Canada: Can Publishing A Review On Social Media Be Defamatory?

Last Updated: March 21 2018
Article by Samuel Gagnon and Catherine Bourget

Since the arrival of social media, publicly expressing an opinion has taken on a whole new dimension. The potential audience for online expressions of an opinion is vast, and companies are now paying close attention to comments published about them online. In some cases, the popular verdict can be devastating.

Businesses sometimes have to go to court when they feel victimized by defamatory and baseless statements about them online. That was the case in the recent matter of École de conduite Hermès v. Dubé, 2017 QCCQ 128941, in which a Facebook user was ordered to pay the plaintiff $3,800.

* * *

I – Facts

The plaintiff, Pascal Leyris, is the owner of driving school École de conduite Hermès. Before starting that business, he was an instructor at another driving school, Permis Plus. Relations between the plaintiff and Permis Plus had been highly acrimonious since the plaintiff started his own business.

Several members of the family of the defendant, Charli Dubé, aged 18, were shareholders of Permis Plus. They accused the plaintiff of soliciting clients of their driving school.

Even though he did not know the plaintiff personally, the defendant published a "review" of him on the Facebook page of the plaintiff's driving school. He gave the business one star (out of a possible five) and insinuated in his comments that the plaintiff behaved inappropriately with some of his teenage clients2. The post was withdrawn the following day, at the plaintiff's request.

The plaintiff claimed $7,500 from the defendant for defaming him. The defendant maintained that the language he had used was not defamatory and had not damaged the plaintiff's reputation.

II – Decision

A. Defendant's liability

The Court considered that the "review" published by the defendant was defamatory, primarily because of the outlandish insinuations it contained and the doubts it unjustly raised about the plaintiff's character and behaviour.

Citing the Supreme Court of Canada3, the Court pointed out that in order to determine if the plaintiff was defamed, it must be asked "whether an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of [the plaintiff ...] because of the idea they expressly convey, or by the insinuations that may be inferred from them".

The Court found that the statements published by the defendant contained falsehoods and fabrications, and that some of the terms used inherently discredited the plaintiff and raised doubts about his conduct and character, leading the reader to question his motives.

B. Damages

The Court awarded the plaintiff $3,500 in moral damages and $300 in punitive damages. It took into account the impact of the post on the plaintiff's reputation, the doubts sewn among his entourage, the defendant's intention to harm him, and the lack on his part of any excuse or attempt to retract the statements. On the other hand, the Court noted that the defamatory statements had not reached a very wide audience, were online for only a short period of time, and the relative seriousness of the attack on the plaintiff's reputation.

III – Comments

The line between freedom of expression and damage to another person's reputation is often thin. However, an individual cannot say whatever he wants, however he wants, on the pretext that he is exercising his right to freedom of expression4.

The truthfulness of the message is just one of the factors to be considered in assessing whether a fault has been committed5 and the truth or falseness of a statement is not in itself determinative. Statements that are true but made with the intent of damaging someone else's reputation can thus be deemed defamatory and actionable. In this case, the Court found that not only did the statements contain falsehoods, but were made with the intent to cause harm. In the context of reviews of a business published on social media, whether or not the message is true is in our view important, as false statements could denote intent to cause harm.

This is not the first time that a Quebec court has had to determine whether a post on Facebook can give rise to an award of damages.

In 2012, in 9080-5128 Québec Inc. v. Morin-Ogilvy6 the Superior Court awarded the plaintiffs $10,000 in compensatory and punitive damages7. The judge found that certain statements published on the defendant's personal Facebook page were pejorative and harmful, and were intended to give rise to an unfavourable opinion on the part of a reasonable reader. The Court added that the statements went beyond a neutral account of a situation that the defendant had found unsatisfactory. The judge concluded from the statements that anyone who uses this online medium to give free rein to his thoughts must be mindful of the consequences. The judge therefore decided that it was appropriate to allow punitive damages, which are awarded where the defendant knows or intends that the consequences of its conduct will be harmful.

In 2013, in Carpentier v. Tremblay8, the Court of Québec awarded $5,000 in compensatory damages and $1,500 in punitive damages following the publication online of a photomontage that it considered to be defamatory of the plaintiff.

These decisions are just some examples of instances where courts have had to decide whether or not statements posted on Facebook were defamatory. Each case must be judged on its facts, and the statements at issue must be analyzed in light of the circumstances specific to each situation.

Conclusion

In the context of social media, which facilitate access to a vast readership, the courts must sanction defamatory statements, while at the same time maintaining a balance between freedom of expression and each person's right to reputation.

Ultimately, giving a negative review on the Facebook page of a business is not inherently defamatory, provided the statements are true and not made with the intent to cause harm.

Footnotes

9341-5875 Québec Inc. (École de conduite Hermès) v. Dubé, 2017 QCCQ 12894
2 [TRANSLATION] Charli Dubé has given his opinion on École de conduite Hermès/SAINT ÉLIE D'ORFORD:
Hey everyone!! Pascal's been trying to get in touch with me and some of my fellow driving students now that our course has finished, without any professional reason! He's harassing us by phone, and as far as I'm concerned it's a breach of privacy. He's not aggressive or anything, but there's no way I'm going to answer text messages from him asking me what I'm doing or trying to chat. Some of my fellow students, who prefer to remain anonymous, are freaked out by his attempts to contact them, even after they got their driver's licence!!! So watch out when he asks for your phone number!!!
Prud'homme v. Prud'homme, 2002 SCC 85, para. 34
Falcon v. Cournoyer, 2000 CanLII 18480 (QC SC)
Bou Malhab v. Diffusion Métromédia CMR inc., [2011] 1 SCC 214, para. 25
6 2012 QCCS 1464
7 The award in favour of the two plaintiffs was as follows: $4,000 and $1,000 respectively in compensatory damages and $3,000 and $2,000 in punitive damages.
8 2013 QCCQ 292

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Samuel Gagnon
Catherine Bourget
 
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