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. Caplan v. Atas [see the main link for numbered case cites]

In Caplan v. Atas (Sup Ct, 2021) the Superior Court finds a new tort, that of 'internet harassment'. This new development in the law was in response to a remarkable case fact pattern (see paras 77-91). In these present quotes the court canvasses the larger social phenomenon of internet harassment:
[99] Online harassment, bullying, hate speech, and cyber stalking straddle criminal and civil law. Harmful internet communication has prompted many jurisdictions to amend or pass legislation to deal with the issue. The courts too have been challenged to recognize new torts or expand old ones to face the challenges of the internet age of communication.[26] The academic commentators are almost universal in their noting that, while online harassment and hateful speech is a significant problem, there are few practical remedies available for the victims.

[100] In England, after it appeared that there was some movement toward the recognition of a common law tort of harassment, Parliament passed the Protection from Harassment Act 1997, which created statutory protections and civil remedies for harassment. In 2014, the Australian Law Reform Commission recommended the passage of legislation for a statutory civil remedy for harassment. In 2015, New Zealand passed the Harmful Digital Communications Act, which created an agency to administer a complaints process and applicable remedies.

[101] In November 2017, the Law Reform Commission of Ontario published a consultation paper entitled ‘Defamation Law in the Internet Age’. One of its working papers, entitled ‘The Relationship between Defamation, Breach of Privacy, and Other Legal Claims Involving Offensive Internet Content’ was published by David Mangan in July 2017. Both the consultation paper and the working paper include extensive reviews of the law. Since final argument of these motions, the Law reform Commission of Ontario has published a Final Report.[27] To date, legislation has not been enacted in Ontario to address these issues.

[102] In 2018, Nova Scotia re-introduced the Intimate Images and Cyber-Protection Act.[28] ‘Cyber-bullying’ is defined, at section 3(c) of the Act, as follows:
“cyber-bullying” means an electronic communication, direct or indirect, that causes or is likely to cause harm to another individual’s health or well-being where the person responsible for the communication maliciously intended to cause harm to another individual’s health or well-being or was reckless with regard to the risk of harm to another individual’s health or well-being, and may include (i) creating a web page, blog or profile in which the creator assumes the identity of another person, (ii) impersonating another person as the author of content or a message, (iii) disclosure of sensitive personal facts or breach of confidence, (iv) threats, intimidation or menacing conduct, (v) communications that are grossly offensive, indecent, or obscene, (vi) communications that are harassment, (vii) making a false allegation, (viii) communications that incite or encourage another person to commit suicide, (ix) communications that denigrate another person because of any prohibited ground of discrimination listed in Section 5 of the Human Rights Act, or (x) communications that incite or encourage another person to do any of the foregoing.
[103] Section 6(1) of the Act gives the Court the following powers:
Where the Court is satisfied that a person has engaged in cyber-bullying or has distributed an intimate image without consent, the Court may make one or more of the following orders:
(a) an order prohibiting the person from distributing the intimate image;

(b) an order prohibiting the person from making communications that would be cyber-bullying;

(c) an order prohibiting the person from future contact with the applicant or another person;

(d) an order requiring the person to take down or disable access to an intimate image or communication;

(e) an order declaring that an image is an intimate image;

(f) an order declaring that a communication is cyber-bullying;

(g) an order referring the matter to dispute-resolution services provided by the agency or otherwise;

(h) an order provided for by the regulations;

(i) any other order which is just and reasonable.
[104] As should be clear from this brief review, this is a developing area of the law. The law of defamation provides some recourse for the targets of this kind of conduct, but that recourse is not sufficient to bring the conduct to an end or to control the behaviour of the wrongdoer. The reasons that follow explain this conclusion, which provides a foundation for this court’s conclusion that the common law tort of harassment should be recognized in Ontario. “Harassment” describes what Atas has been doing, and ordering Atas to stop harassment provides remedial breadth not available in the law of defamation.
. Teksavvy Solutions Inc. v. Bell Media Inc.

In Teksavvy Solutions Inc. v. Bell Media Inc. (Fed CA, 2021) the Federal Court of Appeal upheld a 'site-blocking' injunction against third party ISPs, barring their customers from accessing copyright-infringing content [paras 18-32]. The case also consider the Telecommunications Act role in this, finding that the Act's net-neutrality is not infringed by the common carrier where the court makes such an order [paras 33-44].

. R. v. Ramelson

In R. v. Ramelson (SCC, 2022) the Supreme Court of Canada engages in an interesting analysis of the internet in the course of an entrapment criminal case:
(2) Online Spaces

[42] Like any evolving technology, even an expansive definition of the Internet risks a quick obsolescence. And over time, the Internet has proven to be many things: social and anti-social, informative and mis-informative, and marked by clusters of hyperactivity and landscapes of inactivity. Still, some general features can be identified.

[43] While sustained by a vast physical infrastructure, the Internet, at least as most users experience it, is first and foremost a network of information and a means of connecting with others. That information is stored on servers but is accessible from an increasing array of devices in many physical locations. To say that individuals gather in online “spaces” means only that people have accessed shared information, wherever they happen to be geographically — which, today, may be from nearly anywhere. 

[44] Freed of geographical constraints, online spaces permit unique experiences. They are permeable, allowing users to seamlessly traverse from one space to another. They are often interactive, facilitating that movement and encouraging users to express themselves and engage with content. They can also be coded to enable varying levels of supervision, regulation or control. The Internet can be manipulated in ways that physical spaces cannot.

[45] And its information comes in all types. Functionally, the Internet encompasses the most public and the most private human behaviour. It is the largest megaphone or billboard ever conceived, allowing publishers to connect with audiences far vaster than could ever physically congregate. Yet many millions also conduct private activities online, confident that their information — whether touching their work, social or personal lives — will remain as secure from general circulation as if they had transacted in person. 

[46] With that range of behaviour comes a range of candour. Some online locations, like search engines, allow people to explore notions that they would be loath to air in public; others, like some forms of social media, allow users to dissimulate behind veneers of their choosing. Still others, like those dedicated to sexual activity, may encompass both poles. Online behaviour, in other words, may be radically transparent, radically disingenuous, or both. People do not always act online as they do in person.

[47] This, combined with its ubiquity, helps explain why the Internet raises “a host of new and challenging questions about privacy” (R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 1). Virtual police investigations may produce vast amounts of highly personal information, in contexts where people may be unusually uninhibited, engaged in forms of self-discovery, or seeking anonymity. The mere threat of state intrusion into those spaces may promote self-censorship, or the abstention from those spaces altogether, with costs to free expression and the exchange of ideas so essential in a vibrant democracy.

[48] Nor do privacy concerns end with online interactions. The Internet collects traces — information about a user’s physical location, online activity, and more — in ways that in-person interactions typically do not (Spencer, at para. 46). This data collection often occurs without a user’s awareness or consent, and those traces may persist indefinitely. They can spread with prodigious speed and reach, making it still more likely those traces will persist. And they can be compiled, dissected and analyzed to lend new insights into who we are as individuals or populations. As the rights and autonomy implications of those insights have become clearer, the divisions over how data is collected, protected and mobilized have in turn sharpened.  

[49] Online spaces, in short, differ from physical spaces in at least three ways: the Internet, being informational rather than geographical, sheds many of the physical world’s limitations in terms of scale and functions; people behave differently when online; and virtual spaces raise unique rights concerns. As Ahmad stated, online spaces are qualitatively different.

[50] In my view, the greatest consequence of these differences for bona fide inquiries is that the boundaries of an online “space” only tell part of the story. While intuitive, geographical analogies are imperfect. There is no simple way to compare a six-block area of a city to its online equivalent, except perhaps via those spaces’ functions. And even then, similar functions may conceal deeper differences in experience. In an era when a single Tweet may attract more traffic than an entire mall, the parameters of a virtual space may be a poor proxy for the scope of a police investigation.

[51] To respect the entrapment doctrine’s underlying balance of first principles, then, courts assessing whether an online police investigation was bona fide must pay close attention to the space’s functions and interactivity — that is, to the permeability, interconnectedness, dynamism and other features that make the Internet a distinctive milieu for law enforcement. Even tailored online investigations may represent a broad and profound invasion into peoples’ lives. Given the potential of online investigations to impact many more individuals than an equivalent investigation in a physical space, the nature of those impacts deserve scrutiny. How the police act on the Internet may matter as much or more as where they act.


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