Defamation and the Application of Journalistic Standards in the Digital Age
This article is a modified version of a commentary co-written with Jasmine Laroche and initially published by Éditions Yvon Blais in May 2017 (EYB2017REP2218).
In the digital age, more and more alternative media – such as blogs, Web clips or publications on social media – are appearing online. The authors of such publications run the risk of being sued for defamation when commenting or reporting on facts or events, as the decision in Bernèche v. Vaillancourt1 shows.
In that case the Quebec Superior Court allowed an action in damages against a journalist who conducted an online blog. The Court concluded that the plaintiff had been defamed on the Internet.
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The plaintiff Douggy Bernèche (“Bernèche”) was actively involved in the boxing world. He ran a boxing club and managed several athletes. The defendant Gino Vaillancourt (“Vaillancourt”) conducted a blog called “Le Guerrier Moderne” (The Modern Warrior) on which he reported and commented on various sports events. He had a degree in public communications, and held himself out to be a journalist.
Vaillancourt published three articles on his website which Bernèche considered defamatory towards him. He alleged that Vaillancourt had failed to respect several deontological rules governing the work of journalists.
In his defence, Vaillancourt denied that his articles were defamatory in nature and argued that he could not be held to the same standards as a journalist writing for media with a much greater readership.
Following its analysis, the Court concluded that Vaillancourt’s primary aim was to discredit Bernèche, regardless of the actual facts.
A. Applicable principles
The Court first of all highlighted the following principles concerning defamation, which have been confirmed time and again in the case law:
1. Defamation consists of the communication of spoken or written words that make another person lose esteem or that arouse unfavourable or negative feelings towards him or her2.
2. The defendant’s liability is to be determined pursuant to the general civil liability regime. Thus, the plaintiff will be entitled to compensation if the defendant committed a fault that caused the plaintiff harm (Article 1457 of the Civil Code of Québec).3
3. Three types of conduct may be characterized as constituting a fault:
a. A person speaks ill of another, knowing that what he or she is saying is not true. Such speech is malicious and intended to harm the other person;
b. A person speaks ill of another when he or she should have known that what is being said is false. A reasonable person generally forbears from spreading unfavourable information concerning someone else when he or she has reason to doubt its veracity;
c. A person speaks ill of another, and while what he or she says is true, the person has no valid reason for doing so.4
The Court then went on to consider the extent to which journalistic standards applied to Vaillancourt5. While those standards do not have the force of law, and Vaillancourt was not a member of the Quebec federation of professional journalists (FPJQ), its standards may nevertheless be of assistance to the Court in evaluating the conduct of one who holds himself out as such.
B. Liability of Vaillancourt
The Court concluded that the articles Vaillancourt published contained several falsehoods as well as uncalled for and baseless opinions.
As Vaillancourt’s purpose in publishing the articles was to share information with the public, he had the obligation to ensure the veracity of that information, which he did not do. According to the Court, while it could not be concluded that Vaillancourt knew that what he wrote was false, he could easily have checked whether the information was accurate by performing a summary verification.
In light of the fabrications spread by Vaillancourt, the Court concluded that he had committed a fault, and consequently ordered him to pay the plaintiff $5,000 in moral damages and $5,000 in exemplary damages. It also ordered him to publish a retraction on his website.
This decision concerns a defendant who held himself out to be a journalist. However, his website was more like a blog than a news site, on which he dealt with a variety of subjects, including nutrition, photography and physical training.
A person can work as a journalist without fulfilling any formal requirements. However, the case law makes a clear distinction when assessing statements made by a reporter as opposed to those made by a columnist. The latter enjoys much greater latitude and can only become liable by abusing his or her freedom of expression6. The former, while having the right to freedom of expression, is also subject to the journalistic standards applicable to reporters.
This is a fundamental distinction7. When the article in question is akin to a column where opinions are regularly expressed and positions taken, the journalist should not be subject to normal journalistic standards8. In such cases, whether a statement is defamatory or not will be determined by analysing the words from the perspective of a reasonable person placed in the same circumstances9, without regard for journalistic standards.
However, the Court devoted scant attention to characterizing the nature of Vaillancourt’s work. The judge mentioned that the articles were intended to share information with the public10 and concluded that Vaillancourt should have respected the obligations incumbent on reporters and accordingly should have verified the accuracy of the facts he reported.
This conclusion seems to depart from the case law holding that it is important to make a distinction between the two kinds of journalism referred to above. The reasons given by the judge are short on detail. It is not evident why it should be concluded that a blogger is ipso facto subject to journalistic standards.
Insofar as damages are concerned, the extent to which the defamatory statements were broadcast must be taken into account11 in assessing their harmful impact. In the digital age, this exercise can be simplified by adducing into evidence the comments published on Facebook following the publication of the article online. In this instance, those comments indicated a negative perception of the plaintiff by the public following publication of the impugned statements.
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In matters of defamation, both reporters and columnists can be held liable when the information conveyed is defamatory. However, the obligations incumbent on reporters are more extensive, and include that of having to verify the veracity of the information published. The proper characterization of the type of journalism involved is thus crucial, in order that the appropriate legal reasoning can be applied. However, the issue of characterization was never expressly broached in this decision.
Thus, the publication on the Internet of statements deemed defamatory can have major legal consequences. The potentially rapid spread of such information via social media should prompt bloggers to think twice before putting such content online.
1 EYB 2017-275837 (S.C.)
2 Société Radio-Canada v. Radio Sept-Îles Inc., EYB 1994-57842 (C.A.), par. 35. See also Prud’homme v. Prud’homme, 2002 SCC 85, REJB 2002-36356, par. 33.
3 Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, EYB 2011-186410, par. 22
4 Prud’homme, supra, note 3, par. 36
5 More specifically, the Court refers to section 3 a) of the Code of Ethics of the Fédération professionnelle des journalistes du Québec (FPJQ), which stipulates the obligation of journalists to ensure that the facts they are relating are accurate.
6 Genex Communications Inc. v. Association québécoise de l’industrie du disque, du spectacle et de la vidéo, 2009 QCCA 2201, EYB 2009-166376, pars. 29 to 32
7 WIC Radio Ltd. v. Simpson, 2008 SCC 40, EYB 2008-135084, par. 71
8 Proulx v. Martineau, 2015 QCCA 472, EYB 2015-249367, par. 27
9 Genex, supra, note 8, par. 2; Bou Malhab, supra, note 4, par. 31. However, the quality of the reasoning and the accuracy of the information conveyed may be considered: Guimont v. RNC Média Inc. (CHOI-FM), 2015 QCCA 569, EYB 2015-250050; Radiomutuel Inc. v. Savard, EYB 2002-36079 (C.A.); Voltec ltée v. CJMF FM ltée, REJB 2002-34227 (C.A.) and Airmédic Ambulance aérienne v. Groupe Radio Antenne 6 Inc. (KYK-FM Radio-X 95.7), 2012 QCCS 738, EYB 2012-203156.
10 Par. 46 of the decision commented upon.
11 9080-5128 Québec Inc. v. Morin-Ogilvy, 2012 QCCS 1464, EYB 2012-205055, par. 82