Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
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The High Court in Gaborone, Botswana granted the owner of two newspapers an interim order prohibiting the implementation of a government directive that all government entities, parastatals and private companies with a government majority-shareholding cease advertising in certain newspapers in Botswana. The interdict was granted pending determination of the owner’s main action seeking a declaration that the directive be reviewed and set aside.
The Court reasoned that by withdrawing advertising the government was infringing the media’s constitutional right to freedom of expression. The Court rejected the Attorney-General’s argument that the decision to advertise in certain newspapers was purely commercial, and said that the withdrawal of advertising by the state amounted to an indication of displeasure with the content of the newspapers’ reporting and constituted an infringement of the right to freedom of expression.
In May 2001, the Botswana Guardian and the Midweek Sun – two national weekly newspapers in Botswana, owned by Media Publishing (Pty) Ltd – learned that government and parastatal entities had been prevented from advertising in the two newspapers. It emerged in court papers that the President of Botswana had issued the directive on April 23 2001, and that it applied to all “government ministries, parastatals and private companies in which the government was a shareholder.” (p. 2) Both the Guardian and the Midweek Sun received large amounts of revenue from government advertising before the directive was issued, and the directive appeared to be in response to a series of articles published in the Guardian which were critical of the President and Vice-President of Botswana and other government leaders.
Media Publishing approached the High Court seeking a declaration that the directive be reviewed and set aside on the grounds that it violated the newspapers’ right to freedom of expression, protected by sections 3 and 12 of the Constitution of Botswana. The Constitution states that “[e]xcept with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom of expression.” The media company also sought an interim order requesting that the government directive not be implemented pending the determination of the main action.
Media Publishing argued that, although newspapers do not have the right to receive advertising revenue from government bodies, once government entities have decided to advertise in a certain newspaper they cannot withdraw that advertising as a way of punishing a media outlet for having published unfavorable material (p. 4).
The Attorney-General characterized the relationship between government advertisers and media outlets as purely commercial, and that the decision to advertise and then to withdraw that advertising was purely voluntary (p. 4). The Attorney-General submitted that the right to freedom of expression does not place a positive duty on the government, and so it could not be compelled to advertise in certain newspapers to ensure that the newspaper remains financially viable.
The Attorney-General further argued that the withdrawal of the government advertising did not infringe the newspapers’ freedom of expression because it was still permitted to publish stories – just without financial assistance from the government. In the pleadings, the Attorney-General acknowledged that the reason for the directive was to “demonstrate Government’s displeasure at irresponsible reporting and the exceeding of editorial freedom” (p. 4).
This judgment relates to the application for the interim interdict.
Judge Lesetedi delivered the judgment of the High Court in Gaborone. He was the sole judge to hear the interim interdict application.
Although this was an application for an interim interdict, the Court emphasized that the main issue concerned whether the withdrawal of advertising from government entities was a purely commercial decision or whether, having decided to advertise in certain media outlets, the withdrawal constituted the violation of the state’s duty to ensure that the right to freedom of expression is not infringed.
Lesetedi remarked on the position of the Attorney-General and said that it was clear from the court papers that “the Government was basically instilling on the applicant pressure that for it to continue to enjoy the benefit of receiving advertising from the Government it should conform to a reportage that falls within what government considers … reportage that meets government approval (p. 4)”.
Lesetedi stated that the Attorney-General’s reliance on the Canadian case of Haig v. Chief Electoral Officer 1993 2 S.C.R. 995 was misplaced. The Canadian case had held that there was no positive legal obligation on an electoral officer to provide microphones in a referendum process to enable more effective freedom of expression. Lesetedi said that the present was case was distinguishable because the Botswana government had already “taken a positive step with the sole intention to disapprove of an individual’s exercise of its freedom of expression as it deems fit (p. 4).
The Court characterized the message sent by the government in issuing the directive as one which “may reasonably be understood by the applicant and the media at large … that unless it tailors its reporting so as to be acceptable to the government, then the patronage which it has been receiving will be withdrawn such that the applicant in the face of economic realities may forgo its full exercise of its freedom of expression in order to retain patronage where Government, parastatals and private companies in which government has a majority shareholding have been the mainstay or contributed substantively to the applicants’ advertising market. (p. 5)”
Lesetedi referred to the U.S. case of Hyland v. Wonder 972 F.2d. 1129 with approval. In that case, the Court of Appeal held that the dismissal of a volunteer in the San Francisco Juvenile Parole Commissions following that volunteer’s memorandum which was critical of the juvenile probate department was an infringement of the volunteer’s right to freedom of expression.
Lesetedi went on to reject the Attorney-General’s argument that the advertising arrangement between government entities and the newspapers was purely commercial. The judge commented that: “Government is not a consumer like any other consumer. It carries a lot of responsibilities vis-à-vis the individual. It carries the duty to protect the individual and to ensure that the rights and freedoms granted upon the individual by the constitution are not infringed. It is to the state that the individual usually looks for the protection of its rights and freedoms. For that reason the Government cannot act with a view to taking away an individual’s benefits as an expression of its displeasure for the individual’s exercise of a constitutional right as this would tend to inhibit the individual in the full exercise of that freedom for fear of incurring punishment. There is nothing commercial about this. The message implicit in the directive is that an individual being a beneficiary to governmental patronage, who in the exercise of its freedom of expression goes beyond what the government is comfortable with, faces the possible unpleasant consequence of losing certain benefits which it would otherwise have received. This hinders the freedom to express oneself freely. (p. 5)”
In conclusion, Lesetedi accepted that Media Publishing had established a prima facie right that the directive amounted to an infringement of freedom of expression and that there would be substantial and irreparable harm caused by the loss of advertising revenue. As a result he granted the interim interdict.
The Court made it clear that the withdrawal of advertising in the newspapers was unconstitutional because its purpose was to punish the media outlets for unfavourable commentary. Had the decision been taken for another reason it may have been permissible. In addition, the Court stated that its ruling would not interfere with the general discretion government entities had in deciding whether or not to advertise in the Guardian or Midweek Sun.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision provides a strong condemnation of the tactic used by government to seek to influence independent media by withdrawing a substantial flow of revenue to media outlets.
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