Online Defamation

Recent events around an infamous Facebook page calling hundreds of people “potential sexual aggressors” brought the public discussion about defamation and legal protection against on top. The good old question “where freedom of expression stops and unlawful violation of individual rights starts” is at the centre of the discussion again.

Legal Grounds for online defamation:

There is no specific article in the Civil Code of Quebec treating defamation. Instead, the Civil Code, altogether with the Quebec Charter, protects dignity and reputation of individuals, companies and institutions. Civil responsibility rules apply to those who go against those dignity and reputation in an unlawful way.

Injury (damage done)

These civil responsibility rules require that a person believing to be a victim of defamation prove that real damage was caused and that it was caused by a specific faulty action (of defamation). Proving all the three — damage, fault and a causal link between — is on the victim. Usually it includes evidence of a bad word spread, losses (financial, reputational, psychological), like being ostracized by colleagues at work, losing contracts, getting depressed, and — the trickiest part — that all this won’t have happened but for that bad word. We should also mention that assessing how “bad” were the words the Courts will from the point of view of an ordinary person who would see or hear those words in the whole context. This means that some hypersensitive (or prejudiced, or stereotypical) personal perception of a victim would not prove defamation, if the words were not seen so much offensive from an “objective” point of view.

Context:

Context is important. Same words might be denigrating in one context and neutral (or even praising) in another, like “he knew what he was doing”, for example. It is important that a reader or listener is sure of whom and of what the bad word is said. If this is unclear, no damage is assumed.

Sometimes the Courts could infer a personal injury from indirect allegations or even call for an expert to give an opinion.

Defamation can be public (bad words made publicly available) or private — intended to a particular person (or persons) whose opinion is important to the victim. Images (including fake images or a photomontage), plain words or indirect allusions, insinuations and irony can, in the circumstances, constitute defamation.

Fault

If the injury (damage) is proven, it is also important to show that the author of bad words was at fault. Two kinds of fault are possible: intentional (this is sort of obvious: the author specifically sought to cause damage to the victim of his words by, for example, knowingly spreading lies) — and negligent (here an intention to do some harm is not necessary), when the author did not bother to verify facts, did not take possible aftermath into account, did not look where he (she) writes and accidentally made his (her) words public, basically did not care.

Spreading truth might also be seen as defamation if there was no public interest in publicizing such a truth. The question the Courts would ask is if a reasonable person in the circumstances would see it fit to go public with the information.

Causal Link

As we mentioned, a victim should prove to the Court that the damage was actually caused by the author’s fault — as an immediate and direct consequence. A usual defence here is to show that some other events or actions of different people might case the same result independently or after the publication of defamatory statements.

Of course, some direct statements would help to prove causation — those of colleagues, employers, business partners, friends and relatives, saying that they started to think worse of the victim and acted on that feeling. Yet it is not always possible and practical to obtain such statements. At least it’s necessary to collect significantly plausible indirect evidence to help the Court to infer the causal link.

Damages

Sometimes a victim does not ask for money in compensation, requiring only to remove the publication, take the words back and, maybe apologize. Yet in most cases the question of money is present. Therefore, if you go to the Court asking for compensation for the damage you suffer, it will be on you also to prove the extent of the damage and justify the amounts you are asking for.

Lost profits, salary, medical treatment — everything should be supported by documents with appropriate calculations.

When it comes to moral damages, there are factors to think of. How grave and blatant was the defamatory statement, how important were the consequences for the victim, how much his (her) life got worse after the publication, how wide the word spread, who got the message, did the victim contribute the spread and consequences by his (her) own action, how long the damage last, what were the circumstances — those are the factors recognized by the judges. On various occasions the Courts awarded from $ 1,000 to $ 50,000 for moral damages.

Finally, there is a question of punitive damages. The Courts allow those if the actions of the author of defamation were “illicit and intentional.” It means that the author was fully aware of the faulty nature of his (her) actions, understood the negative consequences for the victim and wanted them to happen.

Punitive damages are not meant to compensate the victim, but to make the author punished, as it is clear from the term “punitive.” Therefore, the Courts take into account what amount would be “sensitive” to the author (in addition to the other damages awarded). The amounts are usually less elevated than those for moral damages: something from $ 500 to $2,500, rarely more.