In Caplan v. Atas, 2021 ONSC 670 the Ontario Superior Court has recognized a new tort of internet harassment or “harassment in internet communications” to be precise. Notably, there is no tort – meaning you cannot sue someone – for just plain old harassment.
The facts of the Caplan case giving rise to this new tort involved some extreme, wide-reaching and long-lived behaviour on the part of the defendant, Ms. Atas. The case involved multiple plaintiffs, all of who had been victims of Ms. Atas’ online harassment campaigns. A family member of one plaintiff found “80,000 unique search results attributable to Atas, related to some 3,747 online posts, on 77 different web sites, directed against 150 different victims.”
Despite orders from the police, an injunction and even spending 77 days in jail, Ms. Atas persisted in her campaigns.
In rationalizing the need for this new tort, the court noted that existing legal mechanisms intended to stop Ms. Atas were not working. Just one example, Ms. Atas made 1,072 posts following a court order that she not make any further posts. Ms. Atas’ behaviour fell into a crack between civil and criminal law.
Elements of the New Tort
The court followed American law, in setting out the elements of the new tort. In order for the tort of harassment in internet communications to be made the following elements must exist:
- 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.
Ms. Atas was insolvent, so a monetary award would not have been recoverable by the plaintiffs. While they had certainly suffered harm, their main concern was finding some way to get Ms. Atas to stop her harassment campaign.
The court fashioned the following unique remedy:
- The court granted a permanent injunction against Ms. Atas, prohibiting her from using the Internet to carry out attacks against the plaintiffs, their “families and related persons, and business associates.” Providing this protection beyond just the plaintiffs is unusual but a direct response to Ms. Atas’ very wide ranging harassment.
- Title of the offensive posts would vest in the victims – which would allow them to remove false posts. The defendant certainly was not going to remove the posts herself, even had she been ordered to do so.
Notably, the court did not restrict Ms. Atas from using the internet at all.
While hopefully a case like the one described above is rare, it may be helpful for employers to know that they are not without recourse where a former employee goes rogue and traditional actions in defamation, intentional infliction of mental harm or breach of privacy are inadequate.