The action for defamation

A member of your entourage posts a message on Facebook following a conflict between him and you. In this post, he mentions your name and shares many negative rumors about you, which you know to be totally false. Despite your many requests, he refuses to delete the post, which has already been shared by several people. You wonder what recourse is available to you in a situation like this.

What is a defamation claim and what are the situations in which such a remedy is available?

What is defamation?

In the Civil Code of Québec, section 3 states that every person has the right, among other things, to respect for his reputation and privacy. These rights are also protected by Article 35, which states that no invasion of an individual’s privacy may be made without his or her consent or the authorization of the law.

In the Quebec Charter of Human Rights and Freedoms, there are three relevant sections on defamation. Article 4 provides for the right to dignity, honour and reputation, while Article 5 sets out the right to respect for private life. Article 49 specifies that the victim of an infringement of one of these rights has the right to obtain compensation for the damage suffered.

The recourse under 1457 C.C.Q.

The action for defamation is based on article 1457 of the Civil Code of Québec, which sets out the principle of extra-contractual civil liability.

Article 1457 of the Civil Code of Québec reads as follows:

Every person has the duty to respect the rules of conduct which, according to the circumstances, customs or the law, are binding on him, so as not to cause harm to others.

It is, when it is endowed with reason and fails in that duty, liable for the damage it causes by that fault to others and is bound to make reparation for that damage, whether bodily, moral or material.

It is also required, in certain cases, to make good the damage caused to others by the act or fault of another person or by the fact of the property in its custody.

A person who wishes to bring such a recourse will therefore have to prove the following three elements:

1. Injury

The person who alleges to be a victim of defamation must demonstrate the defamatory nature of the statements that have been made about him. To reach such a conclusion, the court will have to consider whether an ordinary person would consider that these comments and the context in which they were made are damaging to reputation.

2. Fault

For the author of the defamatory statements to be held civilly liable, the latter must have committed a fault. Even if a person discloses false information, he or she will not necessarily be considered at fault. Fault will be acknowledged if it stems from malicious or negligent behavior.

It is malice when a person, in bad faith and intentionally, attacks the reputation of others through humiliating, hateful or contemptuous remarks.

Rather, negligent conduct will be recognized when the perpetrator did not intend to cause harm, but nevertheless damaged the reputation of others because of his negligence.

3. The causal link

An individual who alleges that he or she has been the victim of defamation must show that there is a link between the damage suffered and the fault committed, i.e. the defamatory statements made about him.

It is important to note that such a proceeding must be instituted within one year, pursuant to article 2929 C.C.Q. This period begins to run when the victim of defamation becomes aware for the first time of this damage to his reputation.

Reasonableness analysis

In a defamation suit, the burden of proof is on the plaintiff of the action.

Defamation is analyzed according to the criterion of a reasonable person put in the same situation. The question then arises: How would another person in the public in the same situation have perceived the gesture or the word?

The reasonable person test or the test of objectivity is important because perception varies from one individual to another.

Example of a defamation case

The plaintiff sues the defendant for damage to his reputation. They had only met once at the time of the event. The defendant posted a message on Facebook, naming the plaintiff and alleging that the plaintiff had been unfaithful to his spouse.

The plaintiff tries to call the author of the publication in order to settle the matter amicably, but he faces a refusal and the defendant writes a second publication that reiterates that the plaintiff is cheating on his spouse. The publication even discloses the applicant’s place of work.

Following the defendant’s third message on his Facebook page, the plaintiff gives notice to the defendant to stop his actions, failing which he will file a lawsuit. The defendant mocked this situation through a new Facebook post.

The defendant later deleted the posts and apologized to the plaintiff.

The court held that the defendant’s statements were defamatory. These were unpleasant words, made without just cause and with the intention of humiliating the plaintiff, which were widely disseminated considering that the defendant has nearly 400 friends on Facebook.

The defendant alleges that he had consumed alcohol and medication and had been in a depressive state for some years, but this cannot minimize his responsibility. The defendant’s comments undermined the plaintiff’s reputation, honour and privacy. The events related to the defamatory words had an impact on the plaintiff’s life and led to the breakdown of his relationship.

The court concluded that the plaintiff was entitled to damages of $1,500 for damage to his reputation, as well as $500 in punitive and exemplary damages, as it was an intentional and unlawful infringement of the plaintiff’s rights.

Each case is a case in point. If you wish to file a civil suit for defamation, do not hesitate to contact us.

*Please note that defamation cases are charged by the hour.

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