In January 2012, the Québec Court of Appeal dismissed the
appeal from a Superior Court decision awarding damages against a
website owner for defamatory content on its website
(Canoë inc. v. Corriveau, 2012 QCCA
109). In that case, a journalist running a blog on a website owned
by Canoë inc. ("Canoë") published a blog post
regarding the conduct of a certain criminal lawyer in the defence
of her client, who was accused of sexual assault of a minor. The
blog post elicited various defamatory and injurious comments from
the website's users targeted at the lawyer. The website's
terms and conditions for the blog prohibited the posting of
defamatory content and provided that Canoë could remove
messages from its blog that violated its policy, implying
supervision over content.
Though Canoë admitted fault for failing to remove
defamatory comments as its terms and conditions provided, the
Superior Court judge fortunately cited doctrine and case law
stating that an "access provider" (e.g. an operator of a
website that allows users to post and access content) that exerts
some degree of control over the published content is deemed to act
as "editor" of the content, and that the degree of
liability would be a function of the degree of control exerted. In
the context of punitive damages, the Court considered that
Canoë was grossly negligent in failing to verify and delete
defamatory messages on its site, given the nature of the blog post
and the likelihood of such comments. Although the access provider
has an obligation of means and not an obligation of result, when a
published post is highly controversial and likely to elicit
defamatory comments regarding an individual, the access provider
must exercise greater care in the monitoring and deletion of
messages that could violate a right protected by the Charter.
In appeal, Canoë argued that its negligent conduct did not
constitute the violation of a Charter right meriting punitive
damages. The Court of Appeal dismissed the appeal, stating that the
trial judge reasoned correctly that Canoë could not have been
unaware of the negative consequences that the post would have
This decision may cause businesses operating websites that allow
users to blog and post comments to take another look at their terms
and conditions. Most businesses try to prevent their websites from
becoming the "Wild West" of user comments by monitoring
and deleting comments that would deeply offend other users, which
may produce unexpected consequences.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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