As employees, we can find ourselves in a conflict with our employer. We might decide to call a friend or wait for a therapy session. However, sometimes we decide to vent on social media. This can have consequences on both the employee and the employer.
On one hand, the employee holds on to his freedom of expression granted by the Charter of rights and freedoms (the “Charter”). On the other hand, the employer holds on to his right to his reputation (also granted by the Charter) as well as the employee’s obligation to loyalty.
Although the employee has the right to express himself, and the public has the right to know, the fact remains that the employer has also the right to protect his reputation in case he feels that some comments might affect it. A defamation case against the employee might take place. That’s where the problem lies.
In the era of social media, people have been more and more expressing themselves publicly. Around 80% of the Quebec population use virtual platforms such as Facebook, Twitter, Instagram, etc.[1]
The million-dollar question that a lot of people ask is whether or not their comments can constitute defamation. The answer often given by legal experts is: “it depends.” Here’s the reason behind this answer that some people find annoying:
The law has not provided a definition of defamation. However, case law has shed some light on the subject by elaborating on different situations where an employee posted comments, acted as a whistleblower, or shared his emotions.
The Quebec court of appeal states that “defamation consists in the communication of words or writings which cause a person to lose their esteem, the esteem towards another person or also ones that might trigger unfavourable or unpleasant feelings towards them.”[2]
As for the Supreme Court of Canada, it states that “defamatory is determined by applying an objective standard. In other words, we must ask whether an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of another person. On this point, we should note that words may be defamatory because of the idea they expressly convey, or by the insinuations that may be inferred from them.”[3]
The elements that we can study to verify whether a situation can be defamatory or not is to question if the person made:
- Negative remarks about a person, knowing they are false. In such a case, there is bad faith, because the person with the comment intends to harm the other;
- Negative remarks about a person, when there are reasonable doubts that these remarks are not true and should therefore refrain from disseminating them;
- Negative comments about a person that are true but where their dissemination is not justified (e.g., for purposes of public interest).[4]
Many questions are asked in this regard, such as are the consequences the same for the person who wrote the message and the one who clicked “like” or the one who reposted it? Some authors believe that the liability could be the same in all those cases.[5]
As for damages when it comes to a defamation lawsuit, the general principles of civil liability in the Civil Code of Quebec need to be established. Therefore, the presence of fault (of the person posting the comment), the damages (incurred by the employer) and the causal link between the first two elements.[6]
Case law maintains that a person who accepts to become an employee renounces in a way to his freedom of expression whenever his employer is concerned. In other words, his right stops where his loyalty obligation towards his employer begins.[7]
According to some authors[8], the loyalty obligation should not prevail over the right of freedom of expression. The latter is protected by the Charter which, most and foremost, has to prevail over the loyalty obligation which is not of a constitutional base.
An employer cannot prevent an employee from commenting publicly on social media but reserves the right to sue for defamation. Although winning the case is not guaranteed, an employee must take into consideration the risks involved.
One of the principles to remember in this context is that “one’s freedom ends where the other freedom begins.”
Click here for the French version of the blog post.
[1] Government of Quebec website, Entreprises Québec, mis à jour le 2019-05-07, https://www2.gouv.qc.ca/portail/quebec/marketing?g=marketing&sg=&t=s&e=466576978#:~:text=Au%20Qu%C3%A9bec%2C%20plus%20de%2080%20%25%20de%20la,ou%2C%20de%20fa%C3%A7on%20plus%20g%C3%A9n%C3%A9rale%2C%20avec%20le%20public.
[2] Société Radio-Canada c. Radio Sept-Îles Inc., 1994 CanLII 5883 (QC CA)
[3] Prud’homme c. Prud’homme, 2002 CSC 85 (CanLII), [2002] 4 R.C.S. 663, par. 34.
[4] La diffamation sur les réseaux sociaux, site d’Alepin Gauthier avocats, https://www.alepin.com/fr/publications/publication-generale/la-diffamation-sur-les-reseaux-sociaux, published on July 17, 2019
[5] Op. cit. Note 5
[6] La diffamation sur les réseaux sociaux, site d’Alepin Gauthier avocats, https://www.alepin.com/fr/publications/publication-generale/la-diffamation-sur-les-reseaux-sociaux, published on July 17, 2019
[7] Loyauté envers son employeur même sur les réseaux sociaux?, article publié par l’Alliance du personnel professionnel et technique de la santé et des services sociaux, par Édith Demers, sur le site https://bleu.aptsq.com/loyaute-envers-son-employeur-meme-sur-les-reseaux-sociaux/, published on February 21, 2019
[8] « La liberté d’expression au travail et l’obligation de loyauté du salarié: plaidoyer pour un espace critique accru », C. Brunelle et M. Samson, Les cahiers de droit, vol. 46, n 4, décembre 2005, p. 844, à la p. 854, cité dans Mes amis facebook, moi et mon emploi : l’arbitrage de grief à l’ère des réseaux sociaux (2012), par Me Benoît-Roy Déry, Conférence des arbitres du Québec, 2012, p. 41
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