There's a common trend referred to as 'internet shaming'. It's not just Rob Ford who needs to be worried about his exploits getting posted on the internet. These days, whenever you do anything, you're taking the risk of somebody blogging about it, or otherwise posting something online.
There have been a number of sites marketed as 'review' sites for romantic partners, which are quite morally and legally controversial. People like to vent online, but aside from questions of taste, this can run into issues with defamation law.
Several months ago, I saw an article that went viral on Facebook, written by Carla Ciccone (a self-identified professional writer, though Google reveals little about her that isn't directly connected to this story) about a really bad date she accidentally went on with a "presumed-gay Canadian C-List celebrity". See the full article here.
In a nutshell, she met the guy, who she calls "Keith", at an outdoor concert, in a conversation with Jake Gyllenhaal (whose namedrop she excuses on the basis that he 'factors into the story later', though it still isn't clear to me how). She thought Keith was gay, and while she wasn't familiar with his work (though strangely described herself as a 'fan'), she knew of him by reputation. After she sent a public tweet to him the next day, he invited her to go to a Metric concert with him. She liked Metric, she thought she might be able to make him her "best gay friend in Toronto", and hoped that the friendship might lead to career opportunities, so she agreed to go. She quickly figured out that he was not, in fact, gay, writing that he looked at her in creepy and predatory ways, and then tried to grab her rear and put his arm around her at the concert, which was unwelcome. She then faked a headache and wanted to go home; he insisted on driving her, and she half-avoided an awkward goodnight peck.
She felt ashamed at her failure to just walk away or deal with him more assertively - so ashamed that she later vomited when smelling a cologne similar to his, and she can't listen to Metric anymore.
So, basically, she's saying that Keith is creepy, predatory, and a sexual harasser. But Keith is a pseudonym, so is this really public shaming?
Well, the problem is that, despite not giving the guy's real name, there are more than enough superfluous and distinct details thrown in to identify Keith, with reasonable certainty, as Jian Ghomeshi, host of Q on CBC Radio One - Ciccone identifies Keith as having a popular Canadian radio show, indicates that his sexual orientation is sometimes questioned, and that his show colours are red and black, among others...she reveals a lot of personal details about him, for no real reason other than - seemingly - to demonstrate that he talks about himself a lot. (When I originally read the piece, there was text in it about a distinct tattoo he had, too, and his race. This has been edited out, however.)
So when another lawyer I follow on Twitter linked the story in context of a tweet talking about Jian Ghomeshi 'waxing on about violence against women' (referring to a tweet by Ghomeshi today remembering the Montreal Massacre), it wasn't surprising, but it was nonetheless striking.
You see, Ciccone's allegations are, at best, unproven. The allegations of general creepiness are pretty subjective; the allegations of sexual harassment, however, are quite egregious. So for a public figure's tweet about violence against women to be met with a response that he has no credibility talking about respect for women...that's a bit worrisome.
The fact that Ciccone doesn't actually name Ghomeshi wouldn't necessarily be a defence to a defamation tort, if such were otherwise appropriate and were to occur. I'm giving no opinion as to the merits of such an action - just saying that the test for defamation doesn't require the person to be named expressly; just that it be clear that the defamatory statements are about them. Consider my earlier post about the Dr. Dawg defamation litigation. Truth can be a defence, but requires that the person who made the statement is able to prove it on a balance of probabilities.
But the defence in the above-noted Dr. Dawg case is making a pitch that the general public knows to take what they read on the internet with a grain of salt. I'm not convinced that that's true, but it should be. Never believe anything you read at face value, but take some time to assess credibility of the writer.
I'm not saying that Ciccone's account is false. I'm not saying it's true. But, even without a response from Ghomeshi, I might doubt the veracity of the account. Let's walk through the story and see what's there.
(Also, for another perspective, which is somewhat insightful if perhaps vulgar and overly critical of Ciccone, check out this video.)
What are the writer's motivations?
When someone on the internet says something about a politician, usually you need to independently verify the facts, because you can assume there's a partisan bias, one way or another.
In this case, one might take the article as a PSA, a warning to young women to be more assertive, to stand up for themselves earlier when a 'date' crosses the line. But that explanation doesn't even begin to account for the extent of her descriptions of 'Keith' and his creepiness.
What we have is a young aspiring entertainment writer trying to make a career for herself. Some of her motivations for writing the article bleed through to her motivations for meeting with 'Keith' in the first place: There's a definite element of social climbing, of presenting herself as part of the 'in' crowd, desirable to - but too good for - this "C-List Celebrity".
(She has since explained, in response to the above-linked video criticizing her, that she wrote it "because I knew worse had happened to other girls who went out with him." This would suggest that it has a bit of a "dontdatehimgirl" sense to it, but that doesn't at all jive with changing his name.)
Are there signs of exaggeration, dishonesty, or inconsistencies?
Credibility is important. If a person's recollection or expression of the facts seems to not make sense, then you need to bear in mind that...well, personal accounts aren't perfect. It's not always the case that they're lying. Sometimes, events are built up in our minds over time to the point that we think they were bigger than they actually were. Sometimes, we forget details, or attach them to the wrong events.
Sometimes, people are willing to tweak the facts because it sounds better that way.
There's a great deal of obvious melodrama in the writing. Some of it's style, but some of it is content, and inherently dubious at that. The descriptions of 'Keith' are way too over-the-top, "He looked at me the way a creepy older man looks at a young, silly girl he's going to buy a drink he's planning to slip a roofie into." (What, exactly, does that look like?) That, at the very beginning of the 'date', prior to any overt misconduct. Yet she went to the concert with him anyways, stayed with him, continued to talk to him, got into his car, after supposedly concluding that he was a "sexual predator".
She says that she talked at high speed for 20 minutes because she was 'nervous'. Okay, granted, some people react differently to stress, but that's a really common nervous reaction when you're excited and trying to impress. Happens in job interviews and first dates all the time. An 'uncomfortable' first date tends to be signalled more by awkward silence. She seems to take offence to him repeatedly checking his phone, as if disinterested in what she's saying (though she admits she was talking nervously about nothing in particular, and says she wasn't really paying attention to what he said).
Question: If you see a couple in a wine bar, with the girl talking a mile a minute, and the guy repeatedly checking his phone...on the list of inferences you might draw, how high is "She's not interested in him at all, and he's trying to get her into bed"? The picture doesn't jive with the overall narrative.
What's more, she admits to several lies within the body of the piece itself. Some were trying to spare his feelings - but most of those were after he'd already supposedly crossed the line in some fairly egregious ways. Claiming to be a fan of his, when she'd merely heard of him, and knew of his radio show, makes clear the 'social climber' narrative - she wants to meet up with him because she thinks he can do good things for her. It doesn't help her credibility, that she will play fast and loose with the facts if it advances her interests.
But what hit me in her version of the narrative is how disinterested she claims to have been in what he was telling her. "Apparently, he was in a band when he was younger, or something. I wasn't really paying attention." Then her similar disinterest when he introduced her to his friends, who he describes as the "who's who of Canadian indie rock". She appears to think that he's just being full of himself, thinking too highly of himself and his friends.
The trouble, of course, is this: On the list of the "who's who of Canadian indie rock", Jian Ghomeshi features quite prominently. A Toronto-based media writer absolutely should know this (and care), even if she was an early teenager when he was topping the Canadian charts. Jian Ghomeshi used to be part of a band known as Moxy Fruvous, which during the 90s had a couple of fairly major hits. Notwithstanding her description of his 'band' leaving the impression that he was a poser in a garage band, Moxy Fruvous was quite popular, including within several demographics of Ciccone's age group. Other band members include Murray Foster, who has played with Great Big Sea for the last ten years. (Incidentally, I was at GBS' Kitchener show last weekend, in the front row, just a few feet away from Foster on bass. Great show. A shame that McCann is leaving. I digress. Fruvous also had Mike Ford, who had some credited work in BNL's "Gordon" album.)
I have no trouble believing that, if Jian Ghomeshi was introducing her to the "Who's who of Canadian indie rock", these were some fairly significant Canadian celebrities. True, not A-list. Indie, after all. But this was exactly what she had hoped that Ghomeshi would do for her. She's not doing herself any favours by admitting that she didn't know who they were, but the disinterest, from a would-be media writer...is hard to believe.
Likewise, the strength of her belief that he was gay is undermined by the fact that she clearly knew nothing about him.
As well, on the one hand, she's claiming to have stood up for herself, repeatedly stopping him from touching her, etc., and on the other hand lamenting that she didn't stand up for herself - that she stayed, after the 'grab', later crying in shame and self-loathing, even though nothing particularly bad happened after that. If she just didn't want to be on a date with him, she could have (and should have) cut it off the moment she realized there was a misunderstanding. As for his misconduct, the sole act that makes one think she might be a victim is the 'grab', and she could have (and yes, probably should have) left at that point. But the fact that she didn't did not in any way lead to further 'victimization' in any sense, and so...shame and self-loathing? There's a disconnect here, in the details. If she's really just that timid, is it possible that she didn't reject his advances in the way she says she did? And that's really a very core aspect of the alleged misconduct. I've never met Ghomeshi. Maybe he is creepy - it wouldn't surprise me from everything I've seen. But the difference between him being predatory, versus slightly out of line, versus (potentially) not-at-all out of line, is in her responses to his advances. And - even if I were to assume the truth of the facts of his advances alone (which I don't) - there's still the question of how clearly he should have known that they were unwelcome.
I'm no expert on dating - I'm more of a "long-term relationship" kind of person, which means I haven't been on a whole lot of first dates - but while grabbing her behind strikes me as fairly shocking and inappropriate, at least in the absence of clear signals that it would be welcome, the rest of the alleged contact - trying to hold her hand, putting his arm around her, rubbing her back - seems less offensive, from a guy who thought this was supposed to be a date, failing to read non-verbal cues she claims to have been sending...provided, of course, that he stops when asked.
On the most generous read of her story, his attempt to grab her behind was - by a wide margin - the most offensive action. Yet she stayed with him, put up with further advances, got into a car with a person she had already concluded was a sexual predator...why? Because she was afraid of hurting his feelings? Because she was worried about the career implications of ditching this person whom she had now concluded was a nobody with nobody friends not worth paying attention to?
There are clear problems in the narrative. Has she credibly advanced the particular facts necessary to support the inference she wants us to draw, that she's a victim of Keith's creepy predatory ways?
Look for External Verification
Along the lines of 'inconsistencies', which hurt credibility, look for external facts that would confirm or deny the details. Google's a wonderful thing. Metric did, in fact, play at the Opera House on June 12, 2012, which is in the right timeframe to fit this story.
However, there are definitely, at minimum, liberties taken. For example, the incident where she walked down the street "two months later" and was overcome by a similar cologne causing her to vomit, she recounted via Twitter on June 18, 2012 as having "street-gagged" at the cologne. So, for artistic license, she turned a 'street-gag' six days later into a full-fledged vomit reflex two months after the fact.
I understand artistic license. In any movie "based on a true story", I usually assume that the true details are pretty minimalistic. But it doesn't enhance credibility in a narrative purporting to be actually true.
Also, while Jian Ghomeshi's sexual orientation does appear to have been questioned in some quarters, it's hardly accurate to say that he was widely assumed to be gay. Not really sure where Ciccone got that.
Consider the context
Think about whether or not there may be contextual details omitted, which might give rise to other explanations or justifications.
I want to be careful here, because I don't want to come off as implying that, because it was a date, he was allowed to get handsy. That's absolutely not the case. And on the description of the facts, he appears to have crossed a line.
But there are a couple of contextual factors to consider: Firstly, as much as she seems to be appalled by the fact that he was coming on to her, he thought it was a date, and she didn't dispel this illusion. If I'm on a date, I consider it fairly natural to put my arm around my partner's shoulders. (Granted, I've been with my current partner for years, but I'm pretty sure I put an arm around her shoulders on the first date. And there was definitely physical contact on the second date, as she made sure I didn't have a concussion after I was violently assaulted by the wall of the squash court. Well, after she caught her breath from laughing so hard.)
Secondly, my experience of concerts, while limited, isn't that there's a great deal of 'personal space'. Especially without assigned seating, I have to imagine a lot of crowding, with physical contact being essentially inevitable, with a distinct possibility of inadvertent contact that would otherwise be highly inappropriate. There's a big difference between an intentional grab and, for example, an unintentional graze, and this incident is clearly described as the former, but given the other elements of artistic license and exaggeration present in the story...
...see my point about credibility?
Ignore the Rhetoric
There's a lot of loaded language here, a lot of name-calling, a lot of highly subjective adjectives. Look past that and ask, "What's actually being said here?"
Face value, accepting all the facts as true: She thought he was gay. He asked her out, and she said yes. She quickly picked up on the fact that he wasn't gay, and didn't want to date him, but didn't say so. He talked a lot about himself, and thought highly of himself. She was uncomfortable with him, and he didn't pick up on that. They went to the concert. He grabbed her behind. She objected and asked him to stop. He did. He then tried to hold her hand. She pulled her hand away. He later tried putting his arm around her shoulders. She removed it, claiming to be too hot. He later tried putting his arm around her waist, and she left. She then returned, told her she was going home because she wasn't feeling well, and he insisted on giving her a ride. She got into his car, and he drove her home, and offered to walk her to the door. She declined.
Watch for third-party referencing to bolster credibility
There are a few rhetorical tricks, which attempt to improve the credibility of the account. One of these is to reference a third party who agrees with you. It reads like a citation, like you're quoting an authority who knows better, but in general a citation only has value if it can be verified, and if the person you're citing actually is an expert. (So I'll periodically back up an assertion as to a proposition of law by linking what other experts in the relevant field have written.) However, this can quickly descend into fallacy, where the person you're referencing, and the proposition for which you're invoking them, are not independently verifiable.
What set off alarm bells for me was the paragraph toward the end, where she explains that two of her friends told her that Keith has "tried his same creepy-ass moves out on many other girls", and recounts a story from a friend of her friends that he 'lured' her into a hotel room to watch a movie, and tried to sleep with her when she sat on the bed. Supposedly, the only reason she went into that hotel room was because she had also assumed him to be "harmless and gay".
In other words, obviously 'Keith' is a really creepy predator, because it didn't just happen to me; it happened to others as well!
Okay, problem: I don't know the first thing about Ciccone's friends. Nor about the friends of her friends. The anecdote she recounts is third-hand - double-hearsay, to put it into legal language. Not only does she not have firsthand information about it, but neither did her friends who told her about it. And the details are really vague: He "tried to sleep with her"? How? And why was he unsuccessful? Did he make a move, which was unwelcome, she told him so, and he stopped? That, in context of a women going into a guy's hotel room, would be...not particularly surprising or concerning. Even if the account of that occasion were firsthand, the details aren't there to be able to draw meaningful conclusions from it.
Bottom line: If we believe Ciccone, then we don't need an external verification that this is a consistent pattern of conduct. If we don't, then her vague double-hearsay account about a rather different situation...doesn't help.
The point is this: Just because you read it on the internet - or even in a newspaper, or magazine, or textbook - doesn't necessarily make something true. I don't know how much of the story is true. Not all of it is, so there's that.
I should be absolutely clear on this one point: Grabby hands are bad, until and unless it's expressly clear that they're welcome. (It's not just the case that "No means no". At law, anything short of yes means no.) So I'm not going to try to defend the alleged conduct here, because the 'grab' does seem to cross a line, at least on the face of the description.
Actually, I should go a step further, because this is normally an employment law blog: In the workplace, even putting your arm around someone's shoulder is generally going to be inappropriate. Unprofessional at best, potentially disciplinable, and possibly even actionable or quasi-criminal. Sexual advances which you know or ought reasonably to know are unwelcome, in the workplace, are illegal. Unwelcome advances made when you're in a position to provide the person with a benefit are even worse.
But on a date, it's a completely different can of worms, because there is - or, as in this case, was presumed to be - a romantic overtone to the occasion. That doesn't stand alone as consent to sexual contact, but it does seem a little odd that Ciccone considered it highly offensive, creepy, and predatory that Keith made advances at all, when she knew that he thought it was a date. This may be an excellent example of the "Dobler-Dahmer" effect popularized by HIMYM.
In fact, aside from the one alleged 'grab', I'm not sure I see anything at all objectively wrong with his conduct, and I'm pretty sure that failing to insist on driving home his headache-plagued date would have been...pretty terrible. He left the Metric concert early to see her home. That seems like the 'gentlemanly' thing to do. (Granted, he may have hoped to be invited in, but when her claim was that she has a migraine, how probable was that?) And he did not insist on seeing her to her door (or follow her...I mean, she's calling him a 'sexual predator', so that does bear drawing attention to), and there's no account of any 'moves' in the car beyond a clumsy goodnight kiss.
Given the strength of Ciccone's language, it's hard to not come away with the feeling that 'Keith' is creepy and dangerous, and women should stay away. Is he creepy? Possibly, I don't know, and I think it's irresponsible to reach that conclusion from this clearly one-sided and melodramatic account. (That is, in many ways, the point.) Is he dangerous? She doesn't really give us reason to think so. I mean, grabbing his date's rear is inappropriate and offensive, but I don't think that qualifies him to be called a 'sexual predator'.
Should women stay away? Well, as a general rule, I would recommend against going on dates with people you're not interested in dating, and ending a 'date' of any kind as soon as you realize that you have different expectations from the other person.
But the notion that Ghomeshi should come under attack for daring to tweet a memorial of the victims of the shooting at the Ecole Polytechnique, that it's somehow hypocritical for a guy, who may (or may not) have been handsy with a date who thought he was gay, to speak out against violence against women...
...that seems wrong. I take Ghomeshi's tweet for what it is - a welcome and sadly-necessary reminder that violence against women is not okay. Whatever else Ghomeshi may or may not have done, that seems to be a message that deserves spreading.
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.