In a landmark decision in Caplan v. Atas, 2021 ONSC 670 (the
Decision“), the Superior Court of
Justice recognized the common law tort of internet
harassment-proclaiming itself the first common law court outside of
the U.S. to recognize the tort.1 Justice Corbett went on to grant a
novel remedy that appears to envision transferring the
defendant’s title and ownership of the offending posts and/or
accounts to the plaintiffs for the purpose of removing the
offending content from the internet.2 In a case involving decades of
extraordinary online abuse by a uniquely recalcitrant plaintiff,
the Court was moved to recognize the new tort and grant a novel
remedy. While a very significant development in the law, the
decision poses a number of unanswered questions, including whether
the tort and remedy will survive a potential appeal.  

Facts

The Decision related to summary and default judgment motions in
four actions against the defendant, Atas, for online defamation and
harassment originating as far back as the 1990s. In each case, Atas
had launched a campaign of malicious falsehoods as retribution for
perceived grievances against the plaintiffs (as well as their
friends, family, neighbours and colleagues). Atas used the internet
to disseminate a myriad of spurious and damaging accusations,
including of negligence, fraud, and pedophilia. Atas used a number
of creative means, including posting altered newspaper articles
online, disseminating falsified emails to her victims’
employers, and distributing letters to the plaintiffs’
neighbours containing defamatory statements. Despite numerous court
orders, injunctions, and even incarceration, Atas refused to stop
her online crusade against the plaintiffs and their wider
networks.

The Case for a New Tort

Faced with these facts, Justice Corbett concluded that the torts
of defamation, intrusion upon seclusion (invasion of privacy), and
intentional infliction of mental suffering were all inadequate for
addressing all of the harms of the disturbing pattern of online
harassment.

First, though Justice Corbett did seemingly grant summary
judgment to the plaintiffs in defamation in respect of some of the
conduct, he found that the law of defamation did not adequately
address the full scope and extent of Atas’ misconduct. Justice
Corbett held that Atas did not so much seek to defame her victims
as she sought to harass them through the repeated publication of
defamatory material, causing fear and anxiety.3 Further, the
reputation-driven remedies available in the law of defamation were
ill-suited to addressing the harm in the present case.

Second, Justice Corbett found that that the tort of intrusion
upon seclusion was ill-fitting because of the requirement that the
defendant had invaded the plaintiff’s private affairs.
The conduct in this case was not well characterized as invasion of
privacy; it was persistent and deliberate publication of false
information.

Third, Justice Corbett found that the tort of intentional
infliction of mental suffering was “simply inadequate”
since the plaintiffs had not established that they suffered a
visible and provable illness, a requisite element of the tort.4 More
to the point, Justice Corbett noted the law would be
“deficient” if it required a visible and provable illness
resulting from the harassment before it could offer a remedy.

Justice Corbett held that, as in Jones v. Tsige, which
established the tort of intrusion upon seclusion, the facts of the
case “cry out for a remedy.” While noting that it
“would be better” if such a change in the law came from
the legislature rather than a trial judge, Justice Corbett
concluded that the law needed to recognize a new cause of action in
order to provide recourse for individuals who suffer harm arising
from this type of misconduct.5

The Tort of Internet Harassment

Borrowing from American common law, Justice Corbett set out the
test for the new tort of internet harassment, which requires
that:

  1. The defendant maliciously or recklessly engaged in
    communications so outrageous in character, duration and extreme in
    degree, so as to go beyond all possible bounds of decency and
    tolerance;

  2. The defendant acted with the intent to cause fear, anxiety,
    emotional upset or to impugn the dignity of the plaintiff; and

  3. The plaintiff suffered such harm.6

In setting out this test for the common law tort of internet
harassment, Justice Corbett explained that “it is only in the
most serious and persistent of harassing conduct that rises to the
level where the law should respond to it.”7 Conduct intended to
annoy another person “should be of no concern to the
law.” With that framework, given Atas’ decades long
history of online vitriol whose obvious intent was to cause the
plaintiffs’ harm, the Court found that the
“stringent” test for the tort of internet harassment had
been met in this case.

Following this decision, and until such time as legislators or
appellate courts may weigh in, courts will have to grapple with a
number of fact-specific nuances when considering the threshold of
conduct required to engage this new tort.

Further, it is unclear whether a plaintiff can be successful
where the “harm” suffered does not fit within the
categories promulgated by Justice Corbett (i.e. fear, anxiety,
emotional upset or damage to the plaintiff’s dignity).

Although Justice Corbett has set a very high bar for the
application of this new tort, some plaintiffs may seek to use it to
silence their online opponents by alleging internet harassment. It
will be interesting to follow the balance courts strike on less
extraordinary sets of facts. 

Remedies

In addition to finding a new cause of action, Justice Corbett
broke new ground by granting some unusual remedies. Although the
exact terms of the order remain to be seen, Justice Corbett’s
decision seems to order the transfer of title to the offending
postings and/or accounts of Atas, and grant additional orders as
required to enable the plaintiffs to have the content removed. The
decision also granted a broad permanent injunction, barring Atas
from any internet or other publications and postings with respect
to not only the plaintiffs, but the “other victims of her
defamation and harassment, together with their families and related
persons, and business associates.”8

Justice Corbett was evidently moved by the inadequacy of other
remedies that would have been available to the plaintiffs in the
circumstances. He recognized that the harm caused went beyond the
type of reputational injury the tort of defamation focuses on. The
Court was ostensibly driven by the distress, fear, anxiety, and
misery that was being caused by the defendant.

Justice Corbett acknowledged that, as compensation could not be
derived from the impecunious and uncooperative Atas, he was not
fashioning a remedy that was compensatory in nature. Rather, his
aims with the remedy were specific deterrence and preventing Atas
from continuing or repeating her conduct.

A remedy that depended on Atas for compliance would not suffice.
Atas had already been subject to orders for damages, injunctions,
and contempt of court (which resulted in incarceration).
Nevertheless, she was undeterred and her abuse was ongoing. Justice
Corbett noted that a remedy that would only embroil the plaintiffs
in further lengthy proceedings (e.g. for enforcement, or to seek
redress for a breach of the order) would not be satisfactory.

It is not entirely clear precisely what is being ordered with
respect to the transfer of title of the postings and/or accounts,
and how that transfer will be operationalized. The relief sought by
the plaintiffs (though they had only sought it in the alternative),
was that the “right, title, interest and ownership.in the
Offending Statements, postings, internet and email accounts”
be transferred to “amicus curiae, independent supervising
solicitor or expert so appointed by the Court in order to perform
the removal of the Offending Statements and postings.”9
However, in granting this alternative relief, Justice Corbett
described it somewhat differently: “vesting title
to the postings
in them,
with ancillary orders enabling them to take steps to have the
content removed..”10

It remains to be seen how the transfer of title relief will be
operationalized and enforced. Are title to the accounts to be
transferred, or just title to the posts? To whom are they to be
transferred: an independent designate of the Court, or the
plaintiffs? How is title transferred? It is also unclear whether
the transfer is to a Court appointee as requested by the
plaintiffs, or the plaintiffs themselves, as suggested by Justice
Corbett. The terms of the order giving effect to the judgment
should shed some light on how-and to whom-title will be
transferred.

While the transfer of title remedy will receive a lot of the
limelight, the nature and breadth of the permanent injunction
granted by Justice Corbett is also noteworthy. Recognizing that one
of the means Atas used to harass the plaintiffs was to post
slanderous material about people known to them, the Court was
driven to grant an injunction that restrained Atas’ conduct not
just vis-à-vis the plaintiffs, but also these third parties.
The Court’s reasoning for this remedy was that the conduct was
not just injuring the third parties who were the subject of
Atas’ defamatory attacks, it was injuring the plaintiffs, as
Atas had intended. Justice Corbett acknowledged he was not
“sanguine that other remedies (such as damages) would be
available for the benefit of non-parties”, but he found the
broad injunctive relief to be a “fair and measured
response.”11 Justice Corbett deliberately
left open the question of whether the injunction could be enforced
by the third parties, as opposed to just by the plaintiffs.

It remains to be seen whether the unique remedies in this case
are merely by-products of the unique facts, or whether they may
become of broader application in future cyber disputes. It is yet
to be determined whether these remedies are reserved as a
“last resort”, where damages, incarceration and other
enforcement mechanisms are not effective in curbing the impugned
conduct, as was the situation in Atas’ case, or whether they
could be available at first instance. The Court provided little
guidance on what damages or other remedies may be available in
other cases of internet harassment, and how the appropriate remedy
would be determined.

Footnotes

1. para.
166

2. As
discussed herein, the terms of the Order have not yet been settled.
Thus, the details and exact mechanisms of the remedy are somewhat
uncertain at this time.

3. para.
169.

4. paras.
169-170.

5. para.
167 (quoting Tsige).

6. para.
171.

7. para.
174.

8. Para
214(c), 220

9. Para
214(d)

10.
Para 228 (emphasis added).

11.
Para 233

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