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Jamaica Constitutional Challenge: The Struggle for Gay Rights vs. The TV Networks

May 27, 2013

Read the latest press release about the Jamaica TV Challenge here.

About the Jamaica TV Challenge:

The historic case challenging Jamaican TV stations for censoring hay Jamaicans has begun.  Due to its landmark importance, it will be heard over 5 days from May 27-31 before a full panel of 3 judges. The major private stations in the country, TVJ and CVM, as well as the island’s public broadcaster, the Public Broadcasting Corporation of Jamaica, all refused to air an ad produced by AIDS-Free World that calls for respecting the human rights of LGBT Jamaicans. The ad and the case form part of our five-year engagement in the Caribbean to eliminate debilitating homophobia.  This homophobia is driving gay Jamaicans underground and contributing to a vastly disproportionate HIV prevalence rate of 32.9% among men who have sex with men (MSM) as opposed to 1.8% in the general population.

Our legal advisor, Maurice Tomlinson, is a Jamaican and appears in the video.  He is the claimant in this matter and is being represented by Lord Anthony Gifford, Q.C. as well as AIDS-Free World’s Legal Analyst, Anika Gray. Lord Gifford is a British lawyer who now lives and practices in Jamaica.  He was also counsel on the landmark case in Northern Ireland that led to the repeal of that country’s anti-sodomy law. 

In this case, Maurice is seeking a declaration that the TV stations violated his constitutional right to freedom of expression, as well as the new constitutional guarantee to legitimate access to the media.  As this is a constitutional claim, the country’s Attorney-General will also be represented at the trial.

A lot is riding on this trial.  Among other things, it is the first constitutional challenge to Jamaica’s systemic homophobia. The case will also address the extent of Jamaicans’ right to freedom of expression as well as the limits to editorial freedom granted to broadcasters on the island.

The outcome of this matter will also have very far-reaching implications for the enforcement of rights against private citizens.  For the purpose of the Constitution, corporations — in this instance, the TV stations — are considered private citizens.   In 2011 Jamaica introduced a new Charter of Fundamental Rights and Freedoms which, among other things, significantly enhanced citizens’ rights to freedom of expression.  The Charter also created a novel right to media access.  It also mentioned for the first time that private citizens (ie. the TV stations), and not just the state, are bound to respect constitutional rights.

This case will also address the evolution of the media’s role in ensuring democratic governance in Jamaica.  The media has long been determined to be critical to the effective functioning of a free and democratic society.  This fact was confirmed in a 2010 report of the Office of the Special Rapporteur for Freedom of Expression in the Inter-American Commission on Human Rights.  This document, “Inter-American Framework Regarding the Right to Freedom of Expression” makes it clear that the right to media access is central to preserving democracy in the Americas. 

Coverage of the case is expected to be intense and the decision will create significant legal precedent: it will be scrutinized by media practitioners and international legal scholars for some time to come.  The trial will also clarify the extent to which Jamaicans who are marginalized can access the media to address negative and debilitating stereotypes, which often drive them underground and help to spread the HIV pandemic.  For example, the oddly named Jamaica Coalition for a Healthy Society (JCHS) published full-page anti-gay ads in the nation’s major daily on the occasion of the International Day Against Homophobia on May 17, 2013.  The ad was repeated in a major Jamaican tabloid on May 24, 2013.  This is the latest in a series of attacks on gays where data from the Lancet medical journal has been misused to vilify homosexuals and assert that homosexuality is the cause of HIV among men who have sex with men (MSM).

Arguments and Rebuttals:

Many arguments have been marshaled by the TV stations for this case. In brief outline, along with our rebuttals, they are primarily as follows:

1) The Constitution cannot be applied against private citizens.  For the purposes of the Constitution corporations like the TV stations are treated as private citizens. The TV stations are therefore arguing that they are exempt from constitutional review.

As mentioned above, the revised Charter contains a new clause, which explicitly states that private individuals have a responsibility to uphold the rights and freedoms of others.  The Attorney-General’s written submission in the case confirms that this new constitutional provision was deliberately meant to require private citizens to respect the rights and freedoms of others.   Further, the stations carry out a quasi-governmental role that has been delegated to them by the government of Jamaica through licences.  These operating licences grant the stations powerful rights and responsibilities with regard to safeguarding freedom of expression of Jamaicans.

2) Maurice is a resident of Canada. Therefore, to apply Jamaican constitutional protections to him would be to illegally extend the constitution’s application internationally.

Maurice is a resident but not a citizen of Canada. Maurice’s only citizenship is Jamaican and he therefore has every right to be protected by the constitution of Jamaica.  Further, it was threats of homophobic violence that forced Maurice to temporarily flee Jamaica.  It is therefore disingenuous for the stations to argue that Maurice has no right to seek to advocate for a greater recognition of his rights by citizens of his homeland.

3) Maurice works with an international NGO and he is a being “used” to push a “foreign” agenda of acceptance for gay Jamaicans.

To claim that because Maurice works with AIDS-Free World he has no legitimacy to speak against homophobia in Jamaica is spurious at best.  Many successful Jamaican organizations have international connections, including most of the island’s churches.  Maurice’s collaboration with AIDS-Free World has been driven by a domestic agenda.  For nearly two decades, Maurice has been associated with the LGBT and HIV and AIDS movement in Jamaica and the Caribbean.  This was a result of his personal experience that homophobia is driving Jamaican MSM underground, away from effective HIV prevention, treatment, care and support interventions. Jamaica’s Minister of Health has also called for greater tolerance of gay Jamaicans in order to combat the country’s HIV epidemic. Therefore, Maurice’s appearance in this ad is not at all “foreign” in nature, and in fact fits with a national strategy of seeking greater tolerance for Jamaican LGBT.

4) Homosexuality is illegal and by airing the ad the stations would be aiding and abetting an illegal act.

While certain acts associated with homosexuality are illegal in Jamaica, the mere fact of being homosexual is not. Therefore, advocating for respect of the rights of gay Jamaicans is not supporting an illegal activity. 

5) Jamaican broadcasters must have editorial freedom to decide what to air, otherwise their right to freedom of expression will be infringed. 

There was never an attempt made in this case to deny the right of broadcasters to select appropriate programmes for airing.  Jamaica’s broadcasting regulator, the Broadcasting Commission of Jamaica, even provided written confirmation that the ad does not breach any of the country’s broadcasting laws and regulations.  The new Charter requires that in making a determination about whether to air ads the stations must act in accordance with what is ‘demonstrably justified in a free and democratic society.’   This phrase is taken from the Canadian Charter of Rights and Freedoms and that Charter provision has been interpreted to mean that in making a decision to deny someone a right, such as the right to access the media, the TV stations must act reasonably.  In this case, we will argue that the TV stations have based theirs decision on unreasonable considerations. 

6) The Public Broadcasting Corporation of Jamaica (PBCJ) is not legally allowed to accept payment to air ads.

There was no attempt to suggest a rate of payment to PBCJ in exchange for airing the ad.  There was simply a request made of the station to air the video, and if so, at what rate?  The station could have easily advised that they are not allowed to charge, in which case they would air the ad for free.  At the same time, PBCJ’s licence does require the broadcaster to give effect to the rights of vulnerable groups, which includes Jamaican homosexuals. 

7) Forcing the stations to air the ad would breach their right to freedom of association, as they would then be forced to associate with homosexuals. 

There is no attempt to force the stations to associate with homosexuals like Maurice. They are simply being asked to give effect to Maurice’s constitutional rights to freedom of expression and to access to the media.  However, if the stations wanted to ensure that their viewers understood that this ad is not one they support, they could simply add a disclaimer before or after each airing.  This is regularly done in the case of political ads.

8) Airing the ad will cause financial harm to the broadcasters and so they are justified in not airing it.

The two private stations have admitted to airing extended programmes which explored the issue of homosexuality in Jamaica.  These programmes have featured the head of the major LGBT organization in Jamaica, J-FLAG, as well as other LGBT activists.  In fact, J-FLAG’s Executive Director appeared on one such programme within the last 3 weeks and Maurice himself has appeared on both stations to discuss the human rights of gay Jamaicans.  It is therefore untenable to claim that the airing of a 30 second video will lead to serious financial and physical harm to the stations. 

Television is by far the most powerful broadcast medium in Jamaica. Therefore, any attempt to change the hearts and minds of the vast majority of Jamaicans who self-identified as homophobic in a recent study sponsored by AIDS-Free World, must include access to the airwaves.  The airwaves are also a finite resource, which is heavily regulated by the government of Jamaica.  Holders of broadcast licences therefore have a greater responsibility to respect and uphold the right to freedom of expression of Jamaicans, especially as is the case with the 2 private stations that hold a virtual duopoly on television transmissions in the island. 

AIDS-Free World very much hopes that the learned judges in this case will see the overwhelming public interest in requiring the TV stations to air the tolerance ad at their usual advertising rates. 



Read some of our past articles about this case here: