News and Views by Dionne Jackson Miller

pointed commentary on current affairs in Jamaica and the Caribbean



Highlights – Day 4 – Tomlinson v TVJ, CVM and PBCJ

Photo by DJ Miller
Photo by DJ Miller

Arguments in the case against three Jamaican televisions stations being sued for their refusal to carry an ad promoting tolerance towards homosexuality wrapped up Thursday. You can view the ad here.

The case is the first test of Jamaica’s new Charter of Rights which came into effect in 2011, and is therefore of great interest.

Justice Paulette Williams told the court at the end of arguments that “in an ideal world we would be able to meet and discuss and commit to paper our decision in short order.”

She said however that since the three members of the panel have additional court fixtures until the end of this court term, which ends on July 31, they will not be able to issue a ruling before the end of the term.

Following the six-week recess during summer, she said the court will be closer to giving a decision when the Michaelmas term begins.

Solicitor General’s Submissions

Solicitor General Nicole Foster-Pusey, Q.C. completed her submissions to the Court. The Solicitor General is involved in the matter as it is a constitutional case, and was not advocating for any side, but was presenting the results of her office’s research and conclusions on the legal issues which have arisen.

She looked at the use of the word “media” in section 13 (3) (d) in the Charter of Rights regarding the “right to seek, receive distribute, or disseminate information, opinions or ideas through any media.” You can read the Charter here.

She submitted to the court that the word is used to mean “the various means by which views can be disseminated, whether by electronic media, print, blogs, etc”

Justice Sykes: “Are you saying that (operators of) radio, TV, newspaper would have no greater right than ordinary citizens by way of expressing themselves?

Mrs. Foster-Pusey: That would be our position. The constitution provides the right to disseminate (information) through any media. It was felt that this would give broader protection (than a provision for freedom of the press). The media had wanted freedom of the press but it was believed that would be limiting. We believe freedom of dissemination of information is a sub-set of freedom of information.

Are the Defendants bound by the right?

The Solicitor General referred to section 13(5) of the Charter as an “interesting and new” (provision). This is the section that states that:

 “A provision of the Chapter 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.”

“It is our view that it was the clear intention of the Joint Select Committee (of Parliament) that rights would be upheld not only by the State but by any other person or body,” the Solicitor Geeral told the Court.

“This is one of the major changes (effected by the Charter of Rights). The rights were previously solely of vertical

Photo by Salvatore Vuono at
Photo by Salvatore Vuono at

application (could only be enforced by citizens against the government).  It is now clear that to the extent applicable, that a person can enforce the rights not only against the state but also against other persons and organisations,” she said.

This has been one of the points argued during the case, whether the Charter now provides for so-called horizontal application, allowing one citizen now to sue another, or only vertical application. TVJ had argued that the Charter did not provide for horizontal application, or if so, that horizontal application did not apply to the rights involved in this case, freedom of expression and freedom to disseminate information.

“We believe that the nature of the right is such that it can be applicable to private persons having duties to each other,” said the Solicitor General, however.

Justice Sykes: (If) one private citizen  has a right not to speak, would it be fair to say another private citizen cannot compel this private citizen to speak and disseminate information? I may wish to get my message out and another private citizen may have other better means of communication. In what circumstances could I compel him to speak?

Mrs. Foster-Pusey: That’s the very delicate matter to be decided in this matter. We have not been able to arrive at a specific formula to be used by the court in balancing the rights.

Justice Williams: You are reluctant to identify any (over-arching) factor?

Mrs. Foster Pusey: It will be necessary for the court to arrive at an “all things considered” result.

Justice Sykes: Would it be a fair reading of section 13 (5) to say that there is no duty imposed by the right, then it is difficult to speak of a beach of the right, so if section 13 (3) (d)  (the right to disseminate information) imposes no duty on CVM and TVJ, how do we get to a breach?

Mrs. Foster-Pusey: I would think there are duties on every private individual. The press has been put in a particular position, (because of) the nature of the power they have. The extent of the duty and the manner in which the court

Photo by 9comeback at
Photo by 9comeback at

should interpret its exercise where a person is putting forward a right not to speak – that is the difficulty here.

The press has a duty because of their power, but they also have a right to say “I do not wish to speak in this matter, or to have my property used (by another) to speak.”

“The right of (TVJ and CVM) not to broadcast (something) is part of their right of freedom of expression,” she told the court.

The Claimant, she said, is also bound to uphold the rights of the television stations.

The thrust of the Solicitor General’s submissions is that both the television stations and Mr. Tomlinson have the rights to freedom of expression and freedom to disseminate information through any media. In the case of Mr. Tomlinson, this includes the right to have his message broadcast, and in the case of the television stations, the right not to broadcast something they do not wish to air. Both parties have a duty to uphold the rights of the other. The court will therefore have to carry out a balancing exercise to determine whose rights should prevail in such a situation.

She also submitted, however that while Mr. Tomlinson’s right to disseminate information had been restricted in terms of using the channels provided by the TV stations involved, there would be a “plethora of other media unaffected and in respect of which there’s no complaint.”

Justice Williams: Is there a place for pattern of behavior (to be considered in the balancing exercise)?

Mrs. Foster Pusey: I would not say so, the focus should be on what was sought, what was the impact, the facts before the court.

She also suggested that role of the media be considered in the balancing exercise, citing the South African case of Khumalo ( a much cited case in this matter) in which the Constitutional Court said that;

“In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture.”

Justice Sykes: I see in the cases (reference to) a constitutional duty. How do we get there in light of a private business established for profit? How do we get to a duty, because if he wishes, he can get out of business.

Mrs. Foster Pusey: It is a fact to be taken into account in the balancing exercise, especially since it has been directly raised (for instance, by CVM).  (The court will have to) determine that issue and determine the weight to be placed on that issue.


Unlike TVJ and CVM, PBCJ is a state-owned entity. This means that a different provision in the constitution applies in respect of its duty to uphold rights and the relevant allowable restrictions to be placed that duty.

Whereas section 13 (5) that would be applicable to non-government entities speaks of natural or juristic persons being bound to uphold the rights set out in the Charter of Rights  “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” in the case of a government entity the relevant provision is section 13 (2) which states that government entities are bound to the extent:

“demonstrably justified in a free and democratic society.”

The Solicitor General pointed out that since PBCJ is prohibited by law from accepting paid advertising of the kind that had been offered by Mr. Tomlinson “it would be difficult to go further to say there has been a breach unless there is going to be a challenge to the legislation itself.”

Disclosure:  I work for TVJ


Highlights – Day 1 – Maurice Tomlinson v TVJ, CVM and PBCJ

DJ Miller Photo
DJ Miller Photo

The case, which I first wrote about here, started in Jamaica’s constitutional court today. Mr. Tomlinson is seeking

  • a declaration that refusing to air an ad promoting tolerance for homosexuals breached his constitution rights to freedom of expression and freedom to distribute or disseminate information, opinions, or ideas through any media;
  • order for TVJ and CVM to air the ad in exchange for the standard fees;
  • damages.

Here’s a summary of the major issues and proceedings  from the first day:

The 30-second spot, dubbed the “Love and Respect video”  by the claimant, and which can be seen here, was shown to the court at the start of the proceedings.

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.

Photo by idea go
Photo by idea go

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?

Photo by Salvatore Vuono
Photo by Salvatore Vuono

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

Jamaican TV Stations TVJ and CVM Sued for Not Airing Ad Promoting Tolerance Towards Homosexuals

DJ Miller Photo

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 from either station. 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.

Photo by

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:

    1. airing a paid advertisement with public interest content can be  described as a public function;
    2. the broadcasting licences which the state granted to the companies place an obligation on them to operate in the public interest;
    3. 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;
    4. 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;”
    5. 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,
    6. 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.

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