Tuesday, May 28, 2013

Tolerance Ad case - Day 2 - Maurice Tomlinson v TVJ, CVM and PBCJ

Day two in the Supreme Court saw the lawyers representing the stations sought to dismiss the merits of the arguments by the claimant Mr Maurice Tomlinson, the stations have been accused of breaching the constitutional rights of the activist attorney over the refusal to air a commercial promoting tolerance for homosexuals. (see ad below) 

What is being sought:
1) A declaration that in refusing to air the ad the stations had breached Mr Tomlinson's constitutional rights to freedom of speech as well as freedom to disseminate information, opinions or ideas through any media.

2) An order for Television Jamaica TVJ, PBCJ and CVM TV to air the ad in exchange for the standard fee and also damages.

Lord Anthony Gifford wrapped up his submissions that he started yesterday which included precedence set elsewhere in similar cases, he also asked the court to recognise that private media houses do not have total editorial freedom, he said the US supreme court made that clear in their context and he is asking the court to make such a finding on behalf of his claimant in this context, that broadcasters have to operate in the public interest and entities do not have absolute rights. Justice Leighton Pusey asked if that application of that principle in the US is coloured by their doctrine whereby they have had freedom of the press as a specific constitutional right and that the broadcasting industry was developed after that, in our context it is not so. Lord Gifford responded that freedom of expression had always been protected. Broadcasting houses are mandated via their licenses to operate in the public interest as they do so in a particular space i. e. the airwaves. It would be useful therefore for the court to issue guidance as to what principles TV stations should use in deciding to air materials submitted to it.

Are stations obliged to give reasons and so on are to be considered? Justice Pusey had a difficulty with PBCJ component in particular as it is a public entity and how someone is able to get a video aired there. He asked if this ad is allowed to be aired will others also be allowed and the screening processes for same, Lord Gifford suggested that one should look at the terms of reference. 

Television Jamaica's, TVJ attorney Georgia Gibson Henlin addressed the court where she spent more time on two main arguments one of which was that the claimant Maurice Tomlinson has no standing in the matter that is he is not entitled to bring this case before the court she also argued that in any event the Charter of Rights does not allow Mr Tomlinson to sue TVJ a private entity the issue of whether or not a law suit can be brought under the charter of rights without any government involvement is one of the important issues in this case. The vertical application of a challenge was mentioned as usual reason for a constitutional challenge such as this however this action by Tomlinson et al is considered a horizontal application (excluding government) suing another private entity. 

She also claimed that previous tolerance typed programs resulted in acts of violence to persons involved so that form of expression would not be justified. She continued that Mr Tomlinson does not have the right to use TVJ's property to carry his message as the charter does not give him the right to say he can use their facilities, she used a freedom of expression example that persons have a right to freedom of speech but that the individual does not have a right to make a speech in someone's front yard. 

Mrs Gibson Henlin says that case law from other countries with similar constitutions support her contention that the charter of rights does not permit a private citizen to sue another private entity as is being done in this case.

She faced intense questions on this issue from Justice Brian Sykes stating that the charter does not compel the conclusion that some kind of government action is needed before one private citizen can sue another. 

On the issue of Mr Tomlinson's standing Mrs Henlin told the court that Mr Tomlinson is known as a "poser" or "tool" as he does not live here and is being used as a tool by his employer the international organization called AIDSFREEWORLD, she says the ad in question was part of the campaign to target homophobic laws since he himself has suffered no harm because of the ad not being played and because AIDSFREEWORLD is not based in Jamaica the case should not go forward. Mrs Gibson Henlin concluded her submission subsequently that in the case of the right to freedom of expression in particular that of a private citizen cannot sue another private entity, there is no general right of one private person to sue another and must seen on a case by case basis and in this particular case involving freedom of expression there is no such right as under the charter.

They day concluded with lead counsel for CVM TV Mr Hugh Small commencing his arguments. His short introduction dealt with Mr Tomlinson's rights but that the court cannot offer Mr Tomlinson relief as if in doing so not also breach CVM TV's rights as well. Mr Tomlinson therefore cannot assert his rights to the extent that it infringes on his client CVM.

there was a small outdoor stand by the Emancipation Park statue yesterday and TVJ carried the story

below is the original video that was aired for a time and discontinued by the agencies who sponsored it:

here is Mr Tomlinson's ad specific to this case:


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