The 2014 General Social Survey on Canadians’ Safety, found that 2.5 million Canadians had experienced cyberstalking in the previous five years.

Cybercrime is complex and a relatively new area of law. Indeed, one recent case revealed how legislation in this area is still being developed.

Specifically, Caplan v Atas led to the development of a new tort of internet harassment when the existing tort options would have limited the potential for a positive outcome for defendants.

Caplan v Atas

The defendant in Caplan v Atas had perpetrated years of cyberstalking a former employer, their successor, owners, managers, employees, as well as family members and friends of those victims. The defendant also managed to delay the process of justice so that she could continue her spree without punishment. In regard to the defendant, Justice Corbett said:

“[The defendant], has used the internet to disseminate vicious falsehoods against those towards whom she bears grudges, and towards family members and associates of those against whom she bears grudges.  [The defendant] is destitute and apparently content to revel in ancient grievances, delighting in legal process and unending conflict because of the misery and expense it causes for her opponents.”

There were approximately 150 victims of the defendant’s harassment. To avoid court-ordered injunctions, she would hire a third party to post on her behalf. When ordered to stop defaming one person, the defendant would go after the family members and friends of that person.

Cyberstalking and Tort Limitations

The plaintiffs sued the defendant for defamation and defamation was proven. However, they argued that defamation did not encompass the extent of the conduct of the defendant. They argued that the defendant also committed internet harassment, which exists in the United States but not in the Ontario Court of Justice.

The Court found that Caplan’s intentions were beyond the assassination of character associated with defamation. The Court found that she intended to harass, harry, and molest both primary victims and targeted family members and friends. In addition to that, the defendant had pre-emptively applied for bankruptcy in order to avoid having to pay damages for her actions.

As such, the Court concluded that a defamation claim was insufficient insofar as the remedies available did not cover the specifics and extent of this case. They, therefore, recognized a new common law tort: internet harassment. This tort is intended to provide remedies for employers and others who are harassed, bullied, or stalked on the internet.

New Tort of Internet Harassment

Caplan v Atas resulted in the recognition of internet harassment in the Ontario Court of Justice. The new tort of internet harassment requires meeting the same stringent test applied in the US. That is, a tort of internet harassment exists,

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.”

This occurred because defamation offered too limited remedies in relation to the extent of the harassment conducted by the defendant. The remedies for an internet harassment tort were also laid out in this case.

This new tort of internet harassment is intended to allow victims of cyberattacks to obtain remedies. In the case of Caplan v Atas, the remedies were as follows:

  • Instead of relying on the defendant to remove things that had been posted on the internet, the Court vested title of the postings to the victims and gave ancillary orders that enabled the removal of the falsities that had been posted.
  • In order to hinder the defendant from any additional harassment on secondary victims for the purpose of harming a primary victim, the Court extended protections to the families, related persons, and businesses associated with primary victims.

Additional remedies may be available in future cases but were not applicable in this case due to the fact the defendant was destitute.