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Tort - Internet Harrassment. 40 Days for Life v. Dietrich
In 40 Days for Life v. Dietrich (Ont CA, 2024) the Ontario Court of Appeal considered 'internet harassment' in the context of an unsuccessful SLAPP dismissal motion appeal:(ii) Internet harassment
[27] 40 Days argued that the videos encouraging thousands of others to participate in false sign-ups, shopping cart abandonment, and online harassment of at least eight individuals associated with the organization constituted a campaign to “harass, harry, and molest” amounting to the tort of internet harassment proposed in cases such as Caplan v. Atas, 2021 ONSC 670, 71 C.C.L.T. (4th) 36 and 385277 Ontario Ltd. v. Gold, 2021 ONSC 4717.
[28] Ms. Dietrich advanced two defences to the claim of internet harassment: first, that a corporation cannot sue for internet harassment as it cannot suffer fear, anxiety, emotional upset, or harm to dignity; and second, that her conduct did not reach the threshold of outrageous conduct set out for the tort in Caplan, at paras. 168-171.
[29] The motion judge concluded that there were grounds to believe that some of the videos and accompanying text “served to encourage and rally others to do acts to negatively impact 40 Days’ activities.” She concluded that the claim of internet harassment had substantial merit, and that the current state of the tort did not rule out a claim by a corporation. . 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 the difficulty of structuring adequate remedies to internet defamation harassment:(d) Scope of Orders
[229] Atas’ objection to the breadth of the proposed orders underlines one of the reasons this court concludes that a common law tort of harassment should be recognized. Atas’ goal has been to inflict harm and misery on her primary targets: persons such as Wallis and Caplan, who have been prime adversaries against her in the Underlying Litigation and the s.140 Application. When Atas was enjoined from publishing further defamatory comments about Wallis, she started to publish defamatory comments about members of Wallis’ family, including Wallis’ children. The purpose of this conduct may be inferred from all the circumstances: Atas had no grudge with the Wallis children: she had never met them or had anything to do with them. She attacked them in order to do harm to Wallis.
[230] An order that is limited in its scope to persons who have been harmed already would not prevent Atas from shifting her focus to a new set of victims associated with her primary victims. The cycle could be endless.
[231] Second, defamation litigation has been called the “sport of kings” for a reason. It is notoriously complex and expensive relative to the financial interests usually at stake. The instant story of vexatious litigation is eloquent testimony to what can befall a hapless victim of a person such as Atas: overall litigation has been underway for more than 15 years, and the litigation involving Peoples Trust and its professionals (including Wallis) is now more than ten years old. It is not over yet. Many victims of a person such as Atas – after seeking advice from counsel of what may be entailed in going to law over these issues – may well decide to let it go and hope that the harassment stops or that the perpetrator will shift her focus to others.
[232] Third, a person in the position of the primary victims – while feeling outraged and angry by Atas’ conduct, would also feel terrible that their entanglement with a person like Atas has brought harm to their friends and families. I see no reason why primary victims should not be able to take the lead in bringing this conduct to an end and then to ask the court to extend protective orders to all who have been besmirched by the perpetrator’s campaign of harassment, and a wider circle of potential victims against whom Atas might turn her sights in future.
[233] This third point also provides a basis for a remedial distinction among those who have sued and those who have not. I am not sanguine that other remedies (such as damages) would be available for the benefit of non-parties. Injunctive relief that protects the parties from harassment by conduct aimed at their friends, families and associates, seems a fair and measured response.
[234] The overall history makes it clear that Atas must be ordered to leave the plaintiffs alone, and that the order must be framed broadly to ensure that she does not do indirectly that which she has been restrained from doing directly. . 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 this quote the court considered the unique (and IMHO legally dubious) internet defamation remedy of "vesting title to the postings in them" (ie. the plaintiffs) as an aid to having them removed:(c) Order to Remove Impugned Content
[228] I accept that the court can order a defendant to remove offensive content on the internet.[75] Such an order will certainly not be effective in this case. First, Atas has shown already that she will not follow court orders. Second, as reflected in the record, Atas has posted to sites that have policies of not removing content simply on request. Third, it is not reasonable to suppose that Atas will even remember all the places and ways in which she has posted content wrongfully on the internet. Fourth, the proposed order requires Atas to undertake removal of content “at her own expense”. Atas is currently destitute and will use that circumstance to excuse her compliance with any steps that would cost a materials amount to pursue. Fifth, any remedy that by its nature will require ongoing involvement between plaintiffs and Atas will almost inevitably lead to conflict and further litigation. As explained in the Judgment, Atas seeks out conflict with her opponents, and seeks to extend and complicate that conflict. The court itself has an interest in seeing the overall conflict brought to an end. The alternative order proposed by the plaintiffs: vesting title to the postings in them, with ancillary orders enabling them to take steps to have the content removed, will be more effective for them. . 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':(d) Harassment
[163] The prevalence of online harassment is shocking. In Canada, as of October 2016, about 31% of social media users were harassed.[56] Studies[57] on the effects of cyber harassment show the potentially devastating impact of these attacks:Online harassment has a unique effect on those who have been subjected to it, both in regard to their mental health and in regard to violations of their legal rights. Research suggests that online harassment effects are like the effect of harassment that occurs physically or verbally. For example, harassment, regardless of whether performed in person or online, can make victims “develop a variety of psychological, as well as somatic, symptoms”.
However, online harassment differs from other forms of harassment because it is an unstoppable intrusion. Perpetrators of online harassment do not allow their victims to escape their harmful action by entering their home or private domain. The victim cannot escape the harassment in the haven that is his or her own home. Moreover, the perpetrator can perform the harassment from anywhere remotely.
A 2014 study found that forty percent of victims of online abuse suffered damage to their self-esteem. Additionally, thirty percent of these victims reported a fear for their lives. This abuse can have such intense ramifications that twenty percent of these victims reported that they were even afraid to leave their home. Furthermore, victims of online harassment like cyberbullying face a high risk of depression, anxiety, and may increase the risk of the victim harming himself or herself. Most distressingly, cyberbullying victims were about twice as likely to have attempted suicide than those who have not been harassed in this manner. However, the victims of online harassment are not the only ones to suffer negative mental health effects from the behavior. The harassers themselves suffer from a variety of negative mental health effects. Cyberbullying offenders are more likely to have attempted suicide than non-performers. In conclusion, online harassment is an epidemic. [164] The Statements of Claim in the Caplan Action and Babcock Action (issued March 29, 2018, and November 17, 2018, respectively) plead harassment as a cause of action. At the time of the issue of each, the Ontario Superior Court of Justice, in Merrifield, appeared to have recognized a common law tort of harassment in the employment law context.[58] On appeal, the Court of Appeal overturned the trial decision.[59] The Court of Appeal’s decision not to recognize the new tort was based on two critical conclusions. First, the Court concluded that the tort of intentional infliction of mental suffering was a sufficient remedy in the circumstances of Merrifield. Second, the court held that: “(w)e were not provided with any foreign judicial authority that would support the recognition of a new tort. Nor were we provided with any academic authority or compelling policy rationale for recognizing a new tort and its requisite elements.”[60]
[165] In the end, the Court of Appeal “[did] not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude that Merrifield has presented no compelling reason to recognize a new tort of harassment in this case.”
[166] Except for the US, no other common law court has recognized the common law tort of harassment. Ontario does not have a comprehensive statute akin to the English, Manitoba and Nova Scotia legislation. There have been some developments, including recognition of the tort of intrusion upon seclusion.[61]
[167] In Doe, Justice Stinson stated as follows:In recent years, technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent. We now understand the devastating harm that can result from these acts, ranging from suicides by teenage victims to career-ending consequences when established persons are victimized. Society has been scrambling to catch up to this problem and the law is beginning to respond to protect victims.
Each year, criminal courts in Canada deal with an increasing number of these cases. Unlike past decades, many child pornography cases now involve same-aged peers who share nude photos or sex videos with each other. Adults also suffer great harm from these acts. In 2014, Parliament responded by amending the Criminal Code to include a new offence of “publication of an intimate image without consent”: Criminal Code, R.S.C., 1985, c. C-46, as amended, s. 161.1. Under this new provision, anyone who publishes an intimate image of a person without that person’s consent is guilty of an offence and can be sentenced to up to five years in prison.
In November 2015, the Province of Manitoba enacted legislation to create the tort of “non-consensual distribution of intimate images”: see The Intimate Image Protection Act, C.C.S.M. c. I87, s. 11, which came into force on January 15, 2016. No other legislature has so far passed similar legislation. This case, therefore, raises legal questions about the availability of a common law remedy for victims of this conduct, and the legal basis upon which such claims might be founded. Counsel for the plaintiff informed the court that she had been unable to locate any reported decision in Canada concerning a victim seeking civil damages on these or similar facts and my research has not revealed one. This case is possibly the first.
For the reasons that follow, I have concluded that there are both established and developing legal grounds that support the proposition that the courts can and should provide civil recourse for individuals who suffer harm arising from this misconduct and should intervene to prevent its repetition.[62] [168] In my view, the tort of internet harassment should be recognized in these cases because Atas’ 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 social science literature referenced above makes it clear that real harm is caused by serial stalkers such as Atas.
[169] The tort of intentional infliction of mental suffering is simply inadequate in these circumstances: it is designed to address different situations. The test is set out in Prinzo v. Baycrest Centre for Geriatric Care.[63] The plaintiff must prove conduct by the defendant that is (1) flagrant and outrageous, (2) calculated to produce harm, and which (3) results in visible and provable illness. The third branch of the test must be understood in the context of the broad range of behaviour that may be caught by the first two branches of the test. It is not part of the test that the conduct be persistent and repetitive.
[170] I do not have evidence that the plaintiffs have suffered visible and provable illnesses as a result of Atas’ conduct. One would hope that a defendant’s harassment could be brought to an end before it brought about such consequences. To coin a phrase from Sharpe J.A., quoted by the Court of Appeal in Merrifield, “[T]he law of this province would be sadly deficient if we were required to send [the plaintiff] away without a legal remedy.” The law would be similarly deficient if it did not provide an efficient remedy until the consequences of this wrongful conduct caused visible and provable illness.
[171] The plaintiffs propose, drawn from American case law[64] the following test for the tort of harassment in internet communications: where 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, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.
[172] The facts of these cases clearly meet this stringent test.
[173] I am mindful that Merrifield is a recent case and strongly cautions against quick and dramatic development of the common law (para. 20). Often courts are not in the best position to address complex new legal problems (para. 21). As my brief review of legal developments in this area shows, this is a developing area of the law, legislatures have tried to fashion responses, and the issue has been under active recent consideration by the Law Commission of Ontario. It would be better if changes in this area of the law came from the legislature rather than a trial judge.
[174] However, the facts of the case before me are very different from the facts in Merrifield. They are much closer to the situation in which the Court of Appeal recognized the tort of intrusion on seclusion, Jones v. Tsige, in which Sharpe J.A. stated: ““we are presented in this case with facts that cry out for a remedy”.[65] As I said at the outset, the law’s response to Atas’ conduct has not been sufficient, and traditional remedies available in defamation law are not sufficient to address all aspects of Atas’ conduct. Harassment, as a concept, is recognized in the criminal law.[66] It is well understood in the context of family law. In the Judgment I considered making a non-harassment order and rejected it because it had not been requested by the applicants.[67] The concept of “harassment” as wrongful conduct is known to the law and is a social ill. The concern, of course, on the other side of the question, is that people are not always on their best behaviour, and not all, or perhaps even most, conduct intended to annoy another person should be of concern to the law. It is only the most serious and persistent of harassing conduct that rises to a level where the law should respond to it.
[175] The facts of these cases fit within that description. Later, at the following quote, the court suggests that this new tort of 'internet harassment' (above) may form part of the larger tort of 'harassment', which was earlier denied (or deferred) in Merrifield:(d) Scope of Orders
[229] Atas’ objection to the breadth of the proposed orders underlines one of the reasons this court concludes that a common law tort of harassment should be recognized. Atas’ goal has been to inflict harm and misery on her primary targets: persons such as Wallis and Caplan, who have been prime adversaries against her in the Underlying Litigation and the s.140 Application. When Atas was enjoined from publishing further defamatory comments about Wallis, she started to publish defamatory comments about members of Wallis’ family, including Wallis’ children. The purpose of this conduct may be inferred from all the circumstances: Atas had no grudge with the Wallis children: she had never met them or had anything to do with them. She attacked them in order to do harm to Wallis. . 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. . 40 Days for Life v. Dietrich
In 40 Days for Life v. Dietrich (Ont CA, 2023) the Court of Appeal considers an amicus intervention by the CCLA on the new tort of 'internet harassment':[15] On the second issue, the CCLA proposes to make submissions about how the new tort of internet harassment should develop in light of freedom of expression. Though the Charter of Rights and Freedoms does not apply to private disputes, the Supreme Court has indicated that the development of the common law should be consistent with Constitutional values: RWDSU Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156, at para. 19. For example, the tort of defamation developed with regard to freedom of expression and s. 2(b) of the Charter: see Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 43-57. The CCLA proposes to situate the new tort of internet harassment in the context of the existing freedom of expression jurisprudence. . 40 Days for Life v. Dietrich et. al.
In 40 Days for Life v. Dietrich et. al. (Sup Ct, 2022) the Superior Court considers the new tort of 'internet harassment':Internet Harassment
[84] The tort of internet harassment was recognized in Caplan v. Atas, 2021 ONSC 670. The tort will be made out “where 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, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm”: Caplan, at para. 171.
[85] The Court in 385277 Ontario Ltd. v. Gold, 2021 ONSC 4717, also acknowledged the “burgeoning tort of online harassment”. In that case, at para. 57, Myers J. noted:
The law has recognized for many years the particular threat that internet harassment poses to a person’s reputation and well-being. In 2004, in Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON CA), at para. 34, Blair JA wrote:
…Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.
[86] And in 2110120 Ontario Inc. o/a Cargo County v. Buttar, 2022 ONSC 1766, the Court appears to have accepted the possibility of a tort claim proceeding as a result of the defendants’ “manipulation of social media to deliberately negatively impact” the corporate plaintiff’s business, but did not expressly rule on it.
....
[92] The evidence appears to establish that some of Ms. Dietrich’s TikTok videos served to impugn the reputation of 40 Days and that some of her videos and accompanying online communications served to encourage and rally others to do acts to negatively impact 40 Days’ activities. I am of the view that there are grounds to believe that the claim based on the tort of internet harassment has substantial merit.
[93] With respect to Ms. Dietrich’s first defence that the tort of internet harassment is not available to a corporation, the jurisprudence continues to develop with decisions such as Caplan, 385277 Ontario Ltd., and Buttar. I am not satisfied that the law, in its current state, definitively precludes a corporation from prosecuting a tortious claim of internet harassment if it has suffered harm and disruption as a result of online conduct. Accordingly, at this juncture, I am not prepared to find that 40 Days’ claim for internet harassment has no reasonable prospect of success simply because it is a corporation.
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