It is sometimes said that the legal system is behind the times. This is often most apparent in areas of technology and communication. Until January 1, 2021, service of documents by fax machine (yes, fax machine) was valid and widely used by lawyers throughout Ontario. Many courts also communicated by fax. A silver lining of the COVID-19 pandemic has been a rapid modernization of the administration of justice in Ontario. The days of voluminous paper records and waiting around in court for hours for a fifteen-minute hearing have been replaced with electronic systems of serving and filing documents and zoom hearings.
Judges have also come to recognize that we live in an increasingly technological world and that the law must change to keep up with the times. In the recent decision of Caplan v Atlas, the Ontario Superior Court of Justice recognized the existence of a new cause of action: the tort of harassment in internet communications.
The test is set out as follows:
- the defendant maliciously or recklessly engages in communications conduct;
- the conduct is so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;
- the conduct is made with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
- the plaintiff suffers such harm.
What drove the court's decision?
The court's recognition of internet harassment was undoubtedly driven by the unique facts before it. The defendant, Atlas, is a person who the court concluded must be suffering from serious mental illness and described her as so lacking in empathy to be sociopathic. Atlas engaged in a "vile campaign of cyber-stalking" against various persons flowing from a series of grievances. Atlas is destitute. She lives in shelters and has no assets. She would post various comments on Facebook, Reddit, Pinterest, and other websites at public computers at libraries. The court recognized that existing law (such as defamation) is simply incapable of controlling her. She had already spent 74 days in jail for defying various court orders.
In extensive reasons, the court recognizes that online harassment is pervasive and unique from other forms of harassment. A victim can never escape from harassment on the internet. Importantly, the court also acknowledges that such harassment causes harm not only to legal rights, but to mental health as well.
What ultimately drove the court's decision was that there was a set of facts which cried out for a remedy. Only time will tell if internet harassment becomes widely accepted or if it will remain confined to the unique facts of this case. If accepted, courts will have the opportunity to develop a set of remedies to effectively combat and control the harm that can be inflicted online.
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