A lie can travel halfway around the world while the truth is putting on its shoes,” [1] writes lawyer Christina Wallis, borrowing a quote often attributed to Mark Twain, in responding to a vicious campaign of defamatory online posts that targeted Ms. Wallis and others.

Ms. Wallis is one of the many plaintiffs in the recent Ontario Superior Court case recognizing a new tort of internet harassment.

Caplan v. Atas,[2] a decision which was released on January 28, 2021, describes the defendant’s “systematic campaigns of malicious falsehood,”[3] spanning over 15 years, and canvassing “an ever-widening circle of victims.”[4] Some of the subjects of the defendant’s online attacks were people she knew and against whom she harboured grievances, but many were people she did not know, who were the family members and colleagues of those against whom she wished to cause harm.

The defendant’s postings were disseminated on the internet anonymously, pseudonymously, or by using false names. She posted on sites that do not monitor or control the content of postings, including WordPress, Ripoff Reports, Reddit, Pinterest, Facebook, Lawyerratingz, Blogspot, and dozens of other less well known sites such as “cheaters.com” and “reportcheatingonline.”[5]

While Corbett J. established that the defendant had indeed defamed the plaintiffs, he found that the conduct in this case went beyond the kind of “character assassination”[6] typical of defamation:

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.[7] (emphasis added)

Drawing on the American case law,[8] Corbett J. set out the following test for the tort of harassment in internet communications:[9]

a) where the defendant maliciously or recklessly engages in conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;

b) with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and

c) the plaintiff suffers such harm.

The test, which is a stringent one, was found to have been met in the circumstances of this case. The Court echoed the sentiment expressed by the Court of Appeal in Jones v. Tsige,[10] the case that recognized the tort of intrusion on seclusion: “…we are presented in this case with facts that cry out for a remedy”.[11]

Remedy

The defendant was “judgement-proof” due to a prior bankruptcy and subsequent poverty, making any order for monetary compensation essentially meaningless. The Court instead granted a broad remedy, imposing both a permanent injunction prohibiting the defendant from posting about the plaintiffs or related parties and, importantly, vesting title in the posts to the plaintiffs, thereby allowing them to have the posts removed.[12]

In response to the defendant’s objection to the breadth of the proposed order, the Court noted the following:[13]

  1. An order limited in scope to the persons already harmed would not prevent the defendant from further expanding her circle of victims, creating a potential endless cycle;
  2. Defamation litigation has been called the “sport of kings”, notoriously complex and expensive, and there is a concern that victims of a perpetrator may decide to simply let the problem go with the hope that either the harassment stops or that the perpetrator will shift their focus; and
  3. “[A] person in the position of the primary victims – while feeling outraged and angry by the defendant’s conduct, would also feel terrible that their entanglement with a person like the defendant has brought harm to their friends and families. I see no reason why primary victims should not be able to take the lead in bringing this conduct to an end and then to ask the court to extend protective orders to all who have been besmirched by the perpetrator’s campaign of harassment, and a wider circle of potential victims against whom the defendant might turn her sights in future.”[14]

The New Common Law Tort of Harassment

Corbett J. found that while defamation was made out in this case for many of the plaintiffs, the remedies available in defamation were not adequate to address the defendant’s conduct:

The law of defamation provides some recourse for the targets of this kind of conduct, but that recourse is not sufficient to bring the conduct to an end or to control the behaviour of the wrongdoer… [This court concludes] that the common law tort of harassment should be recognized in Ontario. “Harassment” describes what the defendant has been doing, and ordering the defendant to stop harassment provides remedial breadth not available in the law of defamation.[15]

The court identified some of the particularities of this case which illustrate why this approach is both necessary and effective. For example: initially, back in the 1990’s, the defendant harassed Mr. Babcock, one of the plaintiffs, by sending him vile communications about his deceased wife. Mr. Babcock’s deceased wife cannot maintain an action in defamation, and she cannot be harassed, because she is dead. However, Mr. Babcock himself can be harassed by vile words published about his deceased wife and should be able to enforce an order prohibiting her from such conduct.

Notably, Corbett J. declined to decide whether a non-party victim of the defendant’s conduct should be able to enforce the court’s orders and stated that that question can be addressed if and when that issue ever arises.[16]

Take-Aways

The facts of this case were particularly egregious and admittedly unique, in the types of allegations made, the wide circle of victims, and the extended period over which the postings occurred. The requirement set out by the Court that conduct go “beyond all possible bounds of decency and tolerance”[17] will need to be developed by future rulings, but it appears to be a standard higher than conduct required in the privacy tort, “intrusion upon seclusion” or “intentional infliction of mental distress”.

Corbett J. noted that whatever solution ultimately brings the defendant’s malicious attacks to an end, “it is clear that the law needs better tools, greater inter-jurisdictional cooperation, and greater regulation of the electronic ‘marketplace’ of ‘ideas’ in a world with near universal access to the means of mass communication.”[18]

The defendant will almost certainly seek to appeal the ruling, but she has been declared a vexatious litigant, which means she will require permission from the Superior Court to appeal.