Defamation And The Application Of Journalistic Standards In The Digital Age

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.

I-THE FACTS

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 deolontogical 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.

II-THE DECISION

Following its analysis, the Court concluded that Vaillancourt's primary aim was to discredit Bernèche, regardless of the actual facts.

1. 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:

   1. 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;

   2. 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...