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Has ABSA triggered the Streisand Effect?

Thursday, March 29th, 2012

Amalgamated Banks of South Africa (ABSA), a subsidiary of Barclays Group plc, is threatening to take the South African trade union Solidarity to court for its reworking of the ABSA slogan “Today, Tomorrow, Together” as “Today, tomorrow, goodbye” on a website run by the union. Solidarity has set up a the website* to protest retrenchments of staff by ABSA. Attorneys representing ABSA reportedly sent a letter to Solidarity which indicated that ABSA would approach a court to require Solidarity to stop using the slogan and to shut down its website.

Is there a basis in South African law for a court to prohibit Solidarity from using the slogan? After all South African law is governed by the Constitution and in particular the Bill of Rights, the Constitution is the supreme law. Section 2 of the Constitution states:

“This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. ” The Bill of Rights in particular over rides any other law; “the Bill of Rights applies to all law” (s8(1)). The Bill of Rights entrenches the right to freedom of expression (s16(1)
“Everyone has the right to freedom of expression, which includes ­

(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.”

The Bill of Rights also guards the right to fair labour practises (s23(1)) states that “Everyone has the right to fair labour practices.” The section goes on to set out specific aspects of fair labour practises such as the right to join a union. Because the Bill of Rights grants rights in respect of labour one would expect that speech about labour, and in particular speech which relates to the collective bargaining between unions and employers which stems from the right to form and joins unions is constitutionally important speech.

There are instances in which some limitation of a right in the Bill of Rights is allowed but that limitation would have to be justified. Justification requires that the reason for limiting the right be sufficiently important and also that the right be limited as little as possible.

The result of the constitutional protection of freedom of expression, including, and especially expression relating to collective bargaining is that a judge deciding an application by ABSA to prohibit free expression by Solidarity would require a compelling basis for granting even an interim order. South African courts, like courts in other countries that value freedom of expression usually don’t give orders that will have the effect of preventing speech, instead they allow someone aggrieved by speech free to make a claim for any damages that he might have suffered due to the speech.

Is there a basis on which a court can consider limiting Solidarity’s freedom of expression? Since this is a legal blog its not surprising perhaps even reassuring that I’ve inserted a disclaimer at this point. Press reports tell us only that Solidarity has received a letter from attorneys representing ABSA and that the letter intimated that ABSA would request a court to give an order prohibiting its use of the ABSA slogan and requiring that the website be shut down. It is not clear from the press reports what the legal basis of the application to court would be if an application is made. The legal basis may or may not appear from the letter.

What follows then is a quick look at the possible bases for an application, these are defamation, copyright, trademark and disparagement.

For ABSA to succeed in silencing Solidarity on the basis that either the changed slogan or the website itself is defamatory it would have to convince a judge that (i) the slogan or website is defamatory and (ii) that the speech should be prohibited because it will suffer the kind of harm for which an award of damages won’t be adequate compensation. There is only reported case in South Africa in which a court was asked to prohibit speech on a website:

    Tsichlas & another v Touch Line Media (Pty) Ltd

2004 (2) SA 112 (W). In that case the judge ruled that the best answer to bad speech is more speech. In that case Ms Tsichlas who alleged defamation had an opportunity to reply in the forum in which she alleged that she had been defamed. She was given an order prohibiting further speech by others.

For a Solidarity statement to be defamatory ABSA would have to prove that it was (i) intentional (ii) wrongful words(iii) that identify a particular person or persons and (iv) tend to demean the person/s referred in (v) the eyes of the right thinking members of the community within which the speech should be interpreted. Is is wrongful for a union to put a website criticising retrenchments by an employer? I don’t think that the Bill or Rights would allow a court to think so.
However even if the criteria that I have listed are met Solidarity could still claim truth in the public benefit, a defence that someone accused of defamation could raise. Since it seems likely that Solidarity would raise such a defence it seem unlikely that a judge wouldn’t give Solidarity the chance to be heard by for example issuing an interim ex parte order. The issue of whether the reworked slogan is defamatory requires quite different considerations to a factual claim such as whether ABSA is firing a specific number of people. Courts are familiar with laudatory language in marketing material such as “the best beer in the world” and appropriately courts tend not to take such hortatory language too seriously.
If someone were to a sue a brewery claiming to make the best beer in the world on the basis that another beer has received first prize at a global brewing contest a court wouldn’t entertain the idea that the slogan should be taken so seriously that the brewery could be regarded as having misled the consumer. ABSA’s slogan “Today, Tomorrow, Together” is apparently intended to imply continuity. Solidarity’s reworking of the slogan as “Today, tomorrow, goodbye” seems to be that retrenching staff, including some who worked for ABSA for 30 or 40 years does not demonstrate the claimed continuity. Both slogans operate as a level of abstraction and emotive connotation that it would be difficult for a court to decide if the words “Today, Tomorrow, Together” are true and the words “Today, tomorrow, goodbye” are false when applied to ABSA. Exactly what kind of evidence could one lead?

Is the use of the ABSA slogan which is presumably registered as a trademark in South Africa, or the word ABSA in “” a trademark infringement? Solidarity isn’t using the words to sell banking services so any claim would have to be in terms of the “anti-dilution” provisions. South Africa has the leading case in the world on the interaction between a claim under an anti-dilution provision in a trademark statute and freedom of expression: Laugh it Off v South African Breweries. In Laugh it Off the Constitutional Court ruled that South African Breweries should have alleged and proved actual harm, that is people not buying their beer because of the parody T shirts sold by Laugh it Off. To obtain a court order prohibiting use “ABSA” or the slogan I understand the Laugh it Off case as requiring ABSA to produce some kind of evidence showing that people are not banking with them as a consequence of the use of the trademarks by Solidarity, and at that point a court would still have to engage in an enquiry whether a prohibition on use stifles freedom of expression too much and whether ABSA shouldn’t simply have to sue for any damages that it could prove.

Is there copyright in a single word or phrase in South African law? South African copyright law requires that a “work” should be original (that is not copied from another) and reduced to a material form. It also provides that copying a small portion of a work is not a copyright infringement. There are some commentators who claim that copyright can subsist in a single phrase although they tend to undercut their own arguments by then making arguments that derive from trademark that continued use and association can render otherwise banal phrases into some form of “property”. That is trademark law not copyright. I am sceptical that a three word alliterative phrase is sufficient to constitute a work. But if a court were to take that unique approach then the question would arise who the author is.
A quick google search reveals that the N.J. Dept. of Community Affairs, Division on Aging, published a book entitled “Today, tomorrow, together” in 1981. But the state of New Jersey wasn’t the first to use the phrase because in 1956 the phrase was used by the (US based) National Health Council for its book “Guides to action on chronic illness, today, tomorrow, together”. It seems unlikely that ABSA has a deed of cession from the National Health Council but I am willing to be surprised on this issue. Of course if a court were to rule that there is copyright in a single word or phrase then the question would arise whether Solidarity’s use falls under one of the exceptions such as criticism, and fair quotation. Is it fair? Remember the point of copyright law is not to enable corporations to censor speech they don’t like but to allow authors to charge for copies of their works. There is no market in which people buy or rent the slogan.

Disparagement is a form of unfair competition. It is a common law delict, a sub-set of unfair competition. The pre-Constitutional formulation of the delict requires an applicant to show at leas probable damage through loss of custom as a result of the allege disparagement. Since the courts are required to develop the common law to accord with the Constitution it is arguable that a showing of actual damage should be required. But in this case Solidarity is not a competitor of ABSA, its a union fighting an employer. It would be an astonishing extension of the common law to use an anti-competition delict against a union.

This all too brief look at the legal bases on which a court could silence Solidarity suggests that there isn’t a legal basis compelling enough to over-ride freedom of expression.

Instead the mere threat seems to have generated quite a lot of press attention. ABSA may suffer from the Streisand effect.

*Thanks to Bob Jolliffe for pointing out that I had mistyped as The Stop ACTA site is here.

Santam v Dial Direct: Disparagement

Wednesday, September 7th, 2011

In a previous post I analysed the copyright issue in the Santam v Dial direct dispute.

Santam alleged another basis for the court order that it obtained, that it characterised as “disparagement”. Jeremy Speres* asks some perspicacious questions on the disparagement issue at the Afro-IP blog.

* I enjoyed Jeremy’s participation in a class on Intellectual Property in the digital environment that I taught at the University of Cape Town in 2009. Jeremy is currently at Cluver Markotter.