Defamation, in short

by Aude Desmartis

The Charter of Human Rights and Freedoms and the Civil Code of Québec give all persons a right to a reputation. Of course, where there is a right, there is also the possibility of infringing it. We are, of course, talking about defamation.

What is defamation?

Defamation, in Quebec law, is a civil law concept, meaning not criminal. Typically, to be held responsible under civil law, all three of the following elements must be found: a fault (a person has done something wrongful), a harm to another, and a causal link between the fault and the harm. However, it is important to understand that there can be a harm without necessarily being at fault. In other words, there can be damage to a person’s reputation without anyone being held liable. In the context of defamation, the “fault” will be making the defamatory comments.

Essentially, comments are considered defamatory if their communication has the effect of causing to diminish the esteem or reputation for the person targeted by the remarks, or if they lead to unfavourable or unpleasant feelings towards that person. In addition, the defamation must necessarily damage the reputation of others in a way that is considered unjust. An attack will be unjust if it consists of speaking badly about someone or arouses feelings of hatred, contempt or ridicule on the part of the public.

More specifically, the test applied to find defamation is the following: would an ordinary citizen who heard or read the comments in question have considered them to be defamatory (thus damaging the reputation of the person concerned)? The question is therefore not how the victim felt, but whether the comments objectively damaged his or her reputation.

Furthermore, one can imagine a situation in which an individual would make a false statement, knowing or not that it is false, and would still be liable for defamation. We therefore do not rely on the truthfulness of affirmation. The reverse is also true: one can just as easily be found guilty of defamation for spreading unfavourable and irrelevant comments, even if these comments are true.

Where the victim is a group, for defamation to exist, it must be proved that all the members of the group suffered personal harm, that is, that the defamation reached all the members individually.

However, some cases do not exactly meet the above criteria …

There are a few actors and situations that benefit from different treatment under Québec law. This is the case, in particular, for comments made by journalists, for which the tolerance threshold is higher. Obviously, freedom of expression remains very important. So, the following criterion is adopted: would a prudent and diligent journalist have done the same? If so, then it will not be considered defamation; just proper journalism.

Public figures who are the victims of unfavourable comments are also judged differently, meaning according to a higher threshold of tolerance (more comments are acceptable towards them, which would not necessarily be acceptable towards the ordinary citizen).

In addition, repeating defamatory comments, that is, sharing defamatory comments made by others, is considered defamatory in itself. Finally, in most cases, the defamation that takes place on the Internet is treated according to the general criteria (those set out above). However, some clarification is required. For example, the online publication of an image of a person without his consent is considered an attack on his reputation, unless the person is a person of public interest (celebrity, politician…) or an individual incidentally brought into the public eye (finding himself on the jumbotron at a hockey game, for example).