Saturday, November 16, 2013

Supreme Court throws out LGBT rights activist's case against 3 TV stations


The Jamaican Supreme Court threw out the case brought against television stations CVM TV, TVJ and PBCJ on November 15th on their refusal to air an ad/PSA (paid ad used in the case) recorded with the claimant Maurice Tomlinson and Yvonne Macallah Sobers of Families Against State Terrorism, FAST asking for tolerance. Radio Jamaica's Dionne Jackson Miller on her show Beyond The Headlines discussed the ruling with the attorneys for the parties involved. Bear in mind that radio Jamaica is the sister station to one of the TV stations that was sued by Mr Tomlinson (audio below) please pay particular attention to the lawyer for Public Broadcasting Commission of Jamaica, PBCJ Miss Taverna Chambers comments @ 15:35.....



Attorney for Tomlinson Lord Anthony Gifford says the gay activist is eager to appeal even as the issue of costs is to be determined by the courts. Meanwhile, Tomlinson is also seeking to take legal action against the immigration authorities of Trinidad and Tobago and Belize, saying their laws discriminate against homosexuals seeking entry into those countries. Lord Gifford is representing him in this case as well, see: Caribbean Court of Justice reserves judgement on Maurice Tomlinson case on barred entry due to sexual orientation

here is the video in question:





When I checked for a copy of the judgement online it was not available but I implore you to rely on the reports and the discussion thus far, as soon as it is available it will be shared.


meanwhile Barbara Gayle, Justice Coordinator of the Gleaner also reported

THE RIGHT of freedom of expression does not give anyone the right to use any other person's property to disseminate his views, the Constitutional Court ruled yesterday when it threw out a claim against three television stations.

Gay rights activist attorney-at-law Maurice Tomlinson had brought the claim against them.

"This is a landmark ruling for freedom of expression," said attorney-at-law Georgia Gibson-Henlin who represented Television Jamaica Ltd, one of the three defendants.

Gibson-Henlin said it was one of the first rulings under the Charter of Rights and Freedom as to whether it applied to private rights.

"I believe it is one of the first rulings that affirm the importance of editorial and journalistic discretion," said Gibson-Henlin.

She said the claimant indicated that he was going to appeal the ruling and she added that media would be vigorously contesting any appeal.

The other defendants in the case were CVM Television Ltd and the Public Broadcasting Corporation of Jamaica. The issue of legal costs will be decided by the court at a later date.

Tomlinson, a Jamaican national and an advocate for changing laws and attitudes in favour of homosexuals, had asked the three defendants to broadcast a 30-second video for a fee, speaking to the issue of accepting homosexual men for who they are.

The defendants did not respond and Tomlinson filed a claim in which he contended that the refusal amounted to a breach of fundamental rights and freedoms guaranteed by Chapter Three of the Jamaican Constitution. He asked the court to declare that his rights were breached and also make an order compelling the defendants to broadcast the video.

In its unanimous decision, the court comprising Justice Paulette Williams, Justice Bryan Sykes and Justice Leighton Pusey, held that Tomlinson had sufficient interest in bringing the claim because he was a Jamaican national and the alleged breach took place in Jamaica.

The court pointed out that the Charter was enforceable against the State and by one private citizen against another. It said that Section 13 of the Charter made it possible for one private citizen to enforce the charter rights against another private citizen. The court said the right to freedom of expression was more than just a speech. It included the freedom to express and communicate ideas whether orally or in print or by other means of communication.

Tomlinson, the court said, was obliged under Section 13 of the Charter to respect and uphold the rights of others, including TVJ and CVM, and their right included the right not to speak out, and so could not be compelled to speak Tomlinson's message.



ENDS


RJR Communications group Manager Gary Allen also said he he was pleased with the ruling and welcomed the judgement as he said media houses reject ads almost on a daily basis, he noted that if the media houses had lost it would have opened a huge chasm in as far as accepting the ad is concerned. "From our perspective the critical issue here was whether or not as an entity that has a license that we are held accountable for and the content that we publish we are solely held accountable for it; whether or not someone could force us to publish something and if we disagreed then we would still be held accountable and the person could publish what they will."

here is how TVJ carried the story:




a question to provoke our minds, how does one strike a balance in this case?

76crimes reported that Mr Tomlinson commented:

So, the TV stations, who operate under a public trust in the form of a broadcast license, have the court-sanctioned right to ignore the lived reality of an entire segment of the population (vulnerable gays) in order to patronize the group campaigning against them! If us gays want equal airtime to counter the hateful falsehoods being spread about us, we should just set up our own TV station! Simple, enough right? Well, not quite. You see, there is the HUGE matter of acquiring a license!

Please note that at no time did we say the stations HAD to air the tolerance ad. We simply said that, in the public interest, the stations should ensure that they acted REASONABLY in making their decision whether or not to air. Was it reasonable for the stations (especially the public broadcaster who has a statutory obligation to promote respect for the rights of citizens, such as gays) to simply refuse to air the ad because they did not want to anger the powerful fundamentalist churches? Is there ANY concept of separation of church and state in Jamaica?

I hope my Jamaican LGBT family and our allies realize just how much work we have to do in order to achieve full equality. I hope this decision makes you MAD enough to actually DO something for the cause of LGBT liberation. All the powerful organs of the state appear to be working against us and in cahoots with the homophobic factions of the church. We need to be LOUD AND PROUD to claim our RIGHTS as no one is going to hand them to us on a silver-platter (or on the silver-screen).


meanwhile here is CVM's report which seemed very balanced



This test case certainly brings a lot it seems forward but was Mr Tomlinson too demanding or are the stations free to refuse any ad as they claimed they do almost daily especially when the ad though of less production value in my eyes has not intimated any untoward act or language that would affect the public. One thing that has been clear to me for some time is that in asking for such a virtuous ideal it must be already demonstrably clear in the requester's camp and how the homeless MSM issue has played out in the last four plus years the lack of interest and the dismissive nature of an ever cynical public must not be over looked.

Let us see where this one goes folks as the appeal looks set in coming from the Tomlinson camp. 

UPDATE Nov 18, Press release on the planned appeal






AIDS-Free World to Appeal Supreme Court Decision in TV Challenge 



Kingston, Jamaica — AIDS-Free World is shocked and disappointed by today’s ruling by Jamaica’s Constitutional Court in favor of three Jamaican television stations that refused to air a paid television ad promoting respect for LGBT people. We fully intend to appeal this judgement, as we feel the decision is wrong in law and wrong in principle. 

The challenge—the first constitutional challenge under Jamaica’s new Charter of Fundamental Rights and Freedoms—resulted from the stations’ refusal to air AIDS-Free World’s 30-second spot promoting dignity and respect for LGBT persons in Jamaica. The stations persisted even after the Broadcasting Commission of Jamaica confirmed that the ad did not breach any broadcasting rules. Regrettably, the Court decided that the rights of powerful television broadcasters supercede the rights of citizens to free speech and respect.

The innocuous ad promoting tolerance was created as part of AIDS-Free World’s broader HIV advocacy strategy in the Caribbean, which includes impact litigation, human rights trainings, and communications campaigns. Those efforts address discriminatory anti-gay laws and attitudes that fuel the spread of HIV by driving LGBT underground, away from effective HIV prevention, care and treatment services.

The banned ad starred two Jamaicans, including claimant Maurice Tomlinson, AIDS-Free World’s Legal Advisor, Marginalized Groups. The television stations had argued, illogically, that by allowing an ad that promotes respect for all Jamaicans, regardless of sexual orientation, they would be supporting an illegal activity.

Today’s 100-page decision underscores the critical importance of AIDS-Free World’s upcoming constitutional challenge to Jamaica’s anti-sodomy law. Jamaica’s discriminatory laws are perpetuating a destructive and divisive culture of homophobia and are complicit in sustaining a public health crisis.

###


AIDS-Free World is an international advocacy organization working for more urgent and effective global responses to HIV and AIDS. www.aidsfreeworld.org
ENDS

Blow to gay ad - TVJ rejects J-FLAG’s PSA ....... J-FLAG says rejection of PSA unfortunate that ad/psa (not sure why they were used inter-changeably) was a second ad to a first which also had Mr Tomlinson therein, question is why was that ad discontinued when it was aired for some time?

Here is that very first ad in the tolerance ad thrust via Jamaica AIDS Support et al which I liked and which should have been worked to the core before ramping up the campaign which led to rejection


here was my two cents on the second video at the time with Christine Straw and her brother (see that video/ad below)



The Straws ad that was rejected in 2011


Was it bad timing or overkill in the various campaigns by Tomlinson who seems to want to have his own way versus JFLAG that seems to prefer a sluggish or slower pace for advocacy?

UPDATE November 19 letter to the Gleaner:

Gay Ad Ruling A Travesty

THE EDITOR, Sir:

The court rejection of Maurice Tomlinson's suit against three TV stations for not airing his public service announcement calling for tolerance of gay rights is not a "hallmark ruling for freedom of expression", as the attorney representing one of the defendant TV stations has said, but another hallmark ruling for property rights, and a sad reflection on the deep homophobia which afflicts not only the Jamaican people, but more so the Jamaican State.

No one has been under any illusion that corporate media represent the interests of the rich and powerful (the capitalist class, to be more precise) but now the court, by its ruling against the LGBT community, demonstrates that private property is the yoke of slavery around the necks of ordinary Jamaicans, not just LGBT.

So while PBCJ is supposedly public property, the managers also believe, like private media, that gays be damned because this is the position of private property.

Nearly two years after being elected prime minister, Portia Simpson Miller has done zero to advance the human rights and civil liberties of LGBT Jamaicans. She must be condemned as a coward.

This homophobic culture, which even so-called Justice Minister Mark Golding pays homage to on every occasion that he is called upon to act against it, is an indictment against a backward and ignorant ruling class.

No wonder the society is in the mess it finds itself.

LLOYD D'AGUILAR
Campaign for Social and
Economic Justice


I wonder if Mr D'Aguilar read the judgement and why has the original challenge in 2011 by AIDSFREEWORLD that Mr Tomlinson is employed stopped? see: The First-Ever Legal Challenge to Jamaica's Anti-Gay Laws

The judgement is now available



download HERE

UPDATE March 18.03.14 No costs Awarded to parties


The overall take on this is that the court will check to see the enrichment of the constitution as per case and awarding costs, what was disturbing though in a radio interview on RJR is that Mr Tomlinson denied when asked whether the expected appeal decision has been made to appeal the original decision yet the press release from AIDSFREEWORLD excerpted above is clear as to the action they and Mr Tomlinson had intended to take which once again speaks to clear honesty or lack thereof, his exact words were "The decision has not been made to appeal or to not appeal, no decision has been made on that point yet," although time is also passing as there is a 6 to 8 week limit following the ruling to file an appeal. Also bearing in mind his attorney Lord Anthony Gifford had indicated as well that an appeal was coming, who are we to trust in such sensitive matters?

The court said that cost awarded in these matters (one private citizen suing another in a constitutional matters) will be governed by the overarching principle of not discouraging the pursuit of constitutional claim irrespective of the number of private parties who oppose or seeking to support the state's posture in the litigation this is the first case in the new charter of which the enforcement of the bill of rights was attempted in horizontal litigation meaning that citizen to citizen; there is no doubt that a significant step has been taken in Jamaican constitutional law by this decision they also said this case could not be said that the claim was frivolous or had little chance of success and they concluded the claimant had not acted unreasonably and that the case raised important issues of law and how the constitutional law relates to individuals.   

Peace and tolerance

H

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