Attorneys for Jamaican television stations argued on May 28 and 29 that their clients had the right to reject an ad promoting tolerance of gay people in Jamaica.
The TV stations are defending themselves against a lawsuit by activist attorney Maurice Tomlinson, legal advisor for the international advocacy organization AIDS-Free World, who took them to court for rejecting the 30-second ad titled “Love and Respect.” (Click on the image below to see the ad.)
The defendants are Television Jamaica (TVJ), Public Broadcasting Corporation (PBCJ) and CVM TV.
The latest proceedings in the Jamaican Supreme Court are described in the following excerpts from blog posts by TVJ employee Dionne Jackson Miller.
(Click on the image above to watch the 30-second ad “Love and Respect.”)
TVJ is arguing that Mr. Tomlinson lacks standing, and that the case is not properly before the court and should not proceed. TVJ cites his own statement that:
“…as legal advisor to Marginalised Groups for the International NGO Aids Free World he has been working with JFLAG and other Caribbean LGBT groups to document abuse and other acts of violence against Caribbean Men who have Sex with Men (MSM) in an attempt to advocate for changes to homophobic laws and policies across the region.”
[TVJ’s lead attorney Georgia Gibson-Henlin] submitted that the Claimant is a what is known as a “poser” and a “tool.”
Mr. Tomlinson conceded that the ad was created as part of this campaign to change law and policy, and there was no harm to him resulting from the refusal to air the ad, she argued.
“He created the situation which gave rise to the claim. There was no threatened harm. The Claimant suffered no harm, and is being used as a tool by AIDS Free World, which has no standing and has suffered no harm in Jamaica.”
Is the ad a form of expression that is protected under the Charter? [the Jamaican Charter of Rights and Fundamental Freedoms]
Mrs. Gibson-Henlin said that not all forms of expression are protected. If a form of expression incited violence or promoted an illegal activity it would not be protected, for example.
She argued that where tolerance campaigns had been attempted before, there had been violence as a result.
Does the Charter compel TVJ to carry Mr. Tomlinson’s message?
Mrs. Gibson-Henlin argued that the Charter does not give the claimant the right to force TVJ to carry his message.
She relied here on a case called Gay Alliance Towards Equality v Vancouver Sun, where a homosexual group had alleged that a newspaper refused to publish an advertisement. The Canadian Supreme Court held that:
“(the newspaper) reserved to itself the right to revise, edit, classify, or reject any advertisement submitted to it for publication…a newspaper also has the right to refuse to publish material which runs contrary to the views which it expresses. A newspaper published by a religious organisation does not have to publish an advertisement advocating atheistic doctrine.”
Mr. Small [CVM’s lead counsel Hugh Small, QC] pointed out that CVM makes money from advertising revenue and that if the station airs content that is offensive, this could impact revenue.
“CVM has aired programmes in which homosexuals have been given a chance to air their views, it can’t be said that there is a pre-existing prejudice, the claimant himself has been interviewed on the station and participated in a programme on the station,” he told the court.
He made the following additional points:
- CVM has experienced negative audience reaction to such programmes;
- CVM did not carry the video as a Public Service Announcement (PSA) as it did not meet the necessary criteria, that is, being a message carried free of charge in the public interest; [Editor’s note: Tomlinson asked that “Love and Respect” appear as a paid ad.]
- A PSA could have been construed as support for homosexual activities, some of which (buggery) remain illegal in Jamaica. He made a distinction between an ad such as that which was offered, and a discussion or interview programme in which there can be an exchange of views);
- There was concern that the video could have been considered a covert attempt to encourage homosexuality;
- The CVM board was influenced by the consideration that the pubic assumes that men who have sex with men engage in buggery, and that the ad therefore could reasonably have been construed as encouraging a criminal offence;
- Legal advice had indicated that the CVM had a constitutional and common law right to decide with whom it would contract;
- Clause 6 of CVM’s license requires it to operate in the public interest, and the Board was of the view that the ad could provoke widespread public discontent. …
For much more information about the events in court so far, see these blog posts by Dionne Jackson Miller:
- Highlights – Day 1 – Maurice Tomlinson v TVJ, CVM and PBCJ
- Highlights – Day 2 – Maurice Tomlinson v TVJ, CVM and PBCJ
- Highlights – Day 3 – Tomlinson v TVJ, CVM and PBCJ
Background on the claim
In the first day of the proceedings, Lord Anthony Gifford, lead counsel for Tomlinson, said the video was dignified and restrained. He said that only a very intolerant person would take exception to it.
Tomlinson is seeking:
- a declaration that refusing to air an ad promoting tolerance for homosexuals breached his constitution rights to freedom of expression and freedom to distribute or disseminate information, opinions, or ideas through any media;
- order for TVJ and CVM to air the ad in exchange for the standard fees;
- Jamaican lawsuit seeks OK for gay respect TV ad (76crimes.com)
- Jamaican TV stations due in court for nixing LGBT ad (76crimes.com)
- Censorship of Gay PSA on Jamaican TV Goes to Supreme Court (oblogdeeoblogda.me)
- Jamaica TV must not ban gay adverts, Supreme Court hears (Gay Star News)
- Jamaica bans movie with lesbian scenes featuring Dominican actress (dominicanewsonline.com)
- Anti-gay law bars father from son’s spelling bee in Belize (76crimes.com)