When Does the Use of Social Media become Internet Harassment?

By Irvin Schein, Litigation Lawyer, Mediator, and Arbitrator
Originally published at irvinschein.com. 

There is no shortage of commentary about social media’s potential to be used for improper purposes. Everyone knows that there is a whole world out there of crazy people who say crazy things on Twitter and other such media. Some of these people are under the impression that because they can express themselves with anonymity, they can say anything they want, and even if what they say is defamatory, they can get away with it.

It is true that suing someone over a defamatory Tweet, for example, can pose difficulties when the statement was made anonymously. It is difficult and it can be expensive to go through the steps necessary to identify the perpetrator. However, it is possible. The law will respond in the same way as it would if the defamatory statement had been made, for example, in a newspaper.

Somewhat more disturbing is the apparent trend towards what is now considered internet harassment. Until very recently, a victim of internet harassment could do nothing more than to sue for damages for defamation. In some circumstances, that is simply not an adequate remedy.

In the recent case of Caplan v. Atas, a judge of Ontario’s Superior Court granted a summary judgment against a defendant found to have carried out an online campaign of malicious harassment and defamation against a series of plaintiffs and their families for many years. The defendant had published thousands of anonymous internet posts on a number of online sites, accusing the plaintiffs of a variety of types of misconduct, including criminal activity.

The Court found that the defendant had acted with intent to harass the plaintiffs and others and cause them “fear, anxiety, and misery.” The Court concluded that the common law of defamation was simply not adequate for such circumstances. The Court noted what it characterized as an epidemic of online harassment and that while other jurisdictions have legislation dealing with this type of activity, Ontario does not.

Accordingly, the Court proceeded to create a new tort, that of internet harassment. The Court adopted the American legal test and determined that this tort can be proven where the defendant maliciously engages in conduct that is so outrageous and extreme as to go beyond all possible bounds of decency, with the intent to cause fear, anxiety, emotional upset, or to impugn the dignity of the plaintiff.

In this case, the question of a remedy was the most difficult of all. The defendant had already refused to comply with past injunctions and other court orders and had spent time in jail. A damage award was not a useful remedy because the defendant was bankrupt. As a result, the Court granted a permanent injunction prohibiting the defendant from posting anything about the plaintiffs or about their friends, families, and associates, and made an order that would facilitate the plaintiffs having all of the malicious posts removed.

It makes perfect sense that new developments in communications between people should give rise to new developments in the law governing those communications. While the new tort of internet harassment may be difficult to define, I rather suspect that one will know it when one sees it. Hopefully the Courts will take a liberal approach and make it abundantly clear that this type of conduct will no longer be tolerated.

If you would like more information on the topic in this blog or on litigation, mediation, and arbitration services from Irvin Schein, please contact ischein@mindengross.com.