Attorney-at-law Maurice Tomlinson has filed suit in the Supreme Court against Jamaican free-to-air television stations TVJ (the 1st Defendant) and CVM (the 2nd Defendant), claiming breach of his constitutional rights for refusing to air a Public Service Announcement (PSA) promoting tolerance towards homosexuals. He has asked the court to make declarations stating that by refusing to air the PSA the stations breached his constitutional rights. He is also asking the court to order the stations to air the ad, and has asked for damages.
This case, if it goes forward, will be an important test of the new Charter of Rights, and could be a significant test case for freedom of expression and the gay rights lobby.
In his court papers, Mr. Tomlinson says that homophobic laws, policies and attitudes throughout the region discourage homosexuals from seeking effective HIV prevention support and treatment.
Against that background, the PSA, dubbed “Love and Respect PA,” is said to be part of a campaign to promote tolerance for Men who have Sex with Men (MSM) and homosexuals. The 30-second ad is described as depicting a man and his aunt, in which the man (played by Mr. Tomlinson) tells his aunt that he continues to try “to get Jamaicans to respect (his) human rights as a gay man.” The aunt tells the man that she loves him even though she does not know why he is gay.
He says he contacted CVM in February 2012 , and TVJ in March 2012, asking for the ad to be aired, and despite communication over several months, never received a final decision on the matter. He last wrote to both stations on September 18, stating that he would take lack of response as an indication that they did not intend to air the ad.
The sections of the Charter of Rights on which Mr. Tomlinson is relying are as follows:
s. 13 (1) (c ) which states that all persons are under a responsibility to respect and uphold the rights of others recognized in this Chapter;
s. 13 (5) which states that the Charter binds natural or juristic persons if, and to the extent that, it is applicable, taking account of the nature of the right and the nature of any duty imposed by the right;
s. 13 (c) which sets out the right to freedom of expression;
s. 13 (d) which sets out the right to seek, receive, distribute or disseminate information, opinions and ideas through any media.
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The Claimant says that under the Charter, private entities as well as government have an obligation to protect the constitutional rights of citizens. He says TVJ and CVM therefore had a duty to respect his rights to freedom of expression and to seek, receive, distribute or disseminate information, opinions and ideas. He states that the companies should have aired the ad because:
- airing a paid advertisement with public interest content can be described as a public function;
- the broadcasting licences which the state granted to the companies place an obligation on them to operate in the public interest;
- it is in the public interest that MSM are free to receive and distribute information to enhance public awareness about homosexuality and the national HIV response;
- TVJ and CVM operate Jamaica’s major TV stations, and therefore have “immense power over the information, opinion and ideas that are disseminated and distributed to the public;”
- free speech is guaranteed not only to media owners and workers but also to members of the public who wish to use the media to share their views,
- the constitutional guarantee of freedom of speech can be enforced against private media owners since they control mass media and provide a service under a government license.
Mr. Tomlinson says there was no justification for refusing to air the ad as the Broadcasting Commission had stated in writing that the ad did not breach any broadcasting regulations. By not airing the PSA, therefore, he says that the stations abused their “power over the dissemination and distribution of ideas and opinions via television.”
Disclosure: I work for TVJ.
Legal News & Views by Dionne Jackson Miller 