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TV stations face lawsuit from gay community

Published:Tuesday | May 28, 2013 | 12:00 AM

Barbara Gayle, Justice Coordinator

Jamaica's first gay-rights case alleging constitutional breaches against two television stations arising from their alleged refusal to air an advertisement promoting tolerance for homosexuals began yesterday in the Constitutional Court.

Maurice Tomlinson, an attorney-at-law and gay-rights activist, has brought the suit against Television Jamaica, CVM TV and the government-owned Public Broadcasting Corporation of Jamaica.

Tomlinson is seeking constitutional redress and damages against the defendants.

Lord Anthony Gifford, Queen's Counsel, argued that Tomlinson's right to freedom of speech was breached when the advertisements were not aired. He said Tomlinson was seeking a declaration that the defendants' refusal to air a paid advertisement promoting tolerance for homosexuals in Jamaica and which was not in violation of any of Jamaica's broadcasting acts and regulations amounted to a breach of his constitutional right to freedom of speech as guaranteed by Section 13 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendments) Act 2011.

Tomlinson is asking the court to rule that the charter guarantees him freedom of speech and also protects a more specific right to free speech in the media by giving him the right to distribute or disseminate information, opinions and ideas through any media, including television.

private entities obligated

Gifford argued that the charter placed an obligation on private entities such as the television stations to uphold and respect the claimant's rights. He submitted further that the airing of a paid advertisement with public interest content could be fairly described as a public function.

He said the broadcasting licences placed an obligation on them to operate their television stations in the public interest.

The court is being asked to rule that "it is in the public interest that men who have sex with men and homosexuals such as the claimant were free to receive and distribute information about themselves so that there could be greater societal understanding of the cases and appropriate responses to homosexuality to combat the deleterious impact of homophobia, especially in the national HIV respect".

Gifford said free speech guarantees were not only enforced against the Government but also against private media owners since they and not the Government had effective control of mass communication.

Tomlinson had submitted the advertisement for broadcast in 2012 but it was not aired.

The defendants are opposing Tomlinson's claim and their lawyers will make submissions during the course of this week.

The motion is being heard by Justice Paulette Williams, Justice Bryan Sykes and Justice Leighton Pusey.