by Noah Richler
We were happy, despite the lesser number of gatekeepers pushing it. This was not entirely a surprise, as we had probably exhausted a lot of journalists’ and pundits’ goodwill by sending out the substantive videos to the same bunch. Our bulletins, I expected, had come to resemble spam—how many of the NDP’s own messages did I not bother opening, fed up with the battery of their number? The new, not the familiar, is what drives the viral.
And then, at four o’clock the next day, a courier arrived with a letter.
—
It was remarkable to me that the CBC and not the CPC was the institution complaining, though the call from the public broadcaster’s law department to cease and desist was nothing if not anticipated—and exactly what I’d alerted the NDP it should be prepared to refute.
Point by point, the letter was easy to challenge. The allegation that the video “cast the CBC and its employees as participants in the political process rather than independent journalists covering it” was, frankly, outrageous and grasping, and also condescending to viewers. Beyond the circling of the wagons that had been the hallmark, for so long, of an institution conducting itself as if under siege (it had been), the letter suggested a disconnect with a type of televisual satire prevalent not only in contemporary broadcasting. It exists in the CBC’s own programs—such as The Mercer Report and This Hour Has 22 Minutes (and the woefully unsuccessful Punchline website)—and is common on U.K. and American talk shows, including ones our editor Nick DenBoer had worked for (Conan O’Brien) and others he was subsequently sought out by (VICE). A manipulation of the real and the insertion of words into public figures’ mouths are stock techniques of cartoons on the editorial pages of newspapers; of institutions as august as The New Yorker; of innumerable viral videos; bits of crowd-generated artistry; and an array of online magazines such as Canada’s Beaverton. And, as described, we had also taken deliberate steps, such as the wash of orange in the opening frame (and also in the ultimate frames identifying each video as the work of the Toronto—St. Paul’s riding “paid for and approved by the Official Agent”), to differentiate our product from CBC news broadcasts and identify the video as parody: preliminary grounds for “fair dealing” in Canada’s Copyright Act, subject to the material satisfying the legislation’s six-part test. (The six factors governing assessment of whether unauthorized use of material constitutes “fair dealing” take into account the purpose, character, amount and nature and effect of the re-use, as well as the “nature” of its subsequent dissemination and whether reasonable alternatives exist that, in lieu, would satisfy the consumer.)
The charge that we had used “extensive portions” of the Harper–Mansbridge interview representing the “copying of a substantial part” of the broadcast was easily denied on a simple mathematical basis: we had used, in toto, twenty-four seconds of the original interview’s eighteen minutes, amounting to 2.2 percent and, while not stipulated in the Act, below the threshold of 2.5 percent that Canada’s Copyright Board has deemed insubstantial vis-à-vis written works. Beyond purposes of parody or satire, the Copyright Act also specifically allows for the re-forming of unlicenced material towards an educational or non-commercial purpose, our video satisfying at least the latter requirement.
But, as in so many legal measures that are bound never to reach court, intimidation and not reason was apparently the purpose of the letter. The suggestion that “the mocking tone of the video diminishes the public’s perception of the CBC as reliable [sic] and trustworthy source of news and information” with “an effect that is well beyond any commercial impact and causes risk to the CBC’s fundamental role in the broadcasting system and Canadian democratic life” caused, in the first instance, hilarity—flattering as it may have been to think that the little roaring mouse of our video was detrimental to the CBC’s reputation. What, to our minds, the pomp of the letter really showed was just how defensive was the conduct of the CBC, injured by years of budget cuts and then a suite of embarrassing episodes concerning several of its prime-time personalities, including Jian Ghomeshi, Amanda Lang and Evan Solomon. One of the last remaining personalities in the CBC stable to have retained their sort of heft was, of course, Mansbridge.
None of this escaped us, but, had we not received the message the first time, a slightly different letter was delivered to the Bathurst Street office from the CBC’s external counsel, Brian MacLeod Rogers, alleging, more pithily, “the unauthorized use of work of Mr. Mansbridge and his producer,” and advising, “I am instructed to commence legal proceedings against you tomorrow in the event that all public access to the advertisement has not been blocked as of tonight.”
Janet, well used to the social network–based troubles of the campaign by now, was walking around in the office with a battle-weary, more than a worried, face. Calls from head office were inevitable and, in preparation, I contacted Julian Porter Q.C., one of Canada’s pre-eminent and most accomplished libel lawyers and a friend, to seek his opinion.
“I can see why the CBC is upset,” said Porter, “but you’re completely within your rights. Fight this—and use my name if you want to.”
Porter’s vindication was buoying at a difficult time. We were already accustomed to the incapacity of Mulcair’s inner circle to alter course in the face of anything untoward, and what I was bracing for was another encounter with a cowed NDP core with little sense that activities at the base might filter upwards with positive effect.
—
Greta Levy, consistently the most supportive of my central party contacts, was the first to call.
“Did they send you the letter?”
“Sorry, Greta, you thought you’d have a few days off,” I said. “My thinking is they’re trying to scare us. Look at Michael Geist’s writing—he’s the authority on this—you’ll see they don’t have grounds to stand on.”
“I couldn’t agree more,” said Levy, “but it all comes down to pissing off the CBC.”
“Are they your friends?”
“Definitely not,” said Levy, laughing, “and now even less so.”
“Exactly,” I said. “What have they done for us?”
I pointed out I’d been the one who’d informed George Soule, and repeated the arguments I’d already made for the video’s satisfaction of the requirements of “fair dealing” as defined by the Copyright Act. “It’s parody,” I said. “Nobody in their right mind believes I booted Harper up the ass and certainly nobody believes that Mansbridge is sitting there straight-faced as Harper comes up behind him. Do we also want to point out that This Hour Has 22 Minutes, which is their show, does these sorts of parodies all the time?”
“Whom would you go to for a counter-argument?” asked Janet.
“I don’t think they’re interested in a legal argument at all,” said Levy. “I think they just want it taken down because they find it embarrassing to be played with and that’s it. I don’t think, substantively, they have a case here.”
“So it’s all about Mansbridge.”
“Yeah. Absolutely.”
“So if we just say no, sorry, how long does it take them to speak to Facebook, how long does it take them to talk to YouTube, how long does it take for them to get an injunction? We’re talking four days till the election—how long does it take them to put that together?”
“Well, certainly not until after E-Day. My issue with all this is whether this hurts us in the next four days. If people at the CBC are concerned enough to send a letter, does that mean that there’s a likelihood this could impact the coverage they’re giving us?”
We’d already learned of the CBC’s releasing Dan Lauzon, its director of strategic communications and planning, to work in the Liberal war room on sabbatical—this not for the first time; he’d done the same for Liberal Party leader Michael Ignatieff back in 2011—and I suggested to Levy that the relationship did not speak of an organization that was “independent, non-partisan and trustworthy” and suggested a little needling apropos of this fact, but Levy would have none
of it.
“This has been my bread and butter for the last three years,” said Levy. “I know this stuff, I breathe it and sleep it and very much nightmare it, but it’s irrelevant because it’s picking fights with people who buy ink by the ink barrel. We don’t have the power they do. You saw it very clearly at the arts announcement a week and a half ago. You’d think that the CBC, of all broadcasters, would have covered the arts announcement in depth, but they’ll cover the news they want. The idea that you’re going to somehow convince them of the folly of their ways—it’s just not going to happen.”
“So Greta,” said Janet, “what it boils down to—I’m not being sarcastic here—is, ‘We’re right, there’s nothing that we’ve done wrong here in Toronto—St. Paul’s, but you’re worried about the impact it will have on CBC coverage for Tom.’ Is that what you’re saying?”
“Yeah,” said Levy.
“That’s the whole thing.”
“Yeah.”
“And how do you think the video will affect it?” asked Janet. “How’s their coverage been?”
“Do I want it to be any worse? Look, I’m with you on this. I don’t like the idea of being bullied, I don’t like the idea of a silly form letter not even tailored to your video—so much language in there that was laughable. I totally agree.”
“What,” said Janet, “if we don’t respond right away and say we’re thinking about it, we’re getting a legal opinion?”
“Let them wait for a day,” I said. “You don’t have to answer this today—we’re all busy, we’re campaigning and nothing much is going to happen during the ball game—it’s the Division final—and that’s another reason not to answer their letter right away. If you wait till tomorrow morning, then you send a letter saying we’re a little confused: we’ve used twenty-two seconds of Peter Mansbridge—that’s 2.2 percent of his interview and well below the legal threshold—and it’s clearly parody, which excepts it, and we endeavoured to make clear with the altering of the CBC logo right at the top, should anybody be in doubt. Please clarify your position, we’re eager to be able to co-operate, we’re just a bit baffled. That’s two days gone and it’s the weekend. As it is, the video will probably have plateaued in a day and had its effect.”
“Are there other people you need to consult?” asked Janet.
“Always,” said Levy. “How could you tell?”
—
An hour later, Pratt called—mock laughter as he spoke.
“We’re on speaker phone?”
“Yes.”
“Noah, I love you. I love you so much and I cannot wait for us to get drunk and go fight cops together when this is done, but you have to take your video down.”
“Do you know who Julian Porter is?” I asked.
“Nooooo,” said Pratt, like he wanted this to be easy and could see it would not be.
“He’s the top libel lawyer in the country and he says, ‘Fuck ’em, they have no grounds.’ ”
“I’m sure he’s right,” said Pratt, still laughing like he was my best buddy. “But it’s a distraction from the campaign and my bosses are telling me to deliver this message.”
“Who’s going to give a shit?” said Janet. “What if we told the CBC we’re pursuing a legal opinion and let it go for another day?”
Pratt sighed. “What does it gain?”
“Another forty to fifty thousand views, even if you delayed till tomorrow afternoon,” I said. “If you don’t respond, or respond slowly, that’s the benefit—and more for you than to me.”
“It’s hard to imagine the CBC will be getting their knickers in a twist so much that it’ll have an effect on Tom,” said Janet. “You think they’ll raise it in a question with him?”
“No,” said Pratt. “But in the last days of the campaign there’s very little room to craft a final message. I’m sympathetic, it’s just nowhere in our frame.”
“But James,” I said, “I asked Julian about legal proceedings and he said it would take them months.”
“Yeah, yeah, I know all that but there’s no point in making enemies for this.”
“But there’s no way they’re going to send an email or a circular to their own room to say, ‘Pay less attention to the NDP,’ they’re just not going to do that.”
“Noah, they wouldn’t be that overt, but we’re in a battle with these guys as it is and it’s a distraction. The national director has had to deal with it, we have our lawyer having to review it, and now I’m involved.”
“I’ve got you the best lawyer in the country, pro bono,” I said.
“This isn’t our fight.”
“So just don’t fight it.”
Pratt laughed again.
“I’m serious. Don’t fight it.”
“James,” said Janet, “the problem with you delivering this message—I can hear it in your voice—is that you don’t give a fuck and you’re doing what you’ve been told.”
Well, this was something—Janet, the veteran of so many campaigns, the person who’d had to play defence on so many of our social network headaches, not backing down in the ninth.
“I appreciate you being a good soldier,” she said, “but it doesn’t make sense to us here. We’re running it through our lawyers and we don’t see any breach. The ball game is on and soon it’s the weekend, so what the hell—”
“Why don’t I write a letter,” I said. “You can vet it and I’ll send it.”
The phone was quiet for a moment, Pratt outside or in a car somewhere. Then, the laughter gone, he said, “I’m ushering resources to all of the places I think we can win and we can hang on to. I’m laser-focused and I’ve stopped doing that because this is now an issue. Do you understand what I’m saying?”
Now it was my turn to be silent, and neither did Janet speak.
The silence went on—five, ten seconds.
“That was the sound of a rug being pulled,” I said.
—
I left the office, no explanation necessary. The NDP brass had left us in the lurch for the sake of the bigger game—fair enough (it would have taken the miraculous for the riding to swing), but nevertheless, the abandonment sat uncomfortably in the gut. As a reporter at the National Post, I’d been co-defendant in a multimillion-dollar libel lawsuit, and at the BBC I’d needed to be mindful of “actionable” consequences of my work all the time. With both these institutions, just as I had done with the NDP central office regarding “That’s My Seat!,” I would “refer upwards” to discuss the possibility of a legal challenge and my defence, should occasion have required it. And, with both these other institutions, from the moment higher-ups provided consent, I knew I’d be defended to the wall—as, indeed, the National Post had done even though I was no longer an employee of theirs. It was a matter of integrity: word had been given. Yes, the NDP were lousy soldiers that brought to mind, through sheer force of the opposite, words spoken to me by the radio journalist I’d worked with in Haiti, in 1990, when the Tonton Macoutes were still lurking in the shadows of backstreets: “There’s no one I’d rather go down the alley with,” said my pal.
The NDP were nobody to go down the alley with.
I crossed St. Clair Avenue and went to the Wychwood Pub for a drink. The bar was packed for the ball game, but Reza was at the door and I could see in his face that he recognized I needed succour and without a word he ushered me through. On the screens overhead, the Toronto Blue Jays were staging a remarkable come-from-behind 6–3 victory to win the American League East over the Texas Rangers, who were suddenly bumbling the ball in all sorts of ways. I wrote the office to say that I was “watching another team make several unforced errors to lose the game.”
Porter emailed, “Let people know about the issue, it’s important.” I’d kept Doug and Nick in the loop and they were offering to leak the video link to Gawker and across social media (“We were just trying to be funny. You be the judge”), but all I could think of were all the volunteers coming out to work for the campaign because Cana
da was the thing they believed in and they thought finally the NDP had a fair chance. I did not want a single member of my team to think I was grandstanding in any way, and so it was clear to me already that I’d comply. Doug and Young Ethan were headed to the Sankofa bar, on the Little Jamaica stretch of Eglinton Avenue in the far northwest of the riding, for the last of the pub nights we were holding. I told them to bring their computers and that—
The CBC is threatening to sue, no surprise, and the NDP is caving, perhaps that’s not a surprise either. We’re going to take the high road, but with a little pit stop. I have agreed to take the video down “tonight,” as asked. We shall do so at 2359h but not before.
We were going to milk the video as much as possible in the hours that remained, stunned not that our ad was being challenged, but that it was the CBC and not the CPC doing as much. Doug and Ethan were already reposting it on YouTube and Facebook with the message,
LAST CHANCE TO SEE! Hilarious @noahrichler video “That’s My Seat” to come down at midnight tonight!
—and Ethan was under instruction to spend campaign dollars to boost the video “to the max” (which was costing us tens of dollars, not more). It was clear the party was in a calamitous, failing state and running about for swords to fall upon, long ago having reneged on any way of being bold. It had proved, in its disastrous adherence to balanced budgets, in its inadequate response to the Syrian refugee crisis and the arts announcement—in its sidelining of Linda McQuaig and in the “apologies” I’d been compelled to make—that it had little idea how to respond to its own people, let alone the machinations of other parties. There were far, far weightier and more pivotal moments in the NDP’s undoing than my team’s pulled video but, nevertheless, the incident was instructive.
At one minute to midnight we took the video down, as promised. Sankofa, we always knew, was going to be a fundraising bust, but building the money chest had never been the intention. The point had been to show a presence in a part of the riding that was traditionally Liberal and in which Bennett and her organizers hardly, if ever, showed, and now it was also to fete the staff. I’d canvassed the south side of the street with various members of the team several times (the north side was a part of Eglinton—Lawrence), bantering with small family business owners whose fierce loyalty to the Liberals was derived from Trudeau the father having been prime minister during the sixties, years in which many families in the area had arrived. This area made me happy—the tailors and haberdashers, the home food restaurants and the roti shops a brisk trade, the dozen or so barbershops filled even on a Sunday, whole families seated in chairs waiting. As barbers brought electric razors to their clients watching the white guy at the back in the mirror, I chatted from behind the chair, wanting the Little Jamaica voters to know that I respected the roots of their loyalty very much—but also that it was time for authentic change, now. I’d talk about Enoch Powell, the English Conservative MP and classical scholar who, on April 20, 1968, had warned of “rivers of blood” washing over the United Kingdom should immigration as it was continue—on the very same day that Pierre Elliott Trudeau became prime minister, still one of my favourite political coincidences. I’d ask how much this fact had to do with their emigration to Canada. I’d talk about Diefenbaker, who, not generally credited, had actually been the prime minister to open the gates when, in 1962, he’d removed race and country of origin as categories for the extant Canadian immigration points system. And then I’d ask if Bennett had been in lately.
