To photo-shop leaders’ pictures or not

SHARE   |   Monday, 19 September 2016   |   By Tebogo Sebego & Joao Salbany
To photo-shop leaders’ pictures or not

TEBOGO SEBEGO put away his legal cap to insist that the depiction of the President in a half-naked picture goes against the norms and traditions of Batswana while attorney JOAO CARLOS SALBANY insists that satirically photo-shopping of images of public leaders is common and not offensive in anyway.

Tebogo Sebego
Botswana is different… We have an unwritten standard towards freedom of expression. I don't have the yard stick but we know it when one has crossed… Generally our standard is whether you can accept the same picture if your own father (parent) is depicted in that manner. If your answer is no… then you would not allow same to be said about the next parent. End of story! No emotions… Just being a Motswana! Joao, you are missing the point. My roles as a lawyer and a Motswana are different when it comes to these kinds of issues. You can't insult my father and I look the other way. That's not how we were brought up. Maybe the problem is how we were brought up and how we find insulting parents to be inexplicable. I am arguing from my house in Old Naledi and not the court room. My position isn't artificial. I will not accept anybody depicting my father like that… HE is an elder and deserves respect, not only as a Kgosi or Head of State; he is an elder and a father to this nation.

Maybe I am traditionalist/conservative/old school, but if somebody does this to my own dad, I will take it to the street! This is the position from where I am arguing… It's un-Botswana to depict adults like this. They must play elsewhere. We are not ready this side! I am son and somebody's child before a lawyer. I don't shout at my parents. It's probably legal to shout back at parents. But I don't. That's not how I was brought up. So being a lawyer for me doesn't take away my upbringing lessons especially on issues that are not taught at school/law school. Respect for elders isn't one of the lessons I took at law school. Yes, I never drank alcohol in the presence of my mother until she passed on. It would not have gone down well with her and I knew that's the stand I should observe. This picture isn't tasteful for me and Batswana brought up in the same family/traditional environment like mine. I don't engage into legal niceties for issues like these. So, sorry if I disappointed you by not being lawyerly!

Freedom of expression vs morality (culture)

Joao Carlos Salbany
I am taken aback by the recent pushback caused by a satirical photo-shopped image of a public figure... in this case the President of Botswana. There is a clear parody in the image, a clear satire. It is not lewd though even if it were, then what of it? With the advent of photo-shop, images of public figures depicted in satirical (photo-shopped-fake) pictures have become more common ... Do we agree with them? I don’t believe we are asked to! It is the composer of the image that seeks to portray his freedom of expression the way he chooses.... "I do not agree with what you say but I will defend till my death your right to say it".... this is the essence of freedom of expression. The images I have attached did not cause the public outrage the current image has: do we only cry foul when it is close to home? Sorry the following post is long but once you read it the importance of freedom of expression and parody is made clear... though of course this must be read in the context of a democracy that Botswana professes to be. Justice Albie Sacks once asked (laugh it off vs SAB Miller)... "Does the law have a sense of humour? This question is raised whenever the irresistible force of free expression, in the form of parody meets the immovable object of property rights (I would add personal rights)".

He answered the question thus:
"Parody is inherently paradoxical. Good parody is both original and parasitic, simultaneously creative and derivative. The relationship between the trademark and the parody is that if the parody does not take enough from the original trademark, the audience will not be able to recognise the trademark and therefore not be able to understand the humour. Conversely, if the parody takes too much it could be considered infringing, based upon the fact that there is too much theft and too little originality, regardless of how funny the parody is." "Parody is appropriation and imitation, but of a kind involving a deliberate dislocation. Above all, parody presumes the authority and currency of the object work or form. It keeps the image of the original in the eye of the beholder and relies on the ability of the audience to recognize with whatever degree of precision, the parodied work or text, and to interpret or ‘decode’ the allusion; in this sense the audience shares in a variety of ways the creation of the parody with the parodist. Unlike the plagiarist, whose intention is to deceive, the parodist relies on the audience’s awareness of the target work or genre; in turn, the complicity of the audience is a sine qua non of its enjoyment." "Then there is the more vexed question of whether the fact that the parody is deemed unsavoury should deprive it of any serious degree of free speech protection"

"The balancing exercise in the present matter is therefore easily done. On the detriment side there is virtually no harm, if any at all, to the marketability of Carling Black Label beer. This is a case where the communication was far more significant than the trade. The trade was incidental to the communication. The objective of the enterprise, as clearly understood by all those involved, was to get a message across. The sale of the T-shirts was necessary for sustainability. This was not a commercial activity masquerading as a free speech one. To say that the message could have been conveyed by means other than the use of the trademark is to miss the point of the parody. The message lies precisely in the dislocated use of the trademark. The challenge is to the power of branding in general, as exemplified by the particular trademark. It is not to the particular beer as such. It should be stressed that the question is not whether the parody succeeds in hitting the mark. What matters is that it was part of a genuine attempt to critique the status quo in our society. The scales come down unequivocally on the side of Laugh it Off. In the felicitous phrase of an American judge, the evidence shows that in the present matter the parody was a take-off, not a rip-off, and the interdict should accordingly not have been granted".

"Of more significance from a constitutional point of view is the manner in which even the threat of litigation can stifle legitimate debate. Large businesses have special access to wealth, the media and government. Like politicians and public figures, their trademarks represent highly visible and immediately recognisable symbols of societal norms and values. The companies that own famous trademarks exert substantial influence over public and political issues, making them and their marks ripe and appropriate targets for parody and criticism". "Yet when applied against non-competitor parody artists, the tarnishment theory of trademark dilution may in protecting the reputation of a mark’s owner, effectively act as a defamation statute. As such it, could serve as an over-deterrent. It could chill public discourse because trademark law could be used to encourage prospective speakers to engage in undue self-censorship to avoid the negative consequence of speaking– namely, being involved in a ruinous lawsuit. The cost could be inordinately high for an individual faced with a lawsuit aimed at silencing a critic, not only in terms of general litigation expenses, but also through the disruption of families and emotional upheaval. Such protracted vexation can have the effect of discouraging even the hardiest of souls from exercising their free speech rights".

And finally
This brings me to the second consideration of special constitutional import. The Constitution cannot oblige the dour to laugh. It can, however, prevent the cheerless from snuffing out the laughter of the blithe spirits among us. Indeed, if our society became completely solemn because of the exercise of state power at the behest of the worthy, not only would all irrelevant laughter be suppressed, but temperance considerations could end up placing beer-drinking itself in jeopardy. And I can see no reason in principle why a joke against the government can be tolerated, but one at the expense of what used to be called Big Business, cannot. Laughter too has its context. It can be derisory and punitive, imposing indignity on the weak at the hands of the powerful. On the other hand, it can be consolatory, even subversive in the service of the marginalised social critics. What has been relevant in the present matter is that the context was one of laughter being used as a means of challenging economic power, resisting ideological hegemony and advancing human dignity.

We are not called upon to be arbiters of the taste displayed or judges of the humour offered. Nor are we required to say how successful Laugh-it- Off has been in hitting its parodic mark. Whatever our individual sensibilities or personal opinions about the T-shirts might be, we are obliged to interpret the law in a manner which protects the right of bodies such as Laugh-it-Off to advance subversive humour. The protection must be there whether the humour is expressed by mimicry in drag, or cartooning in the press, or the production of lampoons on T-shirts. The fact that the comedian is paid and the newspaper and T-shirts are sold, does not in itself convert the expression involved into a mere commodity. Nor does the fact that parodists could have voiced their discontent by phoning into a talk show rather than employ the trademark remove their protection. They chose parody as a means, and invited young acolytes to join their gadfly laughter.
Joao Carlos Salbany
Pretoria-based private attorney