On January 28, 2021, the Ontario Superior Court of Justice (the Court) issued its decision in Caplan v Atas, 2021 ONSC 670, where it recognized a new civil tort of harassment in internet communications.

The Court heard the consolidation of four law suits against the defendant, Nadire Atas, for defamation, harassment, and related claims. The defendant used internet forums to disseminate vicious falsehoods about persons about whom she harboured grievances and the family and associates of those persons. This culminated in the publication of thousands of internet postings attacking as many as 150 victims throughout the years of the defendant’s conduct. These postings ranged from allegations of dishonesty and incompetence, to more serious accusations like fraud and pedophilia.

Although the Court had little difficulty in finding that the defendant’s actions were defamatory, the Court stated that the law had failed to adequately respond to the defendant’s conduct.  The Court noted that while compensation is usually a primary goal of the civil justice system, the defendant’s assignment in bankruptcy made her “judgement-proof”.  Thus, the Court focused on deterrence and prevention of the defendant’s conduct.

Justice Corbett noted that the law of defamation provides some recourse for plaintiffs, but that recourse is often insufficient to stop the behaviour.  Based on the circumstances in this case, Justice Corbett held that the torts of defamation and mental infliction of mental suffering were not appropriate in this case. Justice Corbett concluded that the common law tort of harassment should be recognized in Ontario, and “harassment provides remedial breadth not available in the law of defamation.”

Adopting the test from U.S. case law, the Court outlined the following three elements of the test for harassment in internet communications: 

  1. 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;
  2. with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
  3. the plaintiff suffers such harm.

The Court granted a permanent injunction prohibiting the defendant from using the internet to attack or harass the plaintiffs, their families, related persons, business associates, and other victims.  Rather than order the defendant to remove the offensive content on the internet, the Court ordered that title in the postings would be vested in the plaintiffs with ancillary orders enabling them to take steps to have the content removed.  Lastly, the Court determined that it would not be appropriate to order the defendant to apologize in this case.

Summary By: Imtiaz Karamat


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