Alexander Etkin Horlick Levitt Di Lella LLP
Internet Harassment
When the Enemy will not Wage War in the Flesh The Tort of Online Harassment Provides Needed Legal Recourse for Condominium Communities in Ontario
For anyone who has been the target of online harassment and defamation, they know that communication via the internet is instantaneous, far-reaching, and potentially permanent. Further, internet speech is distinguished from in-person speech in terms of its potential to damage the reputation of individuals and corporations, its potential for being taken at face value, and its worldwide accessibility. Fortunately, on January 28, 2021, the Ontario Superior Court of Justice released the decision, Caplan v. Atas, which I believe may provide recourse to condominium residents, directors, managers, personnel, and others dealing with the problem of online harassment. Caplan was the result of a decades-long campaign of vicious online harassment,
including allegations of pedophilia and professional negligence, that was perpetrated by the defendant, Nadire Atas, against a range of victims including adverse litigants and their relatives, her own lawyers, a former employer, and the former employer’s successor, managers, and employees. Finding that pre-existing legal remedies were insufficient to address the nature of Ms. Atas’ conduct, the court recognized a new common law tort of online harassment which requires that a plaintiff satisfy the court that: 1. “the defendant maliciously or recklessly engaged in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance; 2. the communications conduct was done with the intent to cause fear, anxiety, emotional upset, or to impugn the dignity of the plaintiff; and
3. the plaintiff suffered such harm, as intended by the defendant.” The Legal Landscape Before Ontario Recognized the Tort of Internet Harassment Prior to Caplan, individuals who were targeted by online harassment had to avail themselves of law that did not adequately address the realities of this problem. For example, a plaintiff could file a claim in defamation, but there are shortcoming to this approach. By definition, a defamatory comment in many cases must be false for it to be actionable. However, the type of speech which may be used in an online harassment campaign does not always allege a fact, and thus may not lend itself to being proven true or false. For example, as pointed out in Caplan, repeatedly calling someone a “twit” or “stupid” conveys a dislike or disapproval of the target individual, but cannot be shown to be true or false. As a result, this type of speech, while no doubt harmful, is not necessarily defamatory at law. CONDOVOICE FALL 2021
CV
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ILLUSTRATION BY JAMIE BENNET
Online harassment is a very serious problem that is arising in condominium communities with increasing regularity due to the omnipresence of the internet and social media platforms.