Maurice Arnold Tomlinson v Television Jamaica Ltd
| Jurisdiction | Jamaica |
| Judge | Phillips JA,McDonald-Bishop JA,F Williams JA |
| Judgment Date | 30 October 2020 |
| Neutral Citation | JM 2020 CA 130 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 77/2014 |
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[2020] JMCA Civ 52
THE HON Miss Justice Phillips JA
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mr Justice F Williams JA (AG)
SUPREME COURT CIVIL APPEAL NO 77/2014
IN THE COURT OF APPEAL
Lord Anthony Gifford QC and Miss Anika Gray instructed by Gifford, Thompson and Shields for the appellant
Mrs M Georgia Gibson Henlin QC and Miss Stephanie Williams instructed by Henlin Gibson Henlin for the 1 st respondent
No appearance for the 2 nd respondent
Mrs Nicole Foster Pusey QC, Ms Simone Pearson and Ms Ceila Middleton instructed by the Director of State Proceedings for the interested party
On 15 November 2013, the Supreme Court sitting as a Full Court to hear a constitutional matter (“the Full Court”), comprising P Williams and Sykes JJ (as they then were) and Pusey J, delivered its judgment in the claim filed by the appellant, Mr Maurice Tomlinson. By this claim, Mr Tomlinson sought orders and declarations for the alleged breach of his constitutional rights as guaranteed by section 13(3)(c) and (d) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 (“the Charter”). These are the right to freedom of expression (section 13(3)(c)) and the right to seek, receive, distribute or disseminate information, opinions and ideas through any media (section 13(3)(d)). Having heard arguments from the respective parties, the Full Court dismissed the claim and, as a consequence, refused to grant the reliefs which had been sought.
Subsequent to the dismissal of his claim, Mr Tomlinson, on 29 August 2014, filed a notice of appeal (later amended and re-filed on 21 July 2015) seeking, among other things, an order to set aside the judgment of that court.
Before considering the appeal, I must first extend my apologies to the parties for the delay in the delivery of the judgment. Several factors contributed to its delay, most of which are well-known, but are by no means acceptable excuses. The delay, nonetheless, is deeply regretted.
On 19 October 2012, Mr Tomlinson filed a fixed date claim form against Television Jamaica Limited and CVM Television Limited, being the 1 st and 2 nd respondents respectively (hereafter referred to as “TVJ” and “CVM” respectively). In Mr Tomlinson's affidavit in support of his claim dated 13 December 2012, he describes himself as being employed as a legal advisor for an international non-governmental organisation, AIDS-Free World. In that capacity, he liaised with other organisations to advocate for changes to homophobic laws and policies across the region. He also stated that he is a homosexual man and an activist who personally experienced abuse and threats of violence.
TVJ and CVM are limited liability companies incorporated under the Companies Act, 2004. Both are holders of commercial television broadcasting licences and are the owners and operators of Jamaica's two major television stations.
Subsequent to the initiation of the claim, the Public Broadcasting Corporation of Jamaica (“the PBCJ”) was added as a 3 rd defendant to the proceedings, by an order of the court of 16 January 2013. The PBCJ, however, does not appear as a party in this appeal.
The Attorney General, as in the proceedings below, continued to appear in these proceedings amicus curiae, to assist the court, in the light of the constitutional issues raised by the appeal.
The events culminating in the filing of the fixed date claim form can be gleaned from several affidavits that were admitted into evidence before the Full Court and the documents exhibited thereto. These affidavits set out the positions of the respective parties, and include: (i) for the appellant, the re-filed affidavit of Maurice Tomlinson dated 13 December 2012 as well as his affidavit dated 16 January 2013; (ii) for TVJ, the affidavit of Mr Stephen Greig filed on 10 December 2012; and (iii) for CVM, that of Mr Ronald Sutherland dated 5 December 2012.
At the centre of the claim is a 30-second video Mr Tomlinson desired to have aired on TVJ and CVM. In his affidavit in support of the claim, he described this video as a “Love and Respect PA”, which had been produced as part of an advocacy campaign to encourage tolerance for “men who have sex with men and homosexuals in Jamaica”. He is portrayed as an actor in the video. In it, he converses with a woman who is featured portraying the role of his aunt. The woman asks him how he is doing. Mr Tomlinson replies that he is “still trying to get Jamaicans to respect my human rights as a gay man”. The woman then responds by saying, “I love you as my son. I don't know why you are gay. But, as a Jamaican, I respect you and I love you and love is enough for all of us”. They then hug and the video ends shortly thereafter.
The essence of Mr Tomlinson's claim is that the refusal by TVJ and CVM to air this video violated his right to freedom of speech and his right to distribute or disseminate information, opinions and ideas through any media, as guaranteed by section 13(3)(c) and (d) of the Charter. For completeness, the details leading up to TVJ and CVM, ultimately not airing the video on their respective television stations and their reasons for not doing so will be outlined below.
TVJ relied on the affidavit evidence of Mr Stephen Greig who averred that, on 21 February 2012, several emails passed between Mr Tomlinson and TVJ through its agent, Ms Diana Buchanan. The first email, was captioned, “Possible PSA”. In that email, Mr Tomlinson requested that TVJ provide verification of the acceptability of a script prior to him paying to have it produced. Ms Buchanan responded to the effect that the script would first have to be sent to TVJ. Consequently, Mr Tomlinson responded by sending an email in which he referred to a “Public Service Announcement”, which he abbreviated as a “PSA”. He further expressed the desire to have the PSA aired during Prime Time News. He also included in the email a copy of the script.
Subsequent to the above emails, a further email was sent by Mr Tomlinson to TVJ on 5 March 2012. This email contained the caption “PSA” and included a link to youtube.com, which he said, was the finished advertisement. He indicated that “we would pay to have the advertisement aired during Early Prime, Prime Time News and Smile Jamaica its Morning Time”.
Mr Tomlinson sent a follow-up email on 7 March 2012, bearing the caption, “Airing the PSA?”. In that email, he repeated his query as to whether TVJ would air “the PSA”. TVJ responded on 8 March 2012, stating that “the commercial” had been passed on to the directors and that a response would be forthcoming. Thereafter, a series of telephone conversations transpired between Mr Tomlinson and representatives of TVJ. However, no definitive answer was given by TVJ on the issue.
On 2 April 2012, Miss Anika Grey, an attorney-at-law acting on Mr Tomlinson's instructions, sent a letter to TVJ by both mail and email. This correspondence bore the caption, “Airing of Public Service Announcement On Respect for the Human Rights of Homosexuals”, and requested that notification be provided within seven days of its receipt whether TVJ intended to air the PSA. It was stated that failure to respond would be interpreted as a refusal to air the PSA.
TVJ, through Mr Greig, responded by letter on 30 April 2012. In it, TVJ questioned Mr Tomlinson's basis for issuing a demand for notification, where there was no contractual obligation to compel such an action, and especially since the stipulated time frame for a response had been unilaterally imposed by Mr Tomlinson. TVJ indicated that the request would be reviewed and processed in accordance with its established procedures.
Having not received a response, on 10 September 2012, Mr Tomlinson, through Miss Grey, sent a further letter to TVJ. This letter, in contrast to the previous correspondence, was captioned, “Airing of Paid Advertisement (PA) On Respect for the Human Rights of Homosexuals”. It stated that a failure by TVJ to respond within seven days of the receipt of the letter would be construed to mean that it did not intend to air “the PA”. On 18 September 2012, Mr Tomlinson made a further request with regard to the “Airing of Paid Advertisement (PA) On Respect for the Human Rights of Homosexuals”. There was still no response, and thereafter, Mr Tomlinson filed suit.
At paragraph 12 of his affidavit, Mr Greig deposed that TVJ had in place certain established procedures for dealing with advertisements, which included reviewing, so as to ensure conformity with its regulatory obligations. He further averred that TVJ had been considering the PSA, which carried certain implications, and had, therefore, been denied a fair opportunity of conducting its assessment. Additionally, it was contended that TVJ's property rights, editorial, press freedom and control would have been significant factors for consideration.
Mr Greig asserted that the use of the term “PSA” connotes a particular meaning within the broadcasting industry. He stated that, in this case, the use of that term meant that Mr Tomlinson had not sought to air an advertisement. According to him, a PSA did not require payment, as in the case of an advertisement. A critical difference was also that a PSA necessitated the endorsement or agreement of the broadcaster. As a consequence, a broadcaster is at liberty to determine whether it would broadcast or transmit a PSA.
Mr Tomlinson deposed that, on 22 February 2012, he sent an email to Ms Andrea Wilson of CVM, captioned “Revised PSA Script”. The email was said to contain a revised version of the PSA script and enquired whether CVM was willing to air...
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