Helluva case for freedom of speech

There is a fine line between freedom of speech and encouraging hateful dialogue, between parody and trademark infringement, which makes the current Telkom versus Hellkom legal battle an interesting one to keep an eye on.

Telkom, possibly the only non-monopoly in the world that still has no competition, has instituted a claim against parody Web sites Hellkom and Telkomsucks.0catch.com for trademark infringement, seeking R5 million in damages.

The company claims the sites are making unauthorised use of Telkom`s trademark and are using disparaging logos that could affect Telkom`s brand.

Hellkom does, admittedly, have a logo that looks similar to Telkom`s one, except that it is red, with devil horns and tail and a slogan which reads: "Prices that`ll make you sweat."

So the question that needs to be asked is: does Hellkom genuinely have an adverse impact on Telkom`s branding, or is it simply a parody forum that allows its readers an opportunity to voice their concerns/problems/disgust towards the incumbent operator?

Where does one draw the line between being allowed to voice your opinion and fostering "hate speech", as Telkom has suggested the Hellkom Web site is doing?

Perhaps one needs to look at another case that will go before the Supreme Court of Appeal on 30 August, involving another corporate that is taking on a tiny operation, accusing it of much the same thing.

Where does one draw the line between being allowed to voice your opinion and fostering "hate speech", as Telkom has suggested the Hellkom Web site is doing?

Rodney Weidemann, Telecoms Editor, ITWeb

Last year, South African Breweries (SAB) - although there are many other large companies awaiting the results of its challenge - took on Laugh it Off (LIO) Promotions, a T-shirt manufacturing company that had produced a garment that parodied the Carling Black Label beer brand.

SAB won the case (although LIO has appealed the decision) forcing the company to stop making its shirts that carried the slogan "Black Labour, White Guilt".

LIO claimed in its defence that it was simply practising its right to freedom of speech - in the form of satire - while making a social statement about the country`s past history.

The judge, however, felt differently, saying LIO was simply using the Black Label trademark to generate income for itself, under the cloak of altruism.

One must say the point made by LIO is a good one, as it is difficult to see how a small company such as itself could seriously hope to harm the image of a massive multinational in any meaningful way.

By the same token though, whether the company should be allowed to profit from the production of goods that trade off another company`s logo, while disparaging that same logo is an issue that requires serious consideration.

However, where Telkom may find its case loses momentum is in the fact that Hellkom is nothing more than a parody site that allows readers to vent their frustrations at the monopoly; it is not a profit-making institution.

So Telkom`s only real case is one of the damage that may be done to its brand by the parody logos.

Except that if marketing gurus and brand experts can spend millions on trying to make a person feel a certain way when they see a particular brand, then surely that symbol should be able to face the same sort of questioning and satire as any other institution, idea, or expression in a democratic society?

Perhaps the biggest irony lies in the fact that while SAB wanted to protect its brand from the heinous LIO T-shirt makers, there were those of us out there who drink that particular brand of beer who wanted a shirt, purely because of the brand association.

We didn`t want the shirts because we were anti-Black Label, but rather because it was our preferred brand.

Hellkom, on the other hand, is simply stating something that every intelligent telecoms user in the country already knows, so Telkom actually has nothing to protect.

Its logo is already associated with repressive price increases, ridiculously high bandwidth tariffs, a monopolistic approach in taking every perceived threat to its domination of the market to court (anyone recall the least-cost routing case?) and an attitude that suggests it doesn`t matter what you think about its service, because you have no other choice.

And by suing the owners of the Hellkom site, Telkom is certainly not doing anything to change these associations in the mind of the public.

Perhaps it needs to realise that when a brand is targeted by satirists and the affected company gets lawyers involved, the issue becomes a perceptual battlefield, where the big corporate is inevitably seen as the aggressor.

Telkom may win the court case against the satirists, but it is unlikely it will win the perceptual war.