Black Labels White Spearsby Tobela Pemba / 15.08.2012
In light of Brett Murray’s Spear painting controversy and the rise of the Secrecy Bill, one could argue that our constitutionally enshrined right to free speech is under attack. Against this backdrop, the old Laugh It Off judgment might just be the constitutional precedent, the thin black line that protects our right to say what we like. Let’s recap: early 2001, SABMiller sued Justin Nurse, for printing and selling t-shirts that lampooned SABMiller’s Black Label packaging design. Nurse had replaced the lines “America’s lusty, lively beer, Carling Black Label, enjoyed by men around the world” with “Black Labor white guilt, Africa’s lusty, lively exploitation, since 1652, no regard worldwide”.
SABMiller’s case was simple, although they respected Nurse’s right to free expression, they believed that that right should not be exercised at the expense of their shareholders right to make a profit.
Nurse in turn respected SABMiller’s right to make a profit for it’s shareholders (after all Nurse was himself a capitalist, he wasn’t giving the t-shirts away) but he believed something else, that making money should not come at the expense of anyone’s right to express themselves.
The case eventually ended up at the Constitutional court, where the judges ruled in favor of Nurse. In his summary judgment Justice Dikgang Moseneke, said “[there wasn’t] the slightest suggestion that, from the time the t-shirt saw the light of day to the date the interdict proceedings were launched, there had been a real possibility of compromised beer sales”. This was necessary in light of the trademarks act, which protects the trademarks selling power rather than its dignity.
Justice Albie Sach added to the summary by saying “ In the present matter simply bringing proceedings against Laugh it off risked being more tarnishing to Black Label, which is associated with bonhomie and cheerfulness, than the sale of 200 t-shirts could ever have done”. He added that over-zealous application of the trademark law could have a detrimental effect on the free circulation of ideas.
Earlier this year, the Mail and Guardian reported that the President and the ANC where suing the Goodman Gallery and City Press, over a painting by the artist Brett Murray, showing the President with his penis sticking out.
Murray has defended the painting, saying he made it as “an attempt at humorous satire of political power and patriarchy within the context of other artworks in the exhibition and within the broader context of South African discourse”. Which to me seems obvious, especially when you look at the painting in light of the rest of the exhibition.
Like SABMiller the ANC’s argument is simply: Although they respect Murray’s right to free expression, they believe that that right should not be exercised at the expense of someone else’s right to dignity in this case the presidents.
City Press and the Goodman Gallery believe the opposite. Though they respect the president’s right to dignity, they believe that that right should not come at the expense of their right to free expression.
But unlike the SABMiller vs. Nurse this is a much harder case to judge. When the choice is between the right to free speech and right to make money. The decision seems to me a simple one to make. Obviously free speech should trump making money.
But when the decision is between free speech and right to be treated with dignity the choice is much harder. Nurse was David and SABMiller Goliath. In the present case the underdog is much harder to recognize.
Advocate Norman Arendse said the case was “almost unprecedented” because it weighed sections of South African Constitution against one another. He said, “Both parties are competing for and against rights enshrined in our Constitution”.
This case is further complicated by the emotions it stirs up. It’s been reported that on the first day of court proceedings the representative for the ANC, Gcina Malindi, began sobbing and was unable to proceed. The M&G quoted Zuma saying of the painting “[we do not want] re-open the wounds of the humiliation of Sarah Baartman, who was painfully exhibited in London and Paris, and whose genitals and brain were stored in a pickle jar and shown off in a museum until the administration led by President Mandela demanded the return of her remains for a decent burial.” There is obviously a lot at stake here.
But like most people I hate it when the ANC uses emotive language or the past to avoid criticism by white people, especially when the criticism is warranted. Zuma has been at the center of a lot of public scandals, and as a holder of public office, everyone white or black should be allowed, if they feel the need, to criticise his behavior, even if that criticism comes at the expense of his dignity.
And, echoing justice Albie’s statement about SABMiller, the fact that the ANC went after the gallery for displaying the work has tarnished their reputation as a party that respects it’s citizen’s freedom, especially after the heavy criticism it sustained over passing the Protection of Information Bill, which many, including the senate of the university of Witwatersrand, were quoted as saying could have a detrimental effect on the public’s right to information and freedom of expression.
SABMiller vs. Justine Nurse was a landmark case, not just because it was the first of it’s kind in South Africa, but because it signaled to big business that the old days of talking down its consumers were over, they could no longer dictate how we perceive their brands, that we have the tools and more importantly the right to appropriate the images associated with their brands and talk back to them.
This was a watershed not only for the reasons stated by Advocate Arendse, but because it essentially demonstrates to us who has the right to criticize the Government, and in its application it will show us how far this country has come to dealing with issues of race. More importantly it will show us what the ANC values most: a healthy public domain where “ideas are free to circulate” or in protecting the “dignity” of elected officials.