Friday, February 18, 2011

Group libel not a basis for a class action

Bou Malhab v. Diffusion Métromédia CMR Inc., 2011 SCC 9 deals with group libel under the Civil Code. While arising under the Code the analysis is applicable at Common Law.

Generally defamation has four elements: (1) Publication, (2) Identification (3) Harm and (4) Impugns Character. Put otherwise defamation is the making public of a false statement about a person that causes damage to that person's reputation.

A statement is "published" if it is communicated to someone other than the person whom the statement is about.

A statement "identifies" a person if it is shown that it is "of and concerning" that person.

Harm means the person defamed can actually show injury.

Finally, the statement must lessen the respect of right thinking people for the person defamed.

Individuals can be defamed; groups of people cannot be. The key question is whether a statement about a group can reasonably be interpreted to refer to a specific individual in the group. In Bou Malhab specific ethnic/cultural groups were ridiculed and the question arose whether there was a basis for a class action.

The Court held there was not:

[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.


stock tradingh said...

The appellant rejects this contention as do I, but I do not accept the appellant's assertion that the proper analogy is to the white pages where individual names appear.

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