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Standing - Remedial. 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'. In these quotes the court considers whether it can (or should) order that defamation remedies by made enforceable at the hands of non-parties, where warranted:(f) Orders Should Not Be Enforceable By or in Respect to Non-parties
(i) Enforcement by a Non-Party
[237] Not all persons defamed and harassed by Atas are plaintiffs in one of the Defamation Action. The plaintiffs ask this court to order that classes of persons who are not plaintiffs receive the benefits of the orders granted in these cases and be entitled to enforce them.
[238] Atas argues that the law does not permit non-parties to enforce orders.
[239] In my view, for the reasons expressed above, the court is entitled to order Atas to desist from defaming and harassing non-parties where that conduct is part of a campaign of harassment directed against parties to these cases.
[240] On first principles, Ms Wallis will be entitled to enforce this order, even if subsequent harassing conduct is directed, not against her, but against another person for the purpose of harassing Ms Wallis.
[241] Another example illustrates why this approach to enforcement is both necessary and effective. Initially, back in the 1990’s, Atas harassed Mr Babcock but sending him vile communications about his deceased wife. Mr Babcock’s deceased wife cannot maintain an action in defamation, and she cannot be harassed, because she is dead. However, Mr Babcock himself can be harassed by vile words published about his deceased wife and should be able to enforce an order against Atas prohibiting her from such conduct.
[242] I do not find it necessary to decide, now, whether a non-party victim of Atas’ conduct should be able to enforce this court’s orders. I decline to order prospectively that they can. That question can be addressed if and when that issue ever arises.
(ii) Precluding Conduct Against A Non-party
[243] It follows from the discussion above that I see no impediment to prohibiting Atas from engaging in harassment and defamation of non-parties where that conduct is also harassment of a party to one of these actions. In my view that is one of the reasons it is necessary for the court to recognize the tort of harassment: to protect the plaintiffs from a broad range of wrongful conduct that includes harming others to cause damage to a plaintiff.
[244] Atas argued that this principle cannot apply to a person who is dead. I do not agree. As noted above, harassing a living person by waging a malicious campaign against a dead relative can be a form of harassment which the law can restrain in an appropriate case, such as the cases at bar.
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