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

by Dionne Jackson Miller

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.

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 www.freedigitalphotos.net

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:

airing a paid advertisement with public interest content can be described as a public function;
the broadcasting licences which the state granted to the companies place an obligation on them to operate in the public interest;

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;

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;”

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,

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.”

ENDS

NB: Miss Jackson is employed to the the TVJ or RJR Communications group.

Here is the video:

Like its predecessor the quality of the video in my eyes would not qualify to be run on a television station, also see Big Blow to JFLAG ad from August 2011

Here is an older audio/podcast I had done that time as well:

here is the older ad which was far better in production value.

Here is the second problematic ad with the "High Coloured" folks who many LGBTians rejected as spokespersons supposedly on our behalf.

You decide

Meanwhile AIDSFREEWORLD cries fowl but why are they taking on this and where is JFLAG are some of the questions being asked as this unexpected ball from left field now comes, some say it's a diversion from the homeless msms issues, I tend to agree as the men are still out on the streets despite a recent media interview saying a shelter will be open. 

AFW claims the following:

Crippling homophobia drives gay Jamaicans underground, away from HIV prevention, treatment, care, and support interventions. It also prevents the government from properly targeting HIV services to the population most at risk. This contributes to a vastly disproportionate HIV prevalence among Jamaican men who have sex with men (MSM) of 32.9% as against 1.6% in the general population. An effective way to end homophobia is to provide positive images of Jamaican MSM in national media. AIDS-Free World therefore produced an advertisement aimed at increasing tolerance for Jamaican MSM, however the two major television stations have effectively refused to air it. By supporting this case AIDS-Free World will demonstrate how to respond creatively to debilitating homophobia and help to end the stigmatization and discrimination against gays which contribute to the HIV epidemic.

see more HERE

I say BULLSHIT if JFLAG, Jamaica AIDS Support through its GLABCOM(gay, lesbian, bisexual community) programs and others were doing their work over the 14+ years on the ground, listening to the various committees set up that dealt with among other things homelessness and providing leadership we would not be here today, Mr Tomlinson was once a board member of Jamaica AIDS Support for Life the once leading private entity reaching MSMs and others now it has been relegated to a mere struggling NGO hobbling behind the ministry of health's HIV programs as funded by Global Fund while he attached himself to foreign groups, MSMs are also now being reached by some four other non LGBT agencies I might add with HIV prevention as part of their outreach yet AFW continues to use old programmatic narratives to make itself relevant when the legal advisor himself does not reside here nor is he in actual touch which these said marginalized men on whose behalf of which he so eloquently writes and speaks. 

This is NOT the first time we have seen Mr Tomlinson using old programmatic language to try to justify things, this newcast on CVM TV in August of the eviction of the homeless men from Cargill Ave had condoms displayed by the movers at 1:06 yet in a subsequent interview on the same station after he said gay men do not have access to condoms, so how did these men get condoms eh?
check this podcast for more:

Hypocrisy here folks and "activists" as it were filling the vaccuum left by a sadly gullible LGBT community who may not speak out directly on issues and who fall for hero worship of narcissistic individuals.

also see from last year: Jamaicans weigh in on rejection of gay ad ......

In the previous ad fiasco unsolicited advise was given from an expert from the Caribbean Institute of media and Communication, CARIMAC 

in the form of Dr Livingston White and also a representative from Women's Media Watch, see Settle the Score on CVM TV's Live @ 7 (26.08.11)...the JFLAG ad campaign

Also hear my commentary on recent disturbing displacements etc:

Peace and tolerance

H

LGBT History Month: Allies & Friends Posthumous Recognition 2012

Remembering an ally Shawn or Sean Macfarlane who was taken from us in questionable circumstances, here is the Gleaner article that carried the story:

Former House Orderly Killed

THIRTY-EIGHT-year-old Sean Anthony McFarlane, a former orderly and records clerk in the Houses of Parliament, was brutally slain recently.

McFarlane, who spent some 13 years working in the legislature, was severely chopped all over his body at his home in Greater Portmore.

The Gleaner has learnt that the former parliamentary records clerk was apparently killed by persons known to him. However, the Constabulary Communication Network (CCN) was unable to confirm this.

Reports from the CCN are that residents in the community heard loud noises coming from McFarlane's home on October 3 last month.

According to the CCN, two men were reportedly seen running towards a white Honda Civic motor car and sped off.

McFarlane's body was found in his house with multiple chop wounds.

The Gleaner has been informed that at least three teenagers have been held in connection with McFarlane's killing, but the police could not confirm this yesterday.

A senior parliamentarian told The Gleaner yesterday that he was aware of the killing of the former parliamentary worker.

He, however, pointed out that the House did not acknowledge his untimely passing during its sitting because the tradition was for tributes to be paid only to former parliamentarians.

The legislator indicated that condolences had been made by the staff of Parliament to McFarlane's family.

ENDS

He contributed in his own way during his life to the community though indiretly but importantly non the less as a key ally in the Parliment's library he was instrumental in providing us and directing us to hansard notes on key bills.

Older bills laid on the house floor and which were hard to come by in days gone by long before there was a parliamentary website and even then the public had to wait inordinate periods to see key public materials, Shawn was always ready to assist my requests and that of other organizations who wanted to have vital debates and white/green papers sometimes that were tabled on our house floor. He was key in gathering the notes on the Sexual Offences Bills when they were debated and amended and also the problematic Charter of Rights Bills and associated hansard notes especially the presentation by Hyacinth  Bennett at the time.

He was also a loyal friend although he laid low and out of sight to avoid being labelled as gay seeing he was married with two beautiful children.

Another unsung hero and one who served though quietly but importantly.

Peace and tolerance

H

Current Legal Cases Challenging the Criminalisation of Homosexuality Supported by the Human Dignity Trust

Belize: A Constitutional Challenge to the Laws Criminalizing Homosexuality in Belize

The Trust is involved in proceedings brought in Belize by Mr Caleb Orozco. At a regional consultation convened by the Caribbean Vulnerable Communities Coalition (CVC) in Montego Bay, Jamaica 28 August 2011 under the PANCAP Global Fund Project, leaders from more than 20 Caribbean organisations representing the LGBT community and other human rights entities unanimously voted to support their Belizean counterparts in the legal challenge.

The Trust is appearing as an interested party in the proceedings, along with the Commonwealth Lawyers Association (“CLA”) and the International Commission of Jurists (“ICJ”) and is providing submissions focusing on international and comparative law. Each organisation is appearing as an interested party with the consent of Mr Orozco, UNIBAM, and their legal representatives. The Trust, the CLA and the ICJ are represented pro bono by Godfrey Smith, the former Attorney General of Belize, Lord Goldsmith QC, as well as Lord Goldsmith’s firm and one of the Human Dignity Trust’s legal panel members, Debevoise Plimpton LLP, Tim Otty QC (Chairman of the Trust) and Allison Jernow (Senior Legal Advisor at ICJ).

Northern Cyprus: Petition before the European Court of Human Rights (ECtHR)

The Trust has lodged a case before the European Court of Human Rights on behalf of an anonymous applicant supported by the local LGBTI organisation, Queer Cyprus (formerlyHomofobiye Karsi Inisiyatif (Initiative Against Homophobia)). The Trust is working with a Northern Cypriot lawyer, Oncel Polili, and is supported by Taylor Wessing from our Legal Panel. Nigel Pleming QC (39 Essex Street) and Tom Mountford (Blackstone Chambers) are counsel. Jonathan Cooper, the Human Dignity Trust's chief executive, was interviewed about this case on BBC Radio 4's Today Programme on Monday, 6th February. Read press release here

Jamaica: Petition before the Inter-American Commission on Human Rights (IACHR)

The Trust has lodged a petition on behalf of Jamaica Forum for Lesbians, All Sexuals and Gays (J-FLAG) and Mr Gareth Henry (a founder member of J-FLAG) before the IACHR in order to seek (without limitation) a declaration from the Commission to the effect that the maintenance and enforcement of certain laws by Jamaica in relation to private consensual sexual conduct by adult males breach Jamaica’s obligations under international law, and specifically under the American Convention on Human Rights and the American Declaration on the Rights and Duties of Man, and that Jamaica has otherwise failed in its duty to protect the rights and well-being of its homosexual citizens, in violation of those obligations.

The Trust is providing support to the petitioners. Edward Fitzgerald QC and Douglas Mendes SC are counsel. Litigation support is being provided by Freshfields Bruckhaus Deringer LLP, a member of the Trust’s legal panel.

There is also a meeting scheduled in London as per invitation:

Please join the Human Dignity Trust for a drinks reception, kindly hosted by Doughty Street Chambers, which will be an opportunity to meet LBGT rights campaigners from Jamaica.

The Human Dignity Trust, as lawyers for two petitioners (Gareth Henry and human rights group J-FLAG), has brought a case before the IACHR in Washington which argues that the very existence of anti-homosexuality laws in Jamaica leads to persecution based on sexual orientation.

Please come and show your support.

Venue

Doughty Street Chambers, 54 Doughty Street, London WC1N 2LS
www.doughtystreet.co.uk/about_chambers/contact_us/location_map.cfm

Time

6:00pm – 8:00pm, Wednesday, 17th October 2012

Please RSVP to Chris Atkinson  administrator@humandignitytrust.org