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.
[1] Caplan v. Atas, 2021 ONSC 670
[hereinafter Caplan] at paras 4-5. The decision can be found here.
[2] Ibid., at para.1
[3] Ibid. at paras. 1 – 3.
[4] Ibid. at para. 36.
[5] Ibid. at para. 37.
[6] Ibid. at 38.
[7] As well
as other parties: Ibid. at para. 62.
[8] Ibid. at para. 62.
[9] Ibid. at para. 63.
[10] Ibid. at para. 32.
[11] Ibid. at para. 34.
[12] Peoples Trust Company v. Atas, 2018 ONSC
58 [hereinafter Peoples Trust] at
para. 21.
[13] Ibid. at para. 23.
[14] Caplan, supra note 1 at para. 86.
[15] Ibid. at paras 131 and following.
[16] Ibid. at para. 93.
[17] Peoples Trust, supra note 12; Caplan, supra note 1 at para 45 and
following.
[18] Caplan, supra note 1 at par. 163.
[19] Ibid., at para. 93.
[20] Ibid., at para. 99.
[21] Ibid., at para. 166.
[22] Ibid. at para. 171.
[23] Merrifield v.
Canada (Attorney General), 2019 ONCA 205.
