Dr. Dawg, has challenged me to step up to the plate as a freespeecher and defend this.
Apparently, a group of anti-Israel activists decided to print what they describe as a "parody" of the Vancouver Sun in a reasonable likeness of the newspaper itself. In so doing, the "parody" was meant to portray the paper, and it's owners, the Aspers, as being proud of supporting "Israeli apartheid".
Whenever I hear people using the word "apartheid" in regards to Israel, I just turn off. I've just avoided the whole debate on my blog, and I'll continue to do so.
Well, CanWest, the owners of the trademarks, that said activists willfully infringed upon decided to take them to task for doing it. They sued them. Some people are calling this a SLAPP suit. Censorship. One guy even says it's worse than what the Human Rights Commissions dish out under Section 13 of the Human Rights Act; a ridiculous position.
There is a complex intersection of interests here. The right to express yourself versus the right to the owner of intellectual or artistic property to exert control over that property. And make no mistake, under trademark laws, the property of CanWest was infringed.
From a libertarian perspective, this is a somewhat complicated issue. But I come down on the side of the fence, of the right to protect your trademark, and your copyrights. This is not a matter of suppressing speech, as is being portrayed by the left. But it is a matter of suppressing expression—in a sense.
Preventing people from expressing themselves by duplicating, or reproducing their trademarks and copyrighted material is something that happens all the time in virtually all developed nations. It's the fundamental cornerstone of our intellectual property laws.
Certainly some of these laws are controversial. There are some, who believe you cannot own knowledge and that patents and copyrights are unethical. Most people who think like this are socialists and communists however, and are not the mainstream of society.
The reality is, that most people accept that these limits are reasonable because it relates to the livelihood of people who work in the knowledge industry, and rely on their brand image to sell products. It is for the latter reason that companies are often vicious in going after those who infringe on their "brand" in any way. I happen to know that Apple, the maker of the iPod and Macintosh computers, sends out cease and desist orders on people using their trademark on a daily basis. They enforce their control over their trademarks with unrelenting legal force. And they've earned a bad reputation in some circles for doing so.
It's important to remember that CanWest is not suing for defamation or libel. They are not actually suing the people for saying anything. They are suing them for reprinting a trademark, which they own, without permission. They are suing them for disseminating that trademarked material.
Some people have noted that CanWest would not be suing, if the trademark infringement had not been paired with the harsh political rhetoric against the Aspers. Perhaps. In fact, it probably made all the difference in their decision. But the owner of a trademark reserves the right, as the saying goes, to enforce their trademark in any case. Even if the trademark infringement was in a completely playful, pro-Asper, pro-Vancouver-Sun manner—they reserve the right.
In that sense, if they can prove that CanWest has willfully allowed people to infringe their trademarks in other cases, than it certainly boosts the defense's case. They could argue that the lawsuit is purely malicious. They'd have to demonstrate a pattern of CanWest being highly selective in how they enforce their trademarks to have a chance at that, I think.
Now if you're calling CanWest a censor, then almost all large companies are censors. I've been party to a trademark dispute before. It's not something that I'm all that unfamiliar with. But I accept that trademarks exist, and I understand the reasons why. I'm even partial to those reasons.
The left wants to portray this as the big, evil, right-wing CanWest shutting down debate. But it's not the debate they're shutting down, but simply the use of their trademark, used, reprinted and disseminated without permission. That's hardly shutting down debate. Nor is it a "minor technicality" as far as intellectual property rights go.
I mean, I just expressed myself here, and I didn't use a registered trademark such a corporate logo to do it. Works fine.
The lesson is: don't smear the intellectual property of the person or persons you are trying to smear all over a piece of political propaganda, and you'll avoid a highly inconvenient legal battle over their trademarks and copyrights. It's not a very difficult proposition.
I think people are confusing WHAT you say for HOW you say it, with regards to free speech.
As the old analogy goes, you have the right to say Harper sucks. You don't necessary have the right to pile up the amplifiers outside my window and blast this opinion at 3 in the morning...
I think it's laughable that some people will see this case and any of the cases in the news now involving Sec 13 of HRA. The most important distinction is that the anti-Israel activists have not been charged, tried and convicted for crimes that may or may not happen in the future but haven't yet.
If the cases were similar, the activists would have been hauled before a HRC for anti-Israel comments and fined $20,000 for "expose a person or persons to hatred or contempt" even though only six people actually read the pamphlet and no one has been physically harmed due to the messages in the fake Sun handout.
I think it is absolutely right for the Aspers to protect their trademarks, property. I would say being able to protect your property is one of the cornerstones of a democratic country and very little would be invented and/or produced if there were no protections from theft. The activists are being charged for actions, not thoughts.
Copyright infringement issues will be decided in a REAL court, with real rules, with a real judge, without pseudonyms and planted evidence, by witnesses without massive memory failure, etc. A quaint concept for those defending HRCs.
Mike, Mike, Mike,
Why do you insist on pronouncing opinions on legal issues you know nothing about? First you make a goofy argument about how costs are the answer to SLAPP suits. Now you say that CanWest has the right to slap down critics because they used their trademark. Not according to these trademark lawyers: http://www.trademarkblog.ca/parodies-of-canadian-trademarks/
Here's an idea. The next time you feel the urge to pronounce on legal matters, why don't you do what lawyers do when they don't know the answer to a question - research.
truewest,
If the case law is that clear, then I expect that the defendants will be successful in having the case dismissed as frivilous and vexatious.
Mike,
Stop pretending you know anything about civil procedure. You don't. Assuming that CanWest has competent counsel -- and they do -- they'll have pleaded the case in such a way that it can't easily be struck on a summary motion, even it there chances of success at trial are slim. The defendants may win, but they'll have to spend money they don't have to do so, most of which will not be recoverable in costs.
Indeed, this is based on the idea of property, an evil capitalist notion which dawg probably has no interest in. Consider this somewhat hilarious hypothetical; someone decides to publish his work under their own name and take any revenue. Would he "suppress" their speech?
Stop pretending you know anything about civil procedure. You don't.
The bottom line in this debate is, how is this about "free speech"? Regardless of what courts have deemed acceptable infringement, the use of someone's trademarks to mock them, to me, is not neccessary to make a point.
I'll be very interested to see how this case unfolds.
Are you really that thick? CanWest is asking a court to enjoin the defendants from claiming that its papers have a pro-Israel bia -- "by way of newspapers or other publications, on the internet or otherwise" - and you ask "how is this about free speech?"
So let me get this straight: You'll go to the wall for the right of Lemire to spew hate, for the right of Levant to mock Muslims, but, in your view, using someone's trademark to criticize their behaviour is "unnecessary" and deserves every legal sanction that the plaintiff can muster? And the basis for this distinction is, I presume, that the Human Rights Tribunal that might impose a modest penalty on Lemire or Levants uses different procedures and a slightly more generous standard of evidence than the ordinary court that will make the draconian order sought by Canwest?
The HRC may have ordered Levant to "apologize" for offending someone. That's far more draconian than being sued, in my opinion. To be forced by the state to "apologize" as a penalty, is for the state to direct me to change my political thoughts. That's Orwellian.
I'll be honest with you. The more I've seen, and thought about this, the more I think that CanWest is being heavy-handed and reprehensible. For the record, I would strongly support passing strong anti-SLAPP legislation in Canada.
I may post again on this, with those thoughts.
The Human Rights Commission wasn't going to make Levant apologize to anyone or do anything. (I hope you understand that in the Alberta and Canadian HR schemes, there's a difference between the commission, which mediates and investigates, and the tribunal, which hears cases and makes orders.) Nor was the Tribunal likely to make such an order, even if it did hold a hearing; as far as I can determine, the tribunal only orders apologies in sexual harassment cases.
As for your suggestion that being made to apologize is far more draconian than being sued, three points. First, I'm guessing that you've never been sued. Second, you're mixing apples and oranges -- being sued is a process, an order for an apology (which I repeat is not likely one to arise in these cases) is a possible remedy. Third, you should know that apologies an important part of defamation law and are seen as mitigating damages. Given the choice between paying increased damages and apologizing, most people will apologize (especially if they got facts wrong)rather than pay more. And far from being draconian, apologies are seen as humanizing the law. BC recently passed a law encouraging apologies (by providing that an apology could not be used against the repentant party.) And of course, the folks who took over the Western Standard from Ezra did apologize when one of their regulars posted something advocating genocide against Muslims on the Shotgun. I thought it was a decent and responsible thing to do, but the remedial reading class who frequent that place didn't seem to agree.
First of all, Commissions have ordered people to apologize. Second of all, I am aware that an apology in a libel case mitigates damages. However, a civil case is against two private interests.
Sohawardy's complaint specifically claimed that the cartoons were offensive to Muslims and the Profit Muhammad. The result requested was an apology, and in the words of the investigator going after Levant, "an apology is what is being asked for in this case".
To even think that a government tribunal considered a case, where they would force a Canadian citizen to apologize for this is absurd.
Libel is a hell of a lot different from some "offensive cartoons". You'll excuse me for not seeing the parallel. One is lying, one is expressing an opinion.
If I have the opinion "all Mormons are scum", you might say "that's hate, and it's reasonable to be forced by the state to apologize". I say that's fascist.
You couldn't sue me for saying that. All the richest Mormons could band together with the best civil litigators, and you're not going to get anywhere in a civil court on the basis of group libel for an "offensive statement".
Mike,
You claim that tribunals have ordered apologies in speech cases - perhaps you can provide an example. I think its unlikely.
As for the rest, the Alberta Human Rights Tribunal isn't considering this copmlaint -- last I heard, no hearing had been set. The Commission is investigating the complaint, not because Sohawardy said it was offensive, but because he said it breached the provision of the code governing publications that expose groups to hatred or contempt. And a publication that exposes its subject to hatred or contempt is one definition of defamation (actually a publication need not go that far to be defamatory) so the parallel is fairly clear, despite your willful blindness. Finally, your opinion is not at issue in a HRC complaint, your actions in promulgating that opinion so as to encourage others to also hate Mormons is. The same holds true in libel action: I can think a certain person is a disgrace to the legal profession, but should I say it or publish it, I expose myself to liability.
No, the standard is that a comment is "likely to expose someone to hatred or contempt". This represents a pre-crime in my version.
I don't even know what you're arguing for, here. Before we continue, do you think it is appropriate to have a government commission that applies standards below that of a civil court, in order to regulate people's political thoughts?
Pre-crime, huh? Did you get that from Philip K. Dick or from ET, the blowhard anthropology prof whose legal analysis is even goofier than your own.
For your information, statutes frequently prohibit behaviour that is "likely" to cause an undesirable result -- the word appears 93 times in the Criminal Code alone -- because there's no good reason why the legislature should have to wait until risk ripens into harm before intervening. So your "pre-crime" argument falls kind of flat.
As does your argument that the HRCs "regulate people's political thought". They do no such thing; they regulate a particular kind of expression, the sort that seeks to limit the political rights of certain groups by demonizing, scape-goating and ostracizing them, by giving those groups a modest remedy. As for the "standards" of human rights tribunals, last I looked they were required to meet the same standards of procedural fairness as any other administrative tribunal, from labour boards to securities commissions, all of which serve a different purpose than the ordinary courts (whose operations you seem kind of fuzzy on in any case.)
Indeed truewest
most criminal codes do have offences like: "Behaviour likely to cause a breach of the peace" and such like so make a guess as to future outcomes.
The civil code favours those with resources and influence, the law with regard to HRCs allow those who have nothing to call the bullies to account without bankrupting themselves.
Those who think people have a place and should remember what the pecking order is favour the civil code and decry the HRCs. In fact they go one step further and call this restrictive set-up freedom and slander the real freedom HRCs are set up to provide as restrictive. It is all very "liberals are fascists" 1984ish gobbledygook.
However if the right are going to obfuscate, go big and go hard and eventually folk might believe you, or at least be confused enough to think that maybe there is an issue where there is really only petulance and an upset that the overlords might be displeased.
Some of these commenters from the right remind me of the factor in Rob Roy, they live to sell out their own in the hope that they'll get a pat on the head from their master.