Producer of fake Vancouver Sun cannot argue freedom of expression

B.C. Supreme Court master Alan Donaldson has ruled that a media satirist cannot cite freedom of expression as a defence in a case involving a parody of the Vancouver Sun.

Gordon Murray, a former journalist and a pro-Palestinian activist, had claimed freedom of expression as a defence against all claims filed against him by Canwest MediaWorks for a fake newspaper created in 2007.

Donaldson, however, wrote in his November 24 decision that freedom of expression could not be cited in a claim of copyright infringement. Canwest has alleged that the defendants violated the Trade-Marks Act by reproducing the Vancouver Sun logo.

In an article he wrote for the Straight earlier this year, Murray admitted that he and his partner, artist Carel Moiseiwitsch, created the fake paper, which carried satirical articles about the Middle East.

Donaldson cited a 1996 ruling by judge Max Teitelbaum, which states that the Canadian Charter of Rights and Freedoms “does not confer the right to use private property—the plaintiff’s copyright—in the service of freedom of expression”.

According to Donaldson’s decision, Teitelbaum also ruled that parody cannot be invoked as a defence of copyright infringement under the Copyright Act. Moreover, Donaldson ruled that Murray must strike paragraphs from his statement of defence regarding Canwest MediaWorks’ market share and its alleged strong pro-Israel bias.

“The media ownership, centralized editorial policy and motivation allegations clearly do not go to any of the defences which the defendant has raised,” Donaldson wrote.

Donaldson ruled that Canwest is entitled to costs from Murray for its application to have these paragraphs removed. Additionally, as a result of Donaldson’s decision, Murray cannot argue that Canwest describes itself as the dominant news organization in B.C., nor can Murray list the newspapers that Canwest owns.

Canwest owns the National Post, the Vancouver Sun, and the Vancouver Province, as well as seven community papers in Metro Vancouver.

In addition, Donaldson ruled that Murray cannot include the following statements in his pleadings: “In Canwest publications, Israelis are usually portrayed as innocent victims and Palestinians as inhuman terrorists. Israeli casualties and deaths are disproportionately reported and sympathetically described while Palestinian deaths are relatively underreported and unsympathetically described. Canwest takes the position that Israel is blameless and described the Palestinian people in one editorial as a single collective suicide bomber.”