Une conceptualisation novatrice de la diffamation en droit privé à la lueur de la charte des droits et libertés de la personne et du code civil du Québec

Abstract

Interference with the individual’s right to honour and reputation can give rise to two separate remedies, which overlap each other, or even coincide. On the one hand, the Charter of human rights and freedoms punishes defamation and entitles the victim to obtain cessation of the infringement and reparation of the resulting harm, based on section 49. Meanwhile, defamation incurs the civil liability of the offender under Article 1457 of the Civil Code of Québec if the triumvirate of “fault, injury and a causal connection” can be proven. This fundamental critical reflection on the concept of defamation in private law is useful for proposing an innovative reading of its constituent factors and providing a coherent legal framework that supports and articulates it rationally. In the first part, the author proposes a continuum that runs from “harm to reputation,” to “unlawful harm to reputation,” to “wrongful harm to reputation.” Only the latter two involve the law and correspond to a civil defamation case – interference that is illegal, not merely blameworthy. In the second part, the author surveys the practical impact of (re)conceptualizing civil defamation using as an illustration the 2011 Supreme Court decision in Bou Malhab, which addresses the specific conditions for a civil defamation remedy and for collective injury, that is to say, the injury that the members of a group claim to have suffered as a result of racist comments.