Chad Sullivan and Kathleen Nash

Overview

The issue of hateful and harassing social media communication has garnered much attention in both the media and, more recently, in the courtroom. In Caplan v Atas,¹ Justice Corbett of the Ontario Superior Court has attempted to address this issue by creating a new common law “tort of internet harassment.”

Caplan comes a mere two years after the Ontario Court of Appeal declined to recognize a common law tort of harassment in Merrifield v Canada (Attorney General).² Justice Corbett distinguished the facts in Caplan from Merrifield, stating that existing torts were inadequate or inapplicable as a remedy for Ms. Atas’ conduct and finding that the creation of the tort of internet harassment was warranted in the circumstances.

Background

This case arose from the “extraordinary campaigns of malicious harassment and defamation carried out unchecked, for many years, as unlawful acts of reprisal”³ by Ms. Nadire Atas against a number of individuals and corporations.

The defendant, Nadire Atas, made use of the internet to publish thousands of postings in various forums in an effort to attack and spread falsehoods about as many as 150 people against whom she held longstanding grudges and grievances.

The public comments she made ranged from baseless allegations that plaintiffs were dishonest, incompetent, and acted in violation of professional standards, to allegations that they had committed fraud, were prostitutes, “sluts”, sexual predators, pedophiles (including, in some cases, pedophiles who take a public role in educating the public about the challenges and possibilities of persons suffering from pedophilia of rising above their desires and living constructive and law-abiding lives), and members of organizations advocating sexual exploitation of children, such as NAMBLA (“North American Man-Boy Love Association”).

The victims included adverse parties in litigation, Ms. Atas’ own lawyer, other lawyers and agents, relatives of these individuals including siblings, spouses and children, her former employer and its successor, and owners, managers and employees of this former employer.

Ms. Atas’ conduct persisted for more than 15 years, despite various court orders and interlocutory injunctions enjoining her to stop, an assignment into bankruptcy, a declaration as a vexatious litigant and 74 days’ incarceration for contempt of court.

Court’s findings

The Ontario Superior Court heard a consolidation of four proceedings against the defendant for defamation, harassment and other related claims. The Court had no trouble finding that the content allegedly posted on the internet by Ms. Atas was defamatory.

The Court also concluded that because of the “overwhelming evidence” that the impugned publications had all been made or directed by Ms. Atas, no defence was available to her.

The more difficult issue for the Court was how best to provide a remedy for the defendant’s conduct. In the view of the Court, the legal remedies provided thus far had failed to respond adequately to, and prevent, Ms. Atas’ conduct. The Court found that the existing torts of intentional infliction of mental suffering and invasion of privacy were either inadequate or inapplicable to the facts of the case. Further, although exemplary damages or punitive damages would normally be used to express the law’s condemnation of such conduct, Ms. Atas’ poverty meant she was “judgment-proof.”

New tort of internet harassment

In response to some of these issues, the Court held that the common law tort of internet harassment should be recognized:

In my view, the tort of internet harassment should be recognized in these cases because Atas’ online conduct and publications seek not so much to defame the victims but to harass them. Put another way, the intent is to go beyond character assassination: it is intended to harass, harry and molest by repeated and serial publications of defamatory material, not only of primary victims, but to cause those victims further distress by targeting persons they care about, so as to cause fear, anxiety and misery. The social science literature referenced above makes it clear that real harm is caused by serial stalkers such as Atas.⁴

The Court recognized that the Ontario Court of Appeal had previously declined to recognize a new tort of harassment in the employment context in Merrifield. However, the Ontario Supreme Court noted that in Merrifield, the Court of Appeal had found that the tort of intentional infliction of mental suffering was a sufficient remedy in the circumstances and no authority was provided to support the recognition of a new tort.

In contrast, the Court found that the tort of intentional infliction of mental suffering was an insufficient and inapplicable remedy for Ms. Atas’ conduct and new American jurisprudence supported the recognition of the tort of internet harassment.

Ultimately, the Court held that the new tort of internet harassment will be made out:

… 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.⁵

To remedy Ms. Atas’ conduct, the Court imposed a permanent injunction against her. The Court declined to order an apology from Ms. Atas, finding no utility in an apology because Ms. Atas was not a public person whose word carried credibility or weight. The Court further declined to order that Ms. Atas remove the impugned postings as she had previously demonstrated her unwillingness to follow court orders. Rather, the Court crafted an order vesting title in the postings with the plaintiffs so as to allow the plaintiffs to remove the postings themselves.

Key takeaways

Caplan creates a new tort of internet harassment in an attempt to respond to the increasing concerns of hateful internet communication. Justice Corbett recognized the extraordinary circumstances that arose in this case and the lack of available remedies to adequately respond to Ms. Atas’ malicious and ongoing conduct.

Although this new tort was recognized by Caplan, the Court set a high standard for proving the tort of internet harassment, inviting the question of whether it will apply in less drastic fact scenarios.

¹ Caplan v Atas, 2021 ONSC 670. Unless otherwise indicated, all paragraph references are to this decision.

² Merrifield v Canada (Attorney General), 2019 ONCA 205.

³ Para 1.

⁴ Para 168.

⁵ Para 177.