The Ontario Superior Court of Justice has recently recognized a new tort in Caplan v. Atas, 2021 ONSC 670: the tort of internet harassment.
By the end of her tirade, she had harassed around 150 victims, including her previous employer, family members of her previous employer, her legal counsel, New York Times journalists, and many others. Ms. Atas sent hate mail and made postings alleging professional malfeasance, pedophilia, sexual criminality, even abuse of a recently deceased family member. The Court described cyberstalking as Ms. Atas’ “perfect pastime” and dubbed her lack of empathy as “sociopathic”.
We are all familiar with internet “trolls” and the vicious comments that appear across Instagram, in the comments section on YouTube and on Reddit pages. Prior to this decision, victims of internet harassment would have to seek recourse through the tort of intentional infliction of mental suffering and the tort of defamation, which can be difficult to establish, as you have to demonstrate visible injury or mental suffering.
In light of this and because a remedy to stop and provide recourse for internet harassment was needed, the Court recognized a new tort, the tort of internet harassment.
Tort of Internet Harassment
To establish that someone’s behavior online falls within the tort to internet harassment, the following three factors must be met:
- the defendant maliciously or recklessly engaged in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;
- the communications conduct was done with the intent to cause fear, anxiety, emotional upset, or to impugn the dignity of the plaintiff; and
- the plaintiff suffered such harm, as intended by the defendant.
This case highlights the importance of being cautious about what we post on the internet and to whom we say it. Employees who feel that they have been mistreated by their employer need to be careful about what they post on the internet either during their employment or after they’ve been terminated.
It is equally important for Employers to be aware that they have legal recourse against a former or current employee if they find the employee is engaging in internet harassment towards their company or towards their employees. This behavior may also constitute cause for termination of the Employee.
It is yet to be seen whether the decision will be appealed to the Ontario Court of Appeal. If it is, it is possible the Court of Appeal may find that the tort of internet harassment is not necessary given the existence of other torts, similar to the Court of Appeal’s decision regarding the tort of harassment in Merrifield v. Canada (Attorney General).
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