Legal updates and commentary
The case, which I first wrote about here, started in Jamaica’s constitutional court today. Mr. Tomlinson is seeking
Here’s a summary of the major issues and proceedings from the first day:
Lord Anthony Gifford, lead counsel for Mr. Tomlinson, instructed by Anika Gray, submitted that the video was dignified and restrained. He said that only a very intolerant person would take exception to it.
He said the language of the new Charter of Rights and Fundamental Freedoms, which only came into effect in 2011, indicated that parliament intended for the rights outlined therein to prevail unless there were limits that could be demonstrably justified in a free and democratic society. NB That issue of what can be “demonstrably justified” is a key element of the Claimant’s arguments, the argument being that the refusal to play the ad was not be demonstrably justified.
Not only were Mr. Tomlinson’s rights limited by the TV stations, Lord Gifford argued, but the limits imposed did not meet the test of that which could be demonstrably justified in a democratic society.
Another important issue is whether the television stations TVJ and CVM, as private entities, are bound by the Charter in this situation. That argument of course does not arise with PBCJ, which is a government entity. This relates to the argument that charter extends horizontally (citizen to citizen) to bind private citizens as well as vertically (government to citizen), that is, binding government.In relation to PBCJ, the claimant is arguing that as a public authority, PBCJ had a duty to uphold the constitution, and that furthermore, the PCJJ Act mandates the agency to broadcast information on matters of general public interest, and to promote respect for human rights.
But it was the status of TVJ and CVM as private entities that attracted a lot of attention from the judges. Here’s a sampling of their questions on the issue.
Justice Sykes: It makes no difference if it is a religious or non-religious broadcaster? Such a broadcaster would be bound to broadcast a message contrary to his principles, that broadcaster can’t object?
Lord Gifford: (He can object) only with good and sufficient reason. The balancing exercise involves balancing of rights, both sides have rights.
Justice Sykes: Are you saying that they (the TV stations) have to contract (with people who want to place ads)?
Lord Gifford: I am saying they may have to contract.
Justice Sykes: Are you saying that private broadcasters have to provide reasons (for their decision not to enter into a contract with someone to place an ad)?
Lord Gifford: This is a constitutional right. If you are going to cut it off, you have to explain why.
Justice Pusey: Then, the right to free speech means that another person doesn’t have the right not to speak?
Lord Gifford: Yes, they do.
Justice Pusey: You are using the right as a sword, so an individual becomes an advocate for whatever someone else wants to say.
Lord Gifford: This is a paid advertisement. You are not adopting what they want to say.
Justice Pusey: If I have a radio station to play reggae music, and you have an ad contrary to that, I don’t have the right to say I don’t want your country and western ad?
Gifford: You might have the right to refuse, the balancing exercise might come out differently.
Justice Williams: So freedom to disseminate is also freedom to disseminate it to as many people as possible, for example in prime time (television)?
Lord Gifford: Yes, television is a powerful medium, dissemination in the constitution has a meaning, it turns what might have been a passive right into a positive right.
Lord Gifford argues that CVM and TVJ do have a duty under the Charter of Rights to air the ad. He maintains that in this case the position of TVJ and CVM is virtually indistinguishable from that of state entities, as they command the majority of the free-to-air TV audience, they are operating under a government licenses, and they have been given control over what is a public resource, that is the airwaves.
He argues that in the case of mainstream media, they wield significant power, and raised concerns about them excluding certain areas of public debate.
Justice Pusey: In an open market, the market will punish them.
Lord Gifford.: Not necessarily. Minority views, unpopular views also have to be heard.
Justice Sykes: You are proposing that every refusal (to air an ad) is a restriction (on constitutional rights) and then you have to go through the steps to see if the restriction is permissible?
Lord Gifford: That’s what the constitution says.
There was also quite a bit of discussion about whether the size of the media houses involved mattered or whether the principle as elucidated by Lord Gifford would bind all media houses. He began by arguing that size was important but later conceded that it was not.
One other area of Lord Gifford’s submissions was directed at countering the reasons given by the stations for not airing the ad. (NB – reasons were given at a later date, after discussions with the stations about airing the ad had ceased. The reasons were given in affidavit evidence to the court).
For example, in relation to CVM’s position that the station was concerned that airing the ad would be viewed as an attempt to promote homosexuality, he stated that the ad did not promote homosexuality.
In response to the concern that the ad could be seen as promoting a criminal act (buggery), Lord Gifford submitted that it is not illegal to be a homosexual and also stated that the ad showed an auntie showing love for her nephew, and could not be seen as promoting a criminal act.
He also said that it was “hard to swallow” the argument that the video would cause so much offence that advertising revenue would be affected, especially since the station had aired other programmes about homosexuals.
Tomorrow: Lord Gifford will have another half an hour to wrap up his submissions and then the defendants will begin to make their submissions.
Disclosure: I work for TVJ