On 30 October 2020, the Jamaican Court of Appeal handed down its long awaited judgment in the case of Tomlinson v TVJ and CVM. Tomlinson, a gay Jamaican man, argued that his right to freedom of expression was infringed when Jamaica’s two major and privately-owned television stations refused to air his paid advertisement calling for citizens to respect the human rights of LGBTI people. Sexual orientation is not a protected category in Jamaica’s Charter of Rights and therefore Tomlinson had little scope for bringing a discrimination claim. In a 104-page judgment issued almost seven years after the first instance decision, the Court of Appeal agreed with the lower court, and found that the television stations’ refusal to air the advertisement did not breach Tomlinson’s rights.
One of the issues on appeal was whether the Charter allowed for horizontal application in Tomlinson’s case. The Jamaican Charter of Rights is one of the few in the world (along with that of South Africa) which expressly allows for horizontal application. Under section 13(5) of the Charter, an aggrieved citizen may bring a constitutional claim against a private entity, but only if the nature of the right and the duty it imposes make it desirable for that private company to be held liable.
Section 13(5) recognizes that it is not only the state that is capable of abuse of power but also private entities exercising control and influence over the way ordinary people live their lives. In modern societies private entities wield socio-economic power that is equal to, and sometimes greater than, that exercised by the state. Private companies, and especially those who control platforms that millions of people rely on to exercise their free speech, should therefore have comparable state obligations to not hinder an individual’s free speech on unjustifiable grounds. Free speech’s importance to democracy makes the imposition of comparable obligations an imperative.
While the Court of Appeal recognized that the Charter binds private entities, it unfortunately failed to apply section 13(5)’s rationale to its assessment of Mr. Tomlinson’s contentions. The court reasoned that both parties had rights that were protected by the Charter and to find for Mr. Tomlinson would mean infringing the television stations’ rights to editorial freedom. In light of section 13(5)’s underlying rationale, this reasoning does not withstand scrutiny.
While courts must balance the competing rights of the parties, Tomlinson’s case was not concerned with balancing the competing interests of two equally situated parties, but that of a David and two Goliaths. Tomlinson not only had less socio-economic power than the television stations, but he is also a member of the marginalized, and in many cases, criminalized, LGBTI community. The balance must therefore swing in favour of David.
The Court of Appeal found that the right to freedom of expression does not include the right to use another’s platform to broadcast your views. However, the court failed to give due regard to a societal context in which Jamaicans can only access the free-to-air television platform by going through the two television stations in question. The stations are therefore able to dictate both who gets access to, and what is broadcast on local television. Further, the more a private entity opens its property to the public for its own advantage, the more its proprietary interests become circumscribed by the constitutional rights of others. It is only fair to expect these companies to exercise their proprietary rights in a manner that is not arbitrary, unreasonable, or discriminatory.
The television stations invoked the criminalized status of consensual same-sex sexual activity, and the threats of homophobic violence, to “justify” their refusal to air Tomlinson’s ad. However, airing an ad promoting respectful treatment for LGBTI people ought not be controversial (regardless of the antiquated and discriminatory criminal laws which remain on the books). Pandering to the views of homophobic viewers at the expense of promoting respect for a stigmatized group is clearly unjustified discrimination.
Powerful private companies controlling platforms, which people use to exercise their free speech or other rights, must be subjected to greater regulation to prevent what happened to Tomlinson. The Jamaican courts missed the opportunity to use 13(5) to give Tomlinson an available remedy.