(This is not legal advice and is for informational purposes only)

On January 28, 2021, Justice David Corbett of the Ontario Superior Court of Justice released a decision in Caplan v Atas, [2021] ONSC 670 (“Atas”) which recognized a new common law tort of internet harassment.

Atas involved an individual who engaged in a campaign of online postings containing malicious and defamatory statements about various individuals, including her former employer.  Her postings included, among other things, false accusations of professional misconduct,  fraudulent activity, sexual misconduct and pedophilia. The defendant called victims “stupid” and “twits”, and even went as far as spreading lies about the plaintiffs’ families and children. Several of her postings were published anonymously or under false names.

The Court found that the defendant’s conduct went beyond defamation.  Her conduct was described as ‘abusive’, ‘malicious’ and ‘vile’.

Acknowledging that the Ontario Court of Appeal previously refused to recognize an independent tort of harassment, Justice Corbett for the Court held that in the context of a malicious and abusive campaign of cyber-bullying spanning over several years, there ought to be civil redress for the victims.  In Atas, the Court held that a person should have recourse for internet harassment  if:

1. 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 in Atas held that the defendant must be ordered to leave the plaintiffs alone. The plaintiffs did not seek monetary damages, recognizing that the defendant was indigent.  The Court noted that it would be futile to order the defendant to remove her own offensive remarks, as she previously ignored court orders.  As a remedy, the Court held it appropriate to issue an order allowing the plaintiffs to take steps themselves to remove the offending content from the internet.

In our line of business, we see many employers complain about defamatory postings by former employees on various platforms, such as Indeed, Rate my Employer, or Glassdoor.  These postings can be very damaging to an employer’s reputation and cause significant distress to those targeted.  Further aggravating matters, it is very difficult and costly to have them removed, particularly if the author cannot be easily identified.

In our view, this decision is a step in the right direction for victims of cyberbullying, however, the court set a high bar for any plaintiff to overcome. Of significance in this case, there were thousands of very offensive postings, spanning many years, targeting the plaintiffs, their families and associates.  The defendant was also declared a vexatious litigant and was embroiled in various legal disputes involving the plaintiffs.

Only time will tell how this tort will be applied in other, perhaps less extreme circumstances and whether it may be expanded to activities beyond internet postings.

It is unlikely that a single defamatory post criticizing one’s former employer or manager would meet the standard of internet harassment articulated in Atas, unless the circumstances are outrageous and extreme in nature.  Employers may nevertheless have recourse to claim damages for defamation. Individuals who are victim to defamatory postings may also, in certain circumstances, claim damages for intentional infliction of emotional suffering.