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Evidence - Apology Act

. Caplan v. Atas [see the main link for numbered case cites]

In Caplan v. Atas (Sup Ct, 2021) the Superior Court finds a new tort, that of 'internet harassment'. Here the court considers the possibility of apologies as a defamation remedy, including the role of the Apology Act:
(b) Apologies

[221] The law in this area is developing and I acknowledge that some courts have ordered retractions and apologies as remedies for defamation.[72] I see a place for such orders, in some cases, but I see no utility in an apology here.

[222] First, Atas is not a public person whose word carries with it credibility or weight.

[223] Second, Atas did not publish the impugned words under her own name. She published them anonymously or pseudonymously, on internet sites understood not to exercise editorial control over published contents.

[224] Third, flooding the internet with apologies from the various identities used by Atas, to apologize for the thousands of posts made against dozens of people, would have the effect of drawing further attention to the impugned words and cause further damage.

[225] Fourth, it is generally understood that the plaintiffs’ vindication comes from this court’s judgment. This is not a case where an unqualified retraction from an established media source would further add to the credibility of the court’s findings.

[226] Fifth, unlike some “apology” cases, the plaintiffs do not ask that the apology be published in reputable media sources. For example, in the Ottawa-Carlton School Board case, the defendants were ordered as follows:
An order in the nature of mandamus requiring the defendants to issue a public apology to the plaintiffs such apology to be published at the defendants’ expense in the Ottawa Sun and the Ottawa Citizen within 60 days of the date of this judgment.[73]

This order responded to the very specific statements made by the defendants alleging serious misconduct by the plaintiffs, including violations of a fictitious court order.
[227] Atas also argued that a forced apology could, in effect, compel her to abandon her right to silence in the contempt proceedings, and could be used against her in those proceedings. The plaintiffs counter on the basis that the apology would be governed by and protected by the Apology Act.[74] In view of my conclusion that it would not be appropriate to order an apology in this case, I need not answer these questions.



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Last modified: 01-06-23
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