Red bus caught in crossfire of gay/not-gay free speech fracas

This is NOT an intellectual property case, but nearly could have been ...  Core Issues Trust, R (On the Application of) v Transport for London & Another [2014] EWCA Civ 34 is a fascinating ruling of the Court of Appeal, England and Wales (Lord Dyson MR, Lord Justice Briggs and Lord Justice Christopher Clarke) since it isn't an intellectual property case at all, but has the potential to raise so many IP issues. Also, it's about Red Buses, a popular preoccupation of both the IPKat's weblog and of his friends on the 1709 Blog and Art & Artifice. Thirdly, what must have been one of Lord Justice Briggs's final trial rulings before he became an appeal judge was upheld this week in Fage v Chobani, noted here, this Kat was wondering what he was doing at the moment since he has kept out of our sight for so long.  Anyway, Core Issues v Transport for London explains everything -- and here it is.

Core Issues (CI) was a Christian organisation which was formed with the objective of supporting homosexuals "who voluntarily seek a change in sexual preference and expression", a.k.a. sexual re-orientation. In furtherance of its aims, CI sought to place an advertisement on London buses which featured the rubric "NOT GAY! EX-GAY, POST-GAY AND PROUD, GET OVER IT" (an example of CI's advertisements can be seen on the right).  This text may seem a little puzzling to people who don't walk the streets of London, but there was some rhyme and reason: it was in response to a very striking advertisement by gay rights campaign organisation Stonewall, which read: "SOME PEOPLE ARE GAY, GET OVER IT!" (see illustration, below left).

Bus advertisements are managed by Transport for London (TFL).  Under TFL's advertising policy, no advertisement is approved if it is "likely to cause widespread or serious offence" or "related to matters of public controversy or sensitivity". After CI's proposed advertivement was leaked to the press, TFL began to receive complaints from members of the public. TFL's director of marketing, Mr Everitt, stated that he had contacted TFL's chairman to seek his opinion, but that it was he -- Everitt who had made the ultimate decision to refuse to run the advertisement. Who was TFL's chairman? None other than Boris Johnson, Mayor of London, who was standing for re-election as Mayor at the time. CI went to court to challenge the decision to refuse to carry its advertisement on the bases that (i) TFL's decision was motivated by the improper purpose of advancing Boris Johnson's re-election campaign and (ii) it was in breach of Articles 9 and 10 of the European Convention on Human Rights (ECHR) [freedoms of (i) thought, conscience and religion and (ii) speech].

Mrs Justice Lang, at first instance, dismissed CI's challenge.  Subsequently CI obtained a copy of an internal email from the Mayor's office stating that the Mayor had "instructed [TFL] to pull the advert".

On appeal by CI, the Court of Appeal was required to determine whether TFL had indeed exercised its power for the improper purpose of furthering the Mayor's election campaign, rather than fulfilling the objectives of its advertising policy, as well as considering whether TFL's interference with CI's right to freedom of expression was justified under the ECHR.  TFL maintained that, even if it had to make another decision, it would still inevitably refuse to accept CI's advertisement, so the court should therefore withhold relief.

The Court of Appeal dismissed one half of the appeal and sent the other half back for what should be a most entertaining and instructive further hearing.

* Central to the finding at trial was the judge's acceptance of Everitt's evidence that the decision was made by him and not by Boris Johnson.  The significance of this was that TFL's interests in implementing its policy and avoiding causing offence happened to coincide with those of the Mayor -- and the email on which CI relied unequivocally stated that the Mayor instructed TFL not to run the advertisement. Everitt had not provided a full explanation for this; nor had TFL obtained statements from the Mayor or anyone else involved. This was a most unsatisfactory state of affairs, since it was impossible to decide what, if any, part was played by the Mayor in TFL's decision and whether the decision was taken for the purpose of promoting his election campaign.

* Where a decision is shown to be unlawful, the court should be wary of refusing relief on the grounds that the decision-making body would reach the same decision if it were to act lawfully, particularly where the unlawfulness was the exercise of a power for some ulterior purpose such as the furtherance of a political interest.

* Since the court should be astute to perform its constitutional role as guardian of the rule of law and to grant appropriate relief, it was in the interest of justice that a further enquiry be conducted as to whether the decision was instructed by Boris Johnson and made for an improper purpose. This could only be done by adding him to the proceedings as a defendant. Accordingly this action would be remitted to the judge for further directions.

* TFL's policy on the acceptance of bus advertisements was introduced in order to give effect to its duties under the Equality Act 2010 section 149 [on public sector equality]. TFL's policy was lawful and its decision was justified because (i) CI was not faced with a total prohibition on publishing and disseminating its message since it had other ways of getting that message out, (ii) the advertisements were very prominent and would be seen by, and cause offence to, large numbers of the public in central London -- particularly for those who were gay, for which this would constitute an interference with the right to respect for their private life under Article 8(1) of the ECHR; (iii) while TFL had acted inconsistently by accepting Stonewall's advertisement but refusing CI's, that inconsistency was outweighed by other factors including the risk of encouragement of homophobia.

* If the trial judge subsequently found that TFL's decision was instructed by the Mayor or made for an improper purpose, it would be quashed. However, if the judge found that TFL's decision was not unlawful, it would stand.


True, says the IPKat, this isn't a copyright case -- but it raises all sorts of issues.  For one thing, there's the question of copyright in Stonewall's original advertisement text and the artwork that comprises the advertisement.  How far, if it all,  does CI's advertisement infringe any of Stonewall's copyright? Are there issues of de minimis? Would this be an appropriate case for a defence of parody or, in the United States, fair use (and could the facts be forced to fit within the scope of "fair dealing" or any other defences under the Copyright, Designs and Patents Act 1988)? Then there's passing off. Could Stonewall, which trades as a registered charity, maintain that the CI advertisements would be taken as its own, perhaps diverting members of the public and donors and eroding Stonewall's goodwill?  On another level entirely, what about the commercial value of a sponsorship or endorsement from Mayor Boris Johnson: how might this be affected.

Merpel's attention was completely elsewhere: she was contemplating the star symbol which Stonewall uses as a logo, which reminded her strongly of the star used by Danish-based pharmaceutical company Lundbeck. Might this happy coincidence be used as a basis for the co-branding of events, services and products or, if that were not to occur, might the two parties be sitting down together to hammer out the terms of a coexistence agreement ...

Boris Johnson quotes here
Boris as Americans see him here
Boris as a Pratt here