Bringing the Law Into the 21st Century: Creating the Law Needed to Stop Cyber Bullying

In the age of rapid technological advancement and increased access to unsupervised internet forums, the opportunity for cyber bullying and online harassment has grown tremendously over the years. Some may argue that the law that protects and limits free speech has not been modernized to address a users’ ability to harass others online, until now.

On January 28, 2021, the Ontario Superior Court of Justice released a 69-page decision to help combat unchecked and vexatious “cyber bullying” in Ontario, which is likely to influence the future of law in this area.

In the case, which can be found here, the Defendant, created and posted online media made to look like newspaper articles from reputable sources. This media contained statements that were vexatious, untrue, and harmful about former employers, her lawyers, law firms that represented banks that foreclosed on some of her income-properties, and victims’ family members. The online accusations made by the Defendant included claims of professional misconduct, fraud, negligence, and grievous sexual misconduct. The proceedings were very lengthy as in just two years almost 45 interim Court decisions were made by the court in response to the matters.

The dispute carried on for over 20 years. The court attempted to stop the Defendant’s behaviour by granting injunctions to restrain the Defendant’s conduct. Specifically, the injunctions were made to prevent the Defendant from posting anything on the internet other than ads to sell physical items on sites like Kijiji. The Defendant still refused to abide by the injunctions and, as a result, multiple motions for contempt were brought by the victims and the Defendant was eventually imprisoned.

Why Recognize Harassment in Civil Law?

Many argue that the law in Ontario has not yet created tools to combat vile online conduct. For many who choose to ignore them, Judges’ words amount to mere text on paper without real consequences.

In this case, the court confronted the fact that someone such as the Defendant, who had no assets or income, was bankrupt, and was not concerned about a prosperous future would be undeterred by the financial consequences that the civil court would usually impose.

As a result, the court found it appropriate to recognize harassment as a law in the civil context. This new law would provide the court with the ability to provide remedies to victims not available under Ontario’s defamation law. This is because, among other reasons, defamation law in Ontario generally requires the victim to prove some loss in order to get some recourse in the courts.

In the normal course, where a defamatory statement is published, victims are expected to serve a “Libel Notice” which in effect demands that the perpetrator remove the statement. However, in this case the court confessed that this is a useless remedy against an online perpetrator who is attempting to hide their identity and has no intention of complying with the law or the court.

The court found one of the most convincing reasons to adopt and establish civil harassment rather than using defamation is simply because the perpetrator in this case did not intend to defame her victims. Instead, she intended to harass, hurt, and abuse them. Harassment is already recognized in criminal and family law. As a result, the court determined that it is capable of recognizing it in civil law while stating, “it is only the most serious and persistent of harassing conduct that rises to a level where the law should respond to it.” That is, the court will likely not intervene in trivial online disputes.

Ongoing Limitation Periods

Another interesting and potential novel issue addressed by the court in this case is the limitation period that applies for a claim of online harassment. The perpetrator argued that the limitation period (two years in Ontario) ought to commence when the publication was first made. The court disagreed and determined that where the harassing post continues to be made publicly accessible, the discovery is ongoing and may remain the basis of a lawsuit. In theory, this could be interpreted to mean that the two-year limitation period commences once the harassing materials are removed from the internet or the harassment ceases to exist.

Unique Remedies for a New Problem

The court ordered a permanent injunction preventing the Defendant from making any additional harassing statements. The court also ordered that title to all of the internet postings be given to the victims. Presumably, this would allow the victims to step into the role of the author(s) and delete the posts. The perpetrator had a habit of targeting her victims’ family members. As a result, the court determined that the injunctive relief could apply to a broad range of individuals associated with the victims without requiring them to actually be identified in the court order nor did they need to be parties to the lawsuits.

The court was also willing to include wording in the decision that would make it effective in other jurisdictions. In common law jurisdictions such as Ontario, when a defamation claim is brought, it is usually the case that the Defendant ought to prove that the statements were not false or they may rely on defences such as “fair comment”. However, in other jurisdictions, such as those where the websites that hosted the defamatory content were located, the service providers were only willing to remove the statements if a court declared that they were false, which flipped the burden of truth and placed it on the victims. The judge in this case was comfortable with adjudging that the statements were indeed false to satisfy the requirements for removing online content for organizations located abroad.

If you have questions about a defamation matter or are the subject of a harassing statement, contact Walker Law’s civil litigation lawyers for a consultation.

Please note that this article is intended for information purposes only. It is not intended to provide legal advice. If you have any specific questions, please contact a lawyer.

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