The Ontario Superior Court of Justice recently recognized a new tort of online harassment in Caplan v Atas.[1] This is a bold move, considering that this decision was released just two years after the Ontario Court of Appeal declined to recognize the tort of harassment in Merrifield v Canada (Attorney General).[2]
The Court of Appeal had declined to recognize the tort of online harassment because, in part, other torts sufficiently addressed the wrongdoing alleged, such as intentional infliction of mental suffering. Defamation is another common claim in cases of online harassment.
Yet the context in Caplan v Atas was different from what was before the Court of Appeal, and compelled the Ontario Superior Court of Justice to take a different view. The claim in Caplan v Atas arose from, “extraordinary campaigns of malicious harassment and defamation carried out unchecked, for many years, as unlawful acts of reprisal”. Ms. Atas, the defendant, had executed her online harassment anonymously or using a pseudonym to disseminate false and malicious statements directed at up to 150 people, going unchecked for years. Her allegations included a range of conduct, such as professional incompetence, fraud and pedophilia. Ms. Atas further broadened her attacks to include spouses, siblings and children of her targeted victims.
The Court recognized that “while online harassment and hateful speech is a significant problem, there are few practical remedies available for the victims.” Here, a key issue was how to get Ms. Atas to stop her behaviour, since she was not in a position to pay monetary damages for her wrongful conduct. Justice Corbett concluded that Ms. Atas’ conduct illustrated some of the “inadequacies in current legal response to internet defamation and harassment” and found that the “the law needs better tools, greater inter-jurisdictional cooperation, and greater regulation of the electronic “marketplace” of “ideas” in a world with near universal access to the means of mass communication.”
Justice Corbett further justified the Court’s conclusion by illustrating the seriousness of the problem of online harassment and the real harm it causes the victims. Justice Corbett cited social research that found about 31% of social media users in Canada were harassed and that the “unstoppable intrusion” of online harassment is an epidemic.
In recognizing the new tort of online harassment, the Court set out the legal criteria as follows: “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, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm”. The Court further emphasized that this tort captures only, “the most serious and persistent of harassing conduct that rises to a level where the law should respond to it”. In other words, not every moment of bad behaviour online will attract legal recourse.
So far the Caplan v Atas decision has been acknowledged by courts in Alberta and British Columbia, but not in Saskatchewan. Regardless, this case lays the ground work for advancing this area of the law in any province.
In Saskatchewan, defamation and intentional infliction of mental suffering and the less common tort of intimidation are well established legal frameworks that continue to address many situations that involve internet based and online wrongful conduct.
Also, Saskatchewan’s Privacy Act establishes the statutory tort of non-consensual distribution of intimate images. Under this legislation, it is unlawful to share intimate images, including photographs or videos, of a person who has a reasonable expectation of privacy in those images with other individuals, without that person’s consent.
The bottom line is that no one should have to tolerate prolonged or defamatory online harassment. The law in this area is evolving and there are legal remedies available to deal with it, including entitlement to monetary damages.
[1] 2021 ONSC 670.
[2] 2019 ONCA 205.
