The legal decision for Adbusters v. CBC just became available to read, and it’s… interesting.
The case, in brief, is thus: Adbusters, which for those not aware is a public advocacy organization with an anti-consumerist bent, tried to buy advertising time on Global Television and the CBC for their “buy nothing” ads. CBC aired one of them once; Global refused to air any of them. Adbusters then sued both of them, saying that the two had violated their Charter right of freedom of expression by not airing the ads. (Press release here.)
“But wait,” you say, “only the governments of Canada and the provinces and their various creatures of law, such as territories and municipalities, are bound by the Charter.” And in this you are correct. Adbusters attempted to argue that the CBC is a governmental body by virtue of the fact that it’s a crown corporation, but that one fails the smell test pretty quickly; simply being funded by the government doesn’t automatically qualify an organization as a creature of government. Universities are publicly funded, and they’re not subject to the Charter either – the Charter‘s primary purpose of existence is to define the protections Canadian citizens have from the government. (Which, incidentally, for those not well-versed in Canadian constitutional law, is a huge topic of debate – the argument over the worthiness of negative freedoms versus positive freedoms is continual and ongoing. And loud, at least within a law school.)
So that argument was bad, and it probably tainted Adbusters’ (IMO) better argument: that since the airwaves are public, broadcasters are de facto maintaining a public resource. If Adbusters had gotten the judge to agree on this point, it wouldn’t be inconsistent with existing law either; Canadian jurisprudence recognizes that private organizations performing governmental duties are subject to the Charter. (Hospitals are an excellent example: most are privately maintained corporate bodies, but as the primary deliverers of government-funded health care in Canada, they’ve voluntarily undertaken a statutory duty and are thus agents of the government. Witness the difference between this and the CBC – there’s no legislation saying there has to be a CBC, after all, as any number of right-wing media watchdogs will complain repatedly.)
Of course, the judge struck down that argument too – I won’t get into the details, but suffice it to say Adbusters didn’t have a good argument for suing private entities, and the judge was referring to Canadian caselaw that I’ve studied in a first-year constitutional law course, so you know this wasn’t exactly advanced legal reasoning here.
However, there’s probably a case to be made for suing the government, because the government’s the one putting this policy (or lack thereof) in place which restricts public expression on the airwaves. The problem here is that Adbusters asked to add the CRTC as a defendant, and the CRTC isn’t a crown agency. It’s an unincorporated commission. In Canada, if you want to sue the federal government, you’re suing the Crown (or, well, Parliament really, but you get the gist) or an agency it’s created under statute and given power (the Army, the RCMP, et cetera). The CRTC isn’t a creature of statute, hence you can’t sue it. This was honestly kind of a dumb mistake (and in the writeup of the decision, I note that Adbusters withdrew the motion to add the CRTC as a defendant when the judge pointed this out, which is as close as the legal world gets to an admission of having fucked up).
So, moral of story: Adbusters is currently trying to portray the failure of their relatively weak (and in at least one respect pretty stupid) line of legal attack as a victory for the status quo. They’re obviously going to appeal the decision; if they’re smart, they’ll attempt to add Parliament or the Ministry of Heritage as a defendant, because that’s who they should be suing. However, the problem with Adbusters is that although I happen to agree with a great deal of their politics, they are sadly a bunch of self-righteous schmucks who think they’re a lot more clever than they really are.