An Ontario Superior Court judge has concluded that a common law tort of Internet harassment should be recognized in the province as part of a decision which found a woman had engaged in “extraordinary campaigns of malicious harassment and defamation” online which was “carried out unchecked, for many years, as unlawful acts of reprisal.”
The decision in Caplan v. Atas 2021 ONSC 670 involves four separate cases brought by over 40 plaintiffs against Nadire Atas for the posts which she placed online on sites such as Reddit and Facebook, which for the most part do not monitor or control the content of postings. She largely posted anonymously or using pseudonyms, and Justice David Corbett wrote she “has carried on systematic campaigns of malicious falsehood to cause emotional and psychological harm to persons against whom she has grievances.”
“These include adverse parties in litigation, Atas’ own lawyers, and the lawyers and agents, relatives (including siblings, spouses and children) of these people, a former employer, its successor, owners, managers and employees of this former employer, and generally an ever-widening circle of victims, generally chosen to cause misery to Atas’ prime victims, those against whom she harbours festering grievances,” he wrote in his Jan. 28 decision. “As of the time that these motions were argued [in 2019], there have been as many as 150 victims of Atas’ attacks.”
The posts were traced to Atas after a long campaign by many of the plaintiffs. Atas, who was self-represented in the case, has been deemed a vexatious litigant and was cited for contempt of court as the case against her unfolded. According to court documents, she admitted to having authored some of the posts but denied she was responsible for the majority of them. She also argued the defamation claims were barred by the notice requirements under the provincial Libel and Slander Act and the court had shown bias against her, but these arguments were rejected.
Justice Corbett noted courts can order a defendant to remove offensive content on the Internet but such an order would not be effective in the case, as Atas has shown that she will not follow court orders, has posted on sites that have policies of not removing content on request and is destitute after filing for bankruptcy.
“[But] the court itself has an interest in seeing the overall conflict brought to an end,” he wrote. “The alternative order proposed by the plaintiffs … vesting title to the postings in them, with ancillary orders enabling them to take steps to have the content removed, will be more effective for them.”
And Justice Corbett concluded that a common law tort of Internet harassment should be recognized in Ontario “because Atas’ online conduct and publications seek not so much to defame the victims but to harass them.” He noted the Ontario Court of Appeal recently overturned a lower court ruling which recognized a common law tort of harassment (Merrifield v. Canada (Attorney General) 2019 ONCA 205), but “the facts of the case before me are very different.”
“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,” he wrote. “The law’s response to Atas’ conduct has not been sufficient, and traditional remedies available in defamation law are not sufficient to address all aspects of Atas’ conduct.”
Plaintiff counsel Gary Caplan said he could not comment on the specifics of the case due to ongoing litigation against Atas, but said the decision’s importance was “timely in the sense there has been a lot of recent media attention brought to bear on the problems occasioned by either Internet harassment or Internet defamation.” Caplan’s brother and two sons-in-law were among the plaintiffs in the case after being targeted by Atas.
“How to deal with Internet harassment and defamation is a very big question and I am not sure there is a right answer,” he said. “One of the very obvious issues is what do you do with posters or people who access the Internet anonymously using aliases or fake names, and in terms of court process one of the challenges is trying to have the evidence necessary to show who is behind it.”
Howard Winkler of Winkler Dispute Resolution, who was not involved in the case, said it is an “extreme example of the kind of harm that can be done on the Internet by one person.”
“And as egregious as the facts are in this particular case, this kind of situation plays out every day on Facebook, Google, Twitter and other social media platforms where the lives and businesses of ordinary people are ruined by this kind of conduct,” he said.
Although the plaintiffs were able to achieve significant remedies against Atas, Winkler said the case doesn’t really deal with the central problem of online harassment and defamation — the fact that the social media platforms allow the material to be posted and largely refuse to do anything about it when complaints are raised. He said the Ontario government should adopt a recommendation made by the Law Commission of Ontario (LCO) in its 2020 report on defamation law in the Internet age to bring in legislation which allows for notice provisions of defamatory content to be passed on to social media platforms, and it imposes an obligation on them to take down the content if there is no response to the notice.
“If the province enacted that, and if they did it while recognizing this new tort of Internet harassment, then there would be a recourse available to ordinary people in situations like this,” he said. “Without that platform and that megaphone for speech, then the kind of conduct and behaviour that Ms. Atas engaged in would have been silenced. It was only when these social media platforms refuse to respond in a way that provides a proper remedy that the court has found it necessary to intervene.”
The Common law tort of Internet harassment should be recognized in Ontario: judge was published by The Lawyer’s Daily on February 8, 2021.