Group Defamation Clarified

The Supreme Court of Canada recently dismissed a class action brought on behalf of 1,100 Montreal taxi drivers for group defamation. At issue in the claim were the “scornful and racist” remarks of a Quebec talk radio show host about Arabic and Creole speaking taxi drivers.

In dismissing the class action by a 6-1 majority, the Court concluded that a plaintiff's mere membership in a maligned group is not sufficient to warrant damages for defamation. Rather, the Court confirmed that plaintiffs in group defamation claims are required to establish that all group members have personally, as opposed to collectively, suffered damage to their reputation.

Among the key holdings from the Court in Bou Malhab v. Diffusion Métromédia CMR inc.:

• The right to the protection of reputation is an individual right intrinsically attached to the person. Therefore, only those who have suffered injury to their personal reputation become entitled to compensation.
• Members of a group who bring an action for defamation must establish that each member suffered injury to their personal reputation. Proof of injury to the reputation of the group itself will not give rise to an inference that each member suffered personal injury.
• The court set down a non-exhaustive list of factors (detailed below) to assist lower courts when assessing injury to reputation in group defamation claims.

Writing for the majority, Justice Deschamps reviewed the development of the law of defamation and stated the basic principles of civil liability for defamation under the Quebec civil law: 

1. Fault: refers to the conduct of the defendant and whether a reasonable person would have made the impugned statements; 
2. Injury: refers to the impact of the defendant's conduct on the victim and whether an ordinary person, as the embodiment of the society that receives the impugned comments, would believe the remarks caused damage to the plaintiff's reputation; and
3. Causal connection: refers to whether the identified fault caused the injury claimed.

Prior to hearing the matter on the merits, the Quebec Superior Court granted the plaintiff authorization to proceed with the claim as a class action.

At trial, the comments of the radio personality were found to be racist and defamatory giving rise to an award of damages. The defendants successfully appealed to the Quebec Court of Appeal which held that the defamatory comments did not inflict damage on any individual member of the identified group. The class plaintiff appealed to the Supreme Court of Canada.

In view of the inconsistent decisions in the lower courts, the majority of the Supreme Court sought to clarify what constitutes a compensable group injury to reputation. The Court set down the following non-exhaustive list of factors for courts to consider when assessing an injury to reputation among group claimants:

• Size of the group: the larger the group, the more difficult it is to prove group members all suffered harm to their reputations;
• Nature of the group: the more strictly organized and homogeneous the group, the easier it will be to establish that injury is personal to each member;
• Plaintiff's relationship with the group: a plaintiff's status, duties, responsibilities or activities in the group can make it easier to prove personal injury (for example, the captain of a football team, the few senior officers of a police narcotics unit);
• Real target of the defamation: the more general, evasive and vague the allegations, the more difficult it will be to go behind the screen of the group;
• Seriousness or extravagance of the allegations: in circumstances where the comments are not excessively exaggerated or generalized, the more serious or inflammatory the group allegation, the more likely it is that group members have suffered damages;
• Plausibility of the comments and tendency to be accepted: plausible or convincing allegations against a group from a reliable speaker may be accepted more readily and connected with individual group members; and
• Extrinsic factors: courts can also consider other factors such as the maker or target of the comments, the medium used and the general context.

Though the Court has set out a detailed analytical framework for group defamation claims, the success of any defamation suit is heavily dependent on its individual facts and circumstances. It remains to be seen how courts will deploy the Court's analytical framework in practice – particularly in light of the Quebec civil law context in which it was developed.

In this case, the Court sent a strong message that group plaintiffs will be held to tough standards when establishing injury to reputation among individual group members. This may limit the ability of the class device for the prosecution of such claims. Nonetheless, clients should continue to be mindful that defamatory comments about groups are indeed actionable.