Thursday, 15 February 2018

Patrick Brown and the Red Bandana Libel

I believe Patrick Brown has been libelled. I’m almost certain of it. Yes, I still support the women accusing him.

He is apparently suing CTV over the claims of these women, which you can read about here. Patrick Brown has provided rebuttal details here, with more to come tonight (haven’t found it). CTV has updated its story here with corrections. If you are not familiar with the story, read what’s behind those links, else this post will make little sense to you.

When I say that he has been libelled, I am saying that he has, at least in one instance, a clear case. (I am not a lawyer, but bloody hell dammit, I sadly know a few things about libel.)

This does not have to mean that his women accusers have not been honest.

Yes, you read that correctly. You can be honest and still libel someone. Being honest is not the same as telling the truth.

If you want to learn more about exactly what libel is (I am not going down that rabbit hole) start here. Google for more if you want, but make sure you are reading Canadian law. Libel is handled very differently in America.

I’ve been sued for libel, back, oh, 12 years ago? It’s a long story -- in the end, the courts (BC Court of Appeals, Supreme Court of Canada) agreed with my positions. I also took some courses on law, and, for a while, obsessed over defamation law. So, I know things.

In one of those courses, there was a case study which communicated an important principle in libel: You can be honest and still libel someone.

The case study ( I am unsure if it was a real case), went something like this:

An up and coming performer known to come from poverty attended a celebratory event after her debut in a play. A journalist both reviewed her and reported on the party. His review was kind, and he commented on her appearance and so on. There was nothing clearly defamatory in the published piece. He did remark in it that she was wearing a red bandana at the party.

She sued for libel.

In her poor neighbourhood, you see, the only people who wear a red bandana are members of a specific criminal gang. Her bandana was not red, she said. It was purple.

The journalist had no malice towards her and accepted that he had erred. But as it was an honest mistake, so he believed she had no case so he would not settle.

The judgment? Guilty. Wups!

The fact that it was an honest mistake for which the defamatory outcome was not obvious to the author was irrelevant.

If this seems picayune, keep in mind that back home in her hood, people would read the piece and think her a criminal. That could without justification affect her life in negative ways. His honest error did not excuse the defamation she suffered.

Whatever else people want to argue about the Patrick Brown affair, CTV has traversed the Red Bandana Line. One of the women has changed her story and that change has altered a key piece of defamation as she has moved from being an underage drinker still in high school to a legal drinker out of high school. Yes, her original story is more salacious, so the change makes the original story defamatory, and admittedly falsely so.

(CTV will argue it makes no difference. I think them wrong. We shall see.)

As for honesty, it is possible that the woman believed her initial story, and only realized she was wrong once the allegations were in the open and Brown challenged them.Yes, that happens. Now, people will argue “no way!” and so on. My point is, even if it is an honest error, it is still libel for the red bandana reason.

Yes, the women are also on the hook. With libel, everyone in the chain of publication can be sued. I see no reason why Brown would not sue her. He’ll sue everyone. Be careful what you publish folks! Believe me, you can be sued for a one sentence comment buried deep in the Internet.

From a PR point of view, this is gold for Brown. He may get this all settled and shut down the whole issue (parties agree to remain quiet), proclaim victory and move on. Yet the core issues may remain unresolved, and the technicality of what I’ve explained above will not be understood by most people. They will just hear apologies from at least CTV, conclude the women made it all up, pity Brown, and he will return to public life triumphant.

Remember, CTV is a business. It does not represent the women. It is not legally responsible for their defense. It will act out of its own interests. They may be a point where its interests will not intersect with the women’s interests.

What if the women can prove their case? Will this story change still matter? That’s a long, expensive ride on the libel train. Maybe we’ll see it reach the end. Maybe we won’t. What I do know is that Brown has a clear gotcha argument here.

I have to say this: I believe the women. I will continue to believe them until either a) other evidence piles up, and/or b) I hear and see a coherent evidence-backed explanation as to why they would completely make this all up. Let’s face it, Brown is a middling politician who was leading a party (disclosure: I am a party member) with discord and internal scandals present. I do not understand why anyone would go to such serious, expensive and self-damaging lengths to falsely defame him. Him! I have never seen anything like this in Canadian politics. Why target this guy if not because there’s something to what the women say?

The women, unless they are silly rich, could be ground down into financial oblivion by this case, even if they prove their case. If they don’t, they are looking at a massive liability. Brian Mulroney got $2.1 million dollars back in 1997 for his libel settlement. This case may be worth more.

Brown has accused CTV of malice, of everything being a lie and of this being a political hit. Right now, those claims seem to be way too much. To convince me, he will need to show me a viable theory with evidence, not accusations lacking evidence of malice.

Yes, CTV may have been too quick to publish, and sloppy in their checks. But that’s not malice. That’s not a political hit. That’s a lack of competence. That does not bode well for a libel defense, but it doesn’t spell malice.

Still, Patrick Brown has been libelled. I’m almost certain of it.

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