The Tort of Internet Harassment: A new tort with an extraordinary remedy

In a landmark decision in Caplan v. Atas, 2021 ONSC 670 (the “Decision”), the Superior Court of Justice recognized the common law tort of internet harassment—proclaiming itself the first common law court outside of the U.S. to recognize the tort.[1] Justice Corbett went on to grant a novel remedy that appears to envision transferring the defendant’s title and ownership of the offending posts and/or accounts to the plaintiffs for the purpose of removing the offending content from the internet.[2] In a case involving decades of extraordinary online abuse by a uniquely recalcitrant plaintiff, the Court was moved to recognize the new tort and grant a novel remedy. While a very significant development in the law, the decision poses a number of unanswered questions, including whether the tort and remedy will survive a potential appeal.

Facts

The Decision related to summary and default judgment motions in four actions against the defendant, Atas, for online defamation and harassment originating as far back as the 1990s. In each case, Atas had launched a campaign of malicious falsehoods as retribution for perceived grievances against the plaintiffs (as well as their friends, family, neighbours and colleagues). Atas used the internet to disseminate a myriad of spurious and damaging accusations, including of negligence, fraud, and pedophilia. Atas used a number of creative means, including posting altered newspaper articles online, disseminating falsified emails to her…

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