Laws on Mass Media
Q & A
Submitted
by Jose Parcon
For PUP
Office of Legal Aid
Q: To what does the term “mass media” refer
to?
A: Mass media
refers to the print medium of communication which includes all newspapers,
periodicals, magazines, journals, publications, and all advertising therein,
billboards, neon signs and the like, and the broadcast medium of communication,
which includes radio and television broadcasting in all their aspects and all
other cinematographic or radio promotions and advertising. (P.D. No. 1018, Sec.
1).
Q: What are the sources of laws on the
Philippine mass media?
A: The sources
of laws pertaining to mass media are the following:
1.
The 1987 Constitution;
2.
The Revised Penal Code, particularly – Crimes
Against National Security and Public Order, Libel, Offenses Against Decency and
Good Customs;
3.
The Civil Code;
4.
Special laws enacted by Congress such as the Shield Law (R. A. 1477) – An Act to
Exempt Members of the Media from Revealing the Source of Published News or
Information Obtained in Confidence;
5.
Jurisprudence laid down by the Supreme Court.
Q: What is the basic policy of the State
concerning mass media?
A: Under the 1987
Constitution, the Philippines recognizes the vital role of mass media in
nation-building. (Art. II, Sec. 24, 1987 Consti.)
Q: What forms of correspondence and
communication enjoys the constitutional right to privacy?
A: It covers
letters, messages, telephone calls, telegrams, and the like.
Q: When is intrusion into the privacy of
communication and correspondence allowed?
A: It is allowed
“upon lawful order of the court,” or when public safety or order requires
otherwise as prescribed by law.
Q: Under the 1987 Constitution, what do
“speech,” “expression,” and “press” include?
A: Speech,
expression, and press include every form of expression, whether oral, written,
tape or disc recorded. It also includes movies as well as what is referred to
as symbolic speech such as wearing of an armband as a symbol of protest.
Peaceful picketing has also been included within the meaning of speech.
Q: What is the first prohibition of the free
speech and press clause?
A: The first
prohibition of the constitutional provision is a prohibition of prior
restraint. Prior restraint means official government restriction on the press
or other forms of expression in advance of actual publication or dissemination.
Its most blatant form is a system of licensing administered by an executive
officer.
Movie censorship
although not placed on the same level as press censorship, also belongs to this
type of prior restraint.
Q: Is the prohibition of prior restraint
absolute?
A: No. Although
any system of prior restraint comes to court bearing a heavy presumption
against its unconstitutionality, there are exceptions to the rule:
1)
When a nation is at war – many things that might
be said in time of peace are such a hindrance to a country’s effort of
protecting the lives of men and women in the battlefield;
2)
On grounds of decency against obscene
publications;
3)
To protect national security against incitements
to acts of violence and the overthrow by force of orderly government.
Q: Does the Comelec’s power, under Art.
IX-C, Section 4 of 1987 Consti., to regulate time in broadcast media and space
in the papers violate freedom of expression?
A: No. The
effect of the provision is to create “an exception to
freedom-of-speech-and-press clause on account of consideration more paramount
for the general welfare and public interest, which exceptions after all would
operate only during limited periods, that is, during the duration of the
election campaign. (UNIDO v. Comelec,
National Press Club v. Comelec).
Q: Is the prohibition on posting of decals
and stickers of candidates on mobile places (public or private) valid?
A. The
prohibition is invalid for infringing freedom of speech. (Adiong v. Comelec)
Q: In the exercise of its authority to
regulate the holders of media franchises during the election period, the
Comelec banned “exit polls.” Valid?
A: Exit polls,
i.e., random polling of voters as they come out of the booths, and the
dissemination of their results through mass media constitute an essential part
of the freedom of speech and of the press. Hence, the Comelec cannot ban them
totally in the guise of promoting clean, honest, orderly and credible
elections. The ban does not satisfy clear and present danger rule because the
evils envisioned are merely speculative.
(ABS-CBN v. Comelec)
Q: Section 1 of R.A. 9006, the Fair Election
Act, says: “Surveys affecting national candidates shall not be published
fifteen (15) days before an election and surveys affecting local candidates
shall not be published seven (7) days before an election.” Valid?
A: As prior
restraint, the rule is presumed to be invalid. The power of the Comelec over
media franchises is limited to ensuring “equal opportunity, time, space and the
right to reply” as well as to reasonable rates of charges for the use of media
facilities for “public information and forums among candidates.” Here the
prohibition of speech is direct, absolute and substantial. Nor does the rule
pass the O’Brien test for content related regulation because (1) it suppresses
one type of expression while allowing other types such as editorials, etc. and
(2) the restriction is greater than what is needed to protect government
interest because the interest can be protected by narrower restriction such as
subsequent punishment. (SWS v. Comelec)
Q: Since movie and TV censorship is a form
of prior restraint, how can it escape unconstitutionality?
A: Our Court,
has held that, “we are not ready to hold that it is unconstitutional for
Congress to grant an administrative body quasi-judicial power to preview and
classify TV programs and enforce its decision subject to review by our courts.”
(Iglesia ni Kristo v. Court of Appeals)
Q: May live TV coverage of a criminal trial
be prohibited?
A: With the
possibility of losing not only the precious liberty but also the very life of
an accused, it behooves all to make absolutely certain that an accused receives
a verdict solely on the basis of a just and dispassionate judgment, a verdict
that would come only after the presentation of credible evidence testified to
by unbiased witnesses unswayed by any kind of pressure, whether open or subtle,
in proceedings that are devoid of histrionics that might detract from its basic
aim to ferret veritable facts free from improper influence, and decreed by a
judge with an unprejudiced mind, unbridled by running emotions or passions. (Re: Request for Radio-TV Coverage of the
Estrada Trial, A.M. No. 01-4-03-SC)
Q: Does every form of speech enjoy the same
degree of protection?
A: No. The
doctrine on freedom of speech was formulated primarily for the protection of
“core” speech, i.e., speech that communicates political, social or religious
ideas. These enjoy the same degree of protection. Commercial speech, however,
does not.
Q: What is the meaning of commercial speech?
A: It is communication,
which “no more than proposes a commercial transaction.” Advertisement of goods
or of services is an example.
Q: In order for government to curtail
commercial speech, what must be shown?
A: To enjoy
protection, commercial speech must not be false or misleading, (Friedman v. Rogers), and should not
propose an illegal transaction, (Pittsburgh
Press Co. v. Human Relations Commission).
However, even
truthful and lawful commercial speech may be regulated if (1) government has a
substantial interest to protect; (2) the regulation directly advances that
interest; and (3) it is not more extensive than is necessary to protect that
interest. (Central Gas & Electric Co.
v. Public Service Commission of NY).
Note: The
advertising and promotion of breast milk substitute falls within the ambit of
the term commercial speech, a separate category of speech which is not accorded
the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection. An absolute ban
on advertising is unduly restrictive and is more than necessary to further the
avowed governmental interest of promoting the health of infants and young
children. (Pharmaceutical v. Secretary of
Health).
Q: What is the second basic prohibition of
the free speech and press clause?
A: The free
speech and press clause also prohibits systems of subsequent punishment, which
have the effect of unduly curtailing expression. For, indeed, if prior
restraint were all that the constitutional guarantee prohibited and government
could impose subsequent punishment without restraint, freedom of expression
would be a mockery and a delusion.
Q: What are the standards for allowable
subsequent punishment of expression?
A: Since freedom
of expression ranks in the hierarchy of constitutional rights higher than
property (Salonga v. Pano), the norms
for the regulation of expression place more stringent limits on state action.
Jurisprudence has evolved three tests: (1) the dangerous tendency test; (2) the
clear and present danger test; (3) the balancing of interests test. Of these,
the second and third are in favor.
Q: What is the dangerous tendency rule?
A: In the early stages of Philippine
jurisprudence, the accepted rule was that speech might be curtailed or punished
when it “creates a dangerous tendency which the State has the right to
prevent.” The standard has been labeled the “dangerous tendency” rule. All it
requires, for speech to be punishable, is that there be a rational connection
between the speech and the evil apprehended.
Q: State and explain the clear and present
danger rule.
A: The rule was
formulated by justice Holmes in Schenck
v. United States, thus: “The question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree.” As
the Supreme Court was later on to explain in Dennis v. United States:
Obviously, the
words cannot mean that before the Government may act, it must wait until the
putsch is about to be executed, the plans have been laid and the signal is
awaited. If the Government is aware that a group aiming at its overthrow is
attempting to indoctrinate its members and to commit them to a course whereby
they will strike when the leaders feel the circumstances permit, action by the
Government is required.
In each case,
courts must ask whether the gravity of the evil, discounted by its
improbability, justified such invasion of free speech as is necessary to avoid
the danger. (Dennis v. United States)
Q: Explain the balancing of interest test.
A: The
balance-of-interest theory rests on the basis that constitutional freedoms are
not absolute, not even those stated in the First Amendment (Freedom of Speech),
and that they may be abridge to some extent to serve appropriate and important
interests. (Gonzales v. Comelec)
Q: Enrile seeks to enjoin the movie company
from producing “The Four Day Revolution,” a dramatization of the February 1986
revolution, for public showing, on the ground that it would violate his right
to privacy. Will the prohibition be valid?
A: Motion
pictures are protected medium for the communication of ideas and the expression
of artistic impulse. This freedom is available to both local and foreign owned
production companies even if they are commercial. Indeed there is such a thing
as the right to privacy. But this cannot be invoked to resist publication of
matters of public interest. What the right to privacy protects is the right
against unwarranted intrusions and wrongful publication of the private affairs
and activities of individuals, which are outside the sphere of legitimate
public concern. Enrile’s role in that revolution is a matter of public interest
because he was a principal figure in that event. (Ayer Productions Pty. Ltd. v. Capulong)
Q: Are there any forms of speech, which are
not protected by the Constitution?
A: There are
certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any constitutional
problems. These are libel and obscenity. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interests in order and morality. (Chaplinsky v. New Hampshire.
Q: Define libel.
A: A libel is a
public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or juridical person, or
to blacken the memory of one who is dead. (Art. 353, RPC)
Q: What are the elements of libel?
A: To be liable
for libel, the following elements must be shown to exist: (a) the allegation of
a discreditable act or condition concerning another; (b) publication of the
charge; (c) identity of the person defamed; and (d) existence of malice.
Q: When is defamatory imputation malicious?
A: There is
malice when the author of the imputation is prompted by ill will or spite and
speaks not in response to duty but merely to injure the reputation of the
person who claims to have been defamed. (Alonzo v. Court of Appeals)
Q: What does publication in libel mean?
A: it means
making the defamatory matter, after it has been written, known to someone other
than the person to whom it has been written. The reason for such rule is that a
communication of the defamatory matter to the person defamed cannot injure his
reputation though it may wound his sell-esteem. A man’s reputation is not the
good opinion he has of himself, but the estimation in which others hold him. (Ledesma v. Court of Appeals)
Q: What is the rule on privileged
communications in the Revised Penal Code (RPC)?
A: Under Art.
354 (RPC):
Every defamatory
imputation is presumed to be malicious, even if it be true if no good intention
and justifiable motive for making it is shown, except in the following cases:
1.
A private communication made by any person to
another in the performance of any legal, moral, or social duty; and
2.
A fair and true report, made in good faith, without
any comments or remarks, of any juridical, legislative, or other official
proceedings which are not of confidential nature, or of any statement, report,
or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.
Q: Explain the rule further.
A: In order to
prove that a statement falls within the purview of a qualifiedly privileged
communication under Art. 354, No. 1, the following requisites must concur: (1)
the person who made the communication had a legal, moral, or social duty to
make the communication, or at least, had an interest to protect, which interest
may either be his own or of the one to whom it is made; (2) the communication
is addressed to an officer or a board, or superior, having some interest or
duty in the matter, and who has the power to furnish the protection sought; and
(3) the statements in the communication are made in good faith and without
malice.
Q: Does Article 354 (2) of RPC cover the
total scope of privileged communication?
A: No, the
enumeration under Art. 354 (RPC) is not an exclusive list of qualifiedly
privileged communications since fair commentaries on matters of public interest
are likewise privileged. The concept of privileged communications is implicit
in the freedom of the press. Fair commentaries on matters of public interest
are privileged and constitute a valid defense in an action for libel or
slander. (Borjal v. Court of Appeals)
Q: In a suit for collection of money owed,
the answer of defendants attributed “usurious loan transaction” to the
plaintiff, called plaintiff “scheming,” and accused plaintiff of “fraudulent
distortions.” Can such an answer be ground for damages?
A: No. The
prevailing rule is that parties, counsel, and witnesses are exempted from
liability in libel or slander for words otherwise defamatory published in the
course of judicial proceedings, provided the statements are relevant to the
case. The statements are relevant to the defense of usury. (Armovit, et. al. v.
Judge Purisima)
Q: When are derogatory remarks in
newspapers, etc. immune from punishment?
A: Newspapers
may publish news items relative to judicial, legislative, or other official
proceedings, which are not of a confidential nature, because the public is
entitled to know the truth with respect to such proceedings, which, being
official and non-confidential, are open to public consumption. But to enjoy
immunity, a publication containing derogatory information must be not only true
but also, fair, and it must be in good faith and without comments or remarks. (Policarpio v. Manila Times Publishing Co.)
Q: What is the rule in the United States
regarding defamatory imputation against a public official?
A: The
constitutional guarantee requires a federal rule that prohibits a public
official from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with actual
malice.
Q: What does actual malice mean?
A: It means with
knowledge that it was false or with reckless disregard of whether it was false
or not. (New York Times v. Sullivan)
This rule was
later extended to defamation of private sector public figures. (Rosenblatt v. Baer).
Q: Do we follow this rule?
A: Yes. We have
even extended it to defamatory imputation against a barangay official. A PCGG
commissioner also comes under this rule. (Jalandoni v. Drilon; Borjal v. Court
of Appeals; Flor v. People). For this purpose, Japan Airlines is treated as a
public figure. (JAL v. Simangan).
However, public
figures are not unprotected. If the utterances are false and malicious or
unrelated to a public officer’s performance of his duties or irrelevant to
matters of public interest involving public figures, the same may give rise to
criminal and civil liability. While personalities in the entertainment
business, media people, including gossip and intrigue writers and commentators,
do not have the unbridled license to malign their honor and dignity by
indiscriminately airing fabricated and malicious comments. (Fermin v. People)
Q: What is the test for obscenity?
A: The basic
guidelines for the trier of facts must be: “(a) whether the average person,
applying contemporary community standards would find that the work, taken as a
whole, appeals prurient interest…(b) whether the work depicts or describes, in
a patently offensive way, sexual conduct specifically defined by the applicable
state law, and (c) whether the work, taken as a whole lacks serious literary,
artistic, political, or scientific value.” (Miller
v. California).
This was
substantially followed for movies in Gonzales
v. Kalaw-Katigbak, but the Court noted that stricter rules could be
followed for television.
NOTE: Stricter
rules have also been allowed for radio especially because of its pervasive
quality and because of the interest in the protection of children. (FCC v. Pacifica Foundation).
Likewise,
stricter rules have been allowed for speech in schools because of the nature of
the community that is involved and the relationship between school and parents.
(Bethel Sch. Dist. v. Kulmeier)
NOTE: Relative Obscenity: The host of Ang Dating Daan was found to have used
on television language which Movie and Television Review and Classification
Board (MTRCB) found to be unsuitable for television. Hence a three-month
suspension was imposed on the program. Was there unconstitutional prior
restraint? The court found that the language used could be treated as obscene,
at least with respect to the average child. Hence, it is, in that context,
unprotected speech.
The Court noted that there was no perfect definition of
obscenity and that ultimately therefore “obscenity is an issue proper for
judicial determination and should be treated on a case to case basis and on the
judge’s sound discretion. The Court admitted that the language in question may
not appeal to the prurient interest of an adult but that the problem with the
challenged statement was that they were uttered in a TV program that is rated
‘G’ or for general viewership, and in a time slot that would likely reach even
the eyes and ears of children. (Soriano
v. Laguardia).
Q: May sex in
the Internet be banned?
A: It depends.
Obscenity may be banned. But attempts to regulate sex, which does not come
under the definition of obscenity for the purpose of protecting minors, have
failed on the argument that the regulations deprive adults of shows, which do
not come under the definition of obscenity and are therefore legitimate for
adults. (Reno v. American Civil Liberties
Union; Ashcroft v. Free Speech Coalition; US v. American Library Association,
et. al.)
Q: What rights are guaranteed by Section 7,
Art. III, 1987 Constitution?
A: They are (1)
the right to information on matters of public concern and (2) the corollary
right of access to official records and documents. These are political rights
available to citizens only.
Q: What are the limits on these rights?
A: They are
subject to such limitations as may be provided by law.
Q: Petitioner had requested respondent for
information on the eligibility of certain sanitary inspectors. (1) Is such
information a matter of public concern? (2) Does petitioner have standing to
assert the right to information? (3) If denied, what remedy does he have?
A: (1) Public
concern, like public interest, eludes exact definition. They embrace a broad
spectrum of subjects which the public may want to know, either because these
directly affect their lives or simply because such matters arouse the interest
of an ordinary citizen. Each case must be examined separately. In this particular
case, it must be said that a public official must be accountable to the people
for his eligibility.
(2) This is a matter
of public right where the real party in interest is the people. Any citizen
therefore has standing.
(3) The remedy is mandamus. (Legaspi v. Civil Service Commission; Tanada v. Tuvera).
NOTE: The
refusal of the Comelec to reveal the names of the nominees for party-list seats
violates the right of the people to information on matters of public concern.
It also violates the rule on transparency in Art. II, Sec. 27. (Ba-Ra 7941 v. Comelec).
Q: Are court
records covered by the right to information?
A: A distinction
must be made. Decisions and opinions of a court are matters of public concern
and interest. Unlike court orders and decisions, however, pleadings and other
documents filed by parties to a case need not be matters of public concern or
interest. They are filed for the purpose of establishing the basis upon which
the court may issue an order or a judgment affecting their rights and
interests.
In fine, access
to court records may be permitted at the discretion and subject to the
supervisory and protective powers of the court, after considering the actual
use or purpose for which the request for access is based and the obvious
prejudice to any of the parties. (Hilado,
et. al. v. Judge Reyes)
Q: What are some of the recognized
limitations to the exercise of the right to information and the state policy of
public disclosure?
A: 1) National
security matters;
2) Trade secrets and
banking transactions;
3) Criminal matters
or classified law enforcement matters, such as those relating to the
apprehension, the prosecution and the detention of criminals, which courts may
not inquire into prior to such arrest, detention and prosecution. Otherwise,
efforts at effective law enforcement would be seriously jeopardized.
4) Other
confidential matters. The Ethical Standards Act (R.A. No. 6713) prohibits
public officials and employees from using or divulging confidential or
classified information officially known to them by reason of their office and
not made available to the public. Other acknowledge limitations include
diplomatic correspondence, closed-door Cabinet meetings and executive sessions
of either house of Congress, and internal deliberations of the Supreme Court. (Chavez v. PCGG)
Sources:
Ruben E. Agpalo.
Philippine Constitutional Law; Rex Book Store, Inc; 2006.
Joaquin G.
Bernas. The 1987 Philippine Constitution: A Comprehensive Reviewer; Rex
Printing Company; 2011.
https://prezi.com/wjaz_uio8iiv/philippine-law-on-advertising/
[online]
http://www.abogadomo.com/law-professor/law-professor-archives/libel-laws-of-the-philippines
[online]
Thank you so much for this
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