Ontario: “Online Harassment” is a New Cause of Action in Tort
In a noteworthy ruling arising from unique facts, Ontario Courts have now formally recognized a cause of action in tort for “online harassment”.
The backdrop for this legal development was a case involving a woman named Atas. Back in the 1990s, she had been terminated from her position at a real estate brokerage. About 15 years ago, she had also received unfavourable outcomes in two mortgage enforcement proceedings. These separate incidents prompted her to embark on a decades-long campaign of harassment against about 150 parties with whom she had various perceived grievances. These included her former employer, members of the employer’s family, several law firms, lawyers, and real estate agents.
By 2010, Atas’ harassment efforts had migrated primarily to the internet: She made many postings – numbering in the thousands – that defamed many of the parties and even accused some of them of criminal behaviour such as pedophilia and other sexual misconduct. A group of Atas’ victims ultimately sued her for damages stemming from several asserted torts, including harassment in internet communications.
At the hearing, the court described Atas’ specific defamatory and harassing misconduct this way:
These cases concern extraordinary campaigns of malicious harassment and defamation carried out unchecked, for many years, as unlawful acts of reprisal. Nadire Atas, has used the internet to disseminate vicious falsehoods against those towards to whom she bears grudges, and towards family members and associates of those against whom she bears grudges. Atas is destitute and apparently content to revel in ancient grievances, delighting in legal process and unending conflict because of the misery and expense it causes for her opponents.
Cyber-stalking is the perfect pastime for Atas. She can shield her identity. She can disseminate vile messages globally, across multiple unpoliced platforms, forcing her victims to litigate in multiple jurisdictions to amass evidence to implicate her, driving their costs up and delaying the process of justice. Unrestrained by basic tenets of decency, when she is enjoined from attacking named plaintiffs, she moves her focus to their siblings, their children, their other family members and associates, in a widening web of vexatious and harassing behaviour.
At the outset, the court found Atas’ conduct had to be driven by “hatred and profound mental illness”, and that she set out to “harass, harry and molest” the objects of her posts, and to target their loved ones “so as to cause fear, anxiety and misery”. She made these posts this through websites such as Facebook, WordPress, Reddit, and Pinterest.
In this context, the court examined the law pertaining to freedom of speech and defamation, which sought to balance various principles and public policy factors. However, the court noted the internet has “cast that balance into disarray”, and stated:
Atas has engaged in a vile campaign of cyber-stalking against the plaintiffs in the four actions, the goal of which has been retribution for longstanding grievances. As argued by the plaintiffs, the conduct falls in the area where the civil and criminal law intersect. The law should respond to this conduct to compensate victims, to express the law’s disgust and firm rejection of the conduct, to punish for wrongful conduct, to deter Atas and others from this sort of conduct in future, and to bring Atas’ wrongful conduct to an end.
The law’s response, thus far, has failed to respond adequately to Atas’ conduct.
Online harassment, bullying, hate speech, and cyber stalking straddle criminal and civil law. Harmful internet communication has prompted many jurisdictions to amend or pass legislation to deal with the issue. The courts too have been challenged to recognize new torts or expand old ones to face the challenges of the internet age of communication. The academic commentators are almost universal in their noting that, while online harassment and hateful speech is a significant problem, there are few practical remedies available for the victims.
The existing remedies under the law of defamation were inadequate to stop harassing behaviour, the court concluded it was appropriate to recognize a new common law tort of online harassment in this scenario – Russell Alexander, Founder & Associate Lawyer
Seeing this void in the law, the court tailored a new legal remedy that focused specifically on internet defamation and online harassment, and could be readily applied to the specific facts involving Atas’ conduct. Noting this was a developing are of the law, and that the existing remedies under the law of defamation were inadequate to stop Atas’ harassing behaviour, the court concluded it was appropriate to recognize a new common law tort of online harassment in this scenario.
As for the elements of that tort: The court explained Atas must be shown to have “maliciously or recklessly” engaged in communications-related conduct that was so outrageous in character and duration, and was so extreme in degree, that it went “beyond all possible bounds of decency and tolerance”. It also had to be shown that Atas had the intent to cause “fear, anxiety, emotional upset or to impugn the dignity” of the victims.
These elements were amply established in Atas’ case.
Finally, this needed refinement of tort law, the court said, was required for several reasons, including the prevalence of this kind of misconduct, and the fact that it can be an unstoppable intrusion and have a devastating impact on the victim’s life.
For the full text of the decision, see:
Caplan v. Atas, 2021 ONSC 670
