Enforceability of Depiction Releases Redux – MHR Board Game Design v CBC

Whatever else one might want to say about the CBC television series Dragons’ Den, this much is indisputable: no other television show in Canadian history has been as important for advancing the state of Canadian jurisprudence regarding the enforceability of depiction releases. In the most recent case, a lawyer who appeared on the show had his claim against the CBC dismissed on a motion for summary judgment. Depiction releases typically contain language which not only allows a producer to make use of footage and photographs of a TV show participant, but which also specifically precludes the participant from suing the producers or broadcasters of the show for any reason – one previously unsettled issue was the extent to which such language (which is generally provided to participants on a “take it or leave it” basis) would be enforced by the courts. The answer appears unambiguous: a properly drafted release will be fully enforced by the courts and there appears to be little or no ambit for an unhappy show participant to sue in the shadow of one – however, there may be some remaining glimmers of hope for unhappy TV show participants, discussed at the end of this post.

Over the last few years, Dragons’ Den has been the subject of multiple lawsuits filed by individuals who appeared on the show and who felt aggrieved at the manner in which they had been portrayed on-air. The first of these cases, which we previously discussed here and  here, was Turmel v CBC (Dragons’ Den) (see 2010 ONSC 5318 2011 ONSC 2400 and 2011 ONCA 519), wherein the Ontario Court of Appeal confirmed that a “depiction release” (sometimes referred to as a “participation release” or even just a “release”) signed by a participant in a “reality” TV show was enforceable against the participant to bar any claim from being advanced by the participant based on his unhappiness over his depiction (in Turmel, the plaintiff based his claim in both defamation and breach of contract).

At the end of June 2013, the Ontario courts had occasion to pronounce again on the enforceability of depiction releases, again in the context of Dragons’ Den. In the case of MHR Board Game Design Inc. v. Canadian Broadcasting Corporation, 2013 ONSC 4457, the court again held that a depiction release signed by a participant in the show was enforceable to prevent the plaintiff from advancing a claim against the broadcaster. (See news coverage here.) In MHR Board Game Design, however, the plaintiff was a lawyer and so the arguments advanced were a touch more subtle than those advanced in Turmel, and therefore worthy of additional attention.

In MHR Board Game Design, the nub of the plaintiff’s argument was that the recording of his presentation to the panel of investors who comprise the titular “Dragons” was edited in such a way as to be a complete misrepresentation of what had actually occurred – to speak colloquially, the plaintiff argued that what had been a relatively uneventful, if unsuccessful, pitch was deliberately and misleadingly edited to make it look like a fiasco had occurred. From the judgment:

[3] The essence of the plaintiffs’ claims are that the short segment of the original recording that was broadcast is not only a “complete misrepresentation” of the original recording, but that the defendant’s conduct amounted to “gross and reckless negligence, intentional misconduct, malice and bad faith”.  The plaintiffs have sued the defendant for breach of contract, defamation, breach of duty of care, and injurious falsehood.

[4] Mr. Ribeiro alleges that the specific conduct involved in this case is not within the exoneration clauses of the Consent and Release or alternatively, that it would be unconscionable or contrary to public policy to enforce its terms.  He recognizes that the Consent and Release affords a very broad editing discretion to the defendant but submits that, because the Release is so broad in its terms, the exercise of such editing discretion engages a corresponding implied duty to do so reasonably and in good faith.

The plaintiff advanced a number of arguments relating to the release. First, he argued that the release did not specifically name “defamation” as one of the precluded causes of action – the court dispatched that argument summarily, stating that the “broad language of the Consent and Release is clearly intended to cover all causes of action and it would be robbed of its effect if it did not cover negligence”.

The next argument put forth by the plaintiff was that the wording in the depiction release which stated that his “appearance, depiction and/or portrayal” in the program “may be disparaging, defamatory, embarrassing or of an otherwise unfavourable nature which may expose [him] to public ridicule, humiliation or condemnation” was only intended to extend to the reactions of the Dragons, and should not be interpreted so broadly that it permitted the producers to edit the footage in a manner which would give rise to such results. The court similarly rejected that argument: because the depiction release contained language giving the CBC “the sole discretion to edit, cut, alter, rearrange or revise the sales pitch for broadcasting” and because the plaintiff therefore  “acknowledged that the program as aired would be edited in the “sole discretion” of the Producer[, he] must have understood the release extended beyond the comments of the Dragons.”

As stated by the court:

The clauses in the contract relied upon by the defendant are clear and unambiguous.  The express terms provide exceptionally broad protection for the CBC against any liability to a participant on the program.  That protection is not hidden in fine print.  It is crystal clear.

…  It is hard to imagine any stronger language than the words found in paragraphs 9 and 27 of the Consent and Release.  … I find that the Consent and Release by its express and unambiguous terms releases the defendant from every claim identified in the Statement of Claim.

As a result of that conclusion, the depiction release functioned as “a complete bar” to the plaintiff’s claims, unless it would be “unconscionable or contrary to public policy to enforce the contract or if the defendant itself breached the contract”. The court next turned its attention to whether either of those conditions had been satisfied in the court at hand – and found that they had not been satisfied. The court found that, relying on the decision in Turmel, there were no grounds for deeming the depiction release to be unconscionable, and further that no evidence had been advanced that enforcing the contract would be contrary to public policy.

The plaintiff’s final redoubt was to argue that the depiction release had been breached by the defendants and therefore could not be relied upon them as a defence. In crafting such an argument, the plaintiff was forced to acknowledge that, per the editing language noted above, there did not seem to be any express limitation on the latitude afforded to the CBC regarding editing. Instead, the plaintiff argued, the depiction release contained an “implied duty of good faith” when editing the footage – the court rejected this for a lack of evidence:

However, the evidence fails to establish any breach of the contract by the defendant.  First, even assuming an implied duty can be read into the contract, it is not self evident that the broadcast segment actually constituted a misrepresentation of Mr. Ribeiro’s sales pitch. Though the Dragons expressed interest in the game itself and enjoyed playing it, it was at the same time clear that they were unwilling to invest in its commercial viability.  Second, even assuming that the broadcast segment somehow distorted the nature of what transpired during the sales pitch, there is no evidence whatsoever to support Mr. Ribeiro’s allegation that the editing was done maliciously or recklessly.  In the final analysis there is simply no evidence to support the bald allegation of a lack of good faith in the editing exercise.

All of the above being said, while the enforceability of depiction releases seems to be relatively open-and-shut, there remain some ambiguities at the margins. It seems that the court has left open the possibility that if the plaintiff’s evidence had demonstrated that the editing constituted a “misrepresentation” of what had happened and/or that the editing had been done “maliciously or recklessly”, then there might be some scope for finding that there had been a breach of an implied covenant of good faith – however, there remains a major hurdle for a plaintiff wishing to avail themselves of that argument: it would have to be proven that the depiction release actually did contain an implied covenant of good faith. The other remaining tendril of hope is a successful argument that the enforcement of the depiction release would be contrary to public policy – the court held that the enforcement of the Dragons’ Den depiction release would not be contrary to public policy, but that seemed to be largely because the plaintiff had not advanced any arguments on that point (of course, it’s not clear that there are any cogent arguments that enforcing a depiction release could be contrary to public policy, but lawyers are a clever bunch…).

Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

Full bio