Enough is enough ‎—‎ Governing the ungovernable

Online harassment weighs heavily on affected people, feeling like an unstoppable intrusion. One’s personal domicile offers no haven. Some people succumb, taking desperate action under this weighty burden. Courts have taken notice, evidenced through awards of punitive and exemplary damages in an effort to express disapprobation. But increased damages are irrelevant against an indigent defendant with no means to pay. When the perpetrator is unrestrained by basic tenets of decency, the court is left with a conundrum: how to govern the ungovernable?

An obsessive cyber-stalker attacking an ever-broadening group of victims

In a recent Ontario case, Caplan v Atas, 2021 ONSC 670 (Caplan), the defendant gained sophistication and savviness through years of cyber-stalking, while strategically delaying the process of justice. When law enforcement ordered her to stop defaming an individual, she would indirectly harm that same person through malicious attacks on their family members and friends, even denigrating a victim’s deceased spouse. To elude a court ordered injunction, she paid a third party to post her vicious falsehoods, propagating her campaign of harassment while artificially abiding by the court order.

Caplan found the defendant intended to go beyond character assassination, intending to harass, harry, and molest with repeated and serial publications of defamatory material directed not only at a primary victim, but targeted at family and friends of the primary victim, causing further distress through fear, anxiety, and misery. She reviewed obituaries to identify her victims’ relatives and loved ones, sending defamatory emails and letters to their co-workers, associated club members, and neighbours. More than 80,000 unique search results were attributable to the perpetrator, directed against 150 victims in her obsessive campaign.

The humiliating power of the internet has proven crushing for some. DLA Piper published Online Harassment: A Comparative Policy Analysis for Hollaback, recommending and evaluating policies to combat online harassment.

Existing common law actions found inadequate

Existing actions may be deficient against cyber-stalkers. The Court in Caplan held that the tort of intentional infliction of mental suffering was inadequate, as the tort requires the victim to establish a visible and provable illness. The Court held it would be unfair to suspend a remedy until a victim succumbed to illness.  The tort of invasion of privacy or “intrusion on seclusion” was not appropriate, since the perpetrator did not have any private or personal information about her victims, but instead simply modified existing public pictures and spread random lies. Defamation was proven, but also found pointless on these facts since the perpetrator pre-emptively assigned herself to bankruptcy, making her judgment proof to the remedy of damages. An apology was futile as it would only serve to award further attention to a depraved individual, who revelled in public attention. 

Introduction of the tort of harassment in internet communications

Faced with the deficiencies in the current actions available, the Court constructed a new tort of harassment in an effort to restore these victims. The new tort requires proof of the following:

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.

Two unique remedies were fashioned to address the facts of the Caplan case:

1. the Court vested title of the impugned online postings to the victims, with ancillary orders enabling the removal of falsities, rather than relying on the defendant to remove offensive content on the internet; and


2. the Court extended protection beyond the litigants to their “families and related persons, and business associates” holding that this description of victims is “as precise as it can be to achieve its purpose” of foreclosing the defendant from carrying out a campaign against someone for the purpose of indirectly harming a named litigant.

A civil law perspective

When examining the facts of the Caplan case through a civil law lens, it is interesting to consider whether a similar outcome could be reached in Québec. In fact, under the civil law of Québec, there is no specific remedy for defamation or harassment on the internet. Nevertheless, the victims of cyber harassment are not without recourse, as they can rely on the general extra-contractual liability found in section 1457 of the Civil Code of Québec (“C.c.Q.’’) in order to seek damages from the cyberbully.

In order to successfully bring forward a claim pursuant to section 1457 C.c.Q., the plaintiff (the victim of cyber harassment) must demonstrate: (i) the fault of the third party (the author of cyber harassment), (ii) a prejudice caused to the victim and (iii) causality between the fault and the prejudice. Despite the differences, there remains a similarity between the criteria for bringing forward a successful claim for cyber harassment on the grounds of extra-contractual liability in Québec and the criteria for establishing the new tort of harassment in internet communications introduced in the Caplan case.

Of course, when the author of cyber harassment has pre-emptively assigned themselves to bankruptcy as in the Caplan case, that would have the effect of making the award of extra-contractual damages fruitless; consequently alternative remedies would be necessary. For instance, the courts could grant an injunction forcing the author of the cyber harassment to erase all offensive content.

Of particular interest in regards to this matter, Québec’s Bill 64,An Act to modernize legislative provisions as regards the protection of personal information, which may still be amended prior to its assent, would likely create additional remedies for the victims of cyber harassment through the introduction of section 28.1 in the Act Respecting the Protection of Personal Information in the Private Sector. Similar to the first remedy fashioned in the Caplan case, this new provision would allow the victim of cyber harassment to require any person carrying on an enterprise to cease disseminating their personal information or to de-index any hyperlink if the dissemination of the information contravenes the law or a court order. This remedy could be available to the victims of cyber harassment if the following conditions are met:

• the dissemination of the information causes the person concerned serious injury in relation to his right to the respect of his reputation or privacy;
• the injury is clearly greater than the interest of the public in knowing the information or the interest of any person in expressing himself freely; and
• the cessation of dissemination or de-indexation requested does not exceed what is necessary for preventing the perpetuation of the injury.

Takeaway

COVID-19 government restrictions that limit physical social interactions amplify the magnitude of one’s online identity. The courts in Canada have increasingly focussed on protecting victims from the destruction of a click of a mouse. Caplan’s introduction of the tort of harassment in internet communication denounces and deters cyber-stalking, and provides another tool to address serious misconduct for online harassment.

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