Cable and Wireless (Dominica) Ltd v Marpin Telecoms and Broadcasting Company Ltd

JurisdictionUK Non-devolved
JudgeLord Cooke of Thorndon
Judgment Date30 October 2000
Judgment citation (vLex)[2000] UKPC J1030-1
CourtPrivy Council
Docket NumberAppeal No. 15 of 2000
Date30 October 2000
Cable and Wireless (Dominica) Limited
Appellant
and
Marpin Telecoms and Broadcasting Company Limited
Respondent

[2000] UKPC J1030-1

Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Steyn

Lord Cooke of Thorndon

Lord Clyde

Lord Hobhouse of Woodborough

Appeal No. 15 of 2000

Privy Council

1

[Delivered by Lord Cooke of Thorndon]

2

The issue in this appeal is whether an exclusive licence to provide national and international telecommunication services in, to and from the Commonwealth of Dominica infringes that country's constitutional guarantee of freedom of communication.

3

The appellant, Cable and Wireless Dominica Limited (CWD), holds an exclusive licence to provide such services. The licence does not extend to broadcasting. It is for a term of 25 years and was granted by the Minister under the Telecommunications Act 1995, enacted on 26th April 1995. Although the licence was not issued until shortly after the Act came into force, namely on 29th April 1995, both the licence and the Act itself implemented heads of agreement between the Government and Cable and Wireless (West Indies) Limited (CWWI), dated 23rd March 1995.

4

CWWI had provided the international telecommunication service for Dominica since about 1929 and the internal service since about 1967. Since September 1985 it had held an exclusive 20 year licence covering both national and international services. The Government had no shares in CWWI. A main purpose of the heads of agreement in 1995 was to enable the Government to become the holder of 20 per cent of the shares in the new company, CWD, to be formed to take over the services. The Government was also entitled to royalties, and the capital for its shares was to be found by a cash advance to be repaid out of future royalties.

5

The respondent Marpin Telecoms and Broadcasting Limited (Marpin), formerly Marpin TV Company Limited, began cable television operations in Dominica in 1983. Currently it holds a licence issued by the Minister on 1st March 1996 under the Act of 1995 and authorising it to install, maintain and operate a television station and related telecommunication services. These operations evidently do not compete with those of CWD. Marpin wishes to compete with CWD, however, in the provision of public telecommunication services, particularly at the present stage mobile telephone services and e-mail and internet services offering international communications.

6

In early 1996 CWD was advised by the Minister that Marpin's licence entitled Marpin to provide internet services utilising CWD's network. In January 1997 CWD entered into an internet service provider (ISP) agreement with Marpin whereby Marpin acquired access to the internet via leased lines and terminating equipment supplied by CWD; toll free 1-800 numbers were allotted by CWD, enabling the customers to have internet access. But in March 1998 Marpin gave notice to CWD that it would be terminating the ISP agreement. Instead of using the leased circuits, Marpin used VSAT (very small aperture terminal earth station). This enabled traffic to be sent to orbiting satellites and relayed to receiving earth stations in other countries for onward transmission, and vice versa. Thus Marpin was able to bypass a major part of the CWD network, ceasing in that respect to be a reseller of CWD's network services. In retaliation CWD withdrew the 1-800 numbers.

7

By notice of motion dated 20th October 1998 Marpin sought declaratory and other relief under section 16 of the Constitution. CWD was named as the first respondent, the Attorney-General of Dominica as the second respondent. The proceedings challenge the validity of the Act and the licence, insofar as the Act authorises and the licence grants the exclusive licence issued to CWD; yet the Attorney- General has taken no active part in the proceedings and was not represented before their Lordships' Board. A suggested reason is put forward in the case for CWD, wherein it is said that the litigation has substantial implications for other jurisdictions in the Caribbean and beyond. "In many cases', it is alleged, "it may be of immediate financial benefit to governments, as well as to potential competitor companies, for such countries to be relieved of their existing licence obligation to the incumbent company (because government thereby acquires an unlooked-for power to grant competitive licences)." To this it should be added that another factor may well be the increasing international recognition of the desirability of fair competition in the telecommunications field, sometimes after initial phases of monopoly.

8

The present policy or motivation of the Government of Dominica is not a matter which on this appeal their Lordships either need or could investigate. They are concerned solely with the effect of the Act of 1995 and the exclusive licence in the light of the relevant provisions of the Constitution. Nor does the appeal turn on any narrow questions of the detailed wording of the Act or the licence. Accordingly it is unnecessary for their Lordships to reproduce the wording at any length, as was helpfully done in the judgments below. Some particular terms of the licence require quotation later, but at this point it is sufficient to say that the general effect of the Act and the licence, assuming the validity of both, is clearly to confer on CWD an extensive monopoly in telephonic and other telecommunication services in Dominica for 25 years.

9

Marpin's constitutional motion was heard by Cenac J. in the High Court of Justice over eight days in March 1999. In a judgment delivered on 29th April 1999 the judge granted the application. He made declarations that, in short, the exclusivity conferred by CWD's licence of 29th April 1995 was in contravention of section 10(1) of the Constitution, and accordingly invalid; and likewise that section 7(1) of the Act, to the extent that the Minister is prohibited from issuing a licence to any person other than CWD, is in contravention of section 10(1) of the Constitution, and accordingly invalid. He also ordered that Marpin's costs be paid by the Attorney-General. On the constitutional issue CWD appealed from that judgment. Marpin cross-appealed on the costs question. The case came before the Eastern Caribbean Court of Appeal (Singh and Redhead JJ.A. and Matthew Ag. J.A.) on three days in September 1999. By a judgment delivered by Redhead J.A. on 8th November 1999, the Court of Appeal dismissed the appeal, agreeing substantially with Cenac J. on the constitutional question, but allowed the cross- appeal, ordering that CWD pay Marpin's costs in both courts. CWD now appeals by special leave granted by the Judicial Committee.

10

The Constitutional Provisions

11

Section I of the Constitution provides:-

"1. Whereas every person in Dominica is entitled to the fundamental rights and freedoms, that is to say, the right, whatever his race, place of origins, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely -

(a) life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, of expression and of assembly and association; and

(c) protection for the privacy of his home and other property and from deprivation of property without compensation, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest."

12

The concept of freedom of expression is enlarged as well as enshrined in section 10 of the Constitution:-

"10.(I) Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health;

(b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television; or

(c) that imposes restrictions upon public officers that are reasonably required for the proper performance of their functions, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society."

13

Hindrance

14

The Constitution thus treats freedom of expression as including freedom to receive and communicate ideas and information without interference. Except with his own consent, a person is not to be hindered in the enjoyment of this freedom. The first question in the present case is accordingly, under section 10(1), whether Marpin's freedom to communicate ideas and information through telecommunications is hindered by CWD's monopoly. To that question their Lordships...

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