The Supreme Court of Canada, in a recent decision favouring freedom of speech, has ruled against a claim that assumed injury to groups of people from inaccurate and hurtful comments intended to malign the group.
In Malhab v Diffusion Métromédia CMR, a radio show host radio host known for his provocative remarks made accusations concerning Montréal taxi drivers whose mother tongue is Arabic or Creole. While commenting on the taxi industry in Montréal, he made accusations of uncleanliness, arrogance, incompetence, corruption and ignorance of official languages. A member of these ethnic groups brought a class action on behalf of all affected groups.
The court noted that attacks on a person’s reputation can involve allegations of fact or merely offensive and insulting comments. An affected person is only entitled to compensation if fault, injury and a causal connection are all present.
The court held that reconciling the rights of freedom of expression and the protection of reputation is a moving target. As society evolves, intersection point between these two competing principles will change.
This case related to provable harm. The court noted that while fault is determined by looking at the conduct of the person making the statement, injury is assessed by looking at the impact of that conduct on the victim, and liability for defamation can only be found where a connection exists between the fault and the injury.
Most importantly, in determining the existence of injury resulting from an insulting statement, the court can look only at objective factors, asking the question whether an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of the victim?
Ultimately, the court held that since the protection of reputation is an individual right that is intrinsically attached to the person, only those who have suffered personal injury can become entitled to compensation. This contributes to maintaining the balance between freedom of expression and the right to the protection of reputation.
As a result, 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 group members seeking compensation must establish that they personally suffered damage to their reputations. Simply being members of the maligned group is not sufficient unless the court can infer that an ordinary person would have believed that the wrongful and scornful comments made caused actual damage to the reputation of each member of the group. In this case, there was no reasonable basis for inferring that the reputation of all taxi drivers working in Montréal whose mother tongue is Arabic or Creole had in fact been damaged.
