April 20, 2010

Canadian Civil Liberties Association defends Rocky View citizens

Calgary ‐ The Canadian Civil Liberties Association (CCLA) urges the County of Rocky

View to reconsider cease and desist letters sent to two community websites critical

of the County’s conduct.

In a strongly worded letter dated April 13, 2010, the CCLA reminds the Rocky View

Council that as a government body they “must respect individual Charter rights,

including freedom of expression.”

The CCLA further urges the Rocky View municipal council to “reconsider [their]

attempt to prevent the use of the county’s name and logo,” and argues that several

Canadian courts have ruled that the use of a trademark for the purposes of political

commentary do not constitute “use,” “use as a trademark” or “confusion.” Quoting

the Canadian Copyright Act, the association states that “individuals are free to

reproduce copyrighted material for the purposes of fair criticism.”

Local Rocky View residents say they fear the County is using legal threats to

intimidate its critics and chill public participation in the planning process. After

receiving the letters from the County’s lawyers, two community websites were

voluntarily taken down while the grassroots citizens’ groups running the sites

sought legal advice. The municipality of Rocky View borders the City of Calgary on

the north, west and east, comprises about 4,000 square kilometers, and is home to

an estimated 45,000 people.

Richard Wilson, one of the individuals behind the Ourspringbank.ca website says

the wording of the cease and desist letter from the County was sweeping and forbids

his group from using both the name and the mark of the County “in all respects,

including any and all documentation.”

Page 2 of 2 For copies of the letters, visit http://www.ablanduse.

ca

“The County name and logo has appeared on websites that advertise for and receive

cash from developers, yet we have learned that only websites critical of County

policy were issued cease and desist letters.” Wilson, who lives in Springbank, west of

Calgary, says repeated requests to retract the cease and desist letters have been

ignored.

Al Sacuta, a resident in the neighbouring community of Bearspaw, was also targeted

for his satirical website and the creation of a parody logo which substituted the

County’s official slogan with the words, “Paving Paradise.”

“This council can’t stand criticism and has shown it will do virtually anything to stop

it, including coercing taxpayers by using their own money to sue them,” says Sacuta,

who had posted and blogged on a website under the name of

“canadianguerilla.com.”

Residents in Rocky View County have been engaged in a bitter battle with their

Council over development decisions going back a decade. Community members

have accused the Rocky View Council of ignoring residents’ wishes, recklessly

entering into debt, circumventing their own restrictive development bylaw plans

and processes, and, in this latest incident, using extraordinary legal measures to

silence their critics.

The County has also drawn criticism for its development plans from the Suzuki

Foundation, which last year urged Rocky View to reconsider its Growth

Management Strategy: “Increasing density within city areas that already have

development can work to minimize a city’s footprint. Developing areas where there

is little or no existing development is nothing more than sprawl.”

Residents of the community have appealed to their local MLA, Finance Minister Ted

Morton, as well as to two consecutive Municipal Affairs Ministers. Other residents

fed up with Rocky View’s aggressive urban development plans have started a

petition to separate from the County, citing a complete loss of trust in council and

administration.

Reeve Habberfield’s newly released position statement in support of democracy is very encouraging, as is her new positive response to one of our many requests over the last two months to provide permission to publish the Cease and Desist letter. Democracy requires transparency and accountability. If the Reeve and Council are serious about democracy they must provide and protect both.

Approximately 200 residents have now served individual written requests that County adhere to the most rudimentary principles of transparency and accountability. These requests include but are not limited to: making it policy to record who votes for what in Council, providing free transcripts (and/or podcasts) of council meetings, and restoring an accessible web archive of previous Council minutes (removed from the County website in November 2009).

We look forward to the Reeve acting on these issues.

It took approximately 200 individual written requests from residents before the Reeve would allow publication of the Cease and Desist letter, but other accompanying requests for important information related to this issue were also made. So far, the only response to these requests has been a wall of silence.

Serious questions remain about the Cease and Desist letter and requests for transparency go unanswered

Despite all of the written requests, County still has not commented on whether the Cease and Desist order arose through a motion in Council or was the work of administration acting on their own initiative. Nor has the County yet provided a statement as to which other community websites (including those that advertise for a fee for developers) also received a similar letter and when.

Only by publicly responding to these requests will the County be able to demonstrate that:

(a) There is no institutional bias in favor of developers (one rule for them, another for us).

(b) County was acting broadly in a misguided attempt to protect its logo and not specifically targeting only websites that were critical of County policy in order to intimidate.

These are important issues of transparency and accountability. We hope the Reeve, having affirmed her believe in democracy, will now address these issues quickly and transparently.

Is the Cease and Desist letter legal, moral or wise?

How could the County really deem it necessary to send cease and desist letters to protect their “corporate” brand and not consider this a deliberate attempt to infringe our Charter Rights? The cease and desist letter banned the use of the County’s “mark or name” and a supplemental email to the Task Force clarified this to mean “satirically or otherwise”. The County lawyer did inform us that County had not intended to “shut us down” and “remains free to express [our] views on the County’s policies”. However, how can you criticize a government body when you cannot use their “mark or name” or satirical artwork to express your views?

The Reeve states that “At the heart of this issue is the misuse of the County’s newly launched brand identity, rather than its use.” This is in contradiction to the supplemental email received by the Task Force from County lawyers that forbids us from using the County logo “satirically or otherwise”.  Backtracking by the Reeve does not replace an official retraction and an apology. Indeed, the County must have been aware all along that they have no legal standing to prevent anyone using their “mark or name” for purposes of news or criticism. The Canadian copyright law specifically allows the use of “work” for purposes of news or criticism under the well-known Fair Dealing exception.

The artwork we used was associated with a critical story about the County’s new branding efforts including the logo. It was an integral part of our criticism of the logo; it is how we choose to express our criticism of the logo. Our story provided a link to the County’s own website and the County’s press release that includes their new logo. In our society, everyone has the right to use satirical artwork providing it does not insight violence or hate crimes. Its difficult to envisage how the words “paving communities” or “urbanizing the country” could do either.

Notwithstanding how a court may judge a corporation’s attempts to restrict using satirical artwork as a means of critiquing artwork or issuing cease and desist letters to non-profits to protect its trademark, the County is not a corporation but a government body. Government bodies backed by unlimited tax dollars simply cannot and should not be in the business of threatening community groups with legal action, no matter how politicians perceive the groups’ artwork or how outrageous their claim. Governments must be tolerant of criticism and parody. The Ontario Superior Court agrees:

“… Governments are accountable to the people through the ballot box, and not to judges or juries in courts of law.  When a government is criticized, its recourse is in the public domain, not the courts.  The government may not imprison, or fine, or sue, those who criticize it.  The government may respond.  This is fundamental.  Litigation is a form of force, and the government must not silence its critics by force.”

Rocky View County must cease and desist using their power differential to infringe our rights of expression and criticism protected by Canadian Charter Section 2(b).

Regardless of the legal and moral arguments above, if the Reeve is as committed to democracy as stated in her position statement, she should order Administration to officially and publicly retract the cease and desist letter in its entirety. Until Administration takes this step and officially withdraws their frivolous threats of legal action, they open democracy up to the real risk of unscrupulous politicians misusing judicial means to attempt to intimidate, silence and/or reduce the effectiveness of all those that oppose them.

From:

Ourspringbank.ca

Here is a link to the cease and desist letter and below is the supplementary email from County lawyers. Note the lawyer’s “declaimer” statement prevented us from publishing the cease and desist letter previously. Explicit requests made to the Lawyer and County CAO to determine whether the disclaimer can be published have gone unanswered.

From County Lawyer (Nancy Kortbeek) to Task Force:

I have received instructions to respond to your email of February 1, 2010 set forth below.  You appear to have misinterpreted the breadth of the cease and desist letter we had sent to you as we did not require your site to be shut down, temporarily or permanent.

We did, however, want you to cease using the County’s trade-mark, in a satirical form or otherwise.  Such use infringes the County’s intellectual property rights to the mark.  Your site remains free to express its views on the County’s policies and thus freedom of expression is not unduly compromised.

As noted in the letter, we are hopeful this matter can be resolved amicably.  We trust this clarifies our client’s concerns, however please advise if further ambiguity remains.

Regards,

[From County Lawyer firm; highlights added]

Another not-for-profit website run by an active member of the Bearspaw community critical of the current administration has also received a “Cease and Desist” letter. The only remaining source of in-depth news and analysis of county affairs is Ourrockyview.com. We are not affiliated to this site, but endorse it as an independent and reliable source of information and news.

At this time we are unclear as to whether Cease and Desist orders have also been sent to Ourrockyview.com and the two “community” websites which allegedly receive advertising money from developers and are run by family members of two of our councillors.

Our intention is to comply fully with the Cease and Desist notice until we have obtained a comprehensive legal opinion and/or the Cease and Desist notice has been withdrawn. Consequently, we have removed all content other than this notice from Ourspringbank.ca.

Please visit again soon for an update and write to us atourspringbank@gmail.com