2021 January 28

Caplan v. Atas, 2021 ONSC 670

The Ontario Superior Court, granting judgment to multiple plaintiffs in four civil lawsuits against the defendant, asserted that defamation law did not provide adequate remedies to stop the defendant’s long campaign of “vicious falsehoods against those to whom she bears grudges, and towards family members and associates of those to whom she bears grudges.”  “Cyber-stalking is the perfect pastime for [the defendant].  She can shield her identity.  She can disseminate vile messages globally, across multiple unpoliced platforms, forcing her victims to litigate in multiple jurisdictions to amass evidence to implicate her, driving their costs up and delaying the process of justice.  Unrestrained by basic tenets of decency, when she is enjoined from attacking named plaintiffs, she moves her focus to their siblings, their children, their other family members and associates, in a widening web of vexatious and harassing behaviour.”

The defendant’s postings had been disseminated on the internet anonymously, pseudonymously, or by using false names, on internet sites including Ripoff Reports, Reddit, Pinterest, Facebook, Lawyerratingz, cheaters.com, reportcheatingonline, and many others.

Suggesting that the internet has cast the balance between freedom of speech and protection of reputation into disarray, the Court stated: “[T]he law needs better tools, greater inter-jurisdictional cooperation, and greater regulation of the electronic ‘marketplace of ideas’ in a world with near universal access to the means of mass communication. Regulation of speech carries with it the risk of over-regulation, even tyranny.   Absence of regulation carries with it the risk of anarchy and the disintegration of order. …[A] situation that allows someone like the [defendant] to carry on as she has, effectively unchecked for years, shows a lack of effective regulation that imperils order and the marketplace of ideas because of the anarchy that can arise from ineffective regulation.”  In the Court’s view, even granting a permanent injunction, by itself, would not be sufficient to bring the defendant’s wrongful conduct to an end.

In this context, the Court held that the common law of Ontario should recognize the tort of harassment and that ordering the defendant to stop harassment “provides remedial breadth not available in the law of defamation.”   This approach, according to the Court, avoids inappropriately broadening the established test for the tort of wrongful invasion of property.  “[T]he tort of internet harassment should be recognized in these cases because [the defendant’s] online conduct and publications seek not so much to defame the victims but to harass them.  Put another way, 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.”

The Court found that this was a case where a permanent injunction should be ordered, as well as an order vesting title in the plaintiffs to the defendant’s postings, with ancillary orders enabling them to take steps to have the content removed.   The injunction is intended to protect not only persons that have been harmed already, but to prevent the defendant from shifting her focus to a new set of victims associated with her primary victims.  The defendant must desist from defaming and harassing non-parties where that conduct is part of a campaign of harassment directed against the plaintiffs in these four lawsuits.  The defendant must be deterred from a broad range of wrongful conduct that includes harming others to cause damage to the plaintiffs.