“Beyond All Possible Bounds of Decency and Tolerance”: a New Tort of Internet Harassment

In a recent case (Caplan v Atas, 2021 ONSC 670), the Ontario Superior Court recognized a new civil cause of action for “internet harassment.”

The Takeaways

• This new tort did not previously exist in Canadian Law.
• Although interesting and novel, for now, the tort of “internet harassment” applies only in Ontario. Time (and more court decisions) will tell if other provinces will follow suit.
• The finding, in this case, was made in a unique (and extreme) set of circumstances following a remarkable online harassment campaign by the defendant, in which the existing legal principles of defamation and “intentional infliction of mental suffering” were deemed inadequate to address the defendant’s conduct.

Background

Ms. Atas was a real estate agent in the 1990s. After being dismissed from her job and losing two income properties in foreclosure proceedings, she began a years-long, obsessive quest to take revenge on those who she believed had wronged her. Her chosen tool was online harassment and defamation, and her victims were many.

She began by targeting her former employers, lawyers involved in the foreclosure, and others who she bore grudges against, but went on to target their family members and business associates. In many cases, Ms. Atas’s victims had never heard of her or interacted with her in any way, and were shocked to discover her online postings falsely accusing them of various heinous deeds, from professional dishonesty to sexual crimes against children.

The court made various orders against Ms. Atas to stop her online defamation, but she ignored them – even time in jail for contempt of court did not deter her. Furthermore, she was bankrupt and destitute, meaning that her victims could not recover any monetary damages from her.

Internet Harassment

In these circumstances, the Ontario Superior Court found that the existing legal mechanisms did not offer an adequate remedy to address Ms. Atas’s conduct.

While she was clearly liable for defamation,

1. she did not have the money to pay damages for defamation, and
2. she also engaged in many online attacks that did not meet the criteria for defamation: rather than lowering the victims’ reputations, these attacks were aimed at harassing the victims in other ways.

Additionally, Ms. Atas’s attacks were directed not only at the people who were suing her but their relatives and associates as well. Generally, it is difficult for a person to get a remedy in court for actions done to others who are not party to the court action.

Finally, while these attacks were certainly intended to cause mental suffering, they did not meet the criteria for the existing tort of “intentional infliction of mental suffering” – to establish this tort, it must be shown that the actions actually resulted in “visible and provable illness,” which was not proven in this case.

In response to these difficulties, the court recognized a new tort of “harassment in internet communications.” There is a very high bar to clear before the court will make such a finding: it is only available where 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 such harm.”

Remedies

After finding Ms. Atas liable for harassment in internet communications, the court granted certain unique remedies that would not normally have been available in a standard defamation case. These included:

• An order banning Ms. Atas from making any online publications about the plaintiffs, as well as their families, relatives and business associates;
• An order granting the plaintiffs legal title to Ms. Atas’s online posts, and giving them the ability to have these posts taken down.

The hope was that these unique remedies would be effective in putting an end to Ms. Atas’s conduct and giving respite to the victims.

Questions

The decision in Caplan v Atas is a recent one and currently applies only in Ontario. It remains to be seen whether courts in other Canadian jurisdictions will follow suit and recognize a tort of internet harassment; or whether courts may one day recognize a tort of harassment that is not limited to internet communications. Should such torts ever be recognized, they will likely only be available in exceptional circumstances, where the defendant’s behaviour exceeds all bounds of decency and tolerance.

This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.