CONTEMPORARY PROSPECTS

A. South Africa and Kenya: A Concept in Search of Content

In chapter five of this book, I discussed the judgment of the South African Constitutional Court in Du Plessis v De Klerk, where the Court declined to apply constitutional rights horizontally in the absence of a specific enabling provision in the interim South African Constitution.

The final version of the South African Constitution added a specific enabling provision - section 8(2) - for the implementation of horizontal rights, which was challenged by various parties in the Certification Judgment and upheld by the Constitutional Court without significant comment.^[709] Section 8(2) stipulates that the Bill of Rights will be applicable to natural and juristic persons ‘if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right’.^[710] This, then, is an example of interpretive bounded horizontality: the qualifications expressed by the phrase ‘if, and to the extent that, it is applicable’ suggests that the Bill of Rights is not to be automatically applied to all private relations, but only to some. Furthermore, apart from nominal guidance (the nature of the right and the duty it imposes), section 8(2) leaves it up to the judiciary to evolve a theory, or set of principles, for horizontal rights application.^[711]

The observations of the Constitutional Court in Du Plessis suggest that, taking into account South African context and history, the institutional approach is a plausible candidate for a theory of section 8(2).

Thus far, however, in the few cases where section 8(2) has been invoked, the Constitutional Court of South Africa has avoided articulating a principled approach to horizontality.^[715] In Khumalo v Holomisa - which was a case of indi­rect horizontality, as it involved the question of whether the common law of defamation was constitutionally compliant - the Constitutional Court noted that:

given the intensity of the right in question coupled with the potential invasion of that right which could be occasioned by persons other than the state or organs of state, it is clear that the right to freedom of expression is of direct horizontal application in this case as contemplated by section 8(2) of the Constitution.^[716]

The first part of this formulation (‘intensity of the right’) does little more than rephrase section 8(2) (‘nature of the right’). The second part (‘potential inva­sion’) goes a little further by centring the rights bearer (which is also something that the institutional approach insists upon). However, as was seen in chapter two, it falls some way short of articulating a plausible theory for bounded hori­zontal rights application.

The Holomisa formulation has nevertheless become established wisdom over the years. In Juma Musjid, which involved a challenge to a decision by a private trust to evict what was a public school (on its premises), the Constitutional Court held that:

the purpose of section 8(2) of the Constitution is not to obstruct private autonomy or to impose on a private party the duties of the state in protecting the Bill of Rights. It is rather to require private parties not to interfere with or diminish the enjoyment of a right. (emphasis added)^[717]

The Court then went on to cite Holomisa. It should be noted, however, that much like the formulation in Holomisa itself, the formulation in Juma Musjid does not lay down any principle. The first part (‘obstruct private autonomy’) is not entirely correct, as any constitutional obligation or duty imposed upon a private party must, by its very nature, ‘obstruct’ private autonomy at least to some extent (as recognised in the Certification Judgment itself). The second part (‘duties of the state’) is self-evidently true, but does not take us much further in understanding when those duties are to be enforced against private parties. The third part (‘interfere with or diminish the enjoyment of a right’) is at best incom­plete without further articulation of what interference or diminishment entails. Furthermore, as a blanket statement that positive obligations could never apply to private parties, it is evidently too broad, and this position was subsequently negated by the Constitutional Court itself in Daniels v Scribante¹

In Juma Musjid, the Constitutional Court held that once the school was functioning on the premises of the private party, it had a negative obligation not to interfere with the learners’ right to basic education - which, in this case, entailed not evicting the school without following principles of due process. While one may agree or disagree with the outcome, it is clear that the Court - as in Holomisa - preferred to limit itself to abstract statements about the applica­bility of section 8(2) instead of developing a concrete account of its scope and limits.

In Daniels v Scribante, the question before the Constitutional Court was whether an occupier of farmland, under a sui generis statutory regime, was enti­tled to make improvements to her dwelling over the objections of the owner. Daniels v Scribante came to the Court in the context of a long history, through the apartheid years, of systemic racial discrimination that denied security of tenure to the Black majority. In considering the applicability of horizontal rights, the Constitutional Court added a few more sub-clauses to the Holomisa and Juma Musjid formulations. It noted:

Whether private persons will be bound depends on a number of factors. What is paramount includes: what is the nature of the right; what is the history behind the right; what does the right seek to achieve; how best can that be achieved; what is the ‘potential of invasion of that right by persons other than the state or organs of state’; and, would letting private persons off the net not negate the essential content of the right?^{[718] [719]}

Once again, however, no further explanation was forthcoming. The Court did draw a distinction, for the purposes of horizontal obligations, between the state, which is supposed to act for the good of society as a whole and is therefore funded by public money, and private parties, who are not subject to any equiva­lent duty. While that observation is correct, as it goes, it is also not very helpful. With respect to its formulation of the test under section 8(2), the Constitutional Court issued no further guidance on what kind of history (behind a right), or what it sought to achieve, would be relevant to the issue of horizontal applica­tion. In other words, the formulations in Khumalo, Juma Musjid and Daniels all serve as precursors to a principled account of section 8(2). They stipulate what the Court must take into account in determining the question of horizon- tality, but do not explain how those factors must be taken into account or what their precise relationship is with horizontality (questions that the institutional approach has answers to).^[720]

In his concurring opinion in Daniels, Froneman J gestured towards the institutional approach, in a manner similar to the opinions in Du Plessis.

More recently, in AB v Pridwin Preparatory School, the Constitutional Court considered the relationship between a private school and a learner whose parents had been asked to remove him from the school. Notwithstanding the existence of a contract between the private school and the learner's parents, the Court elected to apply the Constitution directly, albeit without detailed reasoning about the scope and limitations of horizontality under the Constitution.^[723] Importantly, however, the Constitutional Court noted the growing ‘power and significance of the independent school sector',^[724] which therefore required Pridwin to give due consideration to the best interests of the child, as required by section 28 of the South African Constitution.^[725] In the present case, that translated to adhering to principles of due process and natural justice before cancelling the parental contract with the learner's parents.^[726]

Finally, since Pridwin, the South African Constitutional Court has had two occasions to consider the scope of direct horizontality, in cases involving private bequests.

Interestingly, Victor AJ's testing of the will on the touchstone of the Equality Act bore traces of the institutional approach: she noted the contribution of the principle of freedom of testation to ‘entrenching systemic disadvantage'^[730] and ‘iniquitous gender-based hierarchies',^[731] especially in the ‘private sphere'.^[732] Indeed, it was this analysis that prompted Victor AJ to hold that the discrimina­tion at issue constituted a ‘system of preventing women from inheriting family property' (emphasis added), as required by the Equality Act - even though the specific challenge was to a single clause in a single will. We therefore have a classic example of an individual act having specific salience because of the insti­tutional, or systemic, relational context within which it is embedded. Thus, it is clear that Victor AJ's judgment marks an important advance in the direction of the institutional approach; however, as it did not command a majority and did not pertain specifically to theorising direct horizontality under the Constitution, it remains an incremental advance.

Furthermore, in Wilkinson v Crawford, which was at the same time as King v De Jager, the Constitutional Court had another opportunity to discuss the application of horizontal rights to private bequests, but declined to do so.^[733] Considering a trust that arguably excluded adopted children from inheritance, a closely divided Court ultimately decided the case on public policy and statutory interpretation grounds, and did not therefore address the issue of horizontality.

Thus, an overview of the (few) judgments on section 8(2) reveals the follow­ing points. First, in various judgments, South African judges have indicated that the purpose of horizontality is to tackle private, institutional power, which is to be understood in the historical context of South Africa; secondly, the Constitutional Court has not, however, developed a theory, or an account, of the private relationships to which section 8(2) should apply, or how it should be applied^[734] (although Victor AJ's concurrence in King gestures towards such a theory); and thirdly, a repeated concern appears to be the problem of opening the floodgates, or the numerous issues that will arise if private parties are indis­criminately subjected to obligations normally imposed upon the state (especially as the South African Constitution contains a range of socioeconomic rights).

It is here that the institutional approach, as developed in this book, can prove particularly helpful. Not only is it already implicit in the interpretive direct horizontality approach that the text of section 8(2) requires, and in the obser­vations alluded to above, but it also (as I have attempted to show) addresses concerns around separation of powers and the transformation of all private law into applied constitutional law. It remains to be seen, however, whether the Constitutional Court will take its observations in cases like Du Plessis, Pridwin and King and develop them into a principled interpretive account of section 8(2) that centres the role of institutions and institutional differences of power in applying constitutional rights horizontally.

The experience of Kenyan courts in grappling with direct horizontality under the 2010 Constitution reveals a similar trajectory and a set of similar issues. Under Kenya's old Constitution, which did not have a horizontality provi­sion, the position of law was that constitutional rights could not be applied against non-state parties.^[735] The Kenyan Constitution of 2010 makes a conscious and specific departure from this position. Recall that, other than the specific horizontality contemplated by section 45 (which I discussed in chapter seven), Article 20(1) of the 2010 Constitution stipulates that the Bill of Rights applies to all law, and binds all state organs and persons. While at first blush this might appear to endorse unbounded direct horizontality, as Brian Sang YK argues, Article 20(2), which guarantees to every person the enjoyment of fundamental rights ‘to the greatest extent consistent with the nature of the right',^[736] prescribes an ‘internal limitation' upon horizontal application.^[737] In any event, it is evident that the scheme of Article 20 vests significant power and discretion in the judiciary to determine the scope and limits of horizontality under the Kenyan Constitution.^[738]

A study of the judgments applying Article 20 of the 2010 Constitution ‘demon­strates an absence of conceptual clarity regarding when, how, and to what extent constitutional rights apply in private disputes',^[739] including a normative account of the same. In one of the earliest cases under the 2010 Constitution, Mwangi Stephen Mureithi v Hon’ble Daniel Toroitch Arap Moi, the High Court of Kenya^[740] noted two things: first, that the rationale of Article 20 was that ‘private individuals and bodies... wield great power over the individual citizenry',^[741] and that ‘it will not matter who the duty holder is, rather, what matters is who should enjoy the rights as enshrined in the Constitution'.^[742] However, the Court also held that claims for the application of horizontal rights would have to be examined on a case-by-case basis, because ‘horizontal application does not and should not cut across the board'.^[743] The Court thus made a beginning both by centring the rights bearer and noting that an analysis of power was integral to horizontal application, while also acknowledging that any account of horizon- tality would have to be bounded in character (ie only certain kinds of power would attract horizontal rights scrutiny). At the same time, the Court demon­strated the continuing pull of default verticality by noting that horizontality was not the rule but the exception, even though the text of Article 20(2) itself (unlike its South African counterpart) does not indicate that horizontality is meant to be subordinate to verticality.^[744]

Therefore, while the High Court in Mureithi gestured towards some elements of the institutional approach, it did not parse out those elements in greater detail. Subsequent cases, like their South African counterparts, have also failed to build on this proto-formulation of the institutional approach. Consider the High Court's jurisprudence. The Court has pointed out, for instance, that ‘the nature and extent of a particular right may be limited in scope to apply to the state and not a private individual';^[745] that ‘not every ill in society should attract a constitutional sanction. such sanctions should be reserved for appropriate and really serious occasions'^[746] (in a defamation case); and ‘the Constitution cannot be used as a substitute where there are other remedies available in law’.^[747] This last bit of reasoning has also served as a general basis for when horizontal rights might apply: that is, when, in the opinion of the Court, private law does not provide an adequate remedy for the constitutional rights violation.^[748]

It should be obvious, however, that looking to the existence of a remedy in order to determine the application of constitutional rights horizontally risks putting the cart before the horse. Questions about the threshold application of horizontal rights, as well as their scope and limitations (and any balancing between private parties’ rights), must be resolved before the question of what remedies exist in private law. This is also because - as pointed out in chapter three, during the discussion of Ireland’s constitutional tort doctrine - a seeming gap in private law might well be the result of a conscious legislative choice not to impose obligations upon a private party in a particular context.^[749] In any event, therefore, the threshold question of when horizontal rights ought to apply, inde­pendent of the landscape of private law, cannot be avoided.

A good example of this is the judgment in Rose Wangui Mambo v Limuru Country Club^[750] This case involved a challenge to a change in the by-laws of a private golf club that excluded women from holding executive positions. After recapitulating the legal position (as summarised above), the High Court reiter­ated that horizontal application ‘is not an open cheque and whether and to what extent the Court will exercise jurisdiction will be informed by the circumstances of each individual case’.^[751] With respect to the case at hand, the Court gestured towards the historical exclusion of women from economic, social, cultural and political spheres as a result of ‘discriminatory practices... laws, policies and regulations... presenting itself as a manifestation of historically unequal power relations between men and women in Kenyan society’ (emphasis added).^[752] On that basis, the Court ruled that the Constitution’s anti-discrimination provisions (under Article 27) would apply to both the public and the private domains.^[753] Private clubs, therefore, ‘are bound by the Constitution in the same way as any other legal person’.^[754]

As in Mureithi, in Rose Wangui Mambo there is an intuitive articulation of the underlying basis for applying constitutional rights horizontally, without a full normative explication of the principles that are meant to guide the courts. The High Court elected to stick to the ‘case by case’ formulation that originated with Mureithi. In the present case, this also meant that the Court did not deal in any great detail with the issue of how to balance the club’s countervailing rights (an issue that, as evidenced in chapter three, particularly needs something like the institutional approach). It noted only that while clubs were ordinarily permitted to discriminate with respect to their membership, the facts in this case did not involve any questions of membership: women could be members of the golf club, but they were prohibited from holding executive positions (ie positions with decision-making power). It is, however, unclear why the prin­ciple of private autonomy should apply with any lesser force to the framing of internal club rules than it does to the question of membership. Indeed, when we think of bodies such as clubs, it is important to remember that membership is often a sign of social status and that, historically, discriminatory member­ship criteria have been used to reinforce and entrench existing structures of power on racial, gender and class lines. Thus, if anything, there is greater reason for courts to override private club rules on membership than on the question of internal club hierarchies. Thus, as in the case of restrictive covenants, the institutional approach provides powerful reasons why formally ‘private’ clubs should, in certain circumstances, be subjected to constitutional obligations of non-discrimination. The institutional approach takes seriously the entrenching/ reinforcing role that clubs have played, as discussed above.

An overview of the jurisprudence around direct horizontality under the Kenyan Constitutions reveals, therefore, that, like in South Africa, there exists an undercurrent of the institutional approach that informs judicial decisions on occasion, but that courts remain hesitant to articulate a normative account of horizontality that could be applied with principled consistency across cases. Needless to say, however, without a normative account, the application of horizontality will remain partial at best, and opens up courts to allegations of selective and inconsistent enforcement.^[755] Thus, in both South Africa and Kenya, bounded horizontality is explicitly provided for in the Constitution, is litigated before the courts and is the subject of a growing body of contemporary case law, but remains in search of its normative foundations. The burden of this book has been to provide one plausible candidate to fill in that normative gap: the insti­tutional approach.

B. Tomlinson’s Case and the Potential of the Institutional Approach

In October 2020, the Jamaican Court of Appeal handed down its judgment in Maurice Tomlinson v TVJ and Ors.^[756] The facts of the case were as follows. Mr Tomlinson, a gay man, wanted two of the most prominent Jamaican television stations (TVJ and CVM) to air a public service announcement/advertisement^[757] calling for equal rights for Jamaica’s LGBT community. TVJ declined to respond and CVM declined his request. Mr Tomlinson then approached the court, arguing that his rights to the freedom of speech and to the dissemination of information, guaranteed by sections 13(3)(c) and (d) of the Jamaican Charter of Fundamental Rights and Freedoms, had been infringed. In order to affix constitutional obligations upon commercial - and therefore private - television stations, Mr Tomlinson further relied upon section 13(5) of the Charter, which, following the South African Constitution, states that ‘a provision of this chapter binds natural or juristic persons if, and to the extent that, it is applicable, taking account of the nature of the right and the nature of any duty imposed by the right’.^[758] In essence, therefore, Mr Tomlinson’s claim was that, via section 13(5), the (traditionally) vertical right of the freedom of speech and expression should be applied horizontally between him and the television stations that had refused to air his advertisement.

The first set of proceedings took place in the highest first-instance court of Jamaica, the Supreme Court^[759] (Full Court), which found against Mr Tomlinson. Before the Full Court, Mr Tomlinson argued that the issue required a ‘balancing’ between the editorial and journalistic freedom enjoyed by TVJ and CVM on the one hand, and his right to access broadcast media and the public’s right to be informed on matters of public interest on the other. ‘In light of the dominance of the media’,^[760] he argued, the issue ought to be resolved by imposing ‘an obli­gation on broadcasters to broadcast what reasonable private citizens desire to disseminate’.^[761] Meanwhile, TVJ and CVM argued that the law ‘did not create a right to use a person’s private property to disseminate one’s message’,^[762] and that the principles of the freedom of contract empowered them to ‘decline or accept any advertisement or part thereof’.^[763]

The judges of the Full Court framed the issue as one requiring a balance between the rights of the private parties under the Charter’s horizontal rights clause. A declaration in favour of Mr Tomlinson would have ‘prejudiced the rights and freedoms’ of TVJ and CVM, and therefore could not have been within the contemplation of the drafters of the Jamaican Charter.^[764] One of the judges, Sykes J, noted in addition that the wording of section 13(5) appeared to indicate that ‘a Charter right may not apply to a private citizen at all or if it does then it may not apply to the same extent as it would to the state’.^[765] He also engaged in a ‘transplant analysis’, noting that if the government was not obli­gated to provide a forum to everyone who wished to speak, then it was difficult to argue that private citizens were subjected to more stringent obligations.^[766]

Mr Tomlinson carried the case to the Court of Appeal. Before the Court of Appeal, he argued that the Full Court, when deciding on the application of horizontal rights, had failed to consider situations where ‘private bodies that are akin to the state in both power and influence can use their position to restrict the rights and freedoms of individual members of the society’, and that in this specific case the ‘unequal power relations’ between Mr Tomlinson and the televi­sion channels had not been examined.^[767] Indeed, in this context, ‘the influence, power and position of the respondents were such that they had the ability to unduly interfere with the free speech of a wide cross-section of the Jamaican population’.^[768] This was because

distribution or dissemination of ideas or opinions... would not be possible without access to the media... for an individual, therefore, to effectively access these avenues for expression and to disseminate information, the person who controls the access must be required to not deny access arbitrarily, discriminatorily or unreasonably. (emphasis added)^[769]

Relying extensively upon South African precedent, the Court of Appeal began by noting that, unlike the vertical application of rights, horizontality under the Charter was conditional. In other words, it required the Court to first determine whether a particular Charter right was applicable horizontally, and if so, given the circumstances, to what extent.^[770] In such a situation, the Court held that the test of proportionality, which is ordinarily applicable in the vertical domain, would have to be modified to apply to rights inter se between private parties. The Court borrowed the test from Lord Steyn’s House of Lord’s opinion in Re (S): A Child,^[771] and held that ‘the rights of each party are qualified according to the weight of the rights in a particular context’.^[772] Thus, in the present case, the Court of Appeal then framed the issue as follows:

Whether given the equal nature of the rights as between the parties, the respondents in not airing the advertisement, in effect, limited or restricted Mr Tomlinson‘s rights? In other words, whether there was, in fact and in law, an attempt by the respondents to control the message or the meaning Mr Tomlinson wished to have conveyed?^[773] Having framed the question thus, the Court of Appeal answered it in the nega­tive. The reason for this was that ‘the respondents also have the same rights as Mr Tomlinson - the right to freedom of expression as well as the right to disseminate information, opinions and ideas. These rights are equal in content and in nature.’^[774] Consequently, according to the Court of Appeal,

one must query why Mr Tomlinson should be permitted to force the respondents, who have no government association, to permit him to use their television stations to carry his message to the public, or to encourage members of the public to listen to his ideas. (emphasis added)^[775]

Furthermore, in the present case, the TV stations had opted not to air the public service announcement on the basis that they perceived its content might be viewed as a breach of law or lead to a breach of peace. The Court of Appeal held that this did not constitute arbitrary discrimination or an abuse of commercial institutional strength.

A close reading of the judgment in Tomlinson highlights almost all the issues that I have discussed in this book. Mr Tomlinson began by framing his argument in straightforward state action terms, seeking to equate big private TV stations with the state (see chapter two). As I have shown, however, this approach is very constrained in character. In due course, Mr Tomlinson’s own arguments took a more nuanced and subtle form, focusing, among other things, on the TV stations’ ability to impact his rights (see chapter two); the relational context, ie the impossibility of getting your voice heard in modern society without access to the infrastructure of speech, which is controlled by private parties (see chap­ter three); and the difference in power between the parties because of the TV stations’ ‘commercial institutional strength’ (see chapter five). Thus, although Mr Tomlinson did not articulate the institutional approach in all the detail that has been elaborated in this book, elements of it featured prominently in his arguments.

The Court’s judgment, on the other hand, was a textbook example of the ‘transplant method’, which has been critiqued earlier (see chapter three). On no less than seven occasions through the course of the judgment, the Court noted that the question involved the interaction between the ‘equal rights’ of Mr Tomlinson and the TV stations. Thus, even while applying the Jamaican Charter’s horizontal rights provisions, the Court of Appeal continued to be bound to the assumptions of default verticality: in particular, individual respon­sibility and abstract freedom. It treated Mr Tomlinson and the TV stations as formally equal parties, equally free in shaping the terms of their relationship with each other. Once the Court had framed the issue thus, the conclusion was foregone: on a balancing between the ‘equal rights’ of Mr Tomlinson to free speech (on the one hand) and the TV stations’ to freedom of contract and edito­rial freedom - ie freedom of speech as well - on the other, it was the latter that would prevail. Tellingly, the Court relied extensively on judgments from jurisdic­tions that did not have horizontal rights provisions to substantiate its conclusion that Mr Tomlinson could not ‘require’ a private TV channel to make a certain, specific use of its property, ie carrying a particular message.

In short, therefore, the Court of Appeal’s analysis was based on the following assumptions, all of which have been critiqued in this book: (i) that vertical rights remain the ‘default’ mode of constitutional rights application, with horizontal application serving as a limited exception; (ii) when one private party invokes the Constitution’s horizontal rights provisions against another, the appropriate interpretive framework requires the Court to ask, first, whether the putative duty bearer has any ‘governmental association’; (iii) if the answer to (ii) is no, then the Court ought to treat the two parties as formally equal, and balance their respective rights accordingly; and (iv) the balancing process entails weighing up the relative intensity of the rights against each other, and involves a modified application of the proportionality standard, the goal of which is to ensure that neither party’s rights are nullified; it does not, however, require the Court to take into account the relational context within which the parties themselves operate, or their relative power vis-a-vis each other.

How might the institutional approach have differed in its examination and adjudication of this case? To begin with, recall that the institutional approach places the rights bearer at the centre of its analysis. Thus, the insti­tutional approach would have taken seriously the contention that by denying Mr Tomlinson airtime, the TV stations had a non-trivial impact upon his rights. This seems to be straightforwardly true: in modern society, the ability to communicate one’s thoughts, views or beliefs to an audience is often, if not always, conditioned by one’s access to the instruments of mass media.

The institutional approach would have then asked: what gives these TV stations the ability to impact Mr Tomlinson‘s rights? The answer is, clearly, their control, through property rights, over the ‘infrastructure of expression’.^[776] In the Court of Appeal, this was a point in favour of the TV stations: ie the Court framed the issue as requiring a private entity to use their private prop­erty, against their will, for a particular purpose. For the institutional approach, however, proprietary control over the means of communication is the locus of the difference in power between the rights bearer and the duty bearer.

The third - and in this case, perhaps the most difficult - question that the institutional approach would need to ask is about the institution itself: while we have established that there is a difference in power between Mr Tomlinson and the TV stations that enables the latter to infringe the rights of the former, does there exist an institution, in the sense that this book has discussed? Here, I would give a tentative and exploratory answer: the institution is that of mass media.^[777] Mass media is comprehensive, in the sense that its existence, in contemporary society, is ubiquitous and pervasive. The role of mass media in the process of ‘socialisation’, in shaping ‘values and rules of behaviour’^[778] and in ‘defining the “appropriate” cultural boundaries around such factors as gender, race, and class’^[779] (particularly relevant in the Tomlinson case) is also well documented. This makes effective ‘exit’ impossible, even for those who make individual deci­sions not to consume the said mass media.^[780] Lastly, despite the more recent rise of social media, it is important to note that in several jurisdictions, social media usage remains relatively limited, and there is no (as yet) perceptible decline in the institutional influence of mass media.^[781] In other words, it is probably not yet the case that social media serves as an effective substitute for mass media, at least as far as questions of socialisation go.

At first blush, therefore, the requirements of the institutional approach are fulfilled in the Tomlinson case: the existence of an institution (the mass media) and the ability of institutionally powerful actors (ie large private televi­sion stations, in the context of a political economy where the infrastructure of communication is largely privatised) to violate the rights of other individuals. The power of the television stations, of course, would be juxtaposed against the relative power of the speaker: Mr Tomlinson, being a private citizen, represents a particularly stark example of institutional difference in power. Needless to say, the enquiry is contextual in another way as well: it would depend on the (continuing) dominant position of mass media in a particular jurisdiction, and the fact that in that jurisdiction the ownership of mass media (to a non-trivial extent) is in private hands. If, in the context of Jamaica, those (empirically veri­fiable) conditions were fulfilled, Mr Tomlinson would have a strong horizontal rights claim against the two TV stations.

As a brief aside, interestingly, this is not the first time that a judicial body has made such an argument: in De Geillustreerde Pers NV v The Netherlands, the European Human Rights Commission indicated that the state’s failure to ‘protect against excessive press concentrations’^[782] might implicate the freedom of expression rights under Article 10 of the European Convention on Human Rights. However, as the case itself did not involve a challenge to excessive media concentration, the Commission did not take this line of thought further.

Back to the Tomlinson case: it is important to note that the above argument would not, of course, be dispositive of the issue. As discussed in chapter five, the institutional approach does not argue that the rights of the institutionally more powerful party are to be discounted entirely. Rather, in cases where there is a clash, the balancing exercise requires factoring institutional power into the analysis (which the Court of Appeal refused to do). Thus, the institutional approach would not require a court to find that private TV broadcasters are always obligated to air advertisements or PSAs that are sent to them;^[783] or that, all things considered, that the TV stations in the present case were obligated to air Mr Tomlinson‘s advertisement/PSA. A court might still find, even on apply­ing the institutional approach, that the TV stations’ rights outweigh those of Mr Tomlinson.

As indicated above, however, the TV stations’ institutional power, and the violation of Mr Tomlinson’s rights, would provide strong reasons for a finding in his favour. In particular, the institutional approach would find particularly persuasive the following arguments articulated by Mr Tomlinson: that ‘the unpopular but important views promoted by Mr Tomlinson’s advertisement are given fair consideration to secure expression in the media with the largest impact’ (emphasis added);^[784] and that, in view of private broadcasters’ commitment to maximising profit, ‘it would be naive to expect the majority of broadcasters to produce the variety and controversial material necessary to reflect a full spectrum of viewpoints’ (emphasis added).^[785] Indeed, the rights at issue are directly linked to the role that the institution of mass media plays as a social institution: inso­far as it reflects dominant cultural values, the shutting out of Mr Tomlinson’s message - which sought to use the infrastructure of communication to challenge those dominant values - would attract the private TV channels’ horizontal obli­gations to an even greater extent. In the vertical context, two of the justifications underlying a strong free speech right are the role of free speech in sustaining democracy and the equal right of every person to use communication to shape their moral and cultural environment. It is easy to see how, in the specific case of Mr Tomlinson and the nature of his message, the institutional approach would find good reasons, all things considered, to apply the right horizontally against the private TV stations.

Furthermore, and as a related point, consider the situation if it was found that the TV stations had refused to air Mr Tomlinson‘s advertisement/PSA because of its unpopular content (ie advocating for the tolerance of same-sex relationships), and specifically because it was deemed to go against majoritarian views regarding matters of personal identity and decisional autonomy. In that case, Mr Tomlinson's claim would rest upon both the right to free speech and the right to non-discrimination, and would, under the institutional approach, be likely to prevail. Indeed, the logic is somewhat similar to the logic of the restric­tive covenant cases: just like the issue in those cases was not the specific denial of a house to a person but institutional discrimination creating, in essence, a system of private zoning, the issue in the Tomlinson case is, essentially, insti­tutional exclusion of a certain set of anti-majoritarian viewpoints, enabled by private TV stations' control over the infrastructure of expression. It also, as pointed out by Mr Tomlinson, involves a conflict between the profit imperative and the necessity of reflecting ‘a full spectrum of viewpoints'.

The Tomlinson case, which is one of the most recent instances where a Constitutional Court has been asked to apply horizontal rights directly, is thus a fascinating case study with which to conclude this book. The case itself is a ‘hard case', where it is prima facie difficult to pinpoint why two private TV stations should be obligated to air Mr Tomlinson's advertisement/PSA; or, in other words, why Mr Tomlinson's free speech rights should prevail over the freedom of contract and the TV stations' rights to property and editorial judgment. The Court of Appeal's analysis suffers from the reflexive adherence to the principles of default verticality, which, as I have tried to argue, continue to constrain the development and evolution of a principled and independent approach towards bounded horizontality. The institutional approach, on the other hand, provides us with a grammar through which we can articulate our intuitions regarding the power differences between large TV stations and individuals seeking a platform to be able to communicate minority or unpopular views, in the context of a contemporary reality where communication without the mass media, and its control over the infrastructure of expression, remains chimerical. In particu­lar, it helps us to move past the absence of governmental association, and the absence of an identifiable monopoly, by focusing on the rights bearer, and their institutionally mediated relationship with the putative private duty bearers.

As with the Tomlinson case, the institutional approach would provide a helpful framework for thinking through a number of contemporary controver­sies involving freedom of speech and formally private parties. A full analysis is beyond the scope of this book, but it is possible to flag some of the issues for future study. For example, when social media companies with wide reach (which makes them equivalent to mass media in the digital sphere) decide to ban individuals (including prominent politicians) from their platforms, the analysis would not be concluded by simply stating that a private company has an abso­lute right to enforce its terms and conditions as it sees fit. Rather, in cases where the scale and reach of the company grants it the institutional power that I have discussed in this book, it would amount to a prima facie infringement of the horizontally applicable right to free speech. Two responses might follow. First, it could be argued that for certain people, who wield considerable institutional power in their own right, ready access to alternate forms of communication already exists. Thus, there is no institutional difference in power that justifies applying the rights framework. However, even if this were not the case, the infringement could be justified by the platform by showing that the individual in question had, for instance, engaged in hate speech.

Similarly, we can consider a case like Lee v Ashers Baking Company^[786] through the lens of the institutional approach. In Lee v Ashers, a private baking company (Ashers) refused the request of an individual (Lee) to bake a cake with a message promoting same-sex marriage. The baking company claimed that the message would violate their religious beliefs. The Supreme Court of the United Kingdom found in favour of Ashers, and overturned lower court rulings in favour of Lee. The primary reasons for the Supreme Court’s holding were, first, that Lee had not been discriminated against ‘on the ground of’ his sexual orientation, as the baking company’s objection was to the specific message that it had been asked to print on the cake, regardless of Lee’s sexuality; and secondly, that the baking company could not be compelled to express a particular political belief.

The institutional approach, on the other hand, would consider this approach towards discrimination to be much too narrow. For the institutional approach, the issue would be less about the bakers’ intention behind refusing to write ‘support gay marriage’ on a cake and more about (as in Tomlinson) a contextual enquiry into the use of private institutional power to reinforce existing insti­tutional discrimination, as in restrictive covenanting cases. The institutional approach would ask, in particular, whether in Northern Ireland there was an institutional history of treating LGBTQ+ people as second-class citizens. It would ask whether and how denial of service was both constitutive and reflective of that discrimination (here again, the similarities with restrictive covenanting and, indeed, the Indian Supreme Court’s judgment in the temple entry case are striking). It would ask whether that institutional discrimination still existed to an extent where there was a reasonable likelihood that Ashers’s behaviour would be more the norm than the exception, and thus contribute to entrenching stigma against Lee, regardless of whether he was able to find an alternative. As Sandra Fredman puts the point, in cases of this kind, what is ‘relevant is the extent to which such behaviour reinforces existing dominant structures and demands conformity to a dominant norm’ (emphasis added).^[787]

This is not to say, of course, that the final ruling would be necessarily differ­ent. The balancing of rights would still need to be undertaken. However, the institutional approach would bring a vital additional element to the judicial analysis (for example, Fredman argues that a court would consider the issues described above as part of the proportionality test when it balances competing rights^[788]). This, I suggest, would help to place the relationship between the two private parties, and the alleged rights violation, within their broader, institu­tional context.

IV