Les tribunaux ajoutent un nouveau délit de cyberharcèlement à leur arsenal contre les abus en ligne (article en anglais)

Caplan v. Atas^[1] is a recent Ontario Superior Court decision that relies upon the novel tort of "harassment in internet communications".  The case involves a "vile campaign of cyber stalking" and abuse of 150 victims over a period exceeding 20 years. Justice Corbett noted in his decision that the case "illustrates some of the inadequacies in current legal responses to internet defamation and harassment" and highlights "a lack of effective regulation that imperils order in the marketplace of ideas because of the anarchy that can arise from ineffective regulation." 

The Highlights

Significant takeaways from this decision include:

• Novelty: This is the first time any common law jurisdiction outside the United States has recognized the tort of harassment in internet communications.
• Stringent test: The test for this new tort is high and requires:
  • Malicious or reckless communications that are "so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance";
  • Intent by the defendant to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
  • The plaintiff must suffer such harm.
• Breadth of remedies: The tort provides the Court with greater flexibility and a broader range of remedies than the traditional methods for addressing online harassment, such as defamation.
• Lack of legislative response: The Court was of the view that it would be "better" if the response to online harassment came from the legislature and not the judiciary. Justice Corbett noted, however, that the Ontario legislature has been silent to date on the issue.

The Background

The decision arises from motions in four actions—three seeking summary judgment (defamation, harassment and related claims) and one seeking default. The cases all relate to "systematic campaigns of malicious falsehood to cause emotional and psychological harm" though "vile" circumstances of cyber-stalking and harassment. The Court described Atas as "sociopathic."

The prolonged litigation between the parties had already reached a point where Atas spent 74 days in jail for contempt of court in breaching several injunction orders. Justice Corbett noted that the law had "failed to respond adequately to Atas' conduct."

The Novelty

Justice Corbett recognized that addressing online harassment and defamation is "a developing area of the law". He highlighted, however, that "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 victims."

The Court surveyed the response to online harassment in jurisdictions outside Ontario noting that Nova Scotia^[2], England^[3], and New Zealand^[4] have enacted civil legislation seeking to address online harassment. Justice Corbett further noted that Ontario has failed to enact any legislation on the issue and no common law jurisdiction, other than the United States, has recognized the tort of harassment.

The Necessity

As part of his analysis, His Honour referenced several studies that highlight the ubiquity and significance of online harassment in Canada. These studies^[5] found:

• Breadth of online harassment: 31% of Canadian social media users experienced harassment as of 2016.
• Seriousness of the issue: 40% of victims of online abuse suffered damage to their self-esteem, 30% "reported a fear for their lives", and 20% reported they were "afraid to leave their home."

These jarring statistics serve to support His Honour's conclusion that the internet has cast into "disarray" the legal balance that traditionally existed between defamation and freedom of speech.

His Honour reviewed some of the traditional tools used in civil actions to address online harassment, including defamation, invasion of privacy and intentional infliction of mental suffering. He concluded that each of these causes of action was inadequate or unsuitable as follows:

• Defamation: the Court ruled that thousands of Atas' posts were defamatory. It found, however, that her actions went beyond defamation because her intentions were to target and harass her victims to "cause fear, anxiety and misery". Justice Corbett expressed concern that leaving defamation as the only cause of action in the case would be inadequate as the "traditional remedies available under defamation law are not sufficient to address all aspects of Atas' conduct."^[6]
• Invasion of privacy/intrusion on seclusion: was inapplicable because the second part of the test for the tort – intrusion on the victim's private affairs or concerns – could not be satisfied.
• Intentional infliction of mental suffering: was unsuitable because it requires evidence of "visible and provable illness".

Based on the above, His Honour concluded that the only way the Court could properly address the level and nature of the harassment in this case was to rely upon the new tort of online harassment.He elaborated on the novel tort:

…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.^[7]

The Test

In applying the tort, His Honour relied on the stringent common law test for the tort of harassment in internet communications adopted from American case law, which provides:

…where the defendant maliciously or recklessly engages in communications [or] 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.^[8]

The Limits

Justice Corbett was clear that the tort is only applicable in extreme cases and that:

…not all, or perhaps even most, conduct intended to annoy anther person should be of concern to the law. It is only the most serious and persistent of harassing conduct that rises to a level where the law should respond to it.^[9]

His Honour noted that "[t]his court's response is a solution tailored" for cases where the current legal response has been inadequate "and addresses only the immediate problem of a lone publisher, driven by hatred and profound mental illness, immune from financial constraints and (dis)incentives, apparently ungovernable except through the sledgehammer response of incarceration."^[10]

Justice Corbett found that "[i]t would be better if changes in this area of the law came from the legislature rather than a trial judge."^[11] He clearly saw, however, the necessity of creating the novel tort to allow for a cause of action that properly covered Atas' wrongdoing and provided the flexibility to put in place necessary remedies. He drew analogies to the situation where the court created the tort of inclusion on seclusion and adopted the Court of Appeal's language in Jones v. Tsige that "we are faced in this case with facts that cry out for remedy."^[12]

The Remedies

Justice Corbett noted that one of the compelling reasons to recognize the tort of online harassment is to allow courts the flexibility to fashion a remedy that has the "breadth" to address the harm caused by the harassment. In this regard, he issued orders as follows:

• Injunctive Relief: the Court granted a broad permanent injunction, barring Atas from any internet or other publications and postings with respect to the plaintiffs as well as "other victims of her defamation and harassment." The Court took the unprecedented step of expanding the injunction to include the "families and related persons, and business associates" of the plaintiffs/victims. In fashioning this broad order, the Court concluded, "an order that is limited in its scope to persons who have been harmed already would not prevent Atas from shifting her focus to a new set of victims associated with her primary victims."^[13]
• Order to Remove Content: the Court concluded that it would be ineffective to simply order Atas to remove the offending post so it vested title in the posts to the plaintiffs, with ancillary orders enabling them to take steps to have the content removed.

The Future

It is unknown at this stage if Atas will appeal the decision.^[14] It arguably runs contrary to the recent decision in Merrifield v. Canada (Attorney General)^[15] where the Ontario Court of Appeal overturned a lower court's recognition of the tort of harassment (in an employment law context). Justice Corbett, however, considered the Merrifield case in his decision and noted that the appellate court did not "foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts" but concluded "Merrifield [had] presented no compelling reason to recognize a new tort of harassment."^[16]

His Honour explained in his decision, as noted above, why he concluded that the traditional causes of action to address online harassment were inadequate. It remains to be seen, however, whether the appellate authority will accept, reject or modify the new tort.

Regardless of what happens before the courts, this decision has flagged the "inadequacies in current legal responses to internet defamation and harassment".^[17] Justice Corbett has effectively highlighted the seriousness of the issue and advanced a compelling plea to the legislature to address the problem. Hopefully, the legislature will take note and provide a timely and comprehensive statutory response that addresses a full range of issues applicable to online harassment.