Month: February 2021

The value of freedom of speech, and the need for some limits on that freedom, have long been recognised as central to a vibrant and healthy democracy and, frankly, a decent society.

The internet has cast that balance in disarray.[1]

In a ground-breaking decision, the Superior Court of Justice has  just recognized the tort of internet harassment as a response to a defendant’s  “campaigns of malicious harassment and defamation carried out unchecked for many years”.[2]

The facts are astonishing.    The defendant, who had at one point worked for a real estate agency, waged an unrestrained campaign against individuals whom she perceived had wronged her, their relatives and associates.[3]  The court’s decision says that, among other things, she did the following:

·         posted altered newspaper articles and other content to the internet describing the brother of one of the lawyers in the case, a respected cardiologist living outside Ontario, as a pedophile and child pornographer;[4]

·         initiated a campaign against two sons-in-law of the same lawyer;[5]

·         attacked family members of another lawyer, going so far as to send defamatory email message to employees at the bank at which one her daughters worked;[6]

·         started posting defamatory statements about an employer who had fired her in the 1990s,[7] by first accusing him of fraud and theft, then moving to claims that he was a pedophile;[8]

·         sent an email message, which was falsified to make it appear that it came from someone who turns out to be a judge in West Virginia, to members of a club to which the employer and his sons belonged, accusing them of being pedophiles;[9]

·         attacked lawyers who had acted in mortgage proceedings against her, claiming that they were guilty of mortgage fraud;[10]

·         launched attacks which moved “from professional misconduct to allegations of sexual criminality, most frequently pedophilia or sexual predation”;[11]

·         *provoked more than 40 in addition to a number of administrative proceedings;[12]

·         sought to have 26 judges removed from hearing matters involving her;[13]

·         engaged the “litigation process to prolong conflict through endless procedural techniques”;[14]

·         appears to have had someone in northern Ontario post material,[15] presumably to throw investigators off the scent;

·         spent 74 days in custody for contempt of court;[16] and

·         found to be a vexatious litigant.[17]

The court found that the defendant had defamed the plaintiffs and described her conduct in the following terms:

. . . [her] online conduct and publications seek not so much to defame the victims but to harass them. Put another way, 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 person they care about, so as cause fear, anxiety and misery.

Observing that the “prevalence of online harassment is shocking”,[18] the law had failed effectively to respond to the defendant’s actions,[19] there are “few practical remedies available for the victims”,[20] and that courts in the United States had recognized the tort of harassment,[21] the court arrived at the conclusion that the tort of internet harassment should exist in the law of Ontario and that it should apply to the case before it. The relevant test for it, which is described as “stringent”,[22] is set out as follows:

·         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; and

·         the plaintiff suffers harm.

The decision raises a number of questions:  How are damages to be quantified?   Will the new tort of internet harassment withstand appellate scrutiny, particularly in light of the Court of Appeal’s recent rejection of an award of damages for the tort of harassment?[23] What does the first branch of the test – which would appear to require malicious, outrageous and extreme conduct – really mean?

Cyber-harassment can ruin businesses, reputations and lives.  Social media platforms, courts and legislatures need to develop policies and tools to stop it and to protect innocent victims.  The new tort of internet harassment, as it develops, might be one tool, hopefully of many, to help bring the harassment to an end.