A woman sits in front of a laptop with her head in her hands. (Image: Elisa Ventur/Unsplash)
A woman sits in front of a laptop with her head in her hands. (Image: Elisa Ventur/Unsplash)

The internet can be a horrible place, where people can spread conspiracy theories and misinformation and can make defamatory and harassing comments about others. The nature of the internet means its users have the ability to post comments that are then instantaneously distributed around the world with a simple click, which can magnify the impact of online harassment dramatically.

In an increasingly polarized social and political world, the internet has revealed itself to be a useful and common conduit for people who wish to participate in such harmful behaviours.

I’m being harassed online – what can I do?

As to defamation, there has always been the ability to sue the party for making a defamatory statement about you. Granted, the law faces challenges in how it deals with defamation over the internet, but it does provide someone a way to seek a remedy against someone who posts false and damaging information about them, and courts are adapting the existing law about defamation to respond to the particular issues caused by the nature of the internet. There are numerous cases which deal with defamation over the internet, whether it is to recognize the exceptional damage that internet defamation can cause by virtue of its instantaneous global reach and the ease with which others can forward material posted on the internet, or to find that the moderators and administrators of a website can be liable for publishing defamatory statements even where the statements are posted by others.

The situation is somewhat different where the messages being posted are harassing, but do not amount to defamation. The reason is that while there are some instances where a person will have a remedy if they are being harassed (for example, where the harassment is on the basis of sex, gender, race, or any other ground that is protected under the relevant human rights legislation), there is no freestanding cause of action for harassment. In fact, when a court in Ontario decided that the law should recognize a new cause of action for harassment in 2017, the decision was appealed and the appellate court overturned that decision, essentially stating it was not necessary to create a new cause of action for harassment to deal with the circumstances in that case.

It might be tempting to say that this gap in the law is just an academic concern, because if the statement is false the victim can make a claim in defamation, and if it is true then maybe it should not be wrong for the person to make the statement. However, the recent case of Caplan v. Atas has pointed out that there could be situations where existing causes of action, like defamation, might not be adequate to deal with harassment over the internet.

A new cause of action for internet harassment

In that case, the defendant posted numerous incredibly vexatious comments about pretty much everybody who she felt had crossed her (the decision addressed four separate lawsuits involving about 50 plaintiffs who claimed to have been harassed by the defendant, and the judge noted that there were as many as 150 victims of the defendant’s online attacks). Many of those comments would likely also support a claim of defamation, but as the judge pointed out, some of the comments were not defamatory because they were not factual allegations that could be true or false (so they would not support a claim of defamation) but were rather abusive comments that might be part of a pattern of harassment. Some of the other comments were not made about the victim of the harassment, but about their family members, including deceased family members; in those cases, the plaintiff could not claim for defamation because the comments were not about them, but the comments might still be part of a pattern of harassment against the plaintiff.

The court determined that there should be a new cause of action for internet harassment, so that a victim could seek a remedy if “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.”

What will the impact of this decision be?

It remains to be seen just how the courts will address the issue of internet harassment in the future, and how far this new cause of action will be applied. The Caplan v. Atas case has already been cited with approval in other cases in Alberta, British Columbia and Ontario. In addition, some provinces such as Manitoba and Nova Scotia have legislation that protects victims from internet harassment in certain specific situations.

While it will be important that the courts remain vigilant against this cause of action being used to argue about minor disputes, it is equally important for the courts to fashion a remedy for people where they are the subject of extreme and outrageous harassment.

Michael Hackl

Michael Hackl

Michael Hackl is a contributor to rabble’s Pro Bono column. Hackl is a lawyer with Iler Campbell LLP where he practices civil litigation, providing advice and representation to charities, non-profit...

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Pro Bono

Pro Bono is a monthly column written by lawyers and legal experts at Iler Campbell LLP that explores the murky legal waters activists regularly confront in doing their work.