EDITORIAL - Media, freedom and Maurice Tomlinson

THERE IS an important recent ruling in Jamaica's Constitutional Court that is as yet to get significant attention, but is in need of serious analysis by the Jamaican media and the wider society.

The case to which we refer is the one that was brought by Maurice Tomlinson, the gay-rights activist who had claimed that his fundamental right to freedom of expression was infringed by three domestic television stations - Television Jamaica (TVJ); CVM TV; and the government's Public Broadcasting Corporation of Jamaica - which had failed to air his advertisement promoting tolerance of homosexuals.

Mr Tomlinson lost the argument.

The court, rightfully in our view, held that the media had, with Mr Tomlinson, an equal right to freedom of expression, including the right to refuse an editorial advertisement in exercising their journalistic discretion.

Therefore, as Justice Paulette Williams observed, the declaration requested by Mr Tomlinson against the television stations "could only be accomplished by prejudicing their rights and freedoms".

But what gives this newspaper pause, and reinforces our view that this ruling needs to be closely studied for its implications, especially by broadcast media, for they pursue their public-interest obligations, are the observations by Justice Bryan Sykes.

Justice Sykes rejected Mr Tomlinson's claim of an infringement of his constitutional rights.

For Mr Tomlinson to have had a chance of success, the judge seems to suggest he would have had to show that the stations, having been granted the right to use public resources - the frequencies on which they broadcast - they failed to fulfil the public-interest obligation of their licences by not at all airing, or "fully and fairly reflecting" the various viewpoints on the subject, assuming it's a matter of public interest.

While fair coverage of a public issue did not require broadcasters to place a microphone in the hand of all who wish to speak or air advertisement, the judge suggested that a broadcaster's public-service obligation was not dependent on a specific clause to that effect in its operating licence.

He said: "Even if there was no public-interest clause (in the operating licences of TVJ and CVM), the fact that they were granted the privilege to use public property meant that they have an obligation to act in the public interest by providing full and fair coverage to public issues."

These observations are important in the context of another critical ruling by the court: its declaration of the right of private individuals, under Section 13 (5) of the new Charter of Fundamental Rights and Freedoms of the island's Constitution, to see to enforce those rights against infringement by another private individual.

Usually, it is the State against which citizens claim for infringement of constitutional rights, but the court held that the Charter allows the so-called horizontal application of the law, as opposed to its mere vertical use in seeking redress against the State.

Said Justice Sykes: "By any analysis, the legislators have used words that make it plain that one private citizen can seek to enforce any right being infringed by another private citizen. For the first time in Jamaica's constitutional history, we now have explicit horizontal application of fundamental human rights."

Jamaica's media have little to fear with respect to the integrity of their operations, but there are many frivolous people, and potential litigants, abroad.

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