Reasonable Doubt: How awful for Elisa Lam—but what about Morbid?

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      Fans of true crime and unsolved mysteries may recognize the name Elisa Lam. Elisa was a UBC student who disappeared while staying in an L.A. hotel in 2013. The police released the last-known footage of Elisa to the media in a Hail Mary move to get leads from the public.

      This footage came from the hotel elevator’s security camera. The footage is creepy. It shows Elisa acting erratically and it fuelled wild speculation about paranormal activity and conspiracy theories. The video quickly became viral.

      This mystery is the subject of the latest Netflix true-crime series, called Crime Scene: The Vanishing at the Cecil Hotel. The four-part series comes from various angles to try and make sense of the story: Elisa's mental health, the Cecil Hotel’s dark past, and the terrible conditions of L.A.’s skid row. 

      One interesting tangent in the show were the Internet sleuths. Strangers came across the viral video of Elisa and became obsessed with solving the mystery themselves. Some turned their suspicions to Morbid. 

      Morbid is the stage name of a death-metal musician. As it’s covered in the show, he was in the wrong place at the wrong time. Unfortunately, Internet mobs accused Morbid of killing Elisa. He became the target of relentless online hostility and harassment. In the show, Morbid discusses his unfair treatment, mental-health struggles, and his eventual retreat from public life.

      Online harassment is not the focus of the Elisa Lam case and shouldn’t take away from the tragedy of what happened to Elisa. Still, I was left asking myself at the end of the Netflix series, "What about Morbid? What happens when cyberbullies and Internet trolls turn on you?"

      I’ve covered online defamation before in the context of a bad break-up and a war between neighbours. Last month, the Ontario courts heard an extreme case and created a new way to hold people accountable on the Internet. 

      The Ontario case involved a defendant whose online activities were described by the judge as “extraordinary campaigns of malicious harassment and defamation carried out unchecked, for many years''. For years, the defendant wrote thousands of posts about people she held grievances against. She targeted former employers, former coworkers, and lawyers involved in mortgage proceedings taken against her.

      Her accusations ran the gamut from professional misconduct to sexual crimes and pedophilia. In her Internet postings, the defendant widened her circle to include her victims’ family members. By the judge’s count, she had as many as 150 victims. It’s an incredible story that was recently covered in a New York Times exposé. 

      The Ontario judge acknowledged that in society, there is a balance between protecting free speech and protecting people’s reputations. As he laments,”The [I]nternet has cast that balance into disarray”. The judge needed to consider what was justified in these extreme circumstances. 

      The judge found the defendant destitute, living in shelters, and an undischarged bankrupt. As a result, the judge felt that ordering such an impoverished defendant to pay damages would not have any impact and that the online postings would only continue. The judge also considered how she had already refused to obey temporary orders to stop Internet postings—suggesting that she would not comply in the future with any permanent order.

      Furthermore, the defendant was declared a “vexatious litigant” (a designation that limits the person’s ability to use the courts’ legal process). The defendant was also found in contempt of court for defying procedural rules and was sent to jail as a result.

      Unsplash/Victoria Heath

      Ultimately, the judge found defamation law inadequate to address this case. He considered the defendant’s intent and found that the defendant’s postings weren’t merely about defaming victims. Rather, the judge found the postings were meant to harass them.

      The Ontario judge concluded that the law needed to formally recognize a new legal wrongdoing: Internet harassment. It’s where someone maliciously or recklessly engages in communications that are so outrageous in character or duration and so extreme that it goes beyond all possible bounds of decency and tolerance. It’s done with the intent to cause fear, anxiety, emotional upset, or to impugn the dignity of another. It’s where that person suffers such harm. 

      Finding that the defendant was liable for the tort of Internet harassment, the judge made a permanent order that she be prohibited from further Internet postings about her victims. Interestingly, the judge also gave the rights or title of the past postings to the victims so they could have them removed themselves.

      From a legal standpoint, this case is remarkable because harassment is not a well-defined or recognized area of law. In B.C., it’s not even clear whether this tort exists. But this Ontario decision may help open the door here in B.C. for the tort of Internet harassment to be formally recognized as well.

      Holding people accountable for their online actions may have just become a bit easier. 

      The author’s opinions of this case are based on the court’s published reasons. The author was not personally involved in the lawsuit and has no firsthand knowledge of it or its parties. A decision was made not to include any names of the parties or the hyperlink to the court’s published reasons.

      A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or consult a lawyer.

      Kevin Yee is a trial lawyer. He acts for people who have been injured or wronged. If you have topics that you’d like Reasonable Doubt to cover or if you have a general question for a lawyer, you’re welcome to send him an e-mail.