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The gay man taking Jamaican TV to the Supreme Court

The gay man taking Jamaican TV to the Supreme Court

Several months ago, I sent the three major Jamaican television stations (TVJ, CVM and the Public Broadcasting Corporation of Jamaica – PBCJ) a copy of a tolerance advert in which I appear.

The 30-second video called on Jamaicans to respect my human rights as a gay man and was recorded in light of a series of savage attacks against gay Jamaicans.

There was no expectation of being given free airtime, and neither did I want this. For commercial reasons, free ads are never aired during primetime.

However, it is precisely during this coveted timeslot when most Jamaicans who needed to hear a call for tolerance would be tuning in. I therefore made it abundantly clear to the stations that I intended to pay for a series of airings of the ad during primetime.

In this 30 second Love and Respect video I play a man visiting an aunt who asks me how I am doing. I reply (truthfully) that I am ‘still trying to get Jamaicans to respect my human rights as a gay man’. My aunt then tells me that she does not know why I am gay, but as a Jamaican she respects and loves me, and love is enough for all of us. We both hug, sit down, and the videos fades. That’s it. Nothing controversial, unless you find a discussion about love and respect deeply upsetting.

I therefore expected this to be a relatively easy decision for the stations to make. This is because we had substantially revised a previous tolerance ad we had submitted for airing and which the stations had rejected.

The rejected ad contained a line where a sister stated she was proud of her brother, regardless of his sexual orientation. However, the mention of the word ‘proud’ was apparently enough to get the ad censored: the view was that there was nothing to be proud of in being gay.

Late last year, I filed a constitutional claim against the TV stations for refusal to air the Love and Respect tolerance ad. I believe that the actions of the stations amounted to violations of my rights to freedom of expression as well as the new right to access the media. These rights are found in Jamaica’s Charter of Fundamental Rights and Freedoms that was passed in 2011. The case will be heard from 27 to 31 May in the Supreme Court of Jamaica and it will be the first domestic legal challenge to homophobic laws and practices in the country.

As expected, myths and misinformation are now swirling around the case. The deliberate mischaracterization of the case is, no doubt, being whipped up by the powerful and influential anti-gay lobby group in Jamaica. Such deceptive misstatements have a way of becoming self-perpetuating. So, I thought I would try to provide some clarity and context in advance of the court hearing.

The following are the relevant facts:

Firstly the Love and Respect ad (you can watch it below) is NOT promoting any illegal activity; it simply calls on Jamaicans to respect my human rights as a gay man. Jamaicans overwhelmingly respect the human rights of Rastafarians (Bob Marley is still wildly popular) even though smoking marijuana remains illegal.

Secondly, I am the claimant is the case which is being supported by AIDS-Free World.

Further, I am not saying that the stations had to air the ad, but rather that Jamaica’s new Charter of Rights and Freedoms requires that they should have acted reasonably. Since they did not do so (as explained below) I am asking the court to find that the stations violated my constitutional rights.

Finally, I am not asking for any financial compensation; neither am I seeking free airtime. All I want is for the stations to air the ad in exchange for their standard fees.

Jamaica’s new Charter of Fundamental Rights and Freedoms was passed after more than a decade of debate and deliberation. This new charter guarantees the right to freedom of expression, as well as the unique right to ‘seek, receive, distribute or disseminate information, opinions and ideas through any media’.

The only relevant limitation to the exercise of these rights is what is demonstrably justifiable in a free and democratic society. Further, all Jamaicans (including corporations) have a new constitutional responsibility to respect and uphold the rights of others found in the charter. This means that the TV stations had a duty to act reasonably in deciding whether to air or not air the ad. They could certainly refuse to air the advert, however, their refusal could not be discriminatory, arbitrary or unreasonable.

In making that assessment, the court ought to look at whether:

  • Fair and timely consideration was given to the request;
  • Reasons for the refusal were communicated to the individual, and
  • The grounds for the refusal were relevant and sufficient.

The fact is the stations were given months to respond to whether they would air the ad. They either did not reply or flatly refused to air. Those that did reply said they had to consider things such as the illegality of homosexuality (an irrelevant matter, as described above) and the views of the church.

Jamaica is a democracy, not a theocracy. Therefore, the views of the church are totally irrelevant to this issue.

There was also a statement that the stations feared physical and economic harm if they aired the ad. However at least two of these stations have aired extensive programs discussing the situation of Jamaica’s homosexual population. Finally, and perhaps most importantly, the island’s broadcasting regulator provided official confirmation that the ad does not violate any of the country’s broadcasting laws and regulations.

I want to repeat that I am not seeking any form of damages from the TV stations. I just want to be treated fairly in accessing the media. Individual prejudices should not be allowed to stymie Jamaica’s development as a free and democratic state where all views should freely contend.

Ironically, a conservative group in Jamaica published their own anti-gay ad on the International Day Against Homophobia and Transphobia with a caption that their freedom of expression was being curtailed! This is more than ironic; it is self-deception of the worst kind. Most damning is that this group and their allies are deluding and misinforming the country, while gay Jamaicans are denied equitable media time in order to set the record straight.

You can watch the Love and Respect ad here: