When suspected Montreal “body parts” killer, Luka Magnotta, was detained in Berlin on June 4 following an international manhunt, only one small piece of a complex legal web was resolved. In addition to the ongoing murder investigation, digital issues involving web hosting of explicit content and concerns about trademark denigration have been thrust to the forefront, bringing the realm of IP & Technology Law into a notorious Canadian case.
Explicit Materials, Privacy Rights, and Freedom of Speech
One of the first issues to erupt from the pursuit of Magnotta surrounded the alleged snuff video of the murder being committed, which Magnotta was purported to have posted on a notorious “gore” website. Canadian Public Safety Minister Vic Toews, the champion for Bill C-30 (which has been challenged as violating the privacy rights of Canadians), has cited the video as an example of why Internet surveillance is an essential step in modernizing the Criminal Code to catch up with the digital age. However, my opinion is that there is a fundamental flaw in Mr. Toews’ logic. This flaw is that increased Internet surveillance would not have made any difference in this matter. The video was posted publicly, and both Canadian and American law enforcement agencies appear to have ignored tips regarding its existence.
It seems that the problem is not about individuals being afforded too much privacy, but perhaps that the desensitization induced by the Internet and free-sharing of information has stunted the reaction time of law enforcement. The general public has become accustomed to viewing shocking videos and information all the time, and the advent of modern horror movies has blurred fiction and reality. This brings issues of what is considered obscene material, and particularly, how are we to decipher real violence from twisted fantasy? Irrespective, there may not be any link between encroaching on Internet privacy and effective law enforcement.
Beyond the issues of the reality of the gore video, it has been argued that the video served the ultimate utilitarian purpose of leading to the early identification of Magnotta as a suspect. Indeed, the host of the gore website has been self-congratulating in defense of his website’s explicit material for this reason. While individuals are generally free to post their own videos at their liberty in various forums online, this video was a depiction of a glorified and sexually explicit murder. There are significant public policy concerns to consider when assessing the liberty that should be attributed with respect to obscene content. Moreover, the victim was certainly unable to consent to being featured in the video, and for a website to benefit from such an egregious act is in stark contrast to the protection against exploitation and degradation that is afforded by Canadian obscenity laws. This case may result in a very interesting fight between freedom of expression rights (on a “public good” basis of honest reporting) and obscenity laws that protect against “horrific violence, degradation, and dehumanization with a sexual component.”
Labatt’s Attempted Brand Management
In addition to being widely viewed as frivolous and distasteful in the wake of a tragic murder, Labatt Breweries of Canada’s threat to pursue litigation against the Montreal Gazette for publishing an image of Magnotta holding a bottle of Labatt Blue poses a problem with respect to the perception of criminal law. It is a Canadian constitutional right that individuals charged with crimes are innocent until proven guilty beyond a reasonable doubt. Despite the mass media frenzy against Magnotta, and the seemingly damning video evidence (discussed above), he is not yet a convicted killer. In my opinion, Labatt’s outrageous reaction to a photo in an article, which made no direct mention of their brand, was tantamount to presuming Magnotta to being guilty of the alleged crimes before even being arraigned. To defend these actions as defensive of their brand, under the presumption that a photo of their product in the hand of a suspected killer will create negative associations with the brand, is insulting to the intelligence and discretion of the general public. I think that claiming brand protection for such a benign usage of a widely disseminated photo, originally published on Facebook by Magnotta himself, is unnecessarily litigious and an abuse of the legal process.
Similar issues of brand denigration through usage of trademarks have been discussed previously in the IPilogue with respect to Google’s AdWords system, which utilized trademarked names to generate Google’s “sponsored links” in search results. Various lawsuits were brought on the primary basis that companies possessing trademarks could suffer lost profit and reputation based on the advertising potential for counterfeit sites. The European Court of Justice held in the joined suits that general Internet consumers are sufficiently aware and intelligent enough to understand the proper usage of trademarks. Thus, Google could not be held responsible for trademark infringement by third parties. As a result, Labatt would not likely have a reasonable cause of action in response to the newspaper displaying a trademark in an image pertaining to something completely unrelated to the brand. Moreover, it is likely that Labatt would have to provide evidence that the display of their product in the image within the article caused actual loss, which would be quite difficult, particularly without causing harm to their own brand.
Indeed, despite not pursuing suit in the end, it appears as though Labatt’s attempts to protect the integrity of their brand backfired, in what has been dubbed the “Streisand Effect.” Rather than mitigating any potential damage to the Labatt brand that the photo was expected to cause, Labatt inadvertently denigrated their own brand, with Twitter users making a game of poking fun at Labatt’s perceived paranoia. The missteps by the Labatt legal team in managing the company’s trademark were summed up in the wake of the Twitter-bashing by one user’s tweet:
“The sad thing about the #newlabattcampaign is that the Legal team likely caused the mess and now the PR team will have to clean it up.”
This indicates the legal profession’s difficulties in keeping up with the digital age, and the widespread dissemination of information through social media. As legal professionals, it is essential to be cognizant of the digital repercussions of all actions, particularly with respect to high profile matters, as the reaction of the general public is now significantly amplified to the days before the predominance of social media. The photo in question originated in social media, and the actions of the Labatt legal team were exacerbated through social media. Law is not practiced in a vacuum. Gone are the days of a lawyer sending a threatening letter to indirectly obtain an injunction without litigation or widespread backlash. IP and corporate lawyers should take note: their actions may be scorned (and quickly) if they are perceived by the public as unjust or ridiculous.
It is evident that the advent of technology, including Google, Twitter, and Facebook, has profoundly influenced the dissemination of news, as media outlets have innumerable instantaneous options to distribute information. These matters become more complex from a procedural standpoint in criminal law when potential criminal evidence is involved, as it is more difficult to control sensitive information. Moreover, the internet influences the law in unexpected ways, and in view of the situations discussed here, it is evident that the legal system, including its professionals, need to catch up with technology.
Ryan Heighton is a JD Candidate at Osgoode Hall Law School.
