Innocent online connection turned into a nightmare of cyber stalking and online harassment?
Has online harassment seeped into your personal life and affected your mental well-being? Caplan v. Atas, 2021 ONSC 670 is a must-read decision that offers a significant development in cyber law.
In his decision, Justice Corbett highlights the longstanding principles of freedom of speech and defamation law, which have evolved to balance the importance of preserving open public discourse, searching for truth, protecting personal reputations, promoting democratic debate, and enforcing accountability for statements. However, he observes that the advent of the internet has disrupted this balance.
Background:
“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.” (para 2)
The defendant exhibited a pattern of cyber-stalking behavior, demonstrating increasing sophistication and cunning over time. She strategically prolonged the legal process, evading justice. When directed by law enforcement to cease defamatory actions against an individual, she resorted to indirectly harming them by launching malicious attacks on their family members and friends, going as far as denigrating a victim's deceased spouse. To circumvent a court-issued injunction, she enlisted a third party to disseminate her vicious falsehoods, allowing her harassment campaign to persist while technically complying with the court order.
Why was the tort of intentional infliction of harm considered to be inadequate here? The current test for the tort demands that the plaintiff demonstrate the defendant’s conduct as flagrant, outrageous, and deliberately aimed at causing harm, ultimately resulting in visible and provable illness. However, Justice Corbett recognized the undue burden placed on the plaintiffs, as they should not be compelled to establish “visible and provable illness” before seeking an end to the defendant’s harassing behaviour.
Justice Corbett concluded that the existing remedies available under defamation law were inadequate in curbing or preventing the defendant’s relentless harassment. In response to the specific nature of the harassment presented in this case, there arose a need to acknowledge a fresh common law tort specifically tailored to internet harassment.
Before hastily labelling all behavior, even those perceived to be bothersome and vexxing, as harassment, it is important to note that the Court established a rigourous test, comprising three essential elements:
(1) The defendant engaged in communications conduct that was malicious or reckless, characterized by its outrageous nature, prolonged duration, and extreme degree, so as to go beyond all reasonable bounds of decency and tolerance.
(2) The defendant had the specific intent to cause fear, anxiety, emotional distress, or to undermine the plaintiff’s dignity.
(3) As a direct consequence of the defendant’s actions, the plaintiff suffered harm.
If you are experiencing online harassment, it is highly advisable to seek advice from a lawyer in your jurisdiction. The information provided in these blogs are for general informational purposes only and should not be considered as legal advice or a substitute for professional legal counsel.Any reliance on the information in this post is at your own risk. The author, as a lawyer, is not responsible for any actions or decisions taken based on the information provided.
