Tolerance Ad case Day 3 – Tomlinson v TVJ, CVM and PBCJ

In day three of the tolerance ad trial in the Supreme Court lawyers representing CVM TV said they have no obligation or duty to air an ad promoting tolerance towards homosexuals they also maintain that their refusal to air an ad did not breach the constitutional rights of gay rights advocate and lawyer Maurice Tomlinson the claimant in this matter. He is suing Television Jamaica, TVJ, CVM TV and PBCJ Public Broadcasting Commission of Jamaica. 

Hugh Small Queen's Council continued his point on the balancing exercise that of the rights of Mr Tomlinson versus those of his client CVM TV to which CMV has a right to freedom of expression, to editorial control to decide what it does and does not air and in what forms. He also referred to the report from the Joint Select Committee on the constitutional reform process that led to the enactment of the Charter of Rights. He noted that in several cases the Committee had used very clear language in indicating the changes that should be made to the constitution, and said this clear language was not used in the legislation. If so, he said, the arguments now being made (over issues like whether the Charter has horizontal application – that is, can be used by one private citizen to sue another for a breach of constitutional rights) would not be necessary.

He referred to a section of the report in which the South African constitution was discussed, as that constitution specifically provides for the role of the courts in developing the common law (law laid down in cases decided by the courts) and noted that the Joint Select Committee expressed the view that it is the prerogative of the legislature to develop the law. This attitude he linked with the outrage from regional governments over the Privy Council’s Pratt and Morgan decision, which held that after five years on death row, death sentences should be commuted to life in prison.

“So in effect we have two constitutional rights brought into competition under the same section of the Charter …if there are competing rights, can this Court make an order that explicitly (abrogates) CVM’s rights?” he asked adding that he could find no precedent for a Court making an order that would infringe the rights of one party.

Mr. Small also submitted that the use of the word “media” in the provision regarding the “right to seek, receive distribute, or disseminate information, opinions or ideas through any media” is not a reference to mass media. The word, he said, is being used as the plural of the word medium meaning any channel which an individual chooses to use, such as the internet.

He continued that the orders Mr Tomlinson is seeking by way of this trial cannot be granted if said orders may infringe on the rights of CVM TV, some concerns pinged to his posture were:

1) The ad could not have been aired as a public service announcement as it did not fit that criteria

2) Concerns about how the public might react based on what the station has since in terms of negative reactions to previously aired materials involving homosexual themes

3) It cannot be said that CVM TV is adverse to or a pre-existing prejudice in airing programs with homosexual themes or discussing similar issues when Mr Tomlinson himself has appeared in some of those programs

4) Ensuring that loss of revenue does not occur due to any backlash from airing materials that may be considered offensive by the public and or airing of content that might impact on said revenue

5) The station satisfies itself that the content to be aired is in keeping with values it holds

6) CVM TV has experiences adverse reactions to previous content aired that had homosexual themes

7) The video could be considered a covert attempt to promote homosexuality and related illegal acts namely buggery

8) The board had a concern that CVM TV maybe viewed as supporting or promoting certain illegal activities which was taken into account in making the decision not to air the video footage

One theme of the day’s proceedings was attorney’s explaining why their respective media houses refuse to carry the controversial ad, Queen Council, QC Donald Smith representing PBCJ said the PBCJ act did not create a right of freedom of expression his junior counsel Daverna Chambers submitted that PBCJ has a duty to disseminate not just ideas and information but ideas and information on matters of general public interest she said the video submitted by Mr Tomlinson is not one of general public interest then she went on to say that a matter of public interest would be a matter in which the public is interested such as the budget debate laughter broke out in the court room.

Justice Pusey suggest she stick with his previous example of boys and girls champs instead, Miss Chambers also pointed out the Public Broadcasting Commission of Jamaica, PBCJ does not have a commercial license, does not take paid advertising and will have no place for a thirty second video earlier CVM TV’s lead counsel Hugh Small had told the court the station was concerned about negative public reaction and also the video could be seen as promoting homosexual practices some of which are illegal in Jamaica. He also noted that CVM TV’s license requires them to operate in the state’s interest and this video could have disturbed the public his junior Jerome Spencer differed from Television Jamaica’s lawyers that the charter of rights does allow private individuals to sue private entities.

“I don’t know how the case for the Claimant proceeds after that, since it is an acknowledgement that PBCJ does not air paid advertisements,” he noted.

His submission was that the PBCJ Act which created the entity did not create any freedom of expression rights.

She referred to the functions of the PBCJ as mandated in the Act, namely that:

4 (2) Without prejudice to the generality of subsection (I), the Corporation shall provide public broadcasting services designed to promote

(a) the encouragement and propagation of positive values and attitudes within the society;

(b) the development of education and training;

(c) the dissemination of news, information and ideas on matters of general public interest;

(d) the vitality of democratic institutions;

(e) the protection of the environment;

V) the development of literary and artistic expression;

(g) the development of culture, human resources and sports;

(h) respect for fundamental rights and freedoms and the responsibilities of the individual to society;

She said that section 4 (2) (c ) has to be read in its entirety, emphasising the requirement that the material must be of general public interest.

She argued that the video did not fall into this category, which she said should be interpreted to mean matters that would interest the public “such as the budget debate.” Laughter broke out in the courtroom, which intensified when Justice Pusey suggested that she stick with his previous example of Champs as a matter in which the public is interested.

Justice Pusey also suggested to Miss Chambers that she re-phrase her submission, although he was actually suggesting a different position from that which she had taken.

“A better formulation of that might be to say that PBCJ has determined that its role is to deal with non-controversial issues” and that the station was “not the place for advocacy,” he said.

Miss Chambers said the video does not fall within the category of a Public Service Announcement, that it does not fall within any of the types of programmes that PBCJ is mandated to air.

“The Claimant concedes that this is not an ad, but it is 30 seconds (long). We don’t do fillers at PBCJ, so where would it fall?” she asked.

Solicitor General Nicole Foster Pusey started her submission and will continue tomorrow her presence is to assist the court via any research information and the legal positions on various issues, she plays no role in siding with any of the parties involved in the trial.

here is the video:

parts taken from Dionne Jackson Miller's blog report (who is employed to the RJR group, owners of TVJ a party in the suit)

more in a discussion on Nationwide radio on private citizens, platforms and constitutional challenges with Education Officer for JFLAG: