Adbusters' 10-year battle to force this country's biggest television networks to air its anti-corporate commercials attacking everything from McDonald's to the evils of TV has suffered another setback.
The Vancouver-based foundation and magazine famous for giving the corporate establishment the middle finger has been forced by court order to dismiss its high-profile Toronto lawyer, Clayton Ruby. CanWest Global, one of four networks refusing to air the Adbusters commercials, claimed that Ruby's involvement in another legal matter involving the CanWest-owned National Post placed the high-priced legal eagle in a conflict of interest. CBC, CTV and CHUM are the other networks named in the suit.
If that wasn't enough to throw Adbusters for a loop, the difficulty the foundation encountered finding a replacement for Ruby - Adbusters eventually hired BC-based lawyer Elliot Myers - only fed the conspiracy theories swirling around the case.
"We've been told by a number of sources that it is a well-known strategy for the big media corporations to use up as many of the top lawyers and expert witnesses as possible to make it hard to mount legal challenges like ours," Adbusters founder and editor-in-chief Kalle Lasn wrote in a recent e-mail to supporters.
Adbusters views the networks' refusal to air the ads as an infringement of freedom of expression, but may not have a legal leg to stand on once it gets to court. First among the legal questions is what right Adbusters has to force private broadcasters to run advocacy advertising.
The case may be somewhat stronger as it relates to the CBC, because it's a public broadcaster. But the Supreme Court of Canada refused to hear a similar case brought by Adbusters against the CBC in 1995 after the public broadcaster pulled Adbusters anti-car ads following viewer complaints. The CBC has filed a motion to dismiss Adbusters' most recent suit.
But Lasn vows that Adbusters won't back down. "We're in it for the long haul," he tells NOW. "We have enough money to pay the lawyers for years to come.
"People don't trust the media," Lasn says. "This case touches on an uncomfortable feeling a lot of Canadians have about media convergence and the power networks have to control messages."
The fact that money for Adbusters' suit, which has already surpassed the six-digit mark, is coming entirely from supporters bolsters Lasn's claims.
However, those who have seen the commercial spots in question (they're viewable online) wonder aloud if Adbusters has lost its sense of irony.
"He wants to buy advertising in the name of not selling advertising," says Andrew Potter, a philosophy professor at Trent University and co-author of the pro-consumerism book The Rebel Sell. "At what point do you recognize that what you're doing is straightforward contradictory?"
Potter, who used to write for Adbusters magazine, says, "Adbusters has become an extremely un-ironic vehicle for an almost hysterical world view, and it comes across in the ads that I saw. There's a sense of high drama that just doesn't do justice to the actual situation, which is that we're just selling stuff."
Still, he can't understand the networks' reluctance.
"I really don't know why the networks are doing this," Potter continues. "By refusing to take the ads, they actually give some credence to his view of the world, which is that mass media is a form of social control."
What's more, he adds, running the ads would "expose the whole mythology behind Adbusters, which is that advertising is a form of brain control."
The rejected ads seem relatively innocuous. In one, a man sitting in front of his TV has a bar code on the back of his neck. "Your living room is the factory," a voice-over says. "The product being manufactured is you."
Another targets the beauty industry's preoccupation with appearance in a Calvin Klein-esque ad showing a male model in underwear - at one point checking out his package - and naked women.
Suddenly, it cuts to a model vomiting into a toilet. "Why are nine out of 10 women dissatisfied with some aspect of their own bodies? The beauty industry is the beast."
In the spot that takes on McDonald's, a pair of hands drops a Big Mac in disgust as a voice warns that 52 per cent of the calories in the burger come from fat - information McDonald's makes available on its own website.
So what gives?
Garry Leonard, an English professor at the University of Toronto specializing in advertising, says, "Consumer culture is a complex web, and corporate sponsors fear anything that demystifies it. Corporate sponsors overreact to this sort of thing."
Whether Adbusters has legal grounds for a fight is another matter.
"This is a case of free speech versus free enterprise. A company has the right to decline business," says Leonard. "Only if Adbusters can show that the decision not to run the ads is based on something other than business can it make the case that it's an infringement of free speech."
As of two weeks ago, none of the networks named in Adbusters' suit had filed statements of defence, and no one at any of the networks would discuss the case with NOW.
"They don't like that we're pissing off their big-time sponsors," Lasn says.
Just in case there's any doubt about that, Lasn has posted audio of conversations with network spokespeople explaining their decision on his site.
CTV's group director of national sales, Al Hudak, told Adbusters that "all hell would break loose" if CTV ran Adbusters' Big Mac ad. "We're in business to make money and... to sell our customers' products."
CanWest Global spokesperson Carmen Lago said her network's president does not want to air ads that are anti-TV. "We don't accept things that aren't promoting television," she told Adbusters.
At CHUM Television, national sales representative Susan Orr advised Adbusters that its commercials "are just counterproductive to what we do."
What of taxpayer-supported CBC's refusal, then, to air Adbusters' ads? The Canadian Broadcasting Act states that broadcasters must provide "a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern." Shouldn't there be a greater onus on a public broadcaster?
Like the other networks, the CBC declined to comment on the Adbusters suit for this story. Its advocacy advertising policy doesn't mention any restriction that prohibits the Adbusters ads specifically, but spokesperson Ruth-Ellen Soles has been quoted elsewhere as saying that the CBC doesn't want viewers confusing the ads with its news programming.
Says Friends of Canadian Broadcasting (FCB) spokesperson Ian Morrison, "Advocacy ads have always been sensitive for broadcasters, because they have obligations under the Broadcasting Act to put forward certain points of view. You can take the argument that CBC should be more open [because it's a public broadcaster], but it should be more careful precisely because it has a special mandate under the Broadcasting Act.
"My general experience suggests that the CBC is more difficult to deal with than the private sector. Half of CBC's money comes from advertising."
Back in 2003, FCB created four public service announcements promoting Canadian content on television. They featured a Hollywood producer coming to Canada to make movies. The punchline was "Why don't we tell our own stories?"
"That's pretty neutral compared to what Adbusters is doing, and we had trouble getting our things approved."
Adbusters is relying on a 2002 Supreme Court ruling in a case involving a man who posted anti-commercial messages on his property.
Justice Louis LeBel wrote in that case: "It is a form of expression of opinion that has an important effect on the social and economic life of a society. It is a right not only of consumers, but of citizens."
Trent's Potter counters that "the Constitution does not guarantee you a platform for your views. The Constitution protects you from the government forbidding you to speak your mind. Kalle Lasn has a platform for his views, Adbusters magazine, so there's no sense in which his right to free speech is being infringed."
Do Canadians really want to open up the airwaves to individuals or groups who can buy time to attack equal rights for gay or other minority groups? Lasn proposes citizen review boards at the networks.
"There are ways to keep kooks off the air," he says.