In Vancouver Aquarium Marine Science Centre v. Charbonneau, a documentary had criticized the Aquarium for keeping cetaceans (whales and dolphins) in captivity, using several minutes of footage from inside the building. The Aquarium claims that publishing this footage was both copyright infringement and a breach of contract. The full case has not yet been heard, but an injunction was granted by a trial judge – the filmmakers were banned from publishing that part of the footage until the case is resolved.
The appeal dealt with whether this temporary ban was appropriate. Among other issues, the B.C. Court of Appeals [BCCA] considered whether the public interest in free expression was adequately protected. The BC Civil Liberties Association intervened to argue that a proportionality factor (which is now used for similar bans in defamation cases) should be added to the test for an injunction:
“Do the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and public, including the right to free expression and the efficacy of the administration of justice?” (para 75)
However, the court declined to consider adding this extra step to the test, and instead stated that free expression is already considered in the balance of convenience test.
In addressing the free expression issue, the court noted that open debate about keeping sea creatures in captivity was continuing regardless of the injunction. Still, the court found that it would “…silence criticism of the Aquarium and potentially stifle public debate on a topic of great interest to the community.” (para 79)
Ultimately, the BCCA removed the injunction, in part because the balance of convenience was on the documentary publisher’s side:
“In my opinion, the balance of convenience lies with Evotion. The film is part of a public dialogue and debate on the issue of whether cetaceans should be kept in captivity, and thus, the Charter value of freedom of expression must weigh against granting the injunctive relief.” (para 82)
The court may not have gone as far as it was invited to, but Charter rights played a significant role in what was otherwise a case about contracts and copyrights.
This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.