Give Up, Smokes – High Court


In April 2010, Tim Wilson of the Institute of Public Affairs, sanctimoniously lectured the Commonwealth about the merits of plain packaging:

"Stripping intellectual property from products is akin to stripping someone of their physical property and requires compensation under the Commonwealth Constitution and our free trade agreements. […] Federal Parliament should deeply consider whether they are prepared to gift up to $3 billion annually to big tobacco to pass plain packaging for tobacco products."

This will hardly be the last time the High Court disagrees with Wilson’s folk legal opinions. Although we don’t know the details of the decision, we do know that Wilson is wrong. The High Court does not believe that preventing tobacco industries from branding their products is akin to stripping somebody of their physical property. The High Court does not believe that the Commonwealth should gift up to $3 billion annually to big tobacco.

It is difficult to see how Wilson could have been more incorrect.

Part of the difficulty with the case is that it grapples with unusual concepts. Intellectual property is a strange beast which doesn’t gel nicely with our intuitions about what property is. In legal circles and academia, it is an increasingly esoteric field, intersecting with reality only when Apple sues Samsung.

In public debates, we only really grapple with the idea of intellectual property when discussing piracy. Should there be laws against sharing music peer-to-peer? Is downloading Game of Thrones just like stealing a car? Why is it against the law for me to download every episode of Samurai Pizza Cats from torrents when no company has made it available for purchase? Although myriad cop dramas on television have emboldened public intuitions about theft, we still struggle to believe that it’s possible to steal an idea or a concept.

In the High Court challenge decided yesterday, British American Tobacco attempted to argue that, by prohibiting the use of their intellectual property on cigarette packaging, the Commonwealth was acquiring their intellectual property. The Constitution, in s51(xxxi), grants to the Commonwealth the power to acquire property "on just terms". So if the tobacco branding is property, and if the Commonwealth has acquired that property, it’s understood that the Commonwealth must pay for the acquisition.

In the next few days, the full reasons for the decision will be known. At the moment, all we know is that the High Court does not believe that the Commonwealth acquired BAT’s intellectual property by prohibiting its use. It’s similarly unlikely that BAT will succeed with their appeal to the World Trade Organization.

For people who don’t get excited about High Court cases, all this jibber-jabber about intellectual property and acquisition might as well be a foreign language. Under Australian law, this became a specious case about property rights but cases in jurisdictions with charters of rights became about freedom of speech.

For example, a Canadian Act to prohibit tobacco advertising was struck down as being inconsistent with their Charter of Rights and Freedoms. In RJR – MacDonald Inc. v Canada (Attorney General), the Supreme Court found that prohibitions on advertising was inconsistent with the right to freedom of expression. More excitingly, they also found that:

"Since freedom of expression necessarily entails the right to say nothing or the right not to say certain things, the requirement that tobacco manufacturers place an unattributed health warning on tobacco packages combined with the prohibition against displaying any writing on their packaging other than the name, brand name, trade mark, and other information required by legislation too infringed this right."

The United States had a similar problem. Lorillard Tobacco Co v Reilly concerned attempts by the state of Massachusetts to impose restrictions on tobacco advertising. Specifically, outdoor advertising regulations prohibiting tobacco advertising within 1000 feet of a school or playground were deemed to violate the First Amendment right of free speech.

Civil libertarians in the US have a history of arguing on the side of big tobacco. Before a 1986 congressional committee, for example, Burt Neuborne of the New York Civil Liberties Union testified:

"In place of faith in the individual, the proposed ban is premised on mistrust of the individual. Starkly put, the proposed ban is a vote of ‘no confidence’ in the capacity of ordinary Americans to judge for themselves how to react to tobacco advertising. Such an elitist approach, which treats Americans as the incompetent wards of a benevolent state who can’t be trusted to evaluate speech for themselves, is wholly antithetical to the faith in human reason that underlies our political and economic system."

For Neuborne, prohibiting or restricting tobacco advertising was unconscionable as it interfered with the inalienable rights of expression even when the purpose was to promote public safety outcomes.

Beyond the legalese and jargon of yesterday’s decision, the outcome was, in my opinion, a fundamentally good one: it is now more difficult for tobacco companies to sell cigarettes. If we agree that this was a good outcome, the Canadian and US experiences outlined pose a real problem for those who champion the freedom of speech and advocate charters of rights. The decision might have been radically different had we a charter of rights restricting Parliament’s ability to interfere with freedom of speech. Instead of trying to spin prohibition as acquisition, British American Tobacco would have merely appealed to the sanctity of free expression in a thriving (and coughing) democracy.

Tim Wilson was only horrendously incorrect because we don’t have a charter of rights. Advocates of a charter need to do some serious thinking about how their models would prevent situations already seen in Canada and the US. In the meantime, we will enjoy an Australia free of branding on cigarette packets.

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