The Court Provides a Way to Fight Cyber-Bullying: Internet Harassment Tort

Cyber-bullying is a serious problem that is getting worse as we have been driven online to an even greater extent due to the pandemic. I cringe at the number of hours I myself spend on social media when I get my weekly usage report from my phone. Unfortunately, not everyone is able to enjoy spending mindless hours on Instagram (or your platform of choice). Some people are subjected to harassment that causes significant mental health issues, which at their most extreme, can lead to suicide.

The Court in Caplan v Atas, 2021 ONSC 670, created a new tool for victims of cyber-bullying to try to stop the harassment. Victims of cyber-bullying are now able to sue the offender for harassment in internet communications. The following elements will need to be proven to be successful in the lawsuit:

• the offender 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 victim; and,
• the victim suffers such harm.[1]

Justice Corbett stressed the need for regulatory oversight to address the rise in and concerning impact of cyber-bullying:

… it is clear that the law needs better tools, greater inter-jurisdictional cooperation, and greater regulation of the electronic “marketplace” of “ideas” in a world with near universal access to the means of mass communication. Regulation of speech carries with it the risk of over-regulation, even tyranny. Absence of regulation carries with it the risk of anarchy and the disintegration of order. As should be clear … a situation that allows someone like Atas to carry on as she has, effectively unchecked for years, shows a lack of effective regulation that imperils order and the marketplace of ideas because of the anarchy that can arise from ineffective regulation.[2]

The Caplan decision is a call for the provincial government to create laws to protect the victims of cyber-bullying.