‘It’s shocking’: How TIFF abandoned freedom of expression with its poor handling of the October 7 documentary fiasco
University of Ottawa Law Professor Michael Geist discusses the Toronto International Film Festival (TIFF) scandal involving a documentary about the October 7 attacks in Israel. Geist explains how, in its initial refusal to show the film and in its insistence that its name be changed, TIFF has failed to live up to its own principles of defending artistic freedom.
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Program Transcript
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RUDYARD GRIFFITHS: While the controversy continues around a Toronto International Film Festival documentary regarding the attacks of October 7 in Israel to help break down the latest developments in this fast changing story, we’re joined by Michael Geist. He’s Canada Research Chair in internet and E commerce law at the University of Ottawa and a regular contributor to The Hub. Michael, great to be in conversation with you.
MICHAEL GEIST: Oh, thanks so much for having me.
RUDYARD GRIFFITHS: You had a piece today in our daily Roundup. Need to know that I learned a few new things. You can always find new and different ways to be disappointed in the Toronto International Film Festival. After unpacking this story, I didn’t realise Michael that the festival had requested a name change for the documentary itself. So aside from all the ridiculous reasons that they had originally created as an excuse to, I guess, have the filmmaker unsubmit their documentary. We’re now finding out about kind of censorship. I guess you’re an expert in international and international law as it relates to e commerce and copyright and all these important issues. What was your take on this? Were you surprised by this particular aspect of this controversy.
MICHAEL GEIST: I was more than just surprised, I was deeply concerned and disappointed. You know, as you mentioned, I’ve been involved in especially copyright related issues for decades now, and the importance of artistic freedom of expression has always been at the core of many of the debates, no matter what side you happen to fall on, and to see an organisation like TIFF, I think, entirely disregard the freedom of expression of an artist by not requesting that they change the title, but by conditioning their participation in the film festival on making a name change, and in doing so, substituting their own political views, the political views, presumably, of TIFF executives or TIFF staff for that of the artist for that of the Creator, which just strikes me as fundamentally wrong.
RUDYARD GRIFFITHS: Yeah, and as you point out, Michael, in your excellent piece for us, it’s literally in TIFF’s, kind of charter to defend, as you would expect, any leading cultural institution in Canada, the rights to free expression of artists.
MICHAEL GEIST: It is. I mean, they specifically talk about defending artistic excellence and artistic freedom to see them. I think really just toss those principles to the side by requiring this name change, objecting to the phrase out of nowhere. I should note that the initial title of the documentary was out of nowhere, the ultimate rescue. It is now titled The road between us: The ultimate rescue. And so presumably the offending words and the views of TIFF staff were out of nowhere. Perhaps some thought that the October 7 attack didn’t come out of nowhere, but whether you think it did or it didn’t, it shouldn’t be up to TIFF to decide, or frankly, anyone other than the creator to decide. And it’s shocking that TIFF took this position. I did some research to try to identify whether there were any similar kinds of instances. I couldn’t come up with any film festival anywhere that required a name change of this kind for political reasons. The only, frankly, example, at least, in recent memory, that we’ve seen occurred not in film festivals, but in music festivals.
And now, so that’s the Eurovision film festival right, where the Israeli entry, Aidan Golan, was forced to change the name of her song. And so there’s a theme here. It’s that Israeli, Israeli issues, or October 7 suddenly leaves, quite clearly some of these festivals concerned and really overriding artistic expression in doing so, one of the bizarre parts of this whole sorry story was the festival’s letter or statement of why it was a week ago, going to decline to screen this documentary. And in that was a strange kind of theory of copyright that I guess the contention was that somehow the potential copyright rights of the Hamas terrorists who had created these horrific snuff films with their body cameras would be violated, or that the festival would be opening itself up to litigation by these terrorists if they came to Canada and came before a Canadian court.
RUDYARD GRIFFITHS: What did you make of all this? Michael, it just it seemed like a canard, but to put this in the letter, I guess they had some degree of conviction that there was a legal premise here to make this argument. It was bizarre.
MICHAEL GEIST: You know, the TIFF essentially maintained that they were withdrawing the film from the festival because the filmmakers were unable to meet all the conditions that were required of films to be part of that festival. And what they were particularly concerned with was that there hadn’t been the appropriate clearances, perhaps associated with the necessary insurance, which itself might have required clearances. But the clearances that we’re talking about, as you mentioned in your question, are essentially the body cam footage of Hamas terrorists from October 7, and this notion that somehow you needed copyright clearance from those Hamas terrorists in order to display your film is is, I think, offensive. It’s bizarre, and from a copyright law perspective, just doesn’t make any sense. You know, in Canada, we have fair dealing, which is quite clearly designed to ensure that there is the user rights and that those user rights can can be used in a large and liberal manner, as our Supreme Court of Canada has said, and frankly, there isn’t a court in the land. I doubt there’s a court anywhere that would use copyright in this way to say that the film can’t be distributed or shown or created simply because there hadn’t been a copyright clearance from Hamas terrorists own videos of them engaging in a terror attack.
RUDYARD GRIFFITHS: So bizarre, if it wasn’t also just in a sense, insulting to the filmmaker, and insulting, again, to the free speech and free expression rights that all of us would would expect from this organisation. Michael, you’ve been an astute observer of what’s been happening in Canada since October 7. It seems to have affected a lot of our institutions in ways that are not positive. It seems, though, that the cultural industries have been particularly what’s the right word vulnerable would be a charitable way to frame it, susceptible to kind of overreach, overreaction, self censorship. What do you think this says about Canada right now? Are we in need of a frank conversation about free speech, about our rights to individual expression, has something happened in our culture, maybe where we’re I don’t know, less aware, less willing to to stand up and and assert these kind of fundamental human and Charter rights.
MICHAEL GEIST: You know, I think, I think we need a number of conversations. Certainly, one’s about freedom of expression. Another, I think, is about anti semitism, which, as you know, has been such a problem over the last couple of years, and it has been particularly, I think, pronounced in the culture sector. There’s been a lot of discussion about what took place with the Giller Prize, for example. And in fact, Giller Prize itself may shut down altogether because of it. So we see this playing out in a number of ways. Frankly, the outcome with TIFF isn’t a particularly good one. There are now reports that suggest that there will be just a single showing of this film on Monday, with dress and distributor and potential film distributors not included at all. And so this is an instance where the films be. Film will certainly get a lot of attention because of this controversy, but they’re not even going to give many people an opportunity to go see it.
And you know, when you talk about the importance of freedom of expression, part of it is ensuring that people have access to different perspectives, and in this case, based on an excellent book called The gates of Gaza, a perspective that has really not, not about where much of the controversy has has been over the last while, in terms of the war itself in Gaza, but the attacks of October 7 themselves, and how that is seen as something that raises the same kinds of concerns that might themselves Garner or generate protests, I think strikes me as strikes me, and I think many others as enormously problematic. And when you get a cultural organisation like TIFF, which enjoys the support of multiple layers of government, enjoys many corporate supporters as well, to fail to understand both the artistic freedom of expression and the broader Charter rights around freedom of expression is incredibly discouraging, and I think really requires a full, full accounting, and I think committee hearings to better understand what took place, why it took place, and, quite frankly, to ensure that these kinds of things don’t take place in the future.
RUDYARD GRIFFITHS: Yeah, it’ll be very interesting to watch in the coming weeks. You know, the Scotia Bank walked away from the Giller Prize in no small part, because of the so called controversy that a vocal minority was able to stir up over the fact that, as I understood it, a single broker at the bank, at a single investment fund had a small position of holdings in Israeli defense stock. So I’ll be curious to see if, if corporate Canada reacts differently this time, whether corporate Canada might say maybe we could address that wrong. Maybe this time we should be, we should be talking about holding our support back instead from organisations that don’t assert free speech rights and free speech principles. Let me just end with you. Michael, on that point, you mentioned the very extensive public subsidies.
TIFF I think 23, $24 million in 2024 $10,000,000 two years before that. So we’re talking, you know, over $34 million in federal funding alone, should there be some kind of commitment or expectation that on the part of governments that when they do fund cultural groups that there are, there’s a certain standard, a certain understanding that you know, freedom of expression will be observed and upheld by these institutions, and this, in some ways, is a condition of public support. I mean, we put all kinds of other conditions on public support all the time. Maybe, as some of them are good, some of them may be related to diversity, equity and inclusion. I don’t know, whatever floats your boat, but it doesn’t seem as if free speech is is surfaced as one of those prerequisites for an organisation to receive public funding.
MICHAEL GEIST: I think that’s right. You know, listen, I do think there’s a recognition that, you know, you want to ensure that there is independence when you’re getting into the creative sector. We don’t want the government deciding what gets made what doesn’t get made, but if public dollars is going to support. There needs to be certain standards, and certainly meeting basic freedom of expression requirements, ensuring that there isn’t anti-semitism or other sorts of racist activities being funded by public dollars surely ought to be basic table stakes. And you know, we’ve seen that play out with a number of programmes coming out of Canadian Heritage. You mentioned that TIFF has been a big recipient of funding over the years, and both with respect to the public money that goes into this, and frankly, corporations that may say this is not the kind of brand, not the kind of organisation that we want to find ourselves aligned with, if they aren’t standing up for freedom of expression, if they aren’t standing up against anti-semitism. That’s just not an organisation we want to be involved with.
RUDYARD GRIFFITHS: Yeah, final, final mark, because it’s a key point. I just want to see if I understand this. Is it that artists’ right to free expression is not just a casual pledge that organisations make and observe. Is observed in the breach or not? Am I correct that there’s a there is a firm legal basis for organisations to provide this, and this is an effect, a right that artists can and should claim.
MICHAEL GEIST: Yeah, well, listen, I mean the clearest protection that artists and we all have is for freedom of expression that comes directly out of the charter. We also have legislation in Canada that does speak specifically to artists, and it’s known as the status of the artists act. It’s more about collective bargaining when it comes to artists, but it does the principles that underlie that legislation are very much about artistic expression and the ability to counter what might be seen as undue or unfair pressure. And in some ways, we’re seeing exactly that play out here. We mentioned earlier that TIF itself has as part of its mission statement to uphold these kinds of principles and to see them just tossed to the side and not respected in this instance, really, I think, undermines the credibility of the entire event and certainly of the organisation itself.
RUDYARD GRIFFITHS: Well. Michael Geist, Canada, Research Chair in e-commerce and internet law at the University of Ottawa. Thank you so much for coming on hub hits today and all of your ongoing contributions to the hub. We really appreciate your analysis and insights.
MICHAEL GEIST: My pleasure. Thanks so much for having me.
