In Caplan / Atas, 2021 ONSC 670, the Supreme Court recently recognized a new unlawful act of internet harassment. The court’s decision comes shortly after the Ontario Court of Appeal refused to recognize a common law tort of harassment in another case. However, given the prevalence of online harassment, we found that the existing collection of potentially available criminal offenses did not adequately reflect the clear and malicious intent of the perpetrators or did not respond to the harm done to their victims.
In particular, the Court found that the perpetrator’s goal in this case went beyond harming the reputation of her victims and instead focused on creating fear, anxiety and misery by repeating and serializing defamatory material online. The perpetrator was also virtually immune to normal civilian deterrent mechanisms. She persisted in her best efforts in the face of court orders, jail terms for contempt, and substantial adverse costs that made her practically judgmental.
In recognizing the novel tort, the Court acknowledged that while freedom of expression and the law of defamation have historically been balanced, the internet has upset that balance. Accordingly, the Court recognized the new tort as a proposed solution to address the narrow circumstance in which an indeterminate person behind a computer practically impervious to traditional civil law recourse is engaged in hateful and defamatory online harassment.
The decision of the court dealt with four separate claims against the accused, which were brought by different groups of victims. In the court’s ruling, three of the actions were summarily judged in favor of the plaintiffs and the fourth was by default judgment in favor of the plaintiffs.
The defendant’s behavior was extreme. Over a period of more than fifteen years, the defendant Atas carried out a systematic campaign against up to 150 victims in order to respond to perceived grievances. Atas’ complaints arose from a number of unrelated events, including: (1) termination of employment for cause; (2) multiple mortgage enforcement proceedings against you; and (3) a motion to list her as an annoying trial attorney.
In her harassment campaigns, she targeted not only those directly involved in the underlying complaints, but also their family members, lawyers, agents, employees and an increasing number of relatives. Atas targeted its victims through thousands of anonymous and pseudonymous Internet posts in which false criticism was made of the plaintiffs and other related persons. While the false allegations varied among the victims of Atas, they included allegations of fraud, dishonesty, incompetence, unethical behavior and, in some cases, prostitution, sexual robbery and pedophilia. She posted on various websites that have no control over the content and in some cases included photos of the target people she found online.
Importantly, the court struggled to find a way to curb the abusive behavior of Atas. She continued to write about the plaintiffs even after being ordered to do so by court orders, including throughout the proceedings. Atas remained undeterred, despite being charged with contempt and imprisoned for 74 days. Marked as an annoying trial attorney, her own reputation had been tarnished by public court decisions, and she received over $ 250,000 in adverse costs. In addition, on the eve of the filings, Atas filed for bankruptcy, which the court deemed tactical to thwart plaintiffs’ requests for monetary relief.
The court found that Atas’ behavior was not properly captured by existing criminal offenses
Prior to recognizing the new tort, the Court specifically recognized that the appeals court recently overturned another attempt to recognize harassment under common law. Specifically, in Merrifield v. Canada (Attorney General), ONCA 205, 2019, the appeals court denied it, also because there were other applicable pleas that were applicable to the conduct alleged in this case. Regardless of the rejection, the appellate court left open the possibility of recognizing harassment in other suitable contexts.
In the Atas case, the Court examined the nature of (1) defamation; (2) intentional infliction of mental suffering; and (3) solitary confinement as potentially applicable and determined that no one has adequately grasped the essence of Atas’ behavior.
(1) defamation: While the Court found that Atas was responsible for defamation, it found that traditional recourse to defamation was insufficient to end the conduct or to control the offender’s future conduct. In this regard, the Court found that Atas intended not only to defame the plaintiffs, but to harass them. Indeed, it seemed to the Tribunal that Atas was pleased with the ongoing conflict.
(2) Deliberate infliction of mental suffering: The Court found that the illicit act of deliberately inflicting psychological distress was a different circumstance than the bar case. The elements of that illicit act required the plaintiff to provide evidence of a visible and demonstrable illness resulting from the defendant’s conduct . The Court found that plaintiffs should be able to put an end to persistent and repetitive online harassment before such damage sets in.
(3) Entering seclusion: The court found that the previously recognized tort of seclusion does not affect Atas ‘behavior in this case as it did not invade plaintiffs’ privacy. Instead, she tried to harm her victims by posting false statements about them online.
The new ordeal of internet harassment
Given the court’s finding that the existing acts did not directly affect Atas’ behavior or had failed to remedy the harm suffered by their victims, it recognized the new illicit act of Internet Harassment.
The Court of Justice has adopted the legal test for harassment in Internet communications from American case law. To establish liability, a plaintiff must demonstrate the following:
(1) the accused engages in malicious or reckless communication behavior that is so outrageous in character, duration and extreme extent that it transcends all possible limits of decency and tolerance;
(2) the defendant intends to cause fear, concern, emotional upset, or to question the claimant’s dignity; and
(3) The plaintiff suffers such damage.
The court found that Atas’ behavior passed this test. However, we cautioned that this is a “rigorous” test, suggesting that narrow application is intended. In particular, the Court took care to distinguish Atas’ behavior from other online behavior that was merely intended to annoy another person. Rather, only the most serious and persistent harassing behavior will rise to the level necessary to establish liability.
Scope of Appeal
As noted above, Atas filed for bankruptcy the night before the filings, and plaintiffs subsequently abandoned their financial claims so the filing could proceed as planned. Accordingly, plaintiffs sought a permanent injunction preventing Atas from posting about them on the internet, a public apology, and the removal of the offending posts from the internet.
The Tribunal readily granted the standing order. In that regard, it found that: (1) Atas was likely to continue posting defamatory statements, and (2) there was no way plaintiffs could obtain compensation from her. For this reason, the court has permanently prohibited Atas from distributing, publishing, communicating or posting on the internet in any way the plaintiffs together with their family members, related persons and business partners.
The Court declined to order Atas to excuse or remove the offending passages, including because of practical challenges in enforcing such an order. Instead, the court has transferred ownership to the entities in the plaintiffs, advising that additional orders would be required in order for them to take steps to remove the contents.
Importance of the decision
The Atas case is another example of courts finding it difficult to apply traditional principles of law to abuses occurring online. In such cases, the courts appear increasingly willing to develop new pleas to censure wrongdoing when traditional pleas either do not exist or cannot deter such conduct.
Given the proximity to the Merrifield Court of Appeal decision, it will be interesting to see if the decision stands up on appeal. It is important to note, however, that because of her designation as an annoying trial attorney, Atas needs permission to appeal the decision. Even after the decision is made, it is uncertain how broad and under what circumstances the courts will be ready to find defendants responsible for online harassment. It is likely that courts will only use the new tort if defendants have committed similar levels of persistent malicious behavior and are not deterred by traditional civil recourse.