TVJ wins court battle against gay activist

Maurice Tomlinson, an LGBT activist, yesterday declared that Jamaicans will not receive justice until the “archaic” anti-sodomy law has been repealed.

This after the Court of Appeal has dismissed a case brought by Tomlinson over Television Jamaica’s refusal to air a 30-second advertisement which had been produced as part of an advocacy campaign to encourage tolerance for “men who have sex with men and homosexuals in Jamaica”.

Television Jamaica is a part of the RJRGLEANER Communications Group to which The Gleaner Company (Media) Limited also belongs.

Chief justice Bryan Sykes had already ruled in favour of TVJ when the matter was first brought to the court by Tomlinson.

Tomlinson’s claim is that the refusal by TVJ and CVM to air this video violated his right to freedom of speech and his right to distribute or disseminate information, opinions and ideas through any media, as guaranteed by section 13(3)(c) and (d) of the Charter of Fundamental Rights and Freedoms.

TVJ’s rights

However, the Court of Appeal, in a unanimous decision, and reported in a judgment largely written by Justice Hilary Phillips, stated that while the rights guaranteed by the Charter are capable of horizontal application, it cannot he held that the failure or refusal to broadcast the advertisement was unjustifiable in the light of the TVJ’s own constitutional rights to refuse to air the video.

“[TVJ had] the right of journalistic and contractual freedom within the context of their broadcasting licence and legislative restrictions,” the judgment stated.

Justice Hilary Phillips commented in the judgment that “the parties had engaged in a matter through the courts involving uncharted waters, and that is noteworthy as it aids in the development of the jurisprudence of the country, and in respect of which they should be commended.”

The HIV Legal Network in a statement commenting on the outcome said it was disappointed by the judgment as it was still reviewing the full decision.

“In this case, after years of litigation, justice for LGBT people has been both delayed and now denied outright,” the statement said.

Tomlinson is to pay 60 per cent of TVJ’s cost of the appeal.

The horizontal application concept means private individuals are now capable of being bound by the Charter.