For the past several years, the phenomenal growth of the Internet, which allows information to be shared and circulated with great ease and accessibility, has lead to debates on the limits to freedom of expression.

The ease with which information can be made public raises the question of what means are available to control and set guidelines for information circulating on the Internet. For example, what can you do when you realize that you or your company is being slandered on the Internet? What recourses are available to you to have the offending statements removed?

On March 26, 2010, the Court of Appeal handed down a decision on this issue in Prud’homme v. Rawdon1, quashing a Superior Court decision which had ordered the closing of a discussion forum on the Internet. In coming to its decision, the Court of Appeal had to strike a balance between two fundamental but opposing rights—freedom of expression and the right to one’s reputation.

The facts:

In May 2005, Stephen Leblanc launched a web site which was meant to be a discussion forum to talk about current affairs in the municipality of Rawdon. The web site was hosted in Ontario with a company called Inverdigm.

Around the end of 2007, the mayor and the general manager of the municipality of Rawdon learned that they were being libelled in the discussion forum. At the beginning of 2008 they therefore applied for an injunction for libel as well as an Anton Piller order.

From February 2008 to June 2009, the Superior Court issued interim interlocutory injunctions, some of which were extended. Then, on July 9, 2009, the Honourable Justice Danielle Richer of the Superior Court handed down a judgement on the interlocutory injunction, ordering as follows:

[Translation]

a) cease forthwith releasing, publishing, reproducing or circulating defamatory utterances, in whole or in part, on the discussion forum of the web site hosted at the address rawdon-qc.net or in any other medium, whether verbally or in writing;

b) not make defamatory utterances against the plaintiffs in a discussion forum or as an administrator, host or moderator of discussion forums on any other web site;

c) deactivate and remove from the Internet, within twelve hours of this order, the discussion forum on the web site at the address rawdon-qc.net and remove from the Internet any document or text reproducing the defamatory utterances, in whole or in part, from the said web site;

In the meantime, on September 23, 2008, Superior Court Justice Clément Trudel denied three motions to dismiss on the ground that Rawdon, as a local government, could not institute an action for defamation. Leave to appeal this decision was denied by the Honourable Justice Morissette of the Court of Appeal.

The appeal:

The appeal was brought by Mr. Leblanc, the person who set up the site, and by Mr. and Mrs. Prud’homme, the two moderators identified on the discussion site. They were supported by the newspapers La Presse and The Gazette as well as the Canadian Civil Liberties Association, which all acted as intervenants in connection with the appeal.

As grounds for appeal, the appellants argued that the injunction breached their freedom of thought, opinion and expression protected by the Canadian and Quebec Charters, in particular in that the order was vague and imprecise, which made it unenforceable. They also claimed that the order was overly broad in relation to the right to freedom of expression in that the closing of a discussion forum on the Internet was the equivalent of ordering the closure of a mass communication tool such as a newspaper. The intervenants also claimed that the trial judge did not apply the proper criteria and principles to decide on the issue of the injunction at the interlocutory stage. Lastly, the intervenants claimed that the order was inappropriate in that it covered future utterances, the content of which was uncertain.

Justice Rochon began by pointing out the principles applicable to interlocutory injunctions issued pending the hearing on the merits of a defamation action. These factors were reiterated by Justice Rothman, writing for the Court of Appeal in Champagne2. Justice Rothman began by noting that the Superior Court had jurisdiction to issue an interlocutory injunction to prohibit any defamatory utterances pending the hearing of the action on the merits. Secondly, the Superior Court should exercise its jurisdiction prudently and reserve this proceeding for those clear and rare situations where the libellous or injurious nature of the statements is obvious and cannot be justified. An injunction should only be issued if it is established by a preponderance of the evidence that the author intends to repeat his actions. Thirdly, the order sought should cover specific words to avoid impairing freedom of expression. Lastly, the order does not prevent the author from being punished for defamatory utterances by being ordered to pay damages following the hearing on the merits.

At first glance, Justice Rochon of the Court of Appeal seems to agree with the Superior Court judge regarding the apparent fault of the authors of certain statements which, by being malicious, damaged the reputation of the respondents. He also agreed that it would have been appropriate to require the removal of certain statements from the discussion forum. However, did that warrant the issuance of the interlocutory injunction as written by Justice Richer in first instance? The Court of Appeal held that it did not.

In particular, Justice Rochon found that the trial judge erred in not clearly identifying which words could be described as defamatory. He also criticized the fact that the order covered future defamatory utterances, despite the absence of adequate evidence that the authors of the statements intended to repeat them. However, he held that the Superior Court judge could have inferred from the evidence the propensity of certain citizens to repeat harmful statements against the mayor and the general manager. Exceptionally, she therefore could have clearly identified such unacceptable statements and ordered the appellants in question to refrain from making them until the case was heard on the merits. However, the Superior Court judge did not do that and it was not up to the court of appeal to do so in her place.

Justice Rochon therefore held that the closure of the web site was not warranted and that the measure was too extreme under the circumstances. The removal of up to 22 paragraphs would have achieved the same purpose.

Comments:

Determining whether there has been defamation involves finding a balance between two fundamental rights guaranteed by the Charter—freedom of expression (s. 3 Charter of Human Rights and Freedoms) and the right to the safeguard of one’s reputation (s. 4 Charter of Human Rights and Freedoms). It is not easy to determine the limits to freedom of expression to begin with, but when they conflict with another fundamental right, such as the right to one’s reputation, it becomes all the more difficult. The facts must therefore be analyzed on a case-by-case basis to attempt to strike a balance between these two fundamental rights.
Freedom of expression seems to be a widely recognized right in Quebec. As Justice Rochon mentions in the decision we are examining:

[Translation]

Freedom of expression is to democracy what oxygen is to the human body—it is essential. As this fundamental right is so well entrenched in our values, it will likely be difficult to prove that certain statements are libellous without coming into conflict with freedom of expression. A motion for an order should be written in very specific terms so the judge can render an order which interferes with freedom of expression as little as possible.

It should also be mentioned, and Justice Rochon discusses this in his judgement, that proof of defamation on the Internet raises certain problems. Is access to the site limited in any manner? Can the information be screened before being released? Against whom should the order be issued? Is there a way to prohibit anonymous comments?3 It seems that the person claiming to be the victim of defamation will have the burden of proving these elements. His or her burden will therefore be relatively onerous and technical expertise on the way the discussion forum operates, which could be costly, will likely be essential to support an action for libel.

Lastly, in the Court of Appeal decision, Justice Rochon states that the issue of whether a municipality can bring a libel action should also be decided when the case is heard on the merits. It will therefore be interesting to follow the debate on this subject when this case goes to trial.

This topic will no doubt cause much ink to be spilled and the courts will increasingly be asked to decide on the issue of freedom of expression of Internet users.

To be continued…