By Taylor Sullivan

On January 28, 2021, the Ontario Superior Court recognized a new tort to effectively address internet defamation and harassment. The creation of the tort of harassment in internet communications was motivated by Nadire Atas’ online behaviour, which the Court characterised as “campaigns of malicious harassment and defamation” with the intent to cause emotional and psychological harm to persons against whom she had grievances. In this judgment, combining four cases against Ms. Atas for defamation, harassment and related claims, Justice Corbett found that she used the internet to disseminate vicious falsehoods against those toward whom she bears grudges, their families and other associates, reaching as many as 150
victims over a decade.

The test established for the tort of harassment in internet communications is stringent. This tort occurs where the defendant maliciously or recklessly engages in communications conduct so outrageous in character and duration, and extreme in degree, going 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. The plaintiff must also show that they suffered such harm.

The remedies available to the plaintiffs centred on Ms. Atas’ future online conduct and removing existing defamatory posts. The Court ordered a permanent injunction barring Ms. Atas from disseminating, publishing, distributing, communicating or posting on the internet by any means with respect to the plaintiffs and other victims of her defamation and harassment. The Court also vested title to the existing defamatory postings in the plaintiffs, enabling them to take steps to have the content removed. This case provides no guidance on damages for future cases in which the tort of harassment in internet communications is invoked due to the defendant’s assignment in bankruptcy and the plaintiffs’ subsequent withdrawal of financial claims for damages and costs.

This new tort will be scrutinized, especially since the Ontario Court of Appeal rejected creating the tort of harassment less than two years ago in Merrifield v Canada (Attorney General), 2019 ONCA 205. However, in 2018, Ms. Atas was found to be a vexatious litigant. This means that should she seek to appeal this decision, she must obtain permission to do so from the Ontario Superior Court. Although traditionally unlikely, leave from the ONSC to appeal this decision could be granted in the wake of a new tort so soon after Merrifield.

This case demonstrates the Court’s recognition of the uniqueness of internet torts and its willingness to find remedies in the absence of internet statutes or regulations. Per a 2020 survey by Plan International Canada, 60% of girls (ages 15-24) surveyed in Canada frequently experience online harassment. The types of harassment experienced most frequently include abusive and insulting language, purposeful embarrassment, body shaming, and sexual harassment. If left intact, this tort could prove helpful in addressing the above conduct that is not otherwise captured by existing torts. However, we must be mindful that this tort is not a magical solution to online harassment. Since it was created to address the most serious and persistent of harassing conduct, the threshold for future cases to meet to invoke this tort is high.

Resources:

https://www.canlii.org/en/on/onsc/doc/2021/2021onsc670/2021onsc670.html?resultIndex=1

https://plancanada.ca/file/planv4_files/biaag/SOTWGR2020-CommsReport-EN.pdf

https://www.torys.com/insights/publications/2021/02/ontario-recognizes-tort-of-online-harassment

https://www.sbalawyers.ca/cyber-and-privacy/ontario-gets-a-new-tort-for-now/