Group defamation in the Supreme Court of Canada

Section 10 of the Defamation Act, 2009 provides

Where a person publishes a defamatory statement concerning a class of persons, a member of that class shall have a cause of action under this Act against that person if –
(a) by reason of the number of persons who are members of that class, or
(b) by virtue of the circumstances in which the statement is published,
the statement could reasonably be understood to refer, in particular, to the member concerned.

A recent decision of the Supreme Court of Canada, noted here by Inforrm, can help fill in some of the gaps in that section. Some extracts:

Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9 (CanLII) (17 March 2011)

Deschamps J.

[1]                              The law of defamation is a tool for protecting personal reputations.  This right keeps pace with changes in society and in the importance attached by society to freedom of expression.  In Quebec, actions in defamation are governed by the general principles of civil liability.  The flexibility of those principles makes it possible to address society’s growing concerns about freedom of expression.  … The Court must examine the factors to consider when determining whether racist comments made about a group can cause a compensable injury. …

[16]                          The concept of defamation [in Quebec civil law] requires that the right to the protection of reputation be reconciled with the right to freedom of expression, since that which belongs to the former is generally taken away from the latter.  Several international agreements reflect this need to strike a balance between the two rights. …

[17]                          Freedom of expression is protected by the Canadian Charter of Rights and Freedoms, s. 2(b), and the Charter of human rights and freedoms, R.S.Q., c. C?12, s. 3 (“Quebec Charter”).  It is one of the pillars of modern democracy.  It allows individuals to become emancipated, creative and informed, it encourages the circulation of new ideas, it allows for criticism of government action and it favours the emergence of truth (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 (CanLII), 2011 SCC 2). Freedom of expression is essential in ensuring that social, economic and political decisions reflect the aspirations of the members of society.  It is broad in scope and protects well?prepared speech and wrath?provoking comments alike (R. v. Keegstra, 1990 CanLII 24 (S.C.C.), [1990] 3 S.C.R. 697; R. v. Butler, 1992 CanLII 124 (S.C.C.), [1992] 1 S.C.R. 452).  However, it is not absolute and can be limited by other rights in a democratic society, including the right to protection of reputation (Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (S.C.C.), [1995] 2 S.C.R. 1130, at paras. 102?106; Prud’homme, at para. 43; Néron, at para. 52).

[18]                          The right to the safeguard of reputation is guaranteed by the Quebec Charter (s. 4) and the Civil Code of Québec, R.S.Q., c. C?1991, arts. 3 and 35).  Since good reputation is related to dignity (Hill, at paras. 120?21), it is also tied to the rights protected by the Canadian Charter.  Reputation is a fundamental feature of personality that makes it possible for an individual to develop in society.  It is therefore essential to do everything possible to safeguard a person’s reputation, since a tarnished reputation can seldom regain its former lustre (Hill, at para. 108).

[19]                          Of course, there is no precise measuring instrument that can determine the point at which a balance is struck between the protection of reputation and freedom of expression.  In reconciling these two rights, the principles on which a free and democratic society is based must be respected.  The intersection point will change as society changes.  What was an acceptable limit on freedom of expression in the 19th century may no longer be acceptable today.  Indeed, particularly in recent decades, the law of defamation has evolved to provide more adequate protection for freedom of expression on matters of public interest.  In the common law, for example, this Court has reassessed the defence of fair comment (WIC Radio Ltd. v. Simpson, 2008 SCC 40 (CanLII), 2008 SCC 40, [2008] 2 S.C.R. 420, at paras. 49 et seq.) and recognized the existence of a defence of responsible communication on matters of public interest (Grant v. Torstar Corp., 2009 SCC 61 (CanLII), 2009 SCC 61, [2009] 3 S.C.R. 640).

[20]                          The Canadian approach is part of a trend that can be observed in many democracies, …

[21]                          What is of interest for my purposes is not so much the specific solutions proposed by these courts, which vary depending on the legal traditions, constitutional guarantees and social norms that exist in each country, as the general trend that emerges from the cases.  Just like Canadian courts, including those in Quebec, all of these courts are increasingly concerned about protecting freedom of expression.  The law of defamation is changing accordingly.  This is the general context in which this case must be considered.  I will now look at the legal rules applicable to defamation in Quebec civil law. …

[26]                          The type of injury that defines defamation is damage to reputation.  In our law, damage to reputation is assessed objectively, from the perspective of an ordinary person (Néron, at para. 57; Prud’homme, at para. 34; Métromédia C.M.R. Montréal inc. v. Johnson, 2006 QCCA 132 (CanLII), 2006 QCCA 132, [2006] R.J.Q. 395, at para. 49).

[27]                          This level of analysis is justified by the fact that damage to reputation results in a decrease in the esteem and respect that other people have for the person about whom the comments are made. … 

[28]                          It is the importance of “others” in the concept of reputation that justifies relying on the objective standard of the ordinary person who symbolizes them.  Therefore, the fact that a person alleging defamation feels humiliated, sad or frustrated is not a sufficient basis for an action in defamation.  In such an action, injury is examined at a second level focussed not on the actual victim but on the perceptions of other people.  Injury exists where “an ordinary person . . . believe[s] that the remarks made, when viewed as a whole, brought discredit on the reputation” of the victim (Prud’homme, at para. 34).  However, care must be taken to avoid shifting the analysis of injury to a third level by asking, as the majority of the Court of Appeal seems to have done (at para. 73), whether an ordinary person, acting as a trier of fact, would have found that the victim’s reputation was discredited in the eyes of a public that was likely to believe Mr. Arthur’s comments.  The judge must instead focus on the ordinary person, who is the embodiment of “others”.

[35]                          The common law also uses an objective standard, that of the right?thinking person, to ascertain the meaning of impugned comments and assess whether they are defamatory.  This standard is taken from English common law and is based on the famous case of Sim v. Stretch, [1936] 2 All E.R. 1237 (H.L.), in which Lord Atkin stated the following, with which his colleagues concurred:

The conventional phrase exposing the plaintiff to hatred, ridicule or contempt is probably too narrow [. . .].  I do not intend to ask your Lordships to lay down a formal definition, but [. . .] after collating the opinions of many authorities I propose in the present case the test:  would the words tend to lower the plaintiff in estimation of right?thinking members of society generally?  [p. 1240] …

[38]                          While these common law principles cannot be directly transposed into Quebec civil law because of the major differences between the two systems (Prud’homme, at paras. 54?59), they often serve as a source of inspiration.  The two legal communities have the same broad social values.  Indeed, there is a striking similarity between the civil law and the common law approaches. …

[48]                          It must be inferred from this that an individual will not be entitled to compensation solely because he or she is a member of a group about which offensive comments have been made.  The member or members of the group who bring an action must have sustained personal injury.  In other words, defamation must go behind the screen of generality of the group and affect its members personally.

[49]                          That being said, the victim does not have to be expressly named or designated to be able to bring an action in defamation.  The attack does not have to be specific or particularized.  The person who made the impugned comments cannot avoid liability by hiding behind the fact that he or she used general terms applying to a group.  Attacks on a group may in fact personally affect some or all of the group’s members.  While the injury must be personal, it does not have to be unique, that is, different from the injury sustained by the other members of the group.  The reputation of more than one person may be tarnished by the same wrongful comments.  While the law does not punish the defamation of groups having no juridical personality, it does punish multiple individual defamation (D. Buron, “Liberté d’expression et diffamation de collectivités:  quand le droit à l’égalité s’exprime” (1988), 29 C. de D. 491, at pp. 497?98).  Even if the members of a group are covered by comments that mention the group, it will be necessary, in order to establish their right to compensation, that the members prove that they personally suffered damage to their reputations. …

[57]                          In any action in defamation, injury is proved if the plaintiff satisfies the judge that the impugned comments are defamatory, that is, that an ordinary person would believe that they tarnished the plaintiff’s reputation.  The same test is used where the comments apply a priori to a group of individuals, but special attention will then have to be paid to the personal nature of the injury.  The plaintiff or plaintiffs must prove that an ordinary person would have believed that each of them personally sustained damage to his or her reputation. [He idenfied the following factors:]

  1. Size of the Group
  2. Nature of the Group
  3. Plaintiff’s Relationship with the Group
  4. Real Target of the Defamation
  5. Seriousness or Extravagance of the Allegations
  6. Plausibility of the Comments and Tendency to be Accepted
  7. Extrinsic Factors

[79]                         Ultimately, the court must not conduct a compartmentalized analysis or seek to find all the relevant criteria.  What must be determined is whether an ordinary person would believe that the remarks, when viewed as a whole, brought discredit on the reputation of the victim.  The general context remains the best approach for identifying personal attacks camouflaged behind the generality of an attack on a group. …

[92]                          In short, having regard to all of the circumstances, I find that the group is of considerable size and is heterogeneous, that the characteristics attributed to the members of the group are individual and do not lend themselves well to extrapolation, and that the remarks are an extreme, irrational and sensationalist generalization.  Accordingly, an ordinary person, while sensitive to such excessive remarks, would not in my view have formed a less favourable opinion of each Arab or Haitian taxi driver, considered individually.  I therefore conclude that Mr. Arthur’s comments, while wrongful, did not damage the reputation of each Montréal taxi driver whose mother tongue is Arabic or Creole.  The plaintiff did not prove that a personal injury was sustained by the members of the group. …

[94]                          I have no doubt that racist speech can have a pernicious effect on the opinions of members of its audience.  However, it should be noted that an action in defamation will not always be the appropriate recourse in cases concerning racism or discrimination.  In the instant case, I am of the opinion that it is not the appropriate recourse.  I would therefore dismiss the appeal. ,,,