Evolving the Law: The Tort of Internet Harassment

Nowadays, a person’s life can be turned upside down by a comment made on the internet. Just ask Harvey Weinstein. Despite the power of the internet, we are just beginning to regulate it. In Ontario, the laws regarding decorum on the internet are in their infancy. The law on internet harassment has not been codified. In a recent decision, 385277 Ontario Ltd. v Gold, 2021 ONSC 4717, Justice Myers advances our legal system when it comes to recognizing internet harassment.

In 385277 Ontario Ltd. v Gold, an injunction was sought by the plaintiffs. The plaintiffs wanted to stop the defendants from making comments online. Justice Myers ordered that defendants be prohibited from continuing their internet harassment of the plaintiff Mr. Benghai pending trial or a further court order. In the process of analyzing whether an injunction was just, Justice Myers linked the act of internet harassment to the tort of intimidation.

The Supreme Court of Canada set out the elements of the tort of intimidation. In the tort of intimidation a person threatens an unlawful act to cause someone to do something that they don’t want to do. Justice Myers noted that intimidation is a “form of civil extortion” (see para 66).

At paragraph 71, Justice Myers wrote that: “I am prepared to recognize that it is unlawful harassment, to use the internet in a manner that is outrageous in character, duration, and extreme in degree, with the intent to coerce behaviour by causing fear, anxiety, emotional upset, or impugning the dignity of the plaintiff online. In my view this is an incremental step in the development of the law…”

Justice Myers concluded that the plaintiff would suffer irreparable harm if the defendants were allowed to continue online harassment. In ordering the injunction, Justice Myers also considered that in this case monetary damages could not easily compensate the plaintiff for the pain being inflicted by internet harassment. The balance of convenience favoured maintaining the injunction until trial.

The case 385277 Ontario Ltd. v Gold is a significant development of the law. It will likely be used in later cases, along with the case of Caplan v Atas, 2021 ONSC 670, to establish the tort of internet harassment.

(Views are my own and do not represent the views of any organization. I note that the case 385277 Ontario Ltd. v Gold has not been heard on its full merits. As such, I have made no comments whatsoever on the statements between Gold and Benghai.)