As a consumer, the web is full of information that allows us to make informed choices. Which restaurant to choose? Does this hair salon have a good reputation? And what about the services of this electrician or plumber? Checking the quality of services rendered on the internet has become common practice. Whether on Google or various professional sites, one can easily verify the user experience of our peers.
What about the service provider, however? Under the cover of anonymity, careless and dissatisfied commenters can damage a company’s reputation. Worse still, after an unsatisfactory experience, out of spite or personal revenge, it is possible to publish the worst infamies and harm a merchant’s reputation. Can these baseless comments left by users constitute defamation? What constitutes defamatory remarks? How can it be proven?
Understanding Defamation: Legal Definition and Scope
First, it is necessary to define what constitutes defamation. The definition generally recognized by the courts is that defamation “consists of the communication of remarks or writings that cause someone to lose esteem or consideration or that, further, arouse unfavorable or unpleasant feelings toward them 1.”
Two fundamental rights conflict in the evaluation of the legitimacy of defamatory remarks: the consumer’s right to freedom of expression and the right of the company or service provider to the protection of their reputation.
In 2015, the Quebec Court of Appeal well illustrated this opposition by reiterating that freedom of expression is limited, among other things, by the right to reputation:
“The Supreme Court has repeatedly recognized the crucial role of freedom of expression in our democratic society. However, like any fundamental right, freedom of expression is not absolute; it is limited, among other things, by the right to reputation. As there is no perfect balance between the protection of freedom of expression and reputation, courts must consider the alleged injury to reputation by paying particular attention to the context and, in certain cases, the holding of even exaggerated opinions may be tolerated 2.”
In matters of defamation, the judge takes into account the author’s right to freedom of expression. In some cases, the judge will even tolerate the expression of exaggerated opinions 3.
It must therefore be understood that a harsh and exaggerated comment from an internet user will not necessarily constitute defamation. The analysis of negative comments will necessarily depend on the context and their severity, and to be qualified as defamatory, an ordinary citizen must consider that these remarks affect the reputation of the person targeted:
“In other words, one must ask whether an ordinary citizen would consider that the remarks made, taken as a whole, discredited the reputation of a third party. In this regard, it should be noted that words can be defamatory through the idea they explicitly express or through the insinuations that emerge from them 4.”
Typical Examples and the Boundaries of Freedom of Expression
The most common examples of potentially defamatory allegations are accusations of fraud, embezzlement, or unfounded serious misconduct.
It is possible to severely criticize a restaurant, for example, or to give an opinion, even a negative one, if it is based on verifiable facts and is expressed in a measured tone.
Even if they are unpleasant to receive and read, isolated insults are generally treated as verbal abuse rather than defamation. Of course, this always depends on the context.
Thus, hateful comments that are so exaggerated they become laughable may not constitute defamation, as they have not harmed the reputation of the person targeted, since an ordinary citizen would not take them seriously.
Defamation, Libel, and Slander: How to Tell the Difference?
It is important to distinguish between insult, contempt, and verbal abuse, and defamation. The first three offenses are not based on specific factual allegations, whereas defamation is based on an imputation of fact.
The evidence and remedies differ for each context: defamation involves truth and public interest, while insult is measured by its offensive nature.
Slander is defamation aggravated by manifest bad faith or the deliberate spread of a lie. In each case, the severity of the fault and the extent of the dissemination guide the amount and the measures ordered.
Online Defamation
With the development of digital technology and social media, specificities are added to the context of defamation. Since it is particularly easy and fast to spread erroneous or potentially defamatory information, and conversely to take screenshots and thus keep a record of said comments, internet users must be vigilant.
Furthermore, platforms can withdraw or delete comments but maintain archives. In the context of a defamation lawsuit, the effect of social networks on the extent of the injury and the calculation of damages is a factor that will be integrated.
It therefore seems clear that highly negative comments targeting a person or an industry can constitute defamation if they affect how an ordinary citizen views the victim. However, despite the existence of remarks deemed defamatory, their dissemination must constitute a fault on the part of their author for there to be a possibility of civil recourse. Indeed, without fault, there is no possibility of claiming damages.
Procedures to Follow in Case of Defamation
If you believe you are a victim of online defamation, it is important to gather as much evidence as possible, as quickly as possible. Take screenshots, save URLs, note dates and times, and if possible, save the metadata.
You can contact the platforms while keeping a record of your exchanges and documenting their responses.
Finally, you can send a formal demand letter requesting the withdrawal of the defamatory remarks, an apology, and corrections to the statements. However, it is recommended to do this with the help of a lawyer, as a poorly drafted demand letter could worsen the situation.
Best Practices for Individuals and Businesses
- Recommend factual verification before publication and the use of a measured tone.
- Implement a comment policy and active moderation on public pages.
- Establish an internal process for receiving and processing removal requests.
Sources:
- Société Radio-Canada v. Radio Sept-Îles Inc., 1994 CanLII 5883 (QC CA)
- Taken from the remarks of Justice Marie Deschamps in the context of the 2011 Bou Malhab v. Diffusion Métromédia CMR inc. ruling.
- Proulx v. Martineau, 2015 QCCA 472 (CanLII), http://canlii.ca/t/ggqm2.
- Prud’homme v. Prud’homme, [2002] 4 SCR 663, 2002 SCC 85 (CanLII), http://canlii.ca/t/1g2w4.
Summary
What is the time limit for taking action for defamation in Quebec?
A person who believes their reputation has been harmed has one year from the moment they become aware of it to initiate legal action.
Can the identity of an anonymous account be obtained from a platform?
This type of situation must be handled on a case-by-case basis. However, in exceptional circumstances, it is possible to obtain information through a court order from a person or company not directly involved in a dispute for the purpose of revealing a person’s identity.
How to request the de-indexing of a search result?
Social media platforms must remove content that is clearly illegal (such as hate propaganda or child pornography), as well as content whose illegality has been confirmed by an “independent third party,” for example, through a court judgment.
How are damages calculated when the impact is primarily reputational?
When a court concludes that remarks and/or writings are wrongful, it must then evaluate the damages caused according to the specific situation presented. When the impact is primarily reputational, it is referred to as moral injury or non-pecuniary damage. Given the nature of the injury, determining adequate compensation is an exercise of discretion and overall assessment by the court.
Can a poorly phrased demand letter worsen the situation?
Yes, a poorly drafted demand letter is likely to escalate a dispute; for example, the imputation of serious, unproven facts could be considered defamatory in itself. Furthermore, to have a real deterrent effect, a demand letter must be based on solid and applicable legal grounds.
