Mediacheck

Canwest Suit May Test Limits of Free Speech

Defence appeals ruling that case is about copyright, not a citizen's right to skewer with satire.

By Tom Barrett, 11 Dec 2008, TheTyee.ca

Social Justice

Test: Where to strike the balance on parody?

A lawsuit involving a newspaper that mocked Canwest's Middle East coverage may test the limits of free expression in Canada.

The defendants claim the case is about satire, parody and free-speech rights. Canwest Mediaworks Publications says free speech has nothing to do with it -- the four-page paper hurt its business and violated its copyright and trademarks.

The defendants' free-speech defence suffered a setback late last month, when Alan Donaldson, a master of the B.C. Supreme Court, ruled that "parody is not a defence to a copyright claim."

Lawyers for Gordon Murray, one of the defendants, filed an appeal of Donaldson's decision Friday.

The ruling being appealed

Master Donaldson, a B.C. Supreme Court official with the power to make procedural orders in civil cases, referred in his ruling to a 1996 Federal Court of Canada decision involving the Michelin tire company and a union that produced a leaflet showing the Michelin Tire Man about to stomp a worker.

The Federal Court judge in the Michelin case "clearly found that freedom of expression is not a defence to copyright or trademark infringement," Donaldson found.

In the Michelin case, the court ruled that "the defendants' right to freedom of expression was not restricted," Donaldson wrote. "The Charter does not confer the right to use private property -- the plaintiff's copyright -- in the service of freedom of expression..."

The Federal Court further found that, if the Copyright Act did restrict free speech rights, the restriction would be justified under the Charter, which allows the government to place reasonable limits on rights and freedoms.

In the view of the judge in the Michelin case, "parody is not an exception to copyright infringement under the Copyright Act," Donaldson ruled.

Donaldson ordered several paragraphs struck from a statement of defence filed by Murray with the B.C. Supreme Court. The paragraphs were not relevant to Murray's defence, Donaldson ruled.

Defence can't cite Canwest's size, alleged bias

Donaldson ruled that Murray's statement of defence cannot state that Canwest is "Canada's largest newspaper chain reaching 4.8 million readers on a weekly basis"; nor can it list the company's holdings in B.C.

Donaldson also ruled that Murray's statement of defence cannot argue that "Canwest newspapers and other Canwest media properties have a strong pro-Israel bias, particularly in their coverage of the Israeli occupation of the West Bank and the Gaza Strip."

Nor can Murray state that "the bias exhibited by individual Canwest papers and media properties is the product of a centralized editorial policy that emanates from Canwest's headquarters and its senior directors and principal shareholders."

Nor can Murray demand that Canwest produce documents related to these claims, Donaldson ruled.

What triggered the suit

The case centres on a four-page newspaper printed in June 2007. Dated "Occupation Day, 2007," it copies the logo and layout of the Vancouver Sun, a Canwest paper. It contains headlines such as "Celebrating 40 Years of Civilizing the West Bank" and "Study Shows Truth Biased Against Israel." Articles contain bylines such as "P. Rupa Ghanda" and "Cyn Sorsheep." The paper is identified as being produced by the "Palestine Media Collective."

In December 2007, Canwest launched a lawsuit against pro-Palestinian activist Mordecai Briemberg, the Vancouver printer Horizon Publications and its general manager, and several unnamed persons.

The suit accused the defendants of violating Canwest's copyright and trademark and of hurting its business and goodwill.

Several months after the suit was filed, Murray and Vancouver artist Carel Moiseiwitsch came forward, identified themselves as the authors of the paper, and were added to the suit.

Briemberg, a retired community college instructor, had nothing to do with creating the paper, they said. (Last month, Canwest dropped its action against Briemberg.)

Parody or 'fake newspaper'?

The distance between the two sides' positions is so great that they cannot even agree on what to call the newspaper. To the defendants, it is a satirical parody. To Canwest, it is a "fake newspaper."

The Canwest suit alleges that the defendants conspired "with the intent to injure" Canwest "by entering into an agreement to author, print and distribute a fake edition of the Vancouver Sun."

The suit alleges that about 12,000 copies of the paper were distributed and that it was also published on the Internet.

The defendants attempted to lead the public to believe there was a connection between Canwest and the fake newspaper, Canwest alleges.

The paper, it says, violates the Copyright Act and the Trade-marks Act.

"The sole, or predominant, intention of the defendants in entering into the conspiracy was to embarrass and to injure" Canwest, the company alleges. It says the defendants were "motivated by hostility" to Canwest "and by a desire to undermine, or hurt" the company's business.

The company asks for general, punitive and aggravated damages and asks for an injunction prohibiting the defendants from producing similar papers.

Charter protects our rights: defendants

Horizon Publications and its general manager say in a statement of defence filed with the court that Horizon printed the four-page newspaper. However, they say, they are not part of the conspiracy alleged by Canwest and add that they had no intent to injure Canwest.

Murray and Moiseiwitsch admit to producing the paper, but argue that the Charter of Rights and Freedoms protects their right to do so.

Murray's statement of defence says the paper "was intended to criticize and satirize the Vancouver Sun and the entire Canwest media group, raise awareness about the Canwest bias, and foster debate about Canada's role in the Middle East. The parody calls attention to the hypocrisy of the Canwest media group, which uses courts and media to vigorously promote its right to freedom of the press, while using its ownership rights to limit public debate and chill its reporters into silent submission."

The paper was primarily designed not to cause economic harm to Canwest, but "to satirize the bias of the plaintiff by means of its own sanctimonious public image," the statement says.

Parody and satire, Murray states, "conveyed expressive content that would not be available through other rhetorical modes.... The defendant says that non-parodic modes of expression do not carry the same expressive content or rhetorical force as parody..."

He also states that the paper cannot be confused with the real Vancouver Sun: "Any reasonable person can see the parody for what it is."

None of the claims and counter-claims made by either side in any of these quoted documents have been proven in court.

'Significant free-speech case'

Murray's lawyer, Jason Gratl, told The Tyee before Donaldson's ruling that the case will require the courts "to determine the appropriate balance between protecting business interests, if there are any such in this case, and the right to free expression."

"It could be an important free-speech case," he said. "A significant free-speech case."

Gratl said the courts have not in the past ruled definitively on the questions raised by this action.

"There are some cases, but none of them squarely decide the issues that will be before the court in this case," he said.

Larry Munn, chair of the privacy law group at the Vancouver law firm Clark Wilson, agreed.

"The Canadian law on this point is limited and has not been developed to any significant degree," he told The Tyee. "And it is an open question as to what extent the Charter rights apply when you're dealing with copyright and trademark issues."

Grace Pastine, litigation director with the B.C. Civil Liberties Association, also agreed there is little case law available to guide the courts, saying the association believes the case presents an opportunity for the courts to protect free-speech rights.

The BCCLA would prefer that if a trademark "is being used to advance free speech, then that should be a defence under the act," she said. "That would create space for freedom of expression and freedom of speech."

BCCLA's letter to Canwest

The BCCLA has written an open letter to Canwest, asking it to drop its suit.

Headed "Freedom of the Press Matters and So Does a Sense of Humour," the letter says "this court action looks like an ill-advised attempt by Canwest to use the courts to silence satirical criticism and constrain fair comment."

Says the letter:

"Surely Canwest, a media giant that itself depends upon Canada's cherished traditions of free expression and debate for its ongoing existence, does not want to be perceived as using the courts to censor, silence and punish its alleged critics....

"We call upon Canwest to exercise a bit of good humour and sober second thought, which will, we are confident, persuade the firm that it does not want to proceed in an action that will, if successful, look like corporate bullying. Whether successful or not, the case works against the principles of press freedom that support Canwest's media operations across Canada."

Canwest has also been urged to drop the action by the Seriously Free Speech Committee, a group formed in reaction to the lawsuit, and by the B.C. Library Association.

Free speech 'not the issue at all': Canwest lawyer

David Church, the lawyer for Canwest, told The Tyee that the case has nothing to do with free speech.

"There's no issue at all with the plaintiff trying to frustrate or inhibit or crush free speech," he said. "That's not the issue at all. At issue here is proprietary rights and trademark and copyright....

"The defendants can say what they want within the bounds of legality. The plaintiffs may not like that. But where it stops is when you start using the plaintiffs' proprietary trademarks and breach their copyright.

"That's the issue here. And you can trot out as many groups or putative groups or positions that you want with respect to free speech. The reality is, and the question is, was my client's name ripped off?

"And the short answer is, 'yes.'

"I don't know what agendas these groups have or any group has or what agenda the defendants have or what their objectives are, that's all this case is about -- ripping off the legal names of the plaintiff."

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