In Johannesburg this morning the Constitutional Court ruled in favour of T-shirt makers and parody specialists Laugh It Off, bringing to an end the heavily publicised legal battle between the tiny company and multinational brewing giant South African Breweries (SAB). The decision represents one of the first truly precedent-setting judgements in favour of free speech, but media excitement has been marred by the gag order placed on Mail & Guardian last night, the first time the weekly newspaper has been muzzled since the apartheid era.
Speaking after the landmark judgement in favour of Laugh It Off, which was awarded with legal costs, executive director of the Freedom of Expression Institute Jane Duncan told eMedia: ‘It sends a very clear message that freedom of expression takes precedence over intellectual property rights, more specifically the intellectual property of a company that has massive financial backing and the ability to splash its message over the public domain.
‘The Constitutional Court said very clearly that the level of profit of Laugh It Off was miniscule compared to that of SAB, and that there was no significant damage to SAB’s trademark.”
Laugh It Off founder Justin Nurse was initially sued by SAB after he had replaced the words “Black Label, Carling Beer” with “Black Labour, White Guilt” on one of his T-shirts. In April 2003 the Cape High Court ruled that the use of the beer logo on the T-shirts infringed SAB’s trademark and bordered on racism and hate speech.
Turning that judgement around, Justice Dikgang Moseneke announced in the Constitutional Court today that SAB ‘failed to prove the applicant’s [Laugh It Off] infringement of trademark.” Acknowledging that the ‘matter is not merely academic” and ‘has a bearing well beyond the litigants before us”, Justice Moseneke went on to state that ‘the rights of persons to express themselves cannot be limited”.
But while there is no doubt that the decision of the Constitutional Court marks a clear victory for freedom of expression and South African media in general, the interdict placed on the Mail & Guardian newspaper by the Johannesburg High Court last night is cause for all celebrations to be muted.
On its website this morning, the Mail & Guardian ran an article which stated that Judge Vas Soni prevented the weekly ‘from running a follow-up to their report last week that oil company Imvume paid R11-million of taxpayer’s money to the African National Congress.”
Citing the interdict as the reason for the paper’s later-than-usual distribution, the article explained: ‘It is the first time since the mid-Eighties that the newspaper once again features blacked-out text to illustrate that it has effectively been banned.”
Editor Ferial Haffajee was quoted in the article as saying that the right to privacy had defeated freedom of speech.
From e-Media, the inside scoop on the media industry. Get The Media’s FREE breaking news newsletter, delivered by e-mail. Subscribe by e-mail now