The main complaint here seems to be that the parody violated trademarks. If someone made a parody of Star Wars and named it Star Wars they'd get hauled before a court before they could blink, and rightfully so -- same thing here. This Mordecai fellow doesen't seem to have done anything wrong though, and I doubt Canwest will get too far with their complaint against him. If they continue the suit against him I'm guessing he'll be found innocent and Canwest will be forced to ordered to pay his legal fees. That's the difference between the HRCs and real courts that you seem unable to comprehend.
I just don't get how people like yourself consider a lawsuit against someone to be worse than a government-funded, quasi-judicial body, that seeks out and drags people before it for uttering statements they deem unreasonable.
The fact of the matter is, when you're pulled before the HRC for a Section 13 complaint, you are NOT entitled to costs if you are found to be not guilty. The taxpayers pay for the complainants prosecution, unlike in a civil court, where the complainant pays.
In this case, if this is a SLAPP suit as he says, here is my advice:
1. Tell CanWest: "Screw off. I've done nothing wrong. I'll see you in court."
2. If your defense is tight, you might be able to find a lawyer who'll represent you on contingency. You may even find a lawyer, like one sponsored by an agency like the Canadian Civil Liberties Association who'll do it pro bono.
3. Go to court.
4. Win.
5. Get costs.
6. Countersue for intentional interference and abuse of process.
Understand that in the HRCs, none of these options are open to you.
The case can take up to 5 years.
You can spend tens of thousands, if not hundreds of thousands defending yourself.
If you win. You don't get to sue for costs.
Sorry. I don't see the moral equivalence. If CanWest are being bullies in the civil courts systems. There are ways to deal with bullies, as I outlined above.
I also disagree with his assessment that comedy shows use trademarks in parodies willie-nillie. Shows like Saturday Night Live, The Daily Show, the Colbert Report... or here in Canada... Air Farce or the Rick Mercer report... have staff to obtain permission ahead of time to display those trademarks on the show. Failing that, you'll notice that they'll often use slightly-modified or marks that bear a passing resemblance to avoid any legal hassle.
The people in question are accusing the newspaper of supporting apartheid in Palestine (which is ridiculous, but fair comment) and using their registered trademark, without permission, to do it (contrary to trademark laws).
This isn't so much a free speech right. They could have said EVERYTHING they said, and not been sued. They're being sued for taking a companies trademarked logo, putting it onto a piece of political propaganda, and making out Asper to be a support of an apartheid. You'll excuse me if I question whether or not this was a "parody" or a "smear".
I've owned a company, which had a registered trademark, and if you "parodied" my company website, using an exact likeness of my trademark calling me a neo-nazi... I'd sue you to.
Why? For using a trademark, that I own, to attack me. You can't use something that I own against me.
If you think this violates freedom of expression, then you have to be against trademark law. Because a trademark allows me to reserve the rights to it; to control the use of that trademark. By extension, disallowing others to use it.
When I register it, and establish that trademark as my domain, I have a right to enact control over that domain. My vehicle for doing that is the civil courts, which uphold trademark laws.
A SLAPP suit is a lawsuit which has no basis. This lawsuit has a basis: they used an exact likeness of a registered trademark, without permission, in a way meant to attack the credibility of the bearer of that trademark.
Not exactly a smart thing to do. But then again, the anti-Israel zealots aren't that smart.
We accept as a society, culture and in law, the idea that something like a corporate logo can be "owned". That despite the fact it is printed on paper, or displayed in a graphic file on the internet... someone owns it. When you take something that someone owns and use it without permission in a way likely to offend them, you're invading their domain, contrary to law. You're also basically an idiot.
I have stayed mostly out of the HRC speech thing for a lot of reasons. I don't like the tribunals, and think they are a horrendously bad idea, but having said that, I also recognize that our civil courts are very inaccessible for the average person. So what to do ?
Personally, I would like to see some serious reform whereby the civil courts become very user friendly for the average Joe.
I am probably one of the most pro-Israeli bloggers in Cda, having said that, let me know the minute Briemberg is summoned to appear before a HRC and I will blog for his right of free speech and self-expression.
Mike, I think you are missing the point. The point of these SLAPP suits are to bankrupt people BEFORE they get to court. Let's face it, most of us would be hard pressed to come up with a $10,000 deposit to hire a lawyer.
Last year on the Montreal Gazette website, they referred to a Muslim spokesman as the "mouthpiece". Never saw anyone from CJC called a "mouthpiece", but I guess thats different....
Mike:
Just one point for now. I have never argued that the CHRC process is perfect: they need a higher bar for the screening process for one thing. And, for another, I quite agree on the costs issue--someone found innocent should be made whole on the same basis as in civil court. That would provide what I believe is the necessary re-balancing.
Dr. Dawg I agree fully with your last post regarding the needed changes at the CHRC.
On the Vancouver Sun issue, I see it as a bit different. The Sun has every right to protect its brand name. Though I find it odd if not highly ridiculous to go after Briemberg for simply distributing a few random papers. I wonder if there is more to this than we know.
Dawg:
I can't think of anything to add to what Mike Brock has said. This isn't about free speech, but copyright, etc. Civil stuff, not political. If this was a parody of the paper's coverage of the Vancouver Canucks it wouldn't be any different.
We can all complain about how SLAPP suits can potentially infringe upon freedom of expression, but the fact is, if you own a trademark, and you DON'T fight every infringement, no matter how small or seemingly inconsequential, future courts can use this inaction to dismiss or limit damages.
James,
This seems awfully heavy-handed--going after a noted antagonist for handing out a couple of parodies that he didn't even produce.
Here's maybe a clearer example of what I'm talking about. And, lo and behold, it concerns our favourite speech-warrior, none other than Ezra Levant himself. From a previous post of mine:
The patron saint of free speech is busy suing a tiny community paper and a former employee of his for $100,000 at present because he didn't like what they had to say about his reign at the Western Standard. The column can be read by following the link here, and the letter may easily be found by Googling "Dust My Broom" and "Merle Terlesky." (I hate having to dick around like this, but I don't want to be sued myself.)
Read the stuff for yourself and tell me honestly if you think there's any defamation there.
I've noted this before, and I may as well say it again: the speech-warriors don't like the state infringing on freedom of expression, but they have no difficulty with the privatizing of that interference by the well-heeled and powerful.
The Right's not going to take this on. They are completely comfortable with the idea that might makes right and they do realise that the last weapons powerless people have are parody and satire which, at its best, speaks truth to power. They hate that and that's manifested by their vindictive reactions (à la Mike Brock and his adventures in outing) whenever they're insulted and mocked, or when their delicate sensibilities have been offended.
This is the root of their legendary humourlessness, and it's a cross the rest of us have to bear.
I'll certainly give it a look, Dawg. But as mentioned, I've always said that my fight isn't with free speech per se, its with the manifest unfairness the current Human Rights Commissions seem to act with. Unless you are comfortable with the police handing over someone's hard drive when they didn't even press charges themselves in the matter. You aren't exactly known for your support of police malfeasance...
My opinions haven't changed since years ago, back on UseNet, when the threats of suing went back and forth, left and right you could say. I support free speech, but I always said that I would reserve the right to sue if I felt I was maligned. If I didn't, it would be used against me, right?
James:
I will confess that I don't know the technical intricacies of the law here, but is it really "malfeasance" for the police to share information with an agency whose own officers can issue search warrants?
The Lemire team tried to suggest that the police deliberately misused their powers by laying bogus charges to enable the CHRC to obtain material otherwise out of their reach. Sounds just a tad conspirazoidal, no?
Yes, not-best-word-to-use on my part.
Perhaps laziness then. How about if Metro Toronto cops raided OCAP headquarters, took a computer, didn't lay chages, then gave the hard drive to the OPP?
BTW, is this ironic, or merely topical:
http://news.bbc.co.uk/2/hi/europ...ope/
7318733.stm
Cartoonist to sue over Islam film
Mr Westergaard says his cartoon, which sparked riots two years ago, was used in the film by Dutch politician Geert Wilders without permission.
I would suggest that there is little difference between SLAPP suits and government actions. Both activities appeal to the State to step into a situation and using the monopoly on the instigation of force, force one person or many persons to submit to the force of government.
SLAPPs can be even more pernicious than Human Rights cases because you don't really need a lawyer in HRC cases and at least with HRC cases the process does eventually result in some kind of action/decision.
The lawsuit that was filed against me by the members of the Council of Cowichan Tribes just sits hanging where CanWest and the Tribes Lawyers left it... a wink and nod agreement that so long as CanWest not publish me any more, that Cowichan Tribes laywers would not pursue the lawsuit - thus saving CanWest a couple hundred thousand dollars.
That was the end of my working in media in Canada, as an Aboriginal who was giving commentary on Aboriginal affairs. I would perhaps not be so disgusted if CanWest had diligently attempted to hire another Aboriginal person who would write about the corruption in Indian Act government.. but thus far they have, I suppose decided that it's safer and easier to just NOT have any form of commentary about this issue, let alone any commentary from actual Aboriginal people on the subject of Aboriginal Affairs.
There is a pretty big gaping hole left now.
The question is: does the parody violate the trademark? If it does not. If it is just a parody, and CanWest is just being a bully, there's a chance to make that case before this even goes to court.
There will be a hearing and a chance to make a case for dismissal on the grounds it's frivilous and vexatious.
The judge will either buy it or he/she won't.
Remember, this isn't even a libel suit. It's a trademark infringement suit. The test is going to be: did they use a likeness of a CanWest registered trademark, without permission?
Understand, whether or not you think what CanWest is doing is ethically right, using someone's trademark without permission is illegal. This is not the same as the free speech debate.
I don't need to appropriate IBM or Best Buy's logo in order to make a point about them. The fact is, I wouldn't do that, because it would expose me to litigation.
That being said, most companies are reasonable and simply put forward a cease and desist demand, before pursuing litigation. The fact that CanWest did not do this, will probably look bad on them, in the eyes of the judge, and mitigate awarded damages.
To say this is a freedom expression issue though, is to say you have the right: to express yourself using the registered trademark for which you have no rights to, without permission.
And remember, a trademark is a "mark" it's not a word. I can say "Microsoft sucks", "Wal-Mart sucks", "Starbucks sucks" until the pigs come home. But I can't go to Microsoft's website, take their logo, and re-publish it. It's entirely different.
That's not free speech at all. That's taking free speech into the domain of publication. And in our "free market" society, publication restrictions are mired with copyright laws and trademark laws. It's just the way it is.
There's a different between the right for me to sit down and "write" this, and sit down and publish something with a "stylized graphic" (the trademark) that YOU paid to have designed, and YOU own, and use it to criticize you.
I know there are some people who are against corporate ownership of trademarks on the left. Fine. We can have that debate. But in the here and now, you are certainly subject to those laws. And most people in our culture accept them as things that can be owned, as private property.
The people being sued here either failed to understand that, and are ignorant. Or worse, didn't care, and are arrogant.
Shorter Mike Brock:
"Its not free-speech its different. Move along, these aren't the droids you are looking for...."
Sorry Meaghan is correct - though the process if different, the affect and likely the intention, is the same: to repress speech.
Copyright talk is a smoke-screen. The heavily pro-Israel CanWest is trying to silence dissenting opinion under the guise of copyright.
SLAPP suits (which Ezra is currently engaged in himself, against a former employee) are far more dangerous that HRCs.
Imagine if this was pro-Israel use of a supposedly copyrighted symbol. Or anti-CPC...yeah, they'd be all over this as a violation of free speech.
"Understand that in the HRCs, none of these options are open to you."
Although I support your anti-HRC position, what you've said is factually incorrect. It is possible to countersue the HRCs for costs, but it isn't done too often.
As for whether or not Canwest is trying to silence dissenting opinion, it doesen't matter. The fact is that the parody violated trade mark and should be held accountable. Maybe the contents of the news paper had something to do with Canwest pressing charges, but it's still well within their rights to do so.
Sorry Meaghan is correct - though the process if different, the affect and likely the intention, is the same: to repress speech.
She's even better than correct because she can argue that point from the propertarian perspective, which Brock and others should be able to understand (and which I can't do at all).
I can't get past the idea that a society in which all expression becomes an issue of copyright, trademark and branding can avoid, for very long, the very real need to be able to rule against the prerogatives of property and commerce in order to preserve freedom of expression.
It was something that struck me during the whole rightwing attack campaign before the last election, when every Liberal scandal and pseudo-scandal was cheered on by people repeating the MacDonald's jingle "Buh Da Bup Bup Bah...I'm Loving it!" I really thought at some point, that McDonald's could think of suing.
Maybe the contents of the news paper had something to do with Canwest pressing charges, but it's still well within their rights to do so.
Why do some people persist in thinking discussions about legal actions are a question of anyone's right to do something? Of course CanWest has the legal right...otherwise we wouldn't be talking about it.
"Although I support your anti-HRC position, what you've said is factually incorrect. It is possible to countersue the HRCs for costs, but it isn't done too often."
Can you provide me with evidence where someone got costs back from a failed HRC complaint? I'm not aware of any.
In a real court, the winner automatically gets costs. They do not have to fight the system to get them. In a real court, the complainant has to pay your costs if the claim is found to be frivilous or vexatious.
Is the government, ie. my tax dollars pay the cost of a lawsuit in the event of a failed prosecution? Please no.
Ti-Guy, Mike:
I'm sorry, this isn't "speech". This is printing a registered trademark without permission and distributing it. Why do you have a right as an extension of your expression to do that, without obtaining permission from the mark holder.
We've never held this to be a right in the past 100+ years. People get sued ALL THE TIME by companies for trademark infringement. Apple has sued bloggers for using their trademarks without permission. And what would really get you in some of those cases, is some of the bloggers they sued... were Apple fans! They were not even saying anything BAD about Apple.
Companies have a right to enforce their trademarks. It's why the register the trademark. So they can enforce control of the domain. It's not even a "gray area". It's well understood. There is plenty of case law.
When you see a little TM beside something, do you know what that means? It means "This is OUR registered trademark, we OWN it, therefore you cannot USE it without PERMISSION'.
I'm sorry, this isn't "speech". This is printing a registered trademark...
What gave you the impression I'm as fascinated with the same pedestrian considerations involved in this as you are?
This is much more of interest to me as a matter of freedom of expression and CENSORSHIP than anything else. Big surprise that that's something the speechies are failing to appreciate.
Posted
To save Ti-guy the pixels: shorter Currie - this is a regretable but private action, the HRCs are state action. If the HRC's come after this chap for some reason having to do with speech then I'll be at the barricades.
"Can you provide me with evidence where someone got costs back from a failed HRC complaint? I'm not aware of any."
I found a few examples on the Ontario HRT home page under the rulings section. Unfortunately, they've recently that section of their site, but you can still try and dig them up at canlii.
Ok, I used canlii to dig up some cases.
http://www.canlii.org/eliisa/
sea...bunal=tribunals
I will confess that I don't know the technical intricacies of the law here, but is it really "malfeasance" for the police to share information with an agency whose own officers can issue search warrants?
Can they issue search warrants, Dawg, or merely apply for them? If the latter, then why did they not do so in the instance where they received the results of the police investigation, instead of short-circuiting the requirement?
then I'll be at the barricades.
You mean symbolically of course. Fighting the ideas here so you don't have to fight them over there, or something.
I've gotten tired of people trying to argue that corporate actions are the same thing as private, individual agency (they're not at all the same) and that their end effect is usually somehow orders of magnitude different from what democratic state can do.
It's bizarre.
I've gotten tired of people trying to argue that corporate actions are the same thing as private, individual agency (they're not at all the same)
and we should take your word for it because...?
A corporation is just a convenient way to assemble the interests of shareholders; agency issues aside (and that is between managers and owners, not corporation and public) their interests are identical. If Canwest were owned by an individual who were pursuing this course, you would doubtless disapprove of their actions, too, Ti-Guy.
and we should take your word for it because...?
Why on Earth do you think I care what you (and I gather all the others, for whom you claim to be speaking) do?
I didn't invent the notion that the corporation represents an entity that acts quite differently from an individual, from whom human intelligence, morality and mortality can be reasonable expectations. Nor am I the first one to suggest that: "In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought..." etc.
I'm not saying anything new here, so I'd appreciate it if you tried to refrain from making it sound like I'm some fantasist pulling ideas out of thin air, no matter how much you enjoy doing that.
I don't have really have a problem with the corporation...it's the issues of undemocratic power and influence that concern me. I'm surprised I even have to explain that.
I'm reminded of Fox News's attempts to copyright exclusive use of the phrase "fair and balanced".
Trademarks should be protected if they are being abused with the intent to impersonate or counterfeit the authentic product, particularly for profit. Otherwise, though, we would really run the risk of trampling on our ability to create expression and art. If I take a picture of a city, do I need to airbrush out the golden arches before I put it on display?
And can I use the words "golden arches" without getting sued...
Dawg: I know I shouldn't do this, but every speech warrior blog is infested with the rotting corpses of small dead animals these days, so I'll just point out something from Jay Currie's argument here:
"I don’t want it suppressing speech. Canwest and the Aspers do not represent me. I rarely buy their products and I don’t watch TV. I contribute little or nothing to whatever wacky things they might want to get up to."
Jay seems to think CanWest stands and falls on the basis of consumer choice. His consumption choices do benefit CanWest because its revenues are generated through the advertising of goods and services he most likely does purchase. With that power, CanWest is able to act without his consent and without him even being aware of that. And that includes suppressing "speech," which it does, every day.
Even the limited consumer choice that does affect CanWest (the paid consumption of its media products or its audience share which influences advertising revenue) does not suggest the consumer is agreeing to what CanWest is doing, in so many other ways.
That is much, much worse than what the state does with *our* money.
Now, I'm not saying we shouldn't have media like CanWest necessarily (although I wouldn't shed a tear to see it disappear) but I do think the free market logic when it comes to issues like this is deeply flawed for precisely the reason that the revenue stream not understood at all.
"His consumption choices do benefit CanWest"
Er, well, no. Cheap bastard that I am I buy almost entirely second hand. (Which gives me the added benefit of not buying directly from China.)
That said, Ti-Guy, your more general point can be rather easily refuted by a strategy of "no brands, no processed food, no car". I adopted that strategy long before crunchy cons were invented and well before "no car" implied some sort of support for St. Algore. It is called being poor. Having adapted to being poor I find it very difficult to equate having a tiny bit of money to falling into brand land.
This means that Canwest gets none of my dollar votes even at second hand.
I stand corrected on that point, Jay. I was going to blather on a bit more that to be morally coherent, one would drop out of consumerism and more significantly, make less money, and I see you have.
You are morally consistent. I'm not sure how some of your free market friends would view that, however. They consider commercial interactions and consumption are not choices, but obligations. You are not a citizen, you are a consumer. So The Fraser Institute insists.
But the problem is still there and that analysis with regard to expression still stands. And in case Dean is wondering, I didn't make that up myself.
That's generous of you Ti-Guy. I must say I have yet to hear a free market commentator say that consumption of new goods is an obligation, moral or otherwise, but no doubt some would say something as silly as that.
To be trite, freedom is about making choices. While I was poor I had very few choices available to me; as I have acquired a bit of money there are more choices and life becomes easier and harder.
I like markets but I also like thrift. I like getting fifty books for twenty dollars or Le Crueset potsfor five bucks a piece. I suspect it is in my old Scots genes.
That I am able to bypass the Asper/Globe and Mail/CBC/CTV hype is a delightful bonus. But if they were done tomorrow I doubt my choices would change much.
I will, however, be celebrating tomorrow night's "Hour of Power" with white Christmas lights and big honking studio lights cranked to the max....so you can still hate me. (But, hey, we have to start some where.)
I didn't invent the notion that the corporation represents an entity that acts quite differently from an individual...
Oh boy: argument from anonymous authority. Colour me impressed, even if nowhere near convinced. Of course corporations act differently than any given individual - but they don't necessarily act differently than a collection of individuals who held the same collection of interests and, dare I say, power.
Canwest in particular is an interesting example, since three individuals (David A, Gail S, and Leonard J Asper) collectively own all of the Multiple Voting Shares which command 88.5% of the aggregate voting rights of all classes of shares. In effect, Canwest is directed by a partnership of the three children of Izzy Asper. I see no reason to think that a small partnership of siblings would behave any differently than an individual; to the extent there was a difference, I would expect it to be in greater deliberation and perhaps greater "morality."
Exactly none of this has anything to do with "the acquisition of unwarranted influence in the councils of government" since this is a private action by Canwest. Admit it - you are simply upset that the holder of a property right is acting to enforce that right against those with whom you have ideological sympathy.
I have yet to hear a free market commentator say that consumption of new goods is an obligation
No doubt they'd deny it's an obligation, but think of how the Americans were being exhorted by Bush to shop after 9/11 and how, during this financial meltdown, the decrease in consumer spending is causing a lot of worry, it not outright panic.
It's how our economy works and it's not sustainable; even if we had unlimited resources, it inevitably leads to social/cultural degradation.
Decay and devolution are about the only things that ever worry me; what I'm mostly focused on (and this is what ties into the freedom expression issues) are the deceptions that prevent people from understanding that clearly and from making better, more informed choices when they exercise their freedom of action. Contrary what some may believe, I'm mostly indifferent about the nature of the choice being made and much more concerned about how that choice expresses an informed decision.
Of course corporations act differently than any given individual - but they don't necessarily act differently than a collection of individuals who held the same collection of interests and, dare I say, power.
And I'm supposed to take your word for it? ... etc.
I never said they did act differently from other groups, but they do have a particular legal status and one that permits them to amass considerable power and wield considerable influence. If you can't see that, you're simple-minded.
I see no reason to think that a small partnership of siblings would behave any differently than an individual...
So? That you wouldn't see something is not particularly relevant to anything.
...to the extent there was a difference, I would expect it to be in greater deliberation and perhaps greater "morality."
You are sorely mistaken, and I'm mistaken in thinking you actually understood complex systems. The more distant direct consequences are from individual decisions, the more likely they will be taken without consideration of the consequences.
Besides, we're not talking about a small partnership of siblings here, no matter how comforting that little rationalisation might be.
Exactly none of this has anything to do with "the acquisition of unwarranted influence in the councils of government" since this is a private action by Canwest.
I was making a point about undemocratic power and influence and quoted Eisenhower. It was the only one I could think of the top of my head.
Admit it - you are simply upset that the holder of a property right is acting to enforce that right against those with whom you have ideological sympathy.
My, how predictably churlish and authoritarian. Anyway that's not the issue at all. I believe in protecting trademarks and property (although I believe 'property rights' are a fiction), and I have moral (not ideological) sympathy for the people this aggressive action is targeting.
Now that that's done, hopefully you'll feel free to direct your biliousness toward someone else.
Ti-Guy
You started with an objection to corporate action:
I've gotten tired of people trying to argue that corporate actions are the same thing as private, individual agency
When faced with the fact that the corporation is controlled by three related individuals, you claim that
I believe in protecting trademarks and property
but the basis of your objection is that anyone was actually doing anything to protect their trademark and property - that is what this whole case is about. I realize, I strain the bounds of credulity when I expect consistency from you, but surely, serial rationality is not too much to ask.
Well Dawg you did suggest that none of us free speechers would have a word to say on the matter and Mike Brock and I have already proven you wrong.
You are quite right in pointing out that both the CHRC/T and the regular Courts are part of the "state apparatus". The critical difference being that were I to write that you had unnatural relations with lamas you could use the courts to sue me at your own expense. Whereas, were I to complain that your blog somehow offended a "protected" group I could scrawl, on one side of the page please, a complaint and have the state run me through the wringer.
Can you see the difference?
By the way, I agree that the libel and slander laws as well as copyright laws need a complete overhaul. For example, the notion of fair comment (which would protect Ti-guy) needs to be included as does the notion of a public figure. There is already a broad exception for parody but that could be broadened as well.
But before we go there we need to deal with the real issues raised by s. 13 where the question is whether or not a speech act "tends to promote" hatred. That is simply too broad and must be eliminated.
If the situations are, in fact, as comparable as Dr Dawg contends, then why are BOTH HRCs and the private legal system necessary?
Because our "court system offers the rich and powerful the opportunity to hammer the little guy into the ground"?
And to think that it is supposed right wingers who don't respect the integrity of our legal system!
I don't see how someone is supposed to argue with someone who contends that the legal system is corrupted, such that it requires state intervention to correct the supposed imbalance. Pretty much any tyranny can be justified if one starts with those assumptions.
Currie and Brocks's comments would be somewhat more persuasive if not for their glaring ignorance of civil litigation and trademark and defamation law. A few points:
-while ostensibly a trademark action, Canwest seeks remedies more in keeping with a defamation or slander of goods action, including an injunction barring the defendants from publishing injurious falsehoods in any media in the future. (the typical remedy in a trademark action is an injunction requiring the defendant to stop using the trademark.) This is consistent with CanWest's approach to other critics, such as Rafe Mair and the online magazine The Tyee, which it has sued for reporting that it was buying out the editorial cartoonists at one of its papers (the cartoonist had, in fact, been told that they would be replaced on most days with a national editorial cartoon). In other words, these are SLAPP suits, pure and simple.
- the paper was clearly a parody of the Sun. University papers in Vancouver have been publishing parodies of the Sun and Province for decades, with no legal action being taken. Why the sudden change?
- Brock seems to think that if you're sued and you win, the other side covers your costs. If only. A typical costs award covers about 30% of your legal fees. Only in exceptional circumstances will a court require one party to pay the other's full legal costs. Even a simple defamation or trademark action costs $100,000 to defend.
- Currie calls for reform of libel and copyright laws, so as to incorporate the notions of fair comment and a public figure. He also asserts that there is a "broad exception for parody". Well, while fair comment alread exists as a defence in Canadian defamation law, our courts have refused to follow the US in requiring public figures to show actual malice in order to maintain an action for defamation. (This may yet change if Little Stevie Harper's ridiculous defamation suit proceeds) And Canadian copyright law does NOT include an exception for parody.
Like most of the right-wingers who want to preserve the God-given right to smear "Muzzies" and "Kikes" and other groups, Currie and Brock appear to be of the view that while individual and corporate reputations are sacrosanct and deserve the protection of libel law (for those few who can afford to bring defamation actions), groups who come under attack had better just suck it up, because the commmon law doesn't allow suits for group libel (at least in any practical way) and any statutory limits on speech, such as those imposed by human rights codes, are an outrage. This view, of course, ignores the fact that libel law is more frequently abused than provisions such as s.13(1) and at greater cost to both civil liberties and the pockets of the defendants. It also ignores the fact that an attack on the reputation of a particular group, if it reaches a certain level, invariably has a profound impact on the members of that group.
Unless it is possible for the members
Unless it is possible for the members of the group to maintain a class action for defamation (which brings a whole new set of problems) provisions such as s.13(1) offer the only remedy for groups whose reputations are under attack by bigots like Lemire, Shaidle and MacMillan. While those provisions could be improved -- the language changed to incorporate some element of intent, limits placed on suits brought by folks like Warman, who act as private attorneys general -- to eliminate them entirely would results in a grossly inequitable situation, in which deep-pockets plaintiffs like CanWest, Conrad Black and Ezra Levant could bully their critics with libel action, while groups under attack by bigots would have no remedy at all.
And for a sorely-needed comedic interlude in the midst of all this serious talk, Kate McMillan shows up to accuse me of intellectual dishonesty.
Well, if anyone's an expert when it comes to intellectual dishonesty ...
but the basis of your objection is that anyone was actually doing anything to protect their trademark and property - that is what this whole case is about.
No, that wasn't the basis of my objection. This post is about SLAPP suits and their relation to freedom of expression and censorhip, and others have commented in that vein as well. It's a bigger picture issue, and if you refuse to appreciate, then too bad.
I realise you cannot abide anyone who expresses something that does not conform to the beauty of your coherent and well thought-out opinions and become reflexively churlish and peevish, but I fail to see how that should be my problem all the time.
Some excellent commentary here. To Brian Dell: the reason that we have quasi-judicial tribunals in all sorts of areas is that they do a massive amount of grunt-work that would otherwise clog the courts. I am quite familiar with labour adjudication in this respect, and the same principle applies elsewhere.
Most of what the CHRC does under the applicable act is unexceptionable (except for those who want to abolish the Human Rights Commissions holus-bolus). Section 13(1) does not obtrude on current criminal provisions with respect to hate speech. It sets a lower bar (balance of probabilities, not beyond a reasonable doubt) and the opportunity for mediation is promoted. It's a civil procedure, in other words, and one accessible to the ordinary citizen.
This is no more redundant than providing the opportunity for a civil action against someone for an assault following a criminal conviction in the same case.
Currie and Brock appear to be of the view that while individual and corporate reputations are sacrosanct and deserve the protection of libel law
Why the hell do people keep saying this is a libel action? It's not. It's a suit in response to a trademark infringement.
Repeat after me: Trademark suit. Not libel suit.
Mike,
It's nominally a trademark action, but the remedies sought are more akin to those a plaintiff would seek in a libel action. Moreover, as I pointed out, CanWest hasn't been shy about filing bullying libel actions, even in the absence of any real harm.
In any case, as I also pointed out, historically, the owners of the Vancouver Sun have let parodies slide. And why is that? Because if the use of the trademark is not a commercial use -- e.g. if it's a parody -- then you can't maintain a trademark action. As these people who know what they're talking about make clear: http://www.trademarkblog.ca/paro...ian-trademarks/
You seem quite comfortable making pronouncements on the law. Unfortunately, you seem to get the law wrong almost all the time. Perhaps you should do what lawyers do when they're not sure about the law -- research. Or you can just continue making an ass of yourself.
I've never found civil suits to be in themselves an infringement on freedom of speech; if you wrong a person or an organization, expect to face the consequences. That's been my line from before bloggers started setting their hair on fire about facing legal actions over what they publish. Some suits are largely frivolous; this one tends towards that, but not entirely.
(Of all the IP laws I think need changing, trademarks are at the bottom of the list. Patent and copyright law are more urgent.)
This parody (and having seen it, it's a feeble one) used the actual "Vancouver Sun" name and its nameplate design was very close to the Sun's nameplate. CanWest's lawyers probably would have had to assert their ownership of the marks, but going beyond is excessive.
CanWest (and before that, Hollinger) has been the targets of parodies from university papers and others. The most prominent satirist from the mid-nineties to around 2003 was Guerrilla Media, who put out some very funny ones. AFAIK, none of the Guerrilla parodies used the papers' trademarked names or designs; they were usually something like the "Vancouver Spun" or "The Providence" and changed the design somewhat. They then filled it with pokes about the papers' fawning over Stockwell Day or the fabled brain drain; it was pretty good stuff.
Is this evidence that CanWest are acting petty and smallminded? Yes. But an infringement on free expression? No.
I think that your notion that civil courts are for the powerful to beat up on the little guy, while human rights bodies are there to let ordinary people take a stand is simplistic. Neither Syed Soharwardy and Islamic Supreme Council of Canada, nor the Canadian Islamic Congress and a group of soon-to-be Osgoode Hall grads could be described as plebes. Quite a different class than most of those alleging discrimination on the job or when trying to rent a place. I can't recall a human-rights complaint (going back as far as the complaints against the late and unlamented Doug Collins) over publications that wasn't launched by anyone who wasn't reasonably well-established.
Both complainants have enough access to resources to fight a civil court battle, but they didn't have a civil case. It reeks of venue-shopping: find a code that doesn't require anything other than offending a protected group, is vaguely written, and is adjudicated (in most cases) by non-lawyers who may be more sympathetic, especially to those who play the oppression card. (We had just such a body in British Columbia from 1997 to 2003; there weren't too many sad to see it go. If you've been discriminated against in the private sphere, there remains a human rights tribunal. Thankfully, it's run by lawyers, not social theorists.)
Frankly, most of the reasonable criticisms of human rights bodies would be addressed by getting them out of the speech-regulation racket. What would be left would be the Bob Ringma ("send 'em to the back of the shop") set and the property-rights absolutists.
Ian:
I think that your notion that civil courts are for the powerful to beat up on the little guy, while human rights bodies are there to let ordinary people take a stand is simplistic.
I think your restatement of my argument is simplistic. It's the fallacy of composition, isn't it, when I state that the little guy has easier access to Human Rights Tribunals than civil courts and you counter with examples of bigger guys who have used the former process as well?
In any case, I find it amazing that a fairly harmless Human Rights Commission process (blown out of all recognizable proportion by the likes of Ezra Levant) is considered a serious threat to individual rights and freedoms, while a major corporation with deep pockets misusing trademark law to go after a peace activist is not. Again, I say--amazing.
"I think your restatement of my argument is simplistic. It's the fallacy of composition, isn't it, when I state that the little guy has easier access to Human Rights Tribunals than civil courts and you counter with examples of bigger guys who have used the former process as well?"
Here's a question: What should be done in order to stop big corporations from, as you say, 'misusing trade mark laws'. Seems to me that you've been complaining and complaining, but you haven't been able to come up with a better alternative.
So if the party wrote, or expressed in any form, the same material without the parody - would there be a lawsuit?
If the same statements had been made on their own merits, without the use of the "Sun" parody - I believe we would not be having this discussion. There are many vile things documented that people don't agree with, but most would never try to stifle it unless their name was incorrectly attributed to said material. As much as i have always found Ti-Guy offensive, foul-mouthed, intolerant and generally boorish - it is his right to be so. That said, I would NEVER want any of his documented thoughts appearing with my picture beside it and my name attributed to those thoughts.
Some groups/people/organisations are OK with parody. Apparently the Vancouver Sun (and Disney among others) are not OK with it.
This entire discussion has squat to do with the HRC issues of the day.
"It's the fallacy of composition, isn't it, when I state that the little guy has easier access to Human Rights Tribunals than civil courts and you counter with examples of bigger guys who have used the former process as well?"
I'm saying that in practice, it's the bigger guys who are using and abusing this particular area of human rights legislation -- another aspect in which these cases don't jive with what was envisioned of human rights bodies. (Just ask Allan Borovoy, or former BC MLA David Schreck about that.) In any case, the ease of abuse is the issue, not the relative ease of access. There's also the small matter of prohibiting that which might expose persons or groups to contempt: it's far too open-ended and encroaches on expression far more than defamation (which requires spreading damaging lies) or IP violations (which require theft). So there is a difference. I don't see anything that prevents Briemberg from criticizing CanWest's Mideast coverage.
How, by the way, does railing against Israel (and spreading Communist bilge) for one's entire adult life, as Briemberg has, qualify him as a "peace activist?" Anti-Zionism (and Communism) doesn't exactly imply peace as I understand it.
Commenting by HaloScan
