Caplan v. Atas  – the New Tort of Harassment in Internet Communications

Published on: February 2021 | What's Trending

Female hands in handcuffs with laptop

This decision was just rendered at the end of January 2021 after argument in 2019 on motions for summary judgment and related relief in four actions involving the same Defendant. In addition to addressing the chronology of the various claims being advanced as against the Defendant, Corbett J wanted to review the landscape across North America and Europe, before recognizing this new tort – Harassment in internet communications.

The Defendant was using 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.

The following was concluded about the Defendant’s postings:

  • (a) that the impugned publications were published on the internet;
  • (b) that the publications are defamatory;
  • (c) that the publications are intended to harass the people against whom they are targeted; and
  • (d) that the publications are part of long-term campaigns to harass and defame the people against whom they are targeted.

As the Defendant is insolvent, financial compensation was a not a possibility. The Defendant had a long history of ignoring past court orders and injunctions. She had already served 74 days in jail for contempt of court.

Therefore, the end goal needed to focus on specific deterrence and prevention.

Corbett J states

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 Court undertook an extensive review of slander and libel law in the interne age. It was concluded that the tort of infliction of mental suffering was inadequate to address this set of circumstances. The Court found that the Defendant’s postings were aimed not so much at defaming the intended targets, but rather to harass them, to cause anxiety and upset. Furthermore, the test required to establish the invasion of privacy by the Plaintiffs was not met.

However, in terms of establishing this new tort, the plaintiffs proposed, drawn from American case law, the following test for the tort of harassment in internet communications:

…where 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.

The Court found that the facts of the case before it, met this stringent test. While this case was transpiring, the Court of Appeal declined to recognize the common law tort of harassment in the employment context. The Court of Appeal concluded that the tort of intentional infliction of mental suffering was sufficient remedy. Furthermore, the Court of Appeal did not find that there was any foreign judicial authority or academic authority. What distinguishes the case at hand is that there is judicial authority and statutes enacted both in England and in other provinces which provide more support to the creation of the tort of harassment in internet communications.

Due to the impecuniosity of the Defendant, an undischarged bankrupt, there could be no discussion regarding the damages that could result from this tort although the Court did provide some guidance on other non-financial remedies including broad orders requiring the Defendant to leave the Plaintiffs and their families alone.

The decision documents the extensive level of harassment wielded by the Defendant. It will be interesting to see how this Tort will be applied to other types of online harassment and what damages will arise, when the harasser is not insolvent. Corbett J. has provided extensive analysis to ensure that this new tort is not set aside by the Court of Appeal.