Tuesday, January 31, 2012

A Legal Glimpse: Jack Todd, Tim Thomas & Defamation

I was having dinner Sunday night at a near-dining establishment when I got an email steering me to Montreal Gazette columnist Jack Todd’s article on Tim Thomas. When I read it, I muttered to myself (and the bus boy) “Oh that’s not good”.

What Todd Wrote

Todd wasn’t happy with Thomas skipping the White House visit (I wasn’t either by the way). Here’s part of what Todd wrote: 
Look, if this cretin wants to stand outside the White House and spew his drivel, that’s free speech. But standing up the president? All that does is show that Thomas has the class of a swamp-rat. What’s worse, you know Thomas would not have done this with the liberal Democrat Bill Clinton in the White House. Truth is, he felt free to dis Barack Obama, because Obama is black.
The last sentence is what caught my attention that Sunday night while I was polishing off a salty piece of chicken. And of course, it caught everyone else’s attention – including the Montreal Gazette.

That was quite the statement – “Truth is, he felt free to dis Barack Obama, because Obama is black.”

Sometime after the article was posted online, the Gazette edited the article by deleting that last line. The Gazette then prefaced the article with the following apology:
“The Gazette apologizes for previously posting an unedited version of this column.”

So from a legal standpoint, the question is whether this statement could give rise to a claim for defamation: “Truth is, he felt free to dis Barack Obama, because Obama is black”.

What is defamation? A defamatory statement is one that is likely to lower the reputation of a person in the eyes of reasonable people.

The law protects your reputation against defamation. If someone defames you, you can sue them to pay money (called “damages”) for harming your reputation.

Side note – we often hear the words libel and slander thrown around. Slander refers to the spoken word, while libel refers to comments in fixed form – like print.

Defence to Defamation: Fair Comment

There are defences available to a person if sued for defamation. One of them – and the one that applies here – is fair comment. There are a number of elements to satisfy when making out this defence. In part, the defendant must be able to show that (i) the comment was based on known and provable facts, (ii) any person would hold that same opinion based upon the facts, and (iii) there was no malice behind the statement (or an intent to inflict injury on the plaintiff).

So you ask yourself this: is it an honest opinion based on fact or one based on malice.

Were the Comments Fair?

Thomas said he took a stand by taking a seat because he believed “the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People”.

There was nothing there to suggest that his position was racially motivated. As well, generally speaking there is nothing that I am aware of that would suggest that Thomas made his decision based on race. Last time I checked, he wasn't friends with David Duke.

To suggest that someone is racist is a profoundly dramatic and potentially damaging statement that could have very serious repercussions on a person’s personal and professional life. To suggest the same thing without any firm confirmation is going too far.

Thomas deciding to use an employer driven event to make his personal political beliefs known was, to say the least, ill-conceived. When given a chance to explain himself, he didn’t really say much did he? Nothing on healthcare, jobs or foreign policy. Nothing thoughtful, interesting or insightful. He just took a seat after making some very general, vague, and frankly, vacant comments.

Nevertheless, to suggest that he is a racist without a reasonable basis to do so is difficult to justify.

For that reason, the Gazette edited Todd’s article. For that reason, Thomas may have considered, even if for a moment, whether he wanted to call his lawyer. And for that reason, it's reasonable to conclude that Thomas has an arguable case.

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