision in Atas stands and how widely it is applied.
As a vexatious litigant, Atas requires leave from the court to
appeal the decision. However, leave may be more likely in the face
of a new tort of harassment so soon after Merrifield. For
now, this case leaves us with the following guidance:

  • Online harassment is directed at internet communications,
    reflecting the Ontario courts’ continuing recognition of the
    distinct and severe harms caused by online abuse. The decision does
    not appear to extend to harassing behaviour that occurs
    offline—it is intended to be a “solution tailored for
    these cases”15. A more general tort of harassment
    will require further refinement of the common law, or legislative
    intervention.
  • The threshold to establish online harassment is
    “stringent”. Although the conduct giving rise to the tort
    must be extreme and outrageous, the injury need not be. While the
    Court was careful to limit the tort to the most serious examples of
    conduct, the lower threshold for injury may open the door to a
    broader range of cases.
  • The tort of online harassment captures conduct that might not
    otherwise be captured by defamation or existing privacy torts, such
    as an online posting that is abusive in nature but does not
    constitute a statement of fact that is true or untrue. In those
    cases, such publications may now be considered as part of a pattern
    of harassment.
  • In this case, Atas persisted in a consistent pattern of
    harassment against her victims which, together with extensive
    evidence from the plaintiffs, allowed the Court to conclude that
    she was behind the anonymous posts. This type of evidence may not
    always be available to a plaintiff who is victimized by an
    anonymous internet user. We will wait to see how the law develops
    to address this reality—or if it can at all, in the absence
    of regulation.
  • The Court did not foreclose the possibility of imposing a
    strict permanent injunction barring all posting on the internet,
    with few exceptions, where a defendant is demonstrably
    ungovernable. This likely represents the high-water mark. The
    decision provides no guidance on monetary damages that would
    adequately compensate the type of injuries this tort is designed to
    address.

Footnotes

1. 2021 ONSC 670

2. 2019 ONCA 205. We previously wrote about the decision
in Merrifield here.

3. Para. 171

4. Para. 1

5. Para. 3

6. Para. 2

7. Para. 104

8. 2019 ONCA 205

9. See for example Jane Doe 464533 v
N.D., 2016 ONSC 541 and Yenovkian v. Gulian, 2019
ONSC 7279.

10. Para. 5

11. Para. 174

12. Para. 164, quoting Merrifield at para.
40.

13. Para. 168

14. 2019 ONSC 7279. However, the decision in
Yenovkian was available for approximately a year while the
decision was under reserve. It is not addressed in the
reasons.

15. Para. 6

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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