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mardi 28 janvier 2014

Better Think Twice Before Posting Something on Facebook Out of Frustration

Par Sarah D. Pinsonnault

In Davis c. Singerman, 2014 QCCS 70, Justice François P. Duprat of the Superior Court reminds us that “Facebook is a dangerous tool to express frustration”. 

The case pits Ms Davis, currently involved in divorce proceedings with her husband, against the latter’s new girlfriend, Ms Singerman. Ms Davis contends that Ms Singerman tarnished her reputation by posting the following as a Facebook status:

«  I am trying to understand how a mother with a full time job can  live in a womans shelter with her children for six months, sleep with her 7 year old son with barely any clothes on, pawns her children off at her friends house every weekend, keeps no food in her home to feed her children.  Was under investigation with HRS for child abuse.  How is she able to get away with it ?????»
Ms Singerman insists that she posted this message on her own Facebook wall out of frustration with the ongoing divorce battle and its impact on the children. She testified that her account was private and that only her friends – that being roughly 18 people, among whom none, she alleged, were friends with Ms Davis - had access to her posting.

However, what Ms Singerman seemed to have forgotten was that Ms Davis’ cousin was part of her group of friends on Facebook. Consequently, the news of this posting quickly got to Ms Davis who, in turn, filed an introduction motion for damages against Ms Singerman.

Issues to be Decided
As with all cases of defamation, the Court first had to determine whether the Facebook posting could be deemed defamatory (i.e. would an ordinary person consider the remarks to have the effect of discrediting the reputation of the person concerned).  To this, the Court found:
“[39] The Court has no doubt that the Facebook posting conveyed a negative image of Ms Davis and clearly insinuated that she was an unfit mother. The Court concludes that the Facebook posting was defamatory.”
As a result, the Court then had to determine if Ms Davis suffered any damages from this posting. Ms Davis had asked for 50,000$ in moral damages and 25,000$ in punitive damages.

Regarding the claim for punitive damages, the Court found that Ms Singerman’s conduct was not “intentional”, in that she did not intend to cause any damage, as defined by the Supreme Court in Quebec (Public Curator) v.  Syndicat national des employés de l'hôpital St-Ferdinand, [1996] 3 SCR 211. Consequently, Ms Davis was denied this request.

With respect to the moral damages claimed, the Court did acknowledge that the Facebook posting caused distress to Ms Davis. However, the amount in damages to be awarded was debatable. The Court remarked that, contemporaneously to the Facebook posting, Ms Davis was already in a distressful situation in large part due to the ongoing divorce proceedings between her and her estranged husband. The 50,000$ asked for on this front therefore had to be reduced.

In order to determine the exact amount to be awarded in moral damages, the Court proceeded with a case law analysis. It should be noted that the main elements considered in Facebook defamation cases are (i) the number of individuals who can view the comment, and (ii) the period of time during which the comment is posted.

As a result, the Court concluded as follows:
“[62] In conclusion, the Court finds that an amount of 5 000 $ will suffice to compensate moral damages suffered by Plaintiff. There will be no award for punitive damages as there is no evidence that Ms Singerman acted with malice or with the intent to cause harm to Plaintiff.”
To read this decision in its entirety, click here.

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