Maurice Arnold Tomlinson v Television Jamaica Ltd and Others

JurisdictionJamaica
CourtSupreme Court
JudgePaulette Williams J,Sykes J,Pusey J
Judgment Date15 November 2013
Neutral Citation[2013] JMFC Full 5
Docket NumberCLAIM NO. 2012 HCV 05676

[2013] JMFC Full 5

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

The Honourable Miss Paulette Williams

The Honourable Mr Justice Sykes

The Honourable Mr Justice Pusey

CLAIM NO. 2012 HCV 05676

In the Matter of The Constitution of Jamaica

and

In the Matter of an Appication by Maurice Arnold Tomlinson Alleging a Breach of his rights under section 13 (3) (c) and (d) of The Charter of fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011

and

In the Matter of an Appication by Maurice Arnold Tomlinson for Constitutional Redress Pursuant to section 19 of the said Charter

Between
Maurice Arnold Tomlinson
Claimant
and
Television Jamaica Ltd
First Defendant

and

CVM Television Ltd
Second Defendant

and

The Public Broadcasting Corporation of Jamaica
Third Defendant

Lord Anthony Gifford QC and Anika Gray instructed by Anika Gray for the claimant

Georgia Gibson-Henlin and Taniesha Rowe instructed by Henlin Gibson Henlin for the first defendant

Hugh Small QC , Jerome Spencer and Hadrian Christie instructed by Patterson Mair Hamilton for the second defendant

Donald Scharschmidt QC , Saverna Chambers and Jebby Campbell instructed by Saverna Chambers and Co for the third defendant

Nicole Foster Pusey QC, Solicitor General , Simone Pearson , Assistant Attorney General and Carole Barnaby , Crown Counsel for the Attorney General as amici curiae

CONSTITUTIONAL LAW — CHARTER OF RIGHTS — SECTION 13 (3) (c), (c) AND (5) — FREEDOM OF SPEECH — FREEDOM OF EXPRESSION — WHETHER FREEDOM OF EXPRESSION INCLUDES RIGHT TO USE PRIVATE PROPERTY TO EXERCISE RIGHT — WHETHER FUNDAMENTAL RIGHTS APPLIES HORIZONTALLY

IN OPEN COURT
Paulette Williams J
1

The Jamaican Constitution was drafted in 1962 to meet the needs of the newly independent nation with the expectation that requisite adjustments would be made in tandem with the needs of the developing democracy. It was not until 1991 that the first recognized official steps were taken to deal with perceived deficiencies concerning the issue of a human rights charter. It took twenty (20) years before the Governor General on April 8, 2011 was able to sign into law the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011 which replaced the previous bill of rights. Within two (2) years of its passing, this matter has commenced and thus takes on historic significance as being the first to raise issues requiring the interpretation of certain provisions of this amended Chapter III of the Constitution.

2

The Claimant, Maurice Arnold Tomlinson, is a man with a message he seeks to have aired at a time and in a manner of his choosing. His inability to achieve this, thus far, has led him to allege that there has been a breach of his rights under section 13(3) (c) and (d) of the Charter and to seek Constitutional redress. He alleges that Television Jamaica Ltd. and CVM Television Ltd, the 1 st and 2 nd defendants, as owners and operators of Jamaica's two major television stations and the Public Broadcasting Corporation of Jamaica, the 3 rd defendant as a public authority, refused to air his paid advertisement and in so doing committed the breach of his Constitutional rights complained of.

3

He is therefore seeking the following Orders, inter alia:

  • (1) A declaration that the 1 st , 2 nd and 3 rd Defendants' refusal to air a paid advertisement promoting tolerance for homosexuals in Jamaica and which was not in violation of any of Jamaica's broadcasting acts and regulations, amounted to a breach of the Claimant's constitutional right to freedom of speech as guaranteed by section 13(3) (c) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011 (hereinafter “the Charter”).

  • (2) A Declaration that the 1 st , 2 nd and 3 rd Defendants' refusal to air a paid advertisement promoting tolerance for homosexuals in Jamaica and which was not in violation of any of Jamaica's broadcasting acts and regulations amounted to a breach of the Claimant's constitutional right to distribute, or disseminate information, opinion and ideas through any media, as guaranteed by section 13 (3) (d) of the Charter.

  • (3) An order that the 1 st , 2 nd and 3 rd Defendants air the “Love and Respect” paid advertisement in exchange of the standard fee.

4

When the matter commenced there was an abandonment of his claim for damages. As it progressed there was an amendment proposed to the claim to delete references to the advertisement being paid for airing and for there to be an exchange of the standard fee so far as it concerned the 3 rd defendant.

Factual Background
5

The claimant asserts that he is an attorney-at-law and a homosexual man. He is a citizen of Jamaica but became a landed immigrant of Canada in 2012. He was, at the time of commencing the quest to have his message aired, employed as Legal Advisor for the international NGO Aids-Free World (A.F.W.). He describes himself as an activist and as such he has organized several public events in an attempt to bring about changes in the attitudes towards men having sex with men (MSM) and homosexuals in Jamaica, and further to draw attention to the need for tolerance of minority groups as an effective tool to counter the spread of HIV and AIDS.

6

The message he is seeking to have aired is presented in what he describes as the ‘Love and Respect PA’ video. This is a 30 second video which was produced as part of his advocacy campaign. He acts in it, portraying a homosexual man whose aunt reassures him when he complains of trying to get Jamaicans to respect his human rights as a gay man, that she respects and loves him and ‘love is enough for all of us’.

7

The intention initially was for the video to be aired by the local television stations, the 1 st and 2 nd defendants, and after this matter commenced, to have it aired by the 3 rd defendant who were joined when they failed to do so. It was intended that the video be aired during prime time of these stations — for the 1 st defendant during Early Prime, Primetime News, Smile Jamaica and Morning Time, for the 2 nd defendant it would be during Live at 7, News Watch and CVM at Sunrise and for the 3rd defendant it was whatever time deemed their prime time.

8

The effort to have his message aired by the 1 st defendant commenced on February 21, 2012 when the claimant e-mailed a sales executive with the company. He sent the script of what he called a Public Service Announcement (“PSA”) indicating that he wished it to be aired during Prime Time News but desired to have verification as to whether the station would be willing to air it before it was produced. He was told he could have to send it first. He replied indicating they just wanted to verify if the script was ok with the station before they paid to produce it.

9

On March 5, 2012 the claimant sent an e-mail with a link to Youtube.com which he said was the finished advertisement which he would wish to pay to have aired during Early Prime, Prime Time News and Smile Jamaica Its Morning Time. On March 7, a follow-up e-mail was sent to which the 1 st defendant responded that the commercial had been passed on to the directors and a response would be forthcoming as soon as one was had from the directors. There followed what can be described as multiple telephone conversations/contacts with no apparent decision forthcoming by April 2, 2012.

10

The 1st defendant indicated that they became aware of threats of legal action through other media if the “advertisement/PSA” was not carried. On April 2, 2012 an attorney-at-law acting on the claimant's instructions, sent a letter and an e-mail to the 1 st defendant requesting that it provide notification, within seven (7) days of the receipt of the said letter, of whether or not it intended to air the PSA. This was responded to on the 30 th of April 2012 by the company secretary/attorney-at-law who viewed the request for notification as the issuing of a demand but explained that the request would be reviewed and processed according to their established procedure.

11

Having received no response, the claimant's attorney-at-law wrote again on September 10th, 2012 requesting notification of the intention of the 1 st defendant within seven (7) days failing which he “will presume” that the station had no intention to air the PSA.

12

On September 18 th , 2012 the attorney responded to the company secretary/attorney-at-law re-enforcing the request for a decision. There was no response by October and the claimant took the lack of response as the unwillingness of the station to air the PSA. By the 19 th of October, 2012 the Fixed Date Claim Form to commence this matter, dated the 9 th of October, 2012 had been filed.

13

The effort to have his message aired by the 2 nd defendant was launched on the 22 nd of February, 2012 when what is described as a revised version of a PSA script was sent with a request for a feedback by the following day as to whether the station would be willing to air it. An account executive for the 2 nd defendant responded on the 23 rd of February, 2012 indicating a need for more clarity and information. By the next day, the 24 th the claimant e-mailed requesting an update on whether the station would be willing to air the PSA.

14

On March 6 th , 2012 the claimant sent a YouTube-link to the PSA now requesting that it be aired during Live at 7, News Watch and CVM at Sunrise, if they would be willing to air it. The next day the claimant e-mailed the 2 nd defendant again asking if they would be willing to air the PSA and the response was sent that they were awaiting the answer from the management team. By March 30 th , 2012 the claimant was again e-mailing requesting whether the manager would be able to let him know whether the station would air the attached...

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7 cases
  • Arthur Williams v Andrew Holness
    • Jamaica
    • Supreme Court
    • 6 February 2015
    ...adoption of the generous and purposive rule of the Constitution in Maurice Tomlinson v CVM, TVJ Ltd. and PBCJ (the “Tomlinson case”), [2013] JMFC Full 5, at paras. 144–154, per Sykes, J. 41 Mrs. Gibson-Henlin in her oral submissions, although agreeing with the principle of interpretation of......
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