Tag Archives: lawsuits

Canadian DTCA Charter Challenge Indefinitely Adjourned…and a tree falls in the forest

The News

In the middle of financial turbulence, potential bankruptcy, and a storm of management changes, CanWest Global has decided to seek indefinite adjournment of their court case challenging Canadian restrictions on direct-to-consumer advertising (DTCA) of prescription drugs.  In summary, CanWest was alleging that the ban on certain types of DTCA was infringing on their freedom of expression, especially since they couldn’t make money off that type of ad while media across the border in the US could. The case was seen as a landmark case as it was a challenge to existing law under the Canadian Charter of Rights and Freedoms (a constitutional law case, for non-Canadians reading this), and thus would set new Canadian constitutional precedent.

The adjournment request came right at the 11th hour, since closing arguments were set to be heard June 15-19, which is to say, this past week. While CanWest can request to revive the case, it seems unlikely at this point, when the company is facing billions in debt and is working to secure major restructuring deals. It appears that CanWest may silently agree with opposing lawyer Stuart Shrybman, that the company should have pulled the plug on this “ill-conceived litigation” months ago,” and that the best option at this point is to avoid pouring more money into what is pretty much a lost cause.

So what? In short, this case has cost both CanWest and the government a lot of money since it was filed in December 2005. Current regulations on DTCA in Canada are not well enforced to begin with, and to my knowledge there’s not much indication that this is changing. However, by not opening the floodgates wider, we may be able to avoid even more expense and needless adverse side effects (such as Vioxx related deaths) that appear to be encouraged by DTCA.

Didn’t hear about this?  I’m not surprised. Somehow nobody else has either.

The News (not)  in the News

This story has been weirdly absent from the media.  And by media, I mean practically everybody.  When I heard about CanWest dropping this case, I immediately ran to my web browser and started searching for early news coverage…nothing.   A week later…still nothing in the mainstream news sources.

The medical journals? One article in the faithful CMAJ, which has offered ongoing coverage of this trial and whose parent organization, the Canadian Medical Assoiaition, has an official position statement opposing “Brand-specific direct-to-consumer advertisements, such as those permitted in the United States.”

Okay, well, I figured that perhaps this was an example of the failures of traditional media.  Maybe media companies aren’t nimble enough to catch this story in a timely manner; maybe the industry carries an inherent bias against reporting on what is essentially a failure (of the cut-your-losses type) of a fellow media behemoth.

The bloggers, though – the bloggers will have lots to say about this, right?  The bloggers are the new media, right?  Citizen journalism! Media democracy! They are us! We are on the ground, everywhere, reporting on the real issues in our spare time, without budgets to support travel expenses or copyediting, and hoping our cameras are not confiscated by the police and our tweets are not blocked.

So far I have found one lonely blog post about this, from the magazine marketing industry, which I’m sure has been watching CanWest’s case avidly, as a CanWest win would potentially open up a whole new world of direct-to-consumer drug ads, with accompanying revenue stream, for magazines as well as television channels. That post did link to one other blog, from a magazine marketing magazine.

But basically, this adjournment has been a tree falling in the forest.  Why?  Is it just tough to compete in the health news arena the week the WHO declares a pandemic? Perhaps, but the possibility of federal regulations on trans-fats  is getting press. Do we feel bad for CanWest, and not want to slag them more? I dunno, we seem to have an appetite for the details of the restructuring /fall of the Asper family empire. Is DTCA just a boring topic? Well, discussions of the topic can certainly be acronym-heavy, but there has been plenty of coverage in the media (even in CanWest outlets) about the recent Plos ONE article, “Twelve Years’ Experience with Direct-to-Consumer Advertising of Prescription Drugs in Canada: A Cautionary Tale.”

What’s the deal?  I don’t get it.

My government went to court against the largest media entity in the country, basically won, and no one is in the forest to hear the media giant fall!

For previous posts on direct-to-consumer advertising, see: dtca part 1, and part 2.

Disclosure: I work with authors in the PloS ONE article cited above, including on DTCA-related topics.

ETA – Apparently I (and Google) missed The Tyee’s Hook blog coverage of this on June 12. It’s here, if you’re interested.  Of note in this article is the statement, “a spokesperson for Canwest says the company did not ask for the adjournment and plans to continue the case in the fall” — which is entirely possible but not something I have seen/read elswehere. Anyone reading this have more info on CanWest’s official stance on this?

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Filed under government, Health, media democracy, privatization

YouTube-Viacom lawsuit and IT-ignorant government

If you’ve heard about this week’s court order (ArsTechnica plain-English breakdown here) in the Viacom-YouTube lawsuit, you probably already know it makes a parody of privacy. It clearly states for the world that corporate IP such as search algorithms should be held in the utmost confidence. However, concerns over the revealing of personal information such as location, login names, and video viewing history are really just “speculative.” (This despite personal video usage history being explicitly protected by U.S. law.)

Now I may be a cockeyed optimist, but I don`t think Judge Louis Stanton had any nefarious intentions in making this ruling. I think Stanton is just the latest high-profile example of a government representative exercising government power over information technology without understanding how IT works. (Katie blogged about this same problem back here.)

The EFF`s Kurt Opsahl picks apart the court order in a nice blog post that really calls into question whether Judge Stanton understands IP addresses, user IDs, video technologies of the 21st century, and data protection legislation. The Washington Post`s Michael Arrington points out that Stanton graduated from law school over 50 years ago, so his ignorance in matters tech should not be shocking.

We have a similar problem with legislators. Even our very well-intentioned Bill C-552, aka the Canadian Net Neutrality Bill, has shortcomings that I can only assume are the result of MP Angus not being quite well informed enough. Yes, C-552 is on the right track, but…it could be better with a little more information and consultation with IT-literate stakeholders.

Of course, our largest Canadian example, hanging directly over our heads at the moment is Copyright Bill C-61, aka the Canadian DMCA. Anyone who listens to the CBC’s Search Engine knows that Industry Minister Jim Prentice (who has already been embarrassed by a wikipedia bio editing blooper) doesn’t have a clue (podcast here) about what the copyright bill really means. (Oddly, that show ended up being the last ever for Search Engine.) Talk about an IT-illiterate making telecom policy; sheesh. It would be funny if the stakes weren`t so high.

C-61 is actually a prime example of the dangers of tech-illiterate government, because it is the type of legislation that, if passed, will likely spawn lawsuits similar to the Viacom-YouTube in Canadian courts. Which can then be presided over by judges who, in turn, do not understand the way technology works.

IT-ignorant lawmakers make technology laws, and IT-ignorant judges interpret those laws when large corporations battle against scary new paradigms or information dissemination…it`s almost enough to make one become a luddite, merely in order to protect oneself.

Then, of course, one might be qualified for a technology-related government appointment.

-Greyson

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Filed under business, copyright, digitization, government, IP, privacy, technology, Uncategorized

The Vancouver Sun parody & SLAPP

When I moved to Canada, I was shocked to learn that parody is not a specially protected form of speech here. It is in the US, and I like to think I made pretty good use of that principle over the years. You may already be aware of some of the freedom of expression lawsuits media company CanWest has been involved with. Here’s another for the list: CanWest is suing Vancouver activist Mordecai Briemberg for a parody of the Vancouver Sun newspaper – a parody Briemberg maintains he had no hand in creating.

The parody is well done, with high production values, although I doubt anyone could mistake the four-page
parody for the actual newspaper being spoofed. The parody focuses on the alleged pro-Israel bias of the Sun and the Asper family (owners of CanWest). While the suit documentation from CanWest discusses at length Briemberg’s “anti-Israeli and pro-Palestinian media activities,” the part of the suit that has actual potential legal grounds is trademark infringement. You see, the parody paper creators used the actual title “The Vancouver Sun” and mocked it up to look just like the real newspaper header. However, I daresay that CanWest will be hard pressed to show any actual damages done by reprinting the trademark.

What is most outrageous about this lawsuit is that it is a prime example of a “SLAPP” – a strategic lawsuit against public participation. Such suits are aimed at, well, shutting people up, to put it bluntly.

Briemberg maintains that he had no hand in the creation of the parody paper. Briemberg admits to picking up some copies at a public meeting at the public library and handing them out. Briemberg is a well-known activist who has been critical of the State of Israel and supportive of the Palestinian people. The best I can figure is that CanWest was pissed off about the parody and shot in the dark at a likely suspect who also irritated them, figuring that even if it wasn’t Briemberg, at least maybe the SLAPP in the face would shut him up.

In solidarity with Briemberg and/or out of anger toward this kind of lawsuit and intimidation tactic, several individuals and outlets have been posting copies of the parody paper both in print and online. Great idea!

Here’s my contribution:

Sun Parody frontpage

Feel free to print it out and put it on your office door, post it in your neighbourhood or your own blog! Better copies of front page and a PDF of the full text (no images) are also available elsewhere.

For ideas of what else you can do/more background on Briemberg and this case, see the recent post from We Read Banned Books and the Seriously Free Speech Website. Or look at the BC Library Association resolution on the issue from the recent AGM. Seriously Free Speech is coordinating many efforts in support of Briemberg, from a Facebook group (go there for details; Facebook is too evil for me) to petition to briefing notes you can use.

-Greyson

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Filed under censorship, Intellectual freedom, IP, media democracy, Other blogs, publishing

Freedom of expression lawsuit irony

I’m still planning to deliver a post talking more in depth about the freedom of expression claim CanWest Global is making in their DTCA lawsuit, as I promised here, but this week’s commencement of the British Columbia Supreme Court case in which Adbusters is suing Global Television, the CBC and the CRTC begs my attention.

Who?
Adbusters is suing Global Television, the major network of CanWest’s broadcast portfolio (“the Global Television network broadcasts via 10 television stations, reaching 96% of English-speaking Canada.”), national “public” broadcaster/crown corporation (operating at arms-length from the gov’t) the Canadian Broadcasting Corporation (CBC), and the regulator for Canadian television and radio media, the Canadian Radio-television and Telecommunications Commission (CRTC).

Why?
Adbusters says they’ve been trying to buy ad time from major broadcasters for over a decade, and are consistently turned down, often with little to no explanation. So Adbusters is suing the government and the biggest media company for infringing on their freedom of expression.

The irony:

Of course, at the same time that Adbusters is suing them for blocking free expression, Global TV’s parent company, CanWest Global, is suing the government for infringing on their freedom of expression by regulating the type of direct-to-consumer pharmaceutical ads they can run/sell ad space to.

Hmm…who has the more legitimate case here? A not-for-profit public interest group vying for access to airtime to express their views and get people thinking about consumerism?

OR

A for-profit media conglomerate vying to overturn the national public health regulations in order to be allowed to make money off of other giant for-profit companies’ advertising expressions that may or may not endanger public health?

Not that it’s an either/or dichotomy…I just find it quite interesting to compare the arguments and watch these two cases play out side-by-side in different provinces. I expect that at least one of these will go to the Supreme Court of Canada.

Compare for yourself:
You can see some of the Adbusters ads here

Compare them, perhaps, with some of the Pharmaceutical DTC ads: Gardasil, Celebrex, Lunesta, Zoloft.

Now, tell me which seems more likely to (as stated in S.3 of the Broadcasting Act) “serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada.”

Interesting times we live in, eh?

-Greyson

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Filed under Intellectual freedom, media democracy

DTCA, part I – The CanWest Legal Challenge

This is the first of what I’m sure will end up being several posts on Direct-to-Consumer Advertising of prescription drugs. It’s an issue I never thought too much about as it silently crept into our magazines and televisions in the US, but once living in Canada and working in health policy, my eyes were opened to what a weird and complex issue this truly is. As a librarian, I was trained in the protection of freedom of expression, and as an agent of public health I have the responsibility to prioritize the health and welfare of the population. It is fascinating for me to explore an issue where suddenly all the great health policy thinkers I respect are arguing *for* government regulation of expression and it’s the giant multinational multi-$$$ conglomerate-corporations who are crying out that their expressive freedom is being infringed upon.

Background on DTCA:

Direct-to-consumer advertising (DTCA) of prescription drugs is only considered to be legal in two countries: the US and NZ (and NZ came very close to banning it last year). Neither country voted in a law to legalize DTCA or had any public consultation or parliamentary debate leading to the legalization. In the US, notably, the FDA relaxed its guidance on drug advertising in 1997, following drug companies’ pushing the boundaries farther and farther with little to no enforcement of the then-existing rules. The pharmaceutical industry has aggressively lobbied to be permitted to advertise prescription drugs to consumers in other regions, as TV drug advertising has proven to have a stunning return-on-investment for them. In 2002, the EU parliament actually voted on legalizing DTCA – 498 against to 42 for legalization.

Canada currently allows only very restricted forms of DTCA– although the rules are rarely enforced and often rather blatantly flouted (e.g. an illegal drug ad on the wall in a hospital near my house last year!). As I have alluded to previously, illegal print ads in public places abound this year as well. Additionally, Canadians are to some extent “contaminated” (to speak epidemiologically) by drug ads which US television stations (illegally) broadcast across the border. The existing systematic review of Benefits and Harms of Direct to Consumer Advertising finds that DTCA works – which is to say it affects prescriptions, sells the product it advertises – but that there is no evidence of any health benefit to the practice.

In a free-market health care “system” such as the US, this may seem a neutral, or even positive, finding when considered as innovative capitalistic market success. However, in a country such as Canada, which has the premise of universal healthcare as a human right as an element of its national identity, needless costs on health care are seen as coming out of the taxpayer’s pocket and thus diverting resources from other potential government/health services. (This is not to imply that the US should not consider cost of pharmaceuticals, particularly in light of the new Medicare Plan D for seniors, but just to clarify why the practice of DTCA may be framed differently in the different political economies.)

The Legal Challenge:

CanWest MediaWorks Inc., a wholly-owned subsidiary of CanWest Global Communications Corp.,an international media company and the largest media owner in Canada), has applied to the Ontario Superior Court to strike down the current Canadian laws restricting DTCA. The basis for this application is the claim that the regulations violate Section 2(b) of the Canadian Charter of Rights and Freedoms.

For non-Canadians, the Charter is the bill of rights in our constitution. It was only formally enacted in 1982, so the legacy of case law is rather young, and lots of things are still being defined and duked out in court. (As someone who grew up in the US and recalls celebrating the bicentennial of that constitution in grade 5, this is fascinating to me!)

One of the interesting things about the Charter is the very first section, which is called the “Limiting Clause” and more or less says that all of the rights about to be laid out in all the sections that follow can be limited if the limitations can be justified in a “free and democratic society.” The next section after this limiting clause that makes all other clauses non-absolute is the one that includes “Fundamental Freedoms” such as freedom of expression (the aforementioned 2b), thought, press, peaceful assembly, etc. The interplay between these first two sections leads to all sorts of fascinating legal wrangling – an example of which that is near & (not so) dear to many librarians is the Butler obscenity case, which set precedent for limiting pornographic free expression.

Finally, it should be noted that way down in Section 26, the Charter states that there may be other rights and freedoms, and that the rights & freedoms spelled out in the Charter should not infringe on those other rights. Some legal scholars have argued that health care falls under these other rights, while others think health is actually covered under another section (7) that guarantees “life, liberty and security of person.” Suffice to say here that there are sections under which health care could be argued to fall, and thus could possibly justify limiting freedom of expression. It’s all pretty convoluted, eh? Because free expression is protected under the Charter, in Section 2, it takes a very strong concern to enact Section 1’s Limiting Clause and limit any forms of expression. Ads are a form of expression (at least on the part of the content creator), so the question here becomes:

Are the harms of DTCA strong enough to justify (in a free and democratic society) limiting free expression?

In order to truly answer this question, there are a few issues to tackle:

  1. What are the harms of DTCA?
  2. How dangerous to freedom and democracy does it seem to limit the “expression” of DTCA?
  3. Are there other rights & freedoms not specified in the charter (such as a right to health/health care) that could justify limiting Sec 2 in the case of DTCA?

Next installment: unpacking the Freedom of Expression argument here

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Filed under Health, privatization