For consumers, the web is full of information that allows them to make informed choices. Which restaurant to choose, is this hairdresser talented, what about this electrician? In just a few clicks, answers to these questions can be found through various sites, which indicate whether the service needed will be provided professionally and if it is worth the cost.
What about the service provider, however? Under the cover of anonymity, careless and dissatisfied commenters can damage a company’s reputation. Worse still, for pleasure or personal revenge, it is possible to invent the worst infamies to forever ruin a merchant’s reputation.
In these situations, which can only multiply in this era of social media, can baseless remarks left by users constitute defamation?
Definition of Defamation
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, furthermore, arouse unfavorable or unpleasant feelings toward them”[1].
Two fundamental rights clash in the evaluation of the legitimacy of defamatory remarks: the internet user-consumer’s right to freedom of expression and the right of the company or service provider to the protection of its reputation.
Freedom of Expression and the Right to 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:
[30] The Supreme Court has moreover 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, as noted by Justice Deschamps in the case of Bou Malhab v. Diffusion Métromédia CMR inc.:
[31] The judge responsible for assessing fault imposes on the author of the remarks the behavior that a reasonable person would have had in the circumstances. In matters of defamation, the judge takes into account the author’s right to freedom of expression. He will even tolerate, in certain cases, that the author has expressed exaggerated opinions.
Proulx v. Martineau, 2015 QCCA 472 (CanLII)
The Ordinary Citizen Test
In light of this judgment, it is 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, the ordinary citizen should consider that the remarks affect the reputation of the person targeted, as highlighted by the Supreme Court in the case of Prud’homme v. Prud’homme:
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 arise from them.
Prud’homme v. Prud’homme, [2002] 4 SCR 663, 2002 SCC 85 (CanLII)
Thus, hateful comments that are so exaggerated that they become laughable may not constitute defamation, as they have not affected the reputation of the person targeted, since the ordinary citizen would not take them seriously.
Defamation and Fault
It therefore seems obvious that highly negative comments targeting a person or an industry can constitute defamation if they affect the way the 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 a civil remedy to be possible. Indeed, without fault, there is no possibility of claiming damages.
Remarks can thus attack a person’s reputation, harm their credibility, and present them in a bad light—in short, have a defamatory character—without their dissemination constituting a fault, for example, if the criticism is legitimate and the allegations are well-founded. Thus, a legitimate criticism, although harsh or exaggerated, cannot be considered a fault on the part of its author, even if it affects an individual’s reputation. A defamation lawsuit cannot be used as a pretext to gag opponents.
Source
[1] Société Radio-Canada v. Radio Sept-Îles Inc., 1994 CanLII 5883 (QC CA)
