Wheat from the Chaff

B.C.'s highest court rules that Adbusters Media Foundation can sue CBC and Global TV

By Charlie Smith

April 4, 2009

www.straight.com

Vancouver-based Adbusters Media Foundation has won an appeal in B.C.’s highest court to add the Canadian Broadcasting Corporation as a defendant to a lawsuit against Global Television Network Inc. and Global Communications Limited.

In a unanimous three-member decision released Friday (April 3), the B.C. Court of Appeal overturned a previous B.C. Supreme Court ruling tossing out the foundation’s case against Global. This allows the case to proceed in B.C. Supreme Court.

The foundation, which publishes Adbusters magazine, brought the action because Global and CBC have refused to broadcast its paid anticommercial messages on the same terms as other ads.

The foundation claimed that the decisions by the CBC and Global violated its right to freedom of expression under the Canadian Charter of Rights and Freedoms.

Writing for the B.C. Court of Appeal panel, Justice Ian Donald stated that Adbusters had based its argument on the Broadcasting Act's declaration that radio frequencies are public property.

The panel disagreed with B.C. Supreme Court Justice William Ehrcke's 2008 ruling tossing out the action because it was “bound to fail”.

In this earlier decision, Ehrcke also refused an application by Adbusters to add CBC as a defendant.

According to Ehrcke’s ruling, Adbusters prepared 10 broadcast-quality ads focusing on fast food, fashion, the beauty industry, the use of sex and violence on television, and the commercialization of society.

Global refused to run nine of them; CBC accepted some ads for restricted airing, but wouldn’t put them on CBC Newsworld or the main CBC network during news or current-affairs programming.

In 1995, Adbusters unsuccessfully argued that the CBC violated its charter right by refusing to broadcast anti-advertising advertisements. Ehrcke relied on this decision when he issued his ruling.

In recent years, court decisions have suggested that the constitutional right to freedom of expression exists in certain areas under “public control”.

The Canadian Federation of Students and the B.C. Teachers' Federation won a B.C. Court of Appeal decision in 2006 declaring they had this right when it tried to buy political ads on public buses.

The Supreme Court of Canada still hasn't issued its decision after TransLink filed an appeal.

However, the Supreme Court of Canada ruled in 2005 that a Montreal strip club had a charter right to freedom of expression when it broadcast music and words from a loudspeaker onto the streets.

“As such, it [the public-control argument] deserves further consideration in the course of this action," Donald wrote in the April 3 Adbusters ruling, "and it cannot be said to be plain and obvious that when the theory is applied to the facts asserted in the pleadings the action is bound to fail.”