Sep 03 2010
I’ve said before that Mr Justice Albie Sachs of the South African Constitutional Court is one of the great judges of our time. One of his great writings is his concurring opinion in the case of Laugh It Off Promotions CC v South African Breweries International (Finance) BV,  ZACC 7, in which he posed the question “Does the law have a sense of humour?”. This was an action by a beer distributor in which, to use his words,
a graduate of a course in journalism decided to do battle with a number of corporate giants, calling his enterprise Laugh it Off and arming himself with T-shirts bearing parodied images and words brazenly pilfered from his opponents. One of his victims, South African Breweries [SAB], saw one of its well-known trademarks reproduced on T-shirts for public sale. The words ‘Black Label’ and ‘Carling Beer’, which accompanied the logo were transformed into ‘Black Labour’ and ‘White Guilt’. In smaller lettering the slogans, ‘America’s Lusty Lively Beer’ and ‘Brewed in South Africa’ were converted into ‘Africa’s Lusty Lively Exploitation Since 1652, No Regard Given Worldwide’. SAB did not laugh. Instead it went to the Cape High Court and sought, and obtained, an interdict restraining distribution of the T-shirts.
The appeal succeeded1. The Constitutional Court held that this supposed abuse of the Carling trade mark, which was claimed to be an unfair infringement of its intellectual property rights, was protected by the South African constitutional right of freedom of expression, which is in effectively identical language to Article 10 of the European Convention on Human Rights in this country. The Court went further:
The Constitution cannot oblige the dour to laugh. It can, however, prevent the cheerless from snuffing out the laughter of the blithe spirits among us. Indeed, if our society became completely solemn because of the exercise of state power at the behest of the worthy, not only would all irrelevant laughter be suppressed, but temperance considerations could end up placing beer-drinking itself in jeopardy. And I can see no reason in principle why a joke against the government can be tolerated, but one at the expense of what used to be called Big Business, cannot.
A few years ago Miss World, the company not the individual, ran a similar argument to Carling’s in the English High Court, Miss World Ltd. v Channel Four Television Corporation  EWHC 982, when it heard that Channel 4 was proposing to screen a programme following the fortunes of an English competitor in a beauty pageant for transvestites and transsexuals in Thailand under the title “Mr Miss World”. The late and much-lamented Mr Justice Pumfrey granted an interim injunction (equivalent to interdict) with considerable hesitation, holding that Channel 4 was taking unfair advantage of Miss World’s commercial goodwill.
Now back to South Lanarkshire. The Council, it seems, sees itself as Miss World, not as a beer company. It now complains that its copyright in its logo, which bears the words “South Lanarkshire Council” is infringed by the publication of a parodic logo with the words “South Lanarkshire Coalcil”, satirising the Council’s supposedly over-close friendship with Scottish Coal. In its own words,
I have insisted upon an immediate public retraction of the statements made within the article. In addition, the use of the Council logo by Coal Action Scotland at the head of this article without permission is improper use of copyright material owned by the Council. The use of the logo is strictly prohibited without prior authorisation and, therefore, this is a breach of copyright regulations… The article, as well as being inaccurate, also endorses the Coal Action Scotland call for people to post the controversial article and logo on their websites and blogs and I believe that this is both encouraging an act which is potentially actionable by South Lanarkshire Council and also encourages a breach of copyright regulations… both should be removed immediately.
So, to be clear, there is to be no humour in South Lanarkshire. That is strictly prohibited. Instead, there is to be the use of the Court for censorship of dissent. Neither Coal Action Scotland nor Indymedia are in fact using the Council’s logo; they are using a parody or satire. As an analogy, Private Eye has for many years carried a parody of the Daily Express’s logo on its masthead. I doubt whether the Express was ever so foolish as to complain; it would recognise this for what it was. The Express is not beyond parody. But it seems that South Lanarkshire Council is.
I have no idea whether Coal Action Scotland’s substantive criticisms of the Council are accurate or not. That is not my concern; my concern as a litigator is with the abuse of legal threats in an attempt to stifle criticism and satire. It is hard to think of a clearer example of fair use than the offending logo, or a clearer example of the use of threats of legal action as intimidation than South Lanarkshire’s letter.
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