In January 2012, the Québec Court of Appeal dismissed the appeal from a Superior Court decision awarding damages against a website owner for defamatory content on its website (Canoë inc. v. Corriveau, 2012 QCCA 109). In that case, a journalist running a blog on a website owned by Canoë inc. “Canoë”) published a blog post regarding the conduct of a certain criminal lawyer in the defence of her client, who was accused of sexual assault of a minor. The blog post elicited various defamatory and injurious comments from the website’s users targeted at the lawyer. The website’s terms and conditions for the blog prohibited the posting of defamatory content and provided that Canoë could remove messages from its blog that violated its policy, implying supervision over content.

Though Canoë admitted fault for failing to remove defamatory comments as its terms and conditions provided, the Superior Court judge fortunately cited doctrine and case law stating that an “access provider” (e.g. an operator of a website that allows users to post and access content) that exerts some degree of control over the published content is deemed to act as “editor” of the content, and that the degree of liability would be a function of the degree of control exerted. In the context of punitive damages, the Court considered that Canoë was grossly negligent in failing to verify and delete defamatory messages on its site, given the nature of the blog post and the likelihood of such comments. Although the access provider has an obligation of means and not an obligation of result, when a published post is highly controversial and likely to elicit defamatory comments regarding an individual, the access provider must exercise greater care in the monitoring and deletion of messages that could violate a right protected by the Charter.

In appeal, Canoë argued that its negligent conduct did not constitute the violation of a Charter right meriting punitive damages. The Court of Appeal dismissed the appeal, stating that the trial judge reasoned correctly that Canoë could not have been unaware of the negative consequences that the post would have had.

This decision may cause businesses operating websites that allow users to blog and post comments to take another look at their terms and conditions. Most businesses try to prevent their websites from becoming the “Wild West” of user comments by monitoring and deleting comments that would deeply offend other users, which may produce unexpected consequences.