Courts Hold that Media Corporations Should Prepare for Public Scrutiny

In the past two years, a number of major media acquisitions have transpired in Canada including CTVglobemedia’s purchase of CHUM, CanWest’s purchase of Alliance Atlantis, and Astral Media’s purchase of Standard Broadcasting. In response to this continuous consolidation, various media activist groups have emerged to voice their concerns and dissatisfaction. Among these groups is the Adbusters Media Foundation, which brought an action against these major media oligopolies for continuing to censor citizen-produced TV ads.

According to Adbusters, this action raised awareness of the statutory right of all Canadian citizens to have “a reasonable opportunity…to be exposed to the expression of differing view on matters of public concern” (section 3(i)(iv) of the Canadian Broadcasting Act, 1991, c.11).

Who are the Adbusters Media Foundation?

Adbusters Media Foundation (Adbusters) is a not-for-profit, anti-consumerist organization based in Vancouver. Adbusters also publishes an ecological magazine that examines the relationship between human beings and their physical and mental environment. They describe themselves as “a global network of artists, activists, writers, pranksters, students, educators and entrepreneurs who want to advance the new social activist movement of the information age.”

Adbusters has launched numerous international social marketing campaigns including “Buy Nothing Day” and “TV Turnoff Week”. They are particularly known for their “subvertisements”, which are spoofs of popular advertisements.

Background

On September 13, 2003, Adbusters filed a suit against six major Canadian television broadcasters including CanWest Global, Bell Globemedia, CHUM Ltd., and CBC for refusing to air advertisements critical of commercial advertising. CBC agreed to run some of the ads, but not at the time that Adbusters desired. The B.C. Supreme Court dismissed Adbusters’s statement of claim for not establishing a reasonable cause of action. On April 3rd, 2009, the B.C. Court of Appeal overturned the B.C. Supreme Court decision in Global Television Network Inc. and Global Communications Limited v. Adbusters Media Foundation, 2009 BCCA 148 (Adbusters).

Adbuster’s claim: Violation of section 2(b) of the Charter

Adbusters claimed that Global TV’s subjective and selective refusal to air certain ads was a violation of section 2(b) of the Charter, that is, “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. Adbusters claimed that both Global TV and CBC were “government bodies” and as such were subject to the Charter. Their responsibilities, which included implementing government broadcasting policies that control expression on the airwaves (a public space), strongly indicated that they were government bodies.

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, is the leading authority establishing that the Charter applies to all the activities of the government, private or not.

The SCC has also recognized that the Charter may apply to non-governmental entities in certain circumstances. It has held that a private entity implementing a specific government program is subject to the Charter with regard to that program. Justice La Forest in Eldridge stated, “the Charter will apply to a private entity when engaged in activities that can in some way be attributed to government.” He repeated this proposition in McKinney v. University of Guelph, (1990) 3 S.C.R 299, where he held that the Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy.

The test to determine whether a private entity is subject to the Charter is based on the entity’s conduct and whether it is governmental in nature. Adbusters would have to prove, first, that Global TV is a governmental body and, second, that Global TV’s conduct is similar to that of a governmental body and is therefore, subject to the Charter.

Global TV’s Argument: No Reasonable Claim

At trial, Global TV sought an order to dismiss the proceedings pursuant to Rule 19(24)(a) of the B.C. Court Rules Act, B.C. Reg. 221/90, which provides that at any stage of a proceeding the court may order to strike out or amend whole or any part of an endorsement, pleading, petition or other document on the ground that it discloses no reasonable claim.

Justice Donald from the B.C. Court of Appeal found that the test under Rule 19(24) was uncontroversial. The test as set out in Hunt v. Carey Canada Inc., (1990) 2 S.C.R. 959, asked the courts to determine if it is “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action. This analysis is not dependent on the length and complexity of the issues, the novelty of the cause of action, or the potential for the defendant to present a strong defence. It is a stringent test and the action fails only when there is a “radical defect” in the statement of claim.

A similar dispute was adjudicated in Adbusters Media Foundation v. Canadian Broadcasting Corp., 2008 BCSC 71, (Adbusters No 1). In Adbusters No. 1, the courts dismissed the Charter claim on the grounds that CBC was not under the control of the federal government and therefore their refusal to run certain ads was not government action subject to Charter scrutiny.

The B.C. Supreme Court judge in Adbusters found no distinguishing factors between the two cases that would oblige him come to a different conclusion. However, Justice Donald of the B.C. Court of Appeal disagreed with the trial judge and allowed the appeal, stating that the trial judge erred in “treating the implementation of government policy theory as having being settled by Adbusters No 1, and in considering themselves bound by that decision.”

SCC’s Decision to Dismiss the Application for Leave to Appeal and its Implications

On September 17, 2009, the SCC dismissed Global TV’s leave to appeal without costs, allowing the case to now proceed.

The significance of the case lies in whether public broadcasters that are given a license to operate by Parliament have the right to determine who gets to speak on public airwaves. This cases raises numerous questions regarding the nature and scope of freedom of expression in the Canadian broadcasting system. It will decide whether Canadians have the right to walk into their local TV stations and buy airtime under the same rule and conditions as corporations do.