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Submitted by:

John Stephen T. Humiwat


[AB Major in Journalism]

Submitted to:
Mr. Melvin C. Gascon
[Instructor]
PRESS FREEDOM & LAWS ON THE PHILIPPINE COMMUNICATION MEDIA

"No law shall be passed abridging the freedom of speech, of


expression, or of the press, or right of the people peaceably to
assemble and petition the government for redress of
grievances"
Article III, Section 4, 1987 Philippine Constitution

Freedom of Expression

Article III, Section 4 of the 1987 Philippine Constitution serves as the center point and basis for
the Mass Media practice in the Philippines. It serves as the Archimedean point where media
practitioners and citizens are empowered to air out their concerns without undue fear, simply
because this provision of the Bill of Rights (Article III) safeguards these said rights.

This clause in the constitution carries with it the history of the Filipinos' fight for freedom.
Originally asserted in the Malolos Constitution (approved on January 20, 1899) as "right to freely
express his ideas or opinions, orally or in writing, through the use of the press and other similar
means", this fight for freedom has transcended through various epochs of Philippine history;
carried on from one charter change to another; and pulled through every rise and fall of one
administration to the next.

However, laws governing the practice of mass media in the Philippines does not solely rest on the
present Constitution; they are also contained in the numerous issuances of the Courts and the
Philippine legislature. More specifically, other sources of laws affecting Philippine mass media in
general are:
a. Revised Penal Code (national security, libel and obscenity);
b. Civil Code (privacy in private law);
c. Rules of Court (fair administration of justice and contempt); and
d. Presidential Decrees (obscenity)

Section 24, Article II, 1987 Philippine Constitution. "The Declaration of Principles and State
Policies".

"The state recognizes the vital role of communication and information in nation-building."

[Note: Mass media, therefore, serves as a conduit that ensures the flow of information
between the government and the governed.]

LAWS AFFECTING ALL FORMS OF MASS MEDIA


"Mass Media" refers to the print medium of communication and the broadcast medium of
communication. ( Sec. 1. Presidential Decree No. 1018, September 22, 1976)

PRINT BROADCAST
• Newspapers • radio broadcasting
• periodicals • Television broadcasting
• magazines • All other cinematographic and radio
• journals promotions and advertising
• Publications (and all advertising
therein)
• billboards
• neon signs

CONSTITUTIONAL PROVISIONS (ARTICLE III, BILL OF RIGHTS)


Freedom of Expression

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
right of the people peaceably to assemble and petition the government for redress of
grievances

The Right To Information

Sec. 7.
• The right of the people to information on matters of public concern
• Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for
policy development
• Subject to such limitations as may be provided by the law

Supreme Court Justice Irene Cortes on the inclusion of access to information to


Constitution:
• Recognition of the essentiality of the free flow of ideas and information in a
democracy
• Enables members of society to cope with the exigencies of their time
• Aids people in democratic decision making by giving them perspective of
vital issues confronting the nation

The Right To Privacy

Sec. 2.
• Inviolable: right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose
• NO search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge

Sec. 3.
• Inviolable: privacy of communication and correspondence. Exception: (a) lawful
order of the court; (b) public safety and order requires otherwise.
• Inadmissible for any purpose in any proceeding: any evidence obtained in violation of
this or the preceeding section.

The COMMISSION ON ELECTIONS (Comelec)

During election period, the mass media must also abide by the limitation provided by Article
IX-C of the Constitution (Comelec).

Sec. 4. Art IX-C.


• Comelec may supervise, regulate the enjoyment and utilization of all franchises and
permits for the operation of transportation and other public utilities, media
communication…
• Such supervision regulation shall aim to ensure equal opportunity, time and space and
the right to reply, including reasonable, equal rates therefore, for public information
campaign and forums among canididates
• Objective: holding free, orderly, honest, peaceful and credible elections

CASES:
1. Prohibiting certain forms of election propaganda [Badoy, Jr v. Comelec, 35 SCRA
285, 1970] HELD: valid exercise of police power in order to prevent perversion and
prostitution of electoral apparatus and the denial of equal protection of the laws.
2. Prohibitions on the sale and donation of print space and airtime for campaign or
other political purposes except to the Commission on Elections [National Press Club
v. Comelec, 207 SCRA 1, 1992] HELD: Constitutional. Supreme court said:
Prohibition in Sec. 11 (b) of RA 6646 only applies to the purchase and sale, including
purchase and sale disguised as a donation, of print and airtime for "campaign or other
political purposes."

SC determined:
 Paid political advertisments - covered by prohibition
 Reporting of news commentaries and expression of belief or opinion by
reporters, broadcasters - falls outside scope of Sec. 11 (b); constitutional
guarantees of freedom of speech and of the press.

3. Prohibitions on the use of the media by media practitioners [Sanidad v. Comelec,


181 SCRA 529, 1990] FACT: Resolution No. 2167 prohibited columnists,
commentators or announcers from using their columns or programs to campaign
for or against plebiscite issues. HELD: Resolution No. 2167 unconstitutional.
Constituted a restriction on the exercise of "mass media practitioners themselves of
their rights of expression".

Policy Environment for Communication and Media Ownership [Article XVI- General
Provisions of the Constitution]

Sec. 10. State shall provide the policy environment for:


a. full development of Filipino capability
b. emergence of communication structures suitable to the needs and aspiration of the
nation
c. balanced flow of information into, out of, and across the country

CASE: [Philippine Long Distance Telephone Co. (PLDT) v. National Telecommunications


Commission, 190 SCRA 717, 1990] Supreme Court: Section 24, Article II and Section 10,
Article XVI of Constitution as basis for requiring PLDT to provide interconnection to
another company.

Sec. 11.
• Ownership and management of mass media shall be limited to citizens of the
Philippines, or to corporations, cooperatives or associations, wholly-owned and
managed by such citizens.
• Congress - regulate or prohibit monopolies in commercial mass media when public
interest requires.
• advertising industry - regulated by law for the protection of consumers and the
promotion of general welfare
• only Filipino citizens or corporations/associations at least seventy percent (70%) of
the capital of which is owned by such citizens - allowed to engage in advertising
industry
• (2) participation of foreign investors in governing body of entities in such industry -
limited to proportionate share in capital; all executive and managing officers of such
entities must be citizens of the Philippines

APPLICATION: GMA Network Inc. (GMA 7) and the purchase by PLDT of a portion of
the broadcasting firm did not materialize. Why?

"Neither PLDT nor SMART is qualified to buy any broadcasting company,


since both companies are not 100 percent Filipino-owned." [Note: PLDT is 24.47%
owned by a conglomerate owned and controlled by the Salim family of Indonesia
while SMART is a wholly-owned subsidiary of PLDT.]

PROVISIONS RELEVANT TO MASS MEDIA IN THE REVISED PENAL CODE


(ACT NO. 3815, AS AMMENDED)

Crimes Against National Security and Public Order


1. Espionage (Art. 117, as amended by RA 6968)

When is an act considered espionage?

a. Entering a warship, fort, or naval or military establishment or reservation to obtain


any information, plans, photographs, or other data (confidential in nature) relative
to defense of Philippine archipelago -- without AUTHORITY.
b. Being in possesion, by higher reason of the public office he holds, of the articles, data
or information referred to in the preceeding paragraph, discloses their contents to a
representative of a foreign nation.

Penalties:
a. prision correccional (six months and one day to twelve years)
b. Penalty elevated to higher degree when offender is public officer or employee

2. Rebellion/Insurrection (Art. 134, as amended by RA 6968, approved on October 24, 1990)

How committed?
• rising publicly and taking arms against the Government for purpose:
• removing allegiance to Government and its laws, territory, anybody of land, naval or
armed forces
• depriving Chief Executive or the Legislature (wholly or partially) of any of its
powers or prerogatives

3. Coup d'etat (Art. 134-A, as amended by RA 6968, approved on October 24, 1990)

How committed?
• Swift attack accompanied by violence, intimidation, threat, strategy or stealth
• Directly against duly constituted authorities of the Republic of the Philippines, or
any military camp or installation, communication network, public utilities or other
facilities needed for exercise and continued possession of power
• singly or simultaneously carried out anywhere in the Philippines
• carried out by any person or persons, belonging to the military or police or holding
any public office of employment, with or without civilian support or participation
• Purpose of attack: seizing or diminishing state power

Penalty for Rebellion, Insurrection and Coup d'etat


(Art. 135, as amended by RA 6968, approved on October 24, 1990)

• Reclussion perpetua:
a. any person who promotes, maintains, heads rebellion or insurrection;
b. Any person who, in any manner, directs or commands others to undertake a coup d'etat
c. If rebellion, insurrection and coup are under command of unknown leader, any person who in fact directed
the others, spoke for them, signed receipts and other documents issued in their name, as performed similar
acts, on behalf of the rebels (Note: that person is deemed to be the leader)
• Reclussion temporal:
1. any person merely participating or executing the commands of others in a rebellion;
2. any person not in government service who participates, or in any manner supports, finances, abets or aids
in undertaking a coup d'etat;
• Prision mayor (in its maximum period):
1. any person in the government service who participates, or executes directions or commands of others in
undertaking a coup d'etat

Conspiracy and proposal to commit coup d'etat, rebellion or insurrection (Art. 136, as amended
by RA 6968, approved on October 24,1990)

• Penalty:
• Coup d'etat: prision mayor (in minimum period) + fine (not exceeding Php
8,000.00)
• Rebellion/Insurrection: prision correccional (in medium period) + fine (not
exceeding Php 2,000.00)
Disloyalty of public officers or employees. (Art. 137, reinstated by EO 187 by Cory Aquino)

• Offender: public officers or employees


• Requisites:
1. failure to resist a rebellion by all the means in their power;
2. continuously discharging the duties of their offices under the control of the
rebels; and
3. acceptance of appointment to office under rebels
• Penalty: prision correctional (in minimum period)

Inciting to rebellion or insurrection (Art. 138, reinstated by EO 187 by Cory Aquino)


• offender: any person, who without taking arms or being open to hostility against
the Government, incites others to the execution of any acts specified in Art 134 by
means of:
o Speeches;
o Proclamations;
o Writings;
o Emblems;
o Banners; and
o Other representations tending to the same end

4. Sedition (Art. 139)

How committed?
• Committed by persons who rise publicly and tumultuously in order to attain
force, intimidation, or by other means outside of legal methods, any of the
following objects:
a. Prevent promulgation or execution of any law or the holding of any popular
election;
b. Prevent National Government, or any provincial or municipal government
or any public officer thereof from freely exercising its or his functions, or
prevent the execution of any administrative order;
c. Inflict any act of hate or revenge upon the person or property of any public
officer or employee;
d. Commit, for any political or social end, any act of hate or revenge against
private persons or any social class; and
e. Despoil for any political or social end, any person, municipality or province,
or the National Government (or the Government of the United States), of
all its property or any part thereof

Inciting to Sedition (Art. 142, reinstated by EO 187 by Cory Aquino)


How committed?
• Without taking any direct part in the crime of sedition, inciting others to the
accomplishment of any acts which constitute sedition: speech,
proclamations, writings, emblems, cartoons, banners, or other
representations tending to the same end
• Uttering seditious words or speeches, write, publish, or circulate:
a. scurrilous libel against the Government (of the US and of the
Philippines) or any of the duly constituted authorities thereof
b. that which tend to disturb or obstruct any lawful officer in executing
the functions of his office
c. that which tend to instigate others to cabal and meet together for
unlawful purposes
d. that which tend to suggest or incite rebellious conspiracies or riots
e. that which lead or tend to stir up the people against the lawful
authorities or to disturb the peace of the community, the safety and
order of the Government,
f. those who knowingly conceal such evil practices
• Penalties for sedition, conspiracy and inciting to sedition(Art. 140, 141, 142,
reinstated by EO 187 by Cory Aquino)
Leader of sedition prision mayor (minimum period) +
fine (not exceeding Php 10, 000.00)

Other persons prision correccional (maximum period) +


participating fine (not exceeding Php 5,000.00)

Conspiracy to commit Prision correccional (medium period) +


sedition fine (not exceeding Php 2, 000.00)

Inciting to sedition Prision correccional (maximum period) +


fine (not exceeding Php 2,000.00)

5. Unlawful use of means of publication and unlawful utterances (Art. 154)


How committed?
• By means of printing, lithography, or any other means of publication shall
publish or cause to be published as a news any false news which may endanger
the public order, or cause damage to the interest or credit of the State ;
• By the same means, or by words, utterances or speeches shall encourage
disobedience to the law or to the constituted authorities or praise, justify, or
extol any act punished by law;
• Maliciously publishing or causing to be published any official resolution or
document without proper authority, or before they have been published
officially; or
• Printing, publishing, or distributing or causing to be printed, published, or
distributed books, pamphlets, periodicals, or leaflets which do not bear the real
printer's name, or which are classified as anonymous.
Penalties:
• Arresto mayor + fine (ranging Php 200 to Php 1,000.00)

Libel - A crime Against Honor

Definition: 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.
(Article 353)

Requirement by publicity. (Article 354) Every defamatory imputation is presumed to be


malicious, even if it be true, if no good intention and justifiable motive for making it shown,
except in the following cases:
• Private communication in performance of any legal, moral or social duty;
• Fair and true report, made in good faith, without any comments or remarks, of
1. any judicial, legislative or other official proceedings which are not of confidential
nature
2. any statement, report or speech delivered in said proceedings
3. Any other act performed by public officers in the exercise of their functions
Libel by means of • Writing • Prision correccional (minimum and
writings or similar • Lithography medium period)
means [Art. 355] • Engraving • Php 200.00 to Php 6,000.00
• Radio
• Phonograph
• Painting
• Theatrical exhibition
• Cinematographic exhibition

Threatening to publish Imposed upon who threatens • Arresto mayor


and offer to prevent another to publish a libel • Php Php 200.00 to Php 2,000.00
such publication for concerning him or the parents,
compensation [Art. spouse, child, or other member of
356] the family of the latter, or upon
anyone who shall offer to prevent
the publication of such libel for a
compensation or money
consideration

Slander [Art. 358] Oral defamation • Serious and insulting nature: arresto
mayor (maximum period) to prission
correccional (minimum period)
• Otherwise: arresto menor (one day to
thirty days) or fine not exceeding Php
200.00

Slander by deed [Art. Any person who perform any act • Serious offense: arresto mayor
359] not included and punished in this (maximum) to prission correccional (
tide, which shall cast dishonor, minimum) or fine ranging fom Php
discredit or contempt upon 200.00 to Php 1,000.00
another person. • Not so serious: arresto menor or fine
not exceeding Php 200.00

[NOTE: the principle of Respondeat superior also applies in these cases; the author or
editor of a book or pamphlets is held liable for defamation. This liability is also shared with
editor or business managers of daily news papers, magazines or serial publications to the
"same extent as if he were the author thereof".]

Proof of Truth. When it appears that the matter charged as libelous is true and it was with good
motives and justifiable ends, the defendant is acquitted.

Libelous remarks or comments connected with the matter privileged under provisions of Art. 354,
if made with MALICE, shall not exempt the author thereof, as well as the editor or managing
editor from criminal liability.
Offenses Against Decency and Good Customs

1. Immoral doctrines, obscene publications and exhibitions, and indecent shows. (Article
201)
• Offenders:
1. Those who publicly expound or proclaim doctrines openly contrary to public morals;
2. Authors of obscene literature, editors publishing such literature; owners/operators
of establishment selling the same;
3. Those who exhibit indecent and immoral plays, scenes, acts or shows in theaters ,
fairs and cinematographs or in any other place (whether live or in film);
4. Those who glorify criminals or condone crimes;
5. Serve no other purpose but to satisfy the market for violence, lust or pornography;
6. Offend any race or religion;
7. Tend to abet traffic in and use of prohibited drugs; and
Are contrary to law, public order, morals, good customs, established policies, lawful
orders, decrees and edicts
8. Those who sell, give away or exhibit films, print, engravings, sculptures or literature
which are offensive to morals.
• Penalty: prision mayor or a fine of ranging from six thousand to twelve thousand pesos, or
both fine and imprisonment
• Disposition of Prohibited articles. Upon conviction of the offender, the articles are seized by
the government to be destroyed. Should the offender be acquitted, the articles would still be
forfeited in favor of the government and will be destroyed.

PROVISIONS IN THE NEW CIVIL CODE (REPUBLIC ACT NO. 386, AS AMENDED)
Art. 26. provides that every person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons. Although, these acts may not criminal liabilities
attached to it, these shall produce cause of action for damages, prevention and other relief:
a. Prying into the privacy of another's residence;
b. Meddling with or disturbing the private life or family relations of another;
c. Intriguing to cause another to be alienated from his friends;
d. Vexing or humiliating another on account of religious beliefs, lowly station in life,
place of birth, physical disorder, or other personal conditions.

Art. 32 states that anyone (private individuals or individuals who holds public office) who
directly and indirectly obstructs, defeats, violates or impeded or impairs the rights and
liberties of another person shall be liable to the latter for damages.

The civil code also provides for the freedom of speech and the freedom to write for the press
or to maintain a periodical publication. It also protects the privacy of communication or
correspondence. Furthermore, Art. 723 provides that letters and other private
communication in writing cannot be published without the consent of the writer or his heirs;
but, if the article in question is for the public good or the interest of justice, the court may
authorize its publication or dissemination.

SPECIAL LAWS
a. Shield Law [RA 53, as amended by RA 1477]
According to this law, "the source of any news report or information, related in
confidence, unless the court or a House Committee of Congress find that such
revelations is demanded by the security of the state."

b. Copyright
Legally defined, a copyright is a "statutory protection of an artist's or writer's work
giving to the creator (or the holder of the copyright) the right to regulate the
publication, multiplication, or use of the copy righted material for a certain period of
time." (18 C.J.S. in Habana vs. Robles, 310 SCRA 511)

It is an "intangible" or "incorporeal" right which purpose is to give protection to the


intellectual product of an author or creator. The "Intellectual Property Code (RA 8293)",
thus, provides that the holder of the copyright has the exclusive right to carry out,
authorize or prevent the following acts:
a. Reproduction of the work or substantial portion of the work;
b. Transformation of the work -- dramatization, translation, adaptation,
abridgement;
c. First public distribution of the original and first copy of the work by sale;
d. Rentals rights; and
e. Public display of the original or a copy of the work.

Copyright secures original expression in the forms of literary, scholarly, scientific and
artistic creations. It also extends to software programs, compilation of databases, and
derivative works. These works are protected by the sole fact of their creation,
regardless of their mode or form of expression, as well as their content, quality and
purpose (Art. 172.2, IPC).
Coverage of the Copyright Law (Sec.172.1, IPC)
1. Books, pamphlets, articles and other writings
2. Periodicals and newspapers
3. Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or
not reduced in writing or other material form
4. Letters
5. Dramatic or dramatico-musical compositions; choreographic works or
entertainment in dumb shows
6. Musical compositions, with or without words
7. Works of drawing painting, architecture, sculpture, engraving, lithography or other
work of art; models or designs for work of art;
8. Original ornamental designs or models for articles of manufacture, whether or not
registrable as an industrial design, and other works of applied art;
9. Illustrations, maps, plans, sketches, charts and three-dimensional works relative to
geography, topography, architecture or science
10. Drawings or plastic works of a scientific or technical character;
11. Photographic works, including works produced by a process analogous to
photography; lantern slides
12. Audiovisual works and cinematographic works and works produced by a process
analogous to cinematography or any process for making audio-visual recordings
13. Pictorial illustrations and advertisements
14. Computer programs
15. Other literary, scholarly, scientific and artistic works

c. Fair Election Act (RA 9006) "An Act to Enhance the Holding of Free, Orderly, Honest,
Peaceful, and Credible Elections Through Fair Election Practices"

The important and the most awaited piece of legislation matters of elections is the
provision election propaganda in whatever medium is now allowed subject to:
1. the limitation on the authorized expenses of candidates and political parties,
2. observance of truth in advertising, and
3. to the supervision and regulations by the Comelec (Sec. 3 RA 9006)

This act also provides that all registered parties and "bona fide" candidates shall have
equal access to media time and space. This provision, however, is subject to the
guidelines of Comelec. Section 6.5 of the same act provided further that the media is
accountable to fair reporting and interpretation of the news, consistent with its duty to
air the both sides of the story and the duty to correct substantive errors promptly. This
act also cautions media men, to be careful not to suppress essential facts nor to distort
the truth by omission or improper emphasis.

LAWS AND CODES FOR THE PRINT INDUSTRY

1. Textbook Reprinting Law Repealed. PD 285 (September 3, 1973) - later amended by PD


400 (March 1, 1974) and PD 1203 - (September 27, 1977) provided for compulsory
license to reprint any textbook or reference book duly prescribed and certified by the
registrar of the school or university or college, whether of domestic or foreign origin.
The price of these books were proved to be exorbitant and detrimental to the national
interest.

However, this law is in conflict with the Intellectual Property (IP) Law (PD 49), which
infringes on foreign copyright holders due to international IP laws. The promulgation of
The Intellectual Property Code on January 1998, repealed the Textbook Reprinting Law.

2. Publication of Judicial Notes (PD 1079) as amended by PD 1971. This legislature


provides that "all notices of auction sales and judicial notices and all similar
announcements arising from court litigation required by law to be published in a
newspaper of general circulation in particular provinces and/or cities shall be
published in newspapers or publications, edited and circulated in the same city and/or
province where the requirement of general circulation applies.

If there is no newspaper published, edited and circulated in the locality, it may be


published in the newspapers of the nearest city or province. To qualify in the
publication of such judicial notices, a newspaper must have been regularly published for
at least 1 year. Distribution of the notices or advertisements for publication to qualified
newspapers must be done by executive judge of the Court of First Instance (now
Regional Trial Courts) personally and by raffle.

3. The Movie and Television Review and Classification Board (MTRCB) and Publicity
Materials (PD 1986). This decree grants the MTRCB the power to review and examine
all publicity materials of motion pictures and television programs. The Board can
approve or disapprove and even delete objectionable portions of the publicity materials
which, in the judgment of the Board applying the contemporary Filipino cultural values
as standard; such materials can be contested for its being immoral, indecent, contrary to
law and/or good customs, injurious to the prestige of the country or its people or with
dangerous tendency to encourage the commission of violence or of a wrong or a crime.

4. The Book Industry Development Act (RA 8047). "An Act Providing for the Development
of the Book Publishing Industry Through the Formulation and Implementation of a
National Book Policy and a National Book Development Plan". Recognizing the that the
book industry has a significant role in national development, this law declares the policy
of the State to promote the continuing development of the book publishing industry to
ensure adequate supply of affordable, quality-produced books not only for domestic
market but also for the export market. This fosters the cooperation of both the
government and private sectors by creating a National Book Development Board
composed of 11 members (five from the government service, six from the private
sector).

5. Taxation. The Supreme Court holds that the press is taxed on its transactions involving
printing and publication; in that, the "Expanded Value Added Tax"(EVAT, RA 7716),
which withdraws the exemption of previously granted to the press under Sec. 103(f) of
the National Internal Revenue Code (NIRC) and, therefore, subjects print media to VAT
with respect to all aspects of their operations, does not violate press freedom. "The
press is not immune from general regulations by the State. In this case, the statute
applies to a wide range of goods and services. " (Associated Press v. NLRB 301 U.S. 103,
132, 81 L. Ed 935, 961; 1973)

6. Campus Journalism Act of 1991 (RA 7079). This legislation recognizes the role of
campus journalism in nation building. It empowers young, aspiring campus journalists
by upholding and protecting freedom of the press even at the campus levels. Through
this act, the State provides a mechanism to strengthen ethical values, encourage critical
and creative thinking and developing moral character and personal discipline of the
Filipino youth as provide in Sec. 2 of said act.

RA 7079 allows maximum freedom to campus journalists. Section 7 of said act protects
the campus journalist form suspension or expulsion solely on the basis of articles he or
she has written, provided that these articles does not materially disrupt class work or
involve substantial disorder or invasion of the rights of others.

7. The Philippine Journalist's Code of Ethics. The Code of Ethics provides that journalists
should act decently, like ladies and gentlemen in the truest sense of these terms. This
code lays down the obligations and responsibilities the journalist owes to different
entries -- the reading of public, his sources of information, the person (or institution) he
writes about, his peers in the profession, the newspaper he works, and the "public
interest". A separate discussion on the code of ethics is provided in another chapter of
this outline.
LAWS AND CODES FOR THE BROADCAST INDUSTRY

1. Laws for Mass Media Practitioners Engaged in Broadcast

Albeit, the freedom of expression clause protects all forms of media, this clause has
comparatively limited coverage for the field of broadcast media. Broadcast media, then,
has limited protection from the free expression clause since radio and television is
pervasively accessible to just anyone and almost anytime.

Thus, supervision and regulation of these forms of media, whether by the government
or through self-regulation by the industry itself calls for thoughtful, intelligent and
sophisticated handling. But despite the supervision and regulatory policies that bound
radio and television, broadcast stations deserve special protection given to all forms of
media by the due process and freedom of expression of the Constitution.

Prohibition of Live Radio and TV Coverage of Court Proceedings. The Supreme


Court issued a Resolution (October 22, 1991) prohibiting live radio and television
coverage of court proceedings to avoid miscarriage of justice. Video footage of court
hearings for news purposes are now restricted and limited to shots of the courtroom,
the judicial officers, the parties and their counsel taken prior to the commencement of
the official proceedings.

The press and the general public are also excluded from the courtroom during the trial
of specified sexual offenses. This is further encapsulated in Rule 119, Sec. 14 of the Rules
of Court, "the Court may, upon its own motion exclude the public from the courtroom if
the evidence to be produced from the trial is of such a character as to be offensive to
decency and public morals." This is done (1) to protect the victim from trauma and
embarrassment and (2) to encourage the victims to come forward and testify truthfully.

Another instance where the press and the general public are denied access in the
courtroom is during proceedings against judges, as specified in Rule 139, Sec. 6. This
rule considers the propensity of losing parties in pending cases to file administrative
charges against judges thought to be partial, susceptible to bribery, or offensive.

The Rule on the Examination of A Child Witness. This rule covers the examination of
child witnesses who are (1) victims of crime, (2) accused of a crime and (3) witnesses to
crime. This rule maintains the following purposes: (1) creating an environment that will
allow the child to give reliable and complete evidence, (2) minimize trauma to children,
(3) encourage children to testify in legal proceedings, and (4) ascertainment of truth.

[Note: "Child witness" is defined as " any person who at the time of giving testimony is
below the age of eighteen." In child abuse cases though, a child includes one who is over
eighteen years but is found by the court as unable to fully take care of himself or protect
himself from abuse, neglect, cruelty, exploitation or discrimination because of physical
or mental disability or condition. "Child abuse" means physical, psychological or sexual
abuse and criminal neglect (RA 7610 and other related laws)]

Exclusion from the courtroom of all persons, including members of the press who do not
have direct interest in the case. This protects the right to privacy of the child or when
the court determines on the record that requiring the child to testify in open court
would cause psychological harm to the child, hinder the ascertainment of the truth, or
result in his inability to effectively communicate due to embarrassment, fear or timidity.
The clause that excludes the public on the basis of the sensitivity of the evidence also
applies in this case. Also, the accused may also file a motion to exclude the public from
trial, except court personnel and the counsel of the parties.

Live-link television testimony. A live-link television testimony entails that the child shall
testify in a room separate from the courtroom in the presence of the guardian ad litem,
one or both of his support persons, the facilitator and interpreter (if any), the court
officer appointed by the court, persons necessary to operate the closed-circuit television
equipment, and other persons whose presence are determined to be necessary to the
welfare and well-being of the child. The court may order that the testimony of the child
be taken by live-link television if there is a substantial likelihood that the child would
suffer trauma from testifying in the presence of the accused, his counsel or the
prosecutor. The trauma must be of a kind that would impair the completeness or
truthfulness of the testimony of the child. (Sec. 25 f)

Videotaped deposition. The prosecutor, counsel, or guardian ad litem may apply for an
order that a deposition be taken of the testimony of the child and that it be recorded
and preserved on videotape, if the court finds that the child will not be able to testify in
an open court trial.

Publication of identity contemptuous. Whoever publishes or causes to be published in


any format the name, address, telephone number, school, or other identifying
information of a child who is alleged to be a victim or accused of a crime or a witness
thereof, of an immediate family of the child shall be liable to the contempt power of the
court.

2. Laws and Jurisprudence and Regulations for Broadcast Companies

a. Legislative Franchise and Certificate of Public Convenience and Necessity


To put things into perspective, on July 23, 1979, Executive Order 546 was enacted
pursuant PD No. 1 which reorganized the executive branch of the National
Government in September 23, 1972. The enactment of these laws basically
transferred the functions of the Board of Communication and
Telecommunications Bureau to the National Telecommunications Commission. As
a result radio stations cannot install and operate radio telephone services on the
basis of a legislative (congressional) franchise alone. Broadcast stations are
required to secure certificate of public convenience and necessity from the NTC.

Today, a franchise is defined as "merely a privilege emanating from the sovereign


power of the state and owing its existence to a grant."It is imperative that
legislative (congressional) franchises are subject to the regulation by the police
power of the state, through its administrative agencies, more specifically, the
MTRCB. It is also important to note that Republic Acts granting radio and
television franchises include a section on self-regulation, i.e. the grantee cut off
from the air the speech, play, act, or scene or other matter being broadcast if there
is a tendency that such airing proposes and/or incite treason, rebellion or
sedition, uses indecent or immoral language. Willful failure to do so can lead to
the cancellation of the franchise.

b. Regulation
1. Government Regulation
a. National Telecommunications Commission (NTC) - issues licenses and
permits to construct and operate broadcast stations and to purchase
radio transmitting equipment. It also is responsible for allocating
frequencies and implementation of technical standards.
b. Movie and Television Review Classification Board (MTRCB) -
responsible for the classification of film and television programs and
prohibits broadcast of materials which are (1) objectionable for being
immoral, indecent, contrary to law and good customs; (2) tend to
incite subversion, insurrection, rebellion or sedition.
c. Optical Media Board (OMB) - regulates importation, exportation,
acquisition, sale or distribution of optical media, manufacturing
equipment, parts and accessories and manufacturing materials used or
intended for use in the mastering, manufacture or replication of optical
media (any storage medium or device in which information may be
accessed and read through lens scanning mechanism employing high
intensity light sources like lasers or any such other means that might
be developed in the future).
d. Self-Regulation." An industry that adopts self-regulation is improved,
and the nation is helped as well" (Mr. Escaner, Op. Cit.)
e. Kapisanan ng mga Brodkaster ng Pilipinas (the Association of
Broadcasters in the Philippines - KBP). Organized on April 27, 1973 by
the country's major TV and radio networks, the KBP has the authority
to enforce discipline from within it ranks, or self -regulation has been
honored by government authorities since 1975 and upheld by a 1987
Supreme Court decision. The KBP continually updates and reinforces
the Television Code, Radio Code and the Technical Standards which
are recognized by the government. Rules are enforced through a
system of reprimands and sanctions.
f. Advertising Board of the Philippines, Inc. (AdBoard)is a self-regulating
body of advertising agencies of the Philippines. It was incorporated on
May 3, 1974, it regulates the conduct and behavior of advertising
practitioners through the adoption of a Code of Ethics. AdBoard is
guided by the ADVERTISING CONTENT REGULATION MANUAL OF
PROCEDURES (ACR) and the STANDARDS OF TRADE PRACTICES AND
CONDUCT (TPC) MANUAL which serve to keep advertising within
correct, ethical and wholesome bounds and help assure professional
advertising practice.

LAWS AND CODES FOR THE FILM INDUSTRY AND AUDIO-VISUAL MEDIA

1. Film
• Republic Act 9167. Through virtue of this RA, the Film Development Council of the
Philippines was created with the function to develop and implement an incentive
and reward system, to encourage quality films, to hold properties necessary to
carry out its purposes, to develop and promote programs to enhance the skills and
expertise of Filipino talents, and to ensure the establishment of a film archive.
• PD 1987. The Movie and Television Review and Classification Board (MTRCB). As a
response to an urgent need to rationalize the movie and television industry, then
President Ferdinand Marcos formed the MTRCB (October 5, 1985). Its regulatory
function is pegged on its judgment and application of "contemporary Filipino
cultural values", which has resemblance to the Roth test: "Whether to the average
person, applying contemporary community standards, the dominant them of the
material taken as a whole appeals to prurient interest."

2. Audiovisual Media
• PD 1987. Creation of the Videogram Regulatory Board (VRB).
• RA 9239. Conversion of VRB to Optical Media Board (OMB) and the Optical Media
Act of 2003, in response to technological developments. This law institutionalizes
an internationally accepted system identification (SID) code, embedded in the
optical media, which traces the source of all optical media mastered,
manufactured or replicated by any establishment. This was primarily implemented
to curb music and movie piracy.

LAWS AND CODES FOR THE ADVERTISING INDUSTRY


1. Constitutional Limitation. The present constitution provides that advertising agencies
may be owned by non-Filipino citizens up to 30%. Florangel Rosario-Braid, the
representative of the communication sector in the 1986 constitution rationalized this
provision as to a mechanism to "Filipinize" the content and ownership of current
advertising; since advertising messages which carry western and elitist values may
persuade them to adopt alien lifestyle and value.
2. Consumer Act of the Philippines (RA 7394). This law provides that "the State shall
protect the consumers from advertisements and fraudulent sales promotion practices."
This responsibility designated to the Department of Trade and Industry covers all
products and services except food, drugs, cosmetics, devices substances.
3. E-commerce Law (RA 8792). This law covers matters that relate to Internet-based
consumer protection.
4. Tobacco Act Regulation of 2003 (RA 9211).
• Point-of-sale establishments offering, distributing or selling tobacco products must
post the following in "clear and conspicuous" manner: "Sale/Distribution to or
purchase by minors of tobacco products is unlawful."
• Printing of health warnings on tobacco product packages
• All advertising in mass media to contain health warning "GOVERNMENT WARNING:
Cigarette Smoking is Dangerous to Your Health."
• Advertisements shall not:
1. be aimed at or particularly appeal to persons under 18y/o;
2. feature a celebrity or contain an endorsement, implied or express by a
celebrity;
3. contain cartoon characters or subjects that depict humans or animals with
comically exaggerated features or that attribute human or unnatural
characteristics to animals, plants or other subjects;
4. show, portray or depict scenes where the actual use of, or the act of using,
puffing or lighting cigarettes or other tobacco products is presented to
public
• The law also bans all tobacco advertising on (1) television, cable television, and
radio beginning January 1, 2007; (2) cinema and outdoor advertising beginning on
July 1, 2007; and (3) all other forms of tobacco advertising in mass media
beginning July 1, 2008, except tobacco advertisements placed inside the premises
of point-of-sale establishments.
• Sponsorship by tobacco companies to sport, concert, cultural or art events, as well
as individual team athletes, artists or performers where the said entities are
required or involved in promoting or advertising any tobacco products are
prohibited.
5. ADBOARD Code of Ethics. The number one purpose of this is to promote truthful and
informative advertising for the benefit of consumers and the public in general. It covers
advertisers, advertising agencies, media and advertising support groups. It exerts all
efforts to obtain voluntary compliance with its rules and regulation, even by non-
members. The Code does not apply to: (1) public service and emergency
announcements of utility companies; (2) religious, political, and public issue
advertisements and announcements, except where these involve or seek to promote
commercial transactions; and (3) standard transport announcements, classified ads and
obituaries.
6. Billboards. Regulation on billboards are guided by the National Building Code (RA 6541)
which states that "No sign or signboard shall be constructed as to unduly obstruct view
of the landscape, distract or obstruct the view of the public as to constitute a traffic
hazard, or otherwise defile, debase or offend aesthetic and cultural values and
traditions."

LAWS AFFECTING THE NEW MEDIA


"New Media"- electronically-based media, i.e, Internet, World Wide Web

1. Internet
• "Rules in the offline world apply online…The principle is not gain or lose rights
merely by going online…Laws do not apply to space; laws apply to people. And to
the extent that people can be regulated, those who use cyberspace can be
regulated." (Dr. Ang Peng Hwa)
• In the Philippines, the most significant law pertaining to the use of internet is the
Electronic Commerce Act (RA 8792, approved June 14, 2000), which was swiftly
enacted as a response to the damages and crippling effects caused by a Filipino-
written virus "Love Bug" or "iloveyou virus".

RA 8792 provides for the recognition and use of electronic commercial and non-
commercial transactions, penalties for unlawful use and other purposes. It also
recognizes electronic documents and puts manual and digital signatures on equal
footing. It allows the admissibility of electronic documents by courts, sets in place
of E-government and penalizes acts, referred to as "cybercrimes", i.e. cracking or
hacking.
2. Cellular Phones (Cellphones/Mobile Phones) and Text Messaging
• Text messaging has played an important role in the average Filipino's life - from a
household gadget to a mechanism to oust a President and a elect a new
government.
• Text as evidence. Text messages are admissible as evidence in trial as Section 1 (k)
Rule 2 of the Rules on Electronic Evidence: "Ephemeral electronic communication
refers to telephone conversation, text messages, and other electronic forms of
communication the evidence of which is not recorded or retained." Furthermore,
Rule 11, Sec. 2 of the same act provides that these form of evidence should be
"proven by a testimony of a person who was a party to the same or who was the
recipient of said messages and therefore had personal knowledge thereof on their
contents and import".
• Regulating Text Messaging. Due to irresponsible use of use of text - spreading
obscene, libelous, offensive and false messages, the National Telecommunications
Commission signed a Memorandum of Understanding with leading mobile phone
providers (Globe, Smart, etc.) to regulate SMS (short message sending).

• Convergence. The Implementing Rules and Regulations of the E-Commerce Law


define it as "technologies moving together towards a common point and
elimination of differences between the provisioning of video, voice and data, using
digital and other emerging technologies; the coming together of two or more
disparate disciplines or technologies; the ability of different network platforms to
carry any kind of service and the coming together of consumer devices such as,
but not limited to, the telephone, television and personal computer." Laws
affecting convergence are the 1987 Constitution, Acts passed by Congress,
Presidential Issuances, Department Orders issued by the DOTC and Memorandum
Circulars issued by the NTC.
CASE LAW/JURISPRUDENCE AFFECTING MASS MEDIA

A. FREEDOM OF SPEECH, OF EXPRESSION AND OF THE PRESS [1987 CONSTITUTION, ART.III,


SEC.4]

Gonzales v. COMELEC (G.R. No L-27833 April 18, 1969). Constitutionality of RA 4880,


which prohibits the solicitation of any campaign or propaganda, by an individual, the
making of speeches, announcements or commentaries or holding of interviews for or
against the election of any party or candidate for public office except during and election
period, was questioned for what petitioners considered as an infringement of freedom
of expression. Court held: at the very least, free speech and free press may be
identified with the liberty to discuss publicly and truthfully any matter of public
interest without censorship or punishment. Freedom of expression is not
absolute. It would be too much to insist that at all times and under all circumstances it
should remain unfettered and unrestrained. There are other societal values that press
for recognition.

1. Due Process. "Freedom from arbitrariness and its embodiment of the sporting idea of
fair play" [Ermita-Malate Hotel and Motel Operators'Ass'n v. City Mayor, 20 SCRA 849]
Art. III, Sec. 1 of the Constituition says: "No person shall be deprived of life, liberty, and
property without the due process of law, nor shall any person be denied the equal
protection of the laws.

There are two aspects of due process: procedural due process and substantive due
process.
Procedural Due Process Substantive Due Process
• procedure which government agencies • Refers to the law itself which must
must follow in the application and be fair, reasonable and just; the
enforcement of laws. law itself must not be arbitrary
• Daniel Webster defines it as "a law
which hears before it condemns" [Lopez
v. Director of Lands, 47 Phil. 23 (1942)]
• In both administrative and judicial
proceedings, the heart of procedural due
process is the need for notice and an
opportunity to be heard.

Eastern Broadcasting Corporation (DYRE) v. Dans Jr. [137 SCRAA 628 1985]. Before a
broadcast station may be closed or its operation curtailed it must undergo due process.
1. Right to a hearing, which includes the right to present one's case and submit
evidence in support thereof;
2. The tribunal must consider the evidence presented;
3. The decision itself must have something to support itself;
4. The evidence must be substantial. Substantial evidence means such reasonable
evidence as a reasonable mind might accept as adequate to support a conclussion;
5. The decision must be based on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected;
6. The tribunal or body or any of its judges must act on its or his own independent
consideration of the law and facts of the controversy and not simply accept the
views of a subordinate; and
7. The board or body should, in all controversial questions, render its decision in
such a manner that the parties to the proceeding can know the various issues
involved, and the reasons for the decision rendered.
2. Forms of Abridgement of Expression:
1. Prior Restraint. This means the official government restrictions on the press or
other forms of expression in advance of actual publication or dissemination.

Ayer Productions Pty. v. Capulong [160 SCRA 861 (1988)]. Judge Capulong of
the Makati Regional Trial Court issued a writ of preliminary injunction against
Ayer Productions, producer of "The Four Day Revolution" on the 1986 People
Power Revolution, to "cease and desist from filming and producing" the mini
series, after Juan Ponce Enrile filed a complaint alleging the production was a
violation of his right to privacy. Justice Feliciano held: "what is involved in the
instant case is a prior and direct restraint on the part of the respondent Judge
upon the exercise of speech and of expression by petitioner."

Burgos , Sr. v. Chief of Staff, AFP [133 SCRA 800 (1984)]. Office and printing
machines, equipment, paraphernalia, motor vehicles and various articles used in
printing, publication and distribution of We Forum and Metropolitan Mail were
seized thru the directive of search warrants issued on December 7, 1982. This
resulting to the curtailment of the operations of the printing press; whereas, such
closure is in nature of previous restraint or censorship abhorrent to the freedom
of the press. Court held search warrants null and void and ordered the return of
the seized articles to the publisher as it constitutes a virtual denial of petitioners'
freedom to express themselves in print.

American Bible Society v. City of Manila [101 Phil. 386 (1957)]. Where flat
license fees for the privilege of selling religious books were found to be
objectionable as a form of prior restraint.

It has to be taken into consideration that there are permissible form of prior
restraint. There could be constitutional as well as unconstitutional prior restraint
as seen in the case of Times Film Corp. v. City of Chicago [365 U.S.43 (1961)],
where the Chicago ordinance requiring films to be submitted and viewed by a
board of censors prior to public exhibitions was held as constitutional. This is also
supported by the case of Near v. Minessota [283 U.S. 697 (1931)] in which the
Court held "It has nver been held that liberty is absolute or that all forms of prior
restraints on speech are invalid."

The Near case is the landmark case pertaining to this matter. It made clear that
while expression is generally protected from prior restraint, it might subsequently
be punished if unlawful. The case cites exceptions to the ban on prior restraint
like:
1. Primary requirements of decency (protection against obscene publications);
2. security of community life (protection against incitement of acts of violence
and the overthrow by force of orderly government).

2. Freedom from Subsequent Punishment

1. The Dangerous Tendency Rule. All that is required, for speech to be


punishable is that there be a rational connection between the speech and the
evil apprehended. Under this test, the speech could be punished when it
"creates a dangerous tendency which the State has the right to prevent".

People v. Perez [45 Phil. 599 (1923)].Facts: Perez in a political discussion


said "The Filipinos like myself must use bolos for cutting off (Governor
General) Wood's head for having recommended a bad thing for Filipinos for
he has killed our independence." Held: Perez was imprisoned for this
remarks; it was not necessary for him to actually create evil, a mere
tendency was enough.
2. The Clear and Present Danger Test. The test permitted punishment when
"the words used are used in circumstances and are of such nature as to
create a clear and present danger that they will bring about the substantive
evils that the State has the right to prevent. It is a question of proximity and
degree."

Schenck v. U.S. [249 U.S. 97 (1919)]. Fact: Leaflet attacking the Conscription
Act of World War I and urging recent conscripts to resist serving in armed
forces. Held: these acts create a clear and present danger to national
security. The accused was convicted of violation of the Espionage Act of
1917 for having caused insubordination and obstruction of recruitment
services.

The clear and present danger test was first applied in the case of Primicias v.
Fugoso [80 Phil. 71 (1948)] where Mayor of manila sought indirectly to
muzzle the opposition party by denying its application for a permit to hold a
public meeting at Plaza Miranda on the ground that speeches to be delivered
might disrupt public order. The court rejected the argument asserting that
the situation in Manila did not justify the Mayor's fears.

In the case of Gonzales v. Comelec [27 SCRA 835 (1969)], Justic Fernando
explained: "This test then as a limitation to freedom of expression is justified
by the danger of evil of a substantive character that the state has the right to
prevent. Unlike the dangerous tendency doctrine, the danger must not only
be clear, but also present. The term clear seems to point to a casual
connection with the danger of substantive evil arising from the utterance
questioned. Present refers to the time element. The danger must not only be
probable/but very likely inevitable.

3. The Balancing of Interest Test. The basis of this test was explained by Justice
Cruz: When a particular conduct is regulated in the interest of public order
and the regulation results in an indirect, conditional partial abridgement of
speech, the duty of the Courts is to determine which of the two conflicting
interests demands the greater protection under the particular circumstances
prevented.

The test which was first used in the case of Gonzales v. Comelec [27 SCRA
835 (1969)]wherein Gonzales commented that RA 4880 which among other
things prohibits the too early nominations of political candidates and limits
the period for partisan political process as a social value. Through Justice
Castro said: In determining the validity of the law, free speech as a social
value must be weighed against the political process as a social value.

Lagunzad vs. Soto Vda. de Gonzales [92 SCRA 476 (1979)]. The Philippine
High Court applied this test to solve the conflict between the right of the
family of the deceased Moises Padilla to have their privacy protected and the
right of the writer to write about a public figure like Padilla. The court held
the family's right to privacy and declared that the licensing agreement which
required compensation to the family was valid.

The Comelec's power to regulate time in broadcast media and space in the
papers was balanced against freedom of expression in Unido v. Comelec
[104 SCRA 17 (1981)]. "…to precisely constitute an exception to freedom of
speech and press clause on account of consideration more paramount for
general welfare and public interest…"
B. The RIGHT TO INFORMATION [1987 CONSTITUTION, ART.III, SEC.7]

"The right of the people to information on matters of public concern shall be


recognized. Access to official records and documents, and papers pertaining to
official acts, transactions, or decisions as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law."

• Highlights transparency in the government.

o "…for all of these safeguards for an open and honest government...It establishes a
concrete, ethical principle for the conduct of public affairs in a genuinely open
democracy, with the people's right to know as the centerpiece." (Blas Ople, 5
Records of the Constitutional Commission, p.24)
• Duty of the State. Challenge to the citizen.

o "…this right of the people is precisely the duty of the State to make available
whatever information there may be needed that is of public concern…it challenges
the people to be active in seeking information rather than being dependent on
whatever the State may release to them." (Fr. Bernas, 5 Records of the
Constitutional Commission, p.26)
o "It is the right of the citizen to demand information…the State must have a policy
even without being demanded, by the citizens, without being sued by the citizen,
to disclose information and transactions." (Mr. Rama, 5 Records of the
Constitutional Commission, p.26)
• Informed citizenry.
o "Armed with the right information, citizens can participate in public discussions
leading to the formulation of government policies and their effective
implementation. An informed citizenry is essential to the existence and proper
functioning of democracy." (Chavez v. PEA&AMARI G.R. No. 133250 July 9, 2002)
• Coverage. The right to information covers categories of information which are "matter
of public concern".

1. Official Record Any document that is part of the public records in


custody of government agencies or officials.
2. Documents and papers Documents and papers, recordings, evidencing,
pertaining to official acts, establishing, confirming, supporting, justifying, or
transactions an decisions explaining official acts, transactions or decisions of
the gov't agencies or officials.
3. Government research data Raw, collated or processed, owned by the gov't
and used in formulating gov't policies

• Chavez v. Presidential Commission on Good Government (G.R. No. 1307016, December 9,


1998). Court decided whether or not right to information extended to government
negotiations not yet concluded. Court held that a consummated contract is not
necessary in the exercise of right to information; people can never exercise said right if
no contract is consummated or may be too late for public to expose defect in contract.

• Self-executing Right. Legaspi vs. Civil Service Commission (150 SCRA 530 [1987]).
Legaspi petitioned CSC to release civil service eligibility of some persons employed by
Cebu City Health Department but was denied access to said documents. Justice Cortes
ascertained that while government agencies have regulatory functions over records
their offices hold, they are duty-bound to disclose matters of public concern (like the
nature of civil service eligibility) and access to these said documents cannot be
discretionary on the part of said agencies.

• Valmonte vs. Belmonte (170 SCRA 256 [1989]). The petitioners, who are media
practitioners, sought information on veracity of reports that certain members of
legislative assembly were able to secure clean loans from Gov't Service Insurance
System (GSIS) immediately before 1986 elections through intercession of former first
lady Imelda Marcos. Court held that loanable funds of GSIS are of public nature and
public office held by alleged borrowers are of public interest and concern.

• Who may assert the Right? Any citizen. Citizens only.

Legaspi v. CSC: people are regarded as real party in interest and the realtor at whose
instigation the proceedings are instituted need not show that he has any legal or special
interest in the result. It is sufficient for him to show that he is a citizen.

• Rights Guaranteed:
1. "Public concern" is case to case basis.
• Legaspi v. CSC: "legitimate concern of citizens to ensure that gov't positions
requiring CS eligibility are occupied by person who are eligibles."
• Tañada v. Tuvera ( 146 SCRA 44): need for adequate notice to the public of various
laws are to regulate the actions and conduct of citizens.
• Valmonte vs. Belmonte: public nature of loanable funds of GSIS and public office held
by alleged borrowers are clearly a matter of public concern and interest.
• Aquino-Sarmiento vs. Morato (203 SCRA 515 [1991]): records reflecting the votes
taken by the Board of Censors are public records and matter of public concern.

2. Access to official records. If public concern is ascertained, then right to access


official records may be exercised.
• Valmonte vs. Belmonte: GSIS, in defense, claimed reasons for not showing the
documents on loans was that the loans are private in nature since GSIS is
performing a propriety action. Court held that whether carrying out its sovereign
attributes or running some businesses, discharges the same function of service to
the people. Thus, the petitioners have the right of access to the public documents.
• Garcia v. Board of Investments (177 SCRA 374, September 7, 1989): Congressman
Garcia of Bataan asked the Department of Trade and Industry (DTI) for a copy of
the amendment reportedly submitted by the Taiwanese investors in their
application for the establishment of the plant and also original application. DTI
refused because investors did not consent to the release of documents. Court held
that Garcia has the right of access to information about the application contained
in documents submitted and the requirement of publication is clear indication
that the matter is of public concern.

• Limits of Right:
• Valmonte: Constitution does not accord the right to compel custodians of official
records to prepare lists, abstracts, summaries and the like in their desire to
acquire information…
• Garcia: the right to access may not be extended to trade secrets or confidential
commercial and financial information and matters of national security.
• Recognized restrictions:
• In 1993:
1. Those affecting national security;
2. Diplomatic correspondence relating to national security and interest;
3. Matters still pending decisions; and
4. Confidential records of different branches of government
• In 1998 (Chavez v. PCGG):
1. National security matters;
2. Trade secrets and banking transactions;
3. Criminal matters; and
4. Confidential information
• Almonte v. Vasquez (244 SCRA 286 [1995]): Right to information is not applied to:
1. Privileged information under the separation of powers;
2. military and diplomatic secrets;
3. Information affecting national security;
4. Information on investigation of crimes by law enforcement agencies before
the prosecution of the accused;
• EO 464 (PGMA) - "Executive Privilege" as an exemption to the power of legislative
inquiry (the general power of Congress to obtain information) . This is the power
of the president to withhold certain types of information from the public, from
courts, and from Congress.

Executive privilege is right of the President and high-level executive branch


officers to withhold information from Congress, the courts and ultimately the
public. [M. Rozell, Executive Privilege and the Modern Presidents: In Nixon's
Shadow (83 Minn. L. Rev. 1069.

It the covers all confidential or classified information between the President and
the public officers, including:

1. Conversation and correspondence between the president and the public


official covered by this EO.
2. Military, diplomatic and other national security matters which in the interest
of national security should not be divulged;
3. Information between inter-government agencies prior to the conclusion of
treaties and executive agreements;
4. Discussion in closed-door Cabinet meetings;
5. Matters affecting national security and public order

According to Tribe, there are three distinct kinds of considerations in the actuating EP:
1. State Secrets -- disclosure may subvert crucial military or diplomatic
objectives;
2. Informer's privilege -- nondisclosure of the identity of persons who furnish
information on violations of law
3. Generic privilege -- internal deliberations attached to intragovernmental
documents

E.O. 464 and the Congress' Power of Inquiry


The Constitution gives Congress the right to obtain information from the executive
branch whenever such information sought is in aid of legislation. When the executive
branch withholds such information on the ground of this privilege, it must assert it and
the reasons therefore, and why this privilege must be respected. Therefore, the
provision of EO 464 that the executive branch can evade this power vested in Congress
without clearly asserting a right to do so and stating the reasons therefore is held
impermissible.

E.O 464 and the people's right to information


The nulled provisions of EO 464 denies the right of the people to information since, to
the extent that the investigations aid in legislation, legislations are presumed to be
matters of public concern.

• Mandatory Publication of Laws as Means of Implementing the Right to Information


• Publication of laws can not on any event be omitted as it would deny the public
knowledge of the laws that are supposed to govern it.
• The Civil Code provides that legislations should be published in the Official Gazette;
however, EO 200 promulgated by Pres. Aquino paved the way for laws to be
published alternatively in a newspaper of general circulation in the Philippines.
• The Administrative Code of 1987 mandates every government agency to file with
the University of the Philippines Law Center (UPLC) three certified copies of every
rule adopted by it.
• Administrative Order No. 108 directs government officials to deposit three copies
of rules and regulations and circulars and other official issuances with the UPLC
for the purpose of having a centralized system of information. In line with this, the
UPLC created the Office of the National Administrative Register (ONAR) which
publishes all these rules and regulations in the National Administrative Register
(NAR).

Publication of statutes that do not directly apply to people in general.


Whether the law applies directly to the people in general, it still requires
publication. The case of SENATE OF THE PHILIPPINES et. Al. v. EDUARDO R.
ERMITA (G.R. No. 169777 April 20, 2006) guides us in the light of this matter.
"While EO 464 applies only to officials of the executive branch, it does not follow
that the same is exempt from the need for publication.

"When the law does not distinguish do not distinguish" . Citing the case of Tañada v.
Tuvera (146 SCRA 44) which shed light on the need for publishing even those
statutes that do not directly apply to people in general, the Court held, the term
"laws" should refer to all laws and not only to those of general application. In that,
"all laws relate to people in general albeit there are some that do not apply to
them directly."

Even if EO 464 does not directly apply to people, is still a matter of public interest,
and thus may be question by members of the body politic. Due process thus
requires that the people should have been appraised of this issuance before it was
implemented.

• Other statutes supporting the Right to Information:


Administrative Code of 1987 • Recoginizes people's right to access as essential
(Local Government Code) to enable them to participate in policy making
and decision making process of government
• Provides for the establishment of a Public
Information and Assistance Office and the Office
of the National Administrative Register
Code of Conduct and Ethical • Provides for transparency of transactions and
Standards for Public Officials access to information keeping with the state
and Employees (RA 6713) policy of full public disclosure of transactions
involving public interest.
• All public employees to respond to letters and
routinary requests sent by the public within
fifteen days from receipt
EO 89 • Procedures for the public and the agencies to
follow when there are request for governmental
data and information
Memorandum Circular No. 60 • System to ensure smooth flow of transactions in
government and prompt response to public
requests
• Strict observance of RA6713

C. LIMITS TO FREEDOM OF SPEECH, OF EXPRESSION, AND OF THE PRESS AND TO THE


RIGHT OF INFORMATION

1. The Right to Privacy. Simply said, "privacy" is the right to be "let alone". (Thomas
Cooley, 1888) This is the right of an individual to determine what, how much and when
information about himself shall be disclosed. The privacy of an individual is protected
by the natural law and the Philippine Constitution.

Having spurred from the natural law which is immutable and recognized as intuitive,
privacy means that by no means should it be abolished.

Republic of the Philippines v. Sandiganbayan, Major General Josephus Q. Ramas and


Elizabeth Dimaano (G.R. No. 104768 July 21, 2003) presents a case where the Court
upheld the right of Dimaano to privacy, as to the legality of the search and seizure
operations that occurred on her house. The search and seizure was a directive under
RA 1379 "The Act for Forfeiture of Unlawfully Acquired Property" to recover alleged ill-
gotten wealth the Sandiganbayan clerk-typist amassed. It is important to be taken into
view that during the time of the search and seizure, no Bill of Rights is in effect to
protect Dimaano's right to privacy because the "revolutionary" government under
Aquino had just been installed and was bound by no constitution or legal limitations.
But, Justice Puno held that Dimaano has a right against unreasonable search and seizure
and to exclude evidence obtained thereof because the right to privacy is a natural law.

a. Privacy of Communication and Correspondence


Where there may be a constitutional mandate affording protection to privacy of
communications, intrusion to the privacy of communication and correspondence
is allowed "upon lawful order of the court or when public safety or order requires
otherwise as prescribed by law."

The Anti-Wire Tapping Law (RA 4200)


• This law declares that is unlawful to pry in to any private communication,
using technology ranging from wire to cables to complicated devices.
However, intrusion to such private communication is afforded by this law
when any peace officer is authorized by a written order of the Court to
execute any of these acts. Otherwise, the information resulting from wire
tapping is not admissible as evidence in any court.

Bill of Rights and Private Individuals


• The Bill of Rights is not meant to be invoked against acts of private
individuals.

Taking into view the case of People v. Marti, where Marti delivered four gift-
wrapped packages to Manila Packing and Export Forwarders to be sent to
Zurich, Switzerland. Before delivering to the Bureau of Posts, as protocol,
the package was opened for final inspection and was found to contain dried
marijuana leaves inside. Consequently, Marti was convicted for violation of
the Dangerous Drugs Act (RA No. 6425). Marti appealed that the evidence
should not be admitted by virtue of the privacy clause afforded by the
Constitution.

The Court held: the search was made at the initiative of the proprietor of a
private establishment for its own private purposes without the intervention
of police authorities. Violations against unreasonable search and seizures
may only be invoked against the State.

b. Search and Seizure


A reasonable search is not to be determined by any fixed formula but it is to be
resolved according to the facts of each case [Valmonte v. General de Villa (G.R.
83988, September 29, 1989). There must exist a probable cause upon which a
warrant of arrest or an arrest is made.

In the WE Forum case (133 SCRA 800 [1984]) the Court did not issue a search
warrant because the mere possession of printing equipment and other
paraphernalia was not substantive to conclude that said equipments are utilized
for subversive activities by the owner, Burgos, Jr.

c. The Right to Privacy in Private Law and Other Laws

1. Civil Code. This law provides that "every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons".
It also punishes such acts of meddling and prying into the privacy of another
by imposing actionable torts - action for damages, for restraint or other
relief - against offenders. This law also recognizes the privacy of letters and
other private communication.
2. Revised Penal Code. The following acts constitute a violation of privacy:
a. Revelation of secrets which have become known to a public officer by
reason of his official capacity (deliberately or accidentally);
b. Trespass to dwelling;
c. Discovery and revelation of secrets by seizing papers and letters and
revealing their contents, or revealing secrets with abuse of office.

3. Rules of Court includes the concept of privileged communication which has


underpinnings in privacy. The following conditions, where one might be
called for to divulge information, limits the right to information and press
freedom in favor of privacy:
a. Communication between a husband or wife, during after marriage
without the consent the other, except in civil case by one against the
other or in a criminal case committed by one against the other or the
latter's direct descendants or ascendants;
b. An attorney, his secretary, stenographer or clerk without the consent
of his client;
c. A person authorized to practice medicine, surgery or obstetrics in a
civil case without the consent of the client;
d. A minister or priest, without the consent of the person who made the
confession;
e. A public officer during his term of office or afterwards, as to
communications made to him in confidence, when the court finds that
the public interest would suffer by the disclosure.

4. Special Laws

a. Youthful Offenders. PD 603 aka "Child and Youth Welfare Code"


provides that youth offenders whose charges are dropped are
protected through the destruction of all their records unless civil
liabilities has also been imposed in the criminal action, in which case
such records will be destroyed after satisfaction of such civil liability.
These records shall be considered privileged and may not be disclosed
directly or indirectly to anyone for any purpose whatsoever.

b. Rape Victims. RA 8505 aka "Rape Victim Assistance and Protection Act
of 1998" provides that at any stage of the investigation, prosecution
and trial of a complaint for rape, the police officer, the prosecutor, the
court and its officers, as well as the parties to the complaint shall
recognize the right to privacy of the offended party and the accused.
The name and personal circumstances of the offended party and/or
the accused, or any other information tending to establish their
identities, and such circumstances or information on the complaint
shall not be disclosed to the public.

c. Cases tried by the Family Courts. "Family Courts Act of 1997"(RA


8369) Sec. 12 affords the privacy and confidentiality of the
proceedings in these courts, at all stages, unless necessary and with
the authority of the judge.

d. Aids Patients. "Philippine AIDS Prevention and Control Act of 1998"


(RA 8504) protects the privacy of AIDS patients by ensuring medical
confidentiality. Medical confidentiality covers all health professionals,
medical instructors, workers, employers, recruitment agencies,
insurance companies, data encoders and other custodians of any
medical information, particularly the identity and status of persons
with HIV.

Exceptions to this medical confidentiality include: 1) reportorial


requirements in conjunction with AIDSWATCH; 2)informing other
health workers directly involved or about to be involved in the
treatment or care of a person with HIV/AIDS; 3) when responding to
subpoena duces tecum and ad testificandum, where main issue is the
HIV status of the patient.

5. Computers and Privacy

a. E-Commerce Law (RA 8792) and the Implementing Rules and


Regulations of the "Electronic Commerce Act" shield the privacy,
confidentiality, anonymity of users and provides content control.

b. Ople v. AO 308 (G.R. No. 127685; 293 SCRA 141). The case in
consideration discusses the invalidation of President Fidel V. Ramos
(FVR) administrative order "Adoption of a National Computerized
Identification Reference System". The AO gives the power to the
government to compile a devastating dossier against unsuspecting
citizens. The court ruled that this infirm the Constitutional provisions
for privacy as it intrudes the citizenry's protected zones of privacy.

c. GMA's EO 420. In the case of Kilusang Mayo Uno, et al. v. The Director-
General, NEDA, et al. (G.R.No. 167798 April 19, 2006) two issues were
raised: the EO was a usurpation of legislative power by the President
and it infringes on the citizen's right to privacy. The Court held
otherwise on both grounds, since the EO only afforded the adoption of
a reasonable ID system, where the ID system applies only to
government entities that already maintained ID systems and the
purpose of the uniform ID data collection and format are to reduce
costs, achieve efficiency and reliability, insure compatibility, and
provide convenience to the people as opposed to AO 308 which
tinkered on creating a new national ID system where none existed
before and intruded the citizenry's protected zones of privacy.

6. Privacy and Public Figures

A "public figure" is a person who, by his accomplishments, fame, or mode of


living, or by adopting a profession or calling which gives the public a
legitimate interest in his doings, his affairs and his character, has become a
"public personage". (Profs. Prosser and Keeton).

In the case of Borjal v. Court of Appeals [301 SCRI (1999)], the Court
explained that even if a person is not a public official or at least a public
figure as long as he is involved with a public issue, he could be subject of a
public comment as cited in Rosenbloom v. Metromedia (403 U.S. 254
[1964]). This jurisprudence widen the scope of "public figure".

Ayer Productions Pty. v. Capulong [160 SCRA 861 (1988)]. Judge


Capulong of the Makati Regional Trial Court issued a writ of preliminary
injunction against Ayer Productions, producer of "The Four Day Revolution"
on the 1986 People Power Revolution, to "cease and desist from filming and
producing" the mini series, after Juan Ponce Enrile filed a complaint alleging
the production was a violation of his right to privacy. It was held that the
film did not constitute an unlawful intrusion to Enrile's right to privacy,
since Enrile was a public figure at that time; furthermore, it held that the
extent of the intrusion is reasonably necessary to keep the film a truthful
historical account.

Lagunzad vs. Soto Vda. de Gonzales [92 SCRA 476 (1979)]. The
Philippine High Court applied this test to solve the conflict between the right
of the family of the deceased Moises Padilla to have their privacy protected
and the right of the writer to write about a public figure like Padilla. The
court held the family's right to privacy and declared that the licensing
agreement which required compensation to the family was valid. In the
same ruling the Court stated that being a public figure ipso facto does not
automatically destroy in toot a person's right to privacy. No matter how
public a figure he or she may be, the right to invade a person's privacy to
disseminate public information does not extend to fictional or novelized
representation of a person.

7. Four Major Privacy Actions (Professor Donald M. Gillmore):


a. Disclosure of private facts;
b. Intrusion upon seclusion;
c. Portrayal in a false light; and
d. Appropriation for commercial purposes.

8. Privacy applied by KBP (Circular no. 06-016): Broadcasters should not


intrude into matters which are purely private or personal and have no
bearing on the public interest. Persons affected by tragedy or grief shall be
treated with respect and discretion.

2. National Security

"The greatest threat to press freedom is national security." The balance of interest test,
ahead of everything else, is national security.

The security of community life must be protected against incitement to acts of violence
and overthrow by force of orderly government (Near v. Minnesota, 238 U.S., at 716,
733) The same American jurisprudence is instructive in Philippine Supreme Court
ruling that "every man shall have a right to speak, write and print his opinions upon any
subject whatsoever, without prior restraint, so always that he does not thereby disturb
public peace, or attempt to subvert the government."

Under the Commonwealth

In People v. Perez (45 Phil. 600 [1923]), then municipal treasurer Isaac Perez uttered
"The Filipinos, like myself, must use bolos for cutting off (Governor-General) Wood's
head…" which resulted to his conviction of sedition, banging against the Treason and
Sedition Law (Act No. 292).

Oscar Espuelas y Mendoza v. People of the Philippine (G.R. No. L-2990) involves a ruling
of the Court that convicted Espuelas with inciting to sedition for drafting and causing
the publication of a photograph deceptively depicting his suicide attached with a
fictitious suicide letter to his wife where the government under President Roxas was
criticized. Majority opinion held that the letter was scurrilous libel. Furthermore it said:
"The mere fact that a person was so disgusted with his "dirty government " to the point
of taking his own life, is not mere a sign of disillusionment; it is a clear act to arouse its
readers a sense of dissatisfaction.

In the same case the court retained that the any citizen has privilege to criticize his
government and government officials and to submit as long as it is channeled through a
constructive, reasoned or tempered manner, and not through a contemptuous
condemnation of the entire government set-up.

The Dissenting Opinion , in this case, concluded that the article was harmless as far as
government security was concerned. Citing Justice Holmes' criteria for inciting to
sedition, there could not be inciting to sedition unless the "words used are used in such
circumstances and are of such a nature as to create clear and present danger that they
will bring about the substantive evils that the Congress has the right to prevent."

It also cautioned: "the courts may not subject an act or utterance to a microscopic
examination in an endeavor to find in it germs of seditious purpose. In prosecutions for
sedition utmost caution is called for lest the freedom of expression be impaired."
Under the Marcos Regime

Three months after Marcos declared Martial Law (Proclamation 1081), the Supreme
Court ruled that the Anti-Subversion Law "did not violate press freedom and that the
government has the right to protect itself against organized, systematic, and persistent
subversion posed by the Communist Party of the Philippines".

Aquino, Jr. v. Enrile (59 SCRA 183 [1974]) and Aquino Jr. v. Military Commission No.2 (65
SCRA 183 546 [1975]) were landmark cases during this period. All these cases were
petitions for habeas corpus where petitioner Aquino, Jr. was arrested and detained per
Proclamation 1081 which suspended the writ of habeas corpus, thus permitting the
arrest of individuals without warrant of arrest. The Court upheld Marcos Proclamation
1081.

This case provides a clear and solid proof that national security limits press freedom.
During the time of Marcos' dictatorial rule, most of those who were arrested and
detained were from the media industry.

Printing press and other media establishments were struck down as in the case of We
Forum. Only those that were run by Marcos' relatives and cronies were allowed to
continue publishing.

While Proclamation 1081 was "lifted" eight years after its promulgation, PD 1834
escalated the penalties for crimes against public order to death. PD 1834 which was
added Art. 142-B to the Revised Penal code aimed at media. The first casualty of this
statute was Letty Jimenez Magsanoc, editor of Panorama, who after having written
"There Goes the New Society, Welcome the New Republic", was forced to resign.

In the case of Babst v. National Intelligence Board (132 SCRA 316) Arlene Babsts and
other media practitioners brought an action to the Court seeking to prohibit the NIB
from issuing subpoenas to petitioners and interrogating them, and from filing libel suits
on matters that had been the subject of inquiry by the NIB. The petitioners were
summoned by military authorities and subjected them to sustained interrogation on
various aspects of their works, feelings, sentiments, beliefs, associations and even their
private lives. The Court did not grant their petition since the assailed proceedings were
halted. But nevertheless, Justice Abad Santos condemned the interrogations for being
violative of the freedoms of speech, press and privacy.

From the time of Magsanoc to the barring of WeForum, resistance against suppression
built up. This resistance peaked when Aquino, Jr. was assassinated. These circumstances
boiled into a massive demand for "alternative press" (special supplements and
irreverent tabloids).

Speculations on the involvement of high government and military officials in Aquino,


Jr's assassination were published in a story on the Philippine Times under publisher
Rommel Corro. This irked the military which resulted to P1M libel charges against Corro
and the Philippine Times was closed down. In Corro v. Lising (132 SCRA 316), Corro
petitioned to the Supreme Court to nullify the search warrant issued by Judge Lising.
The Court favored Corro's petition, pointing out that the requirement of probable cause
for issuing a warrant was not satisfied. The Court ordered the return of the seized
properties and the reopening of the padlocked office premises.

Cases on National Security After 1986

No case on press freedom and national security tantamount to the cases tackled under
the era of martial law occurred during this time. However, what pervaded between
press freedom and national security were issues under international relations.

Department of Foreign Affairs barred reporters from getting direct access to all DFA
officials and personnel to protect national security and other sensitive information
being handled by the DFA, and not to infringe on the freedom of the press. This was
shortly after the press reported the mauling of Filipino by a s Saudi policeman in Saudi
Arabia and the roundup of Filipino workers in Malaysia.

"There is a governmental privilege against public disclosure with respect to state


secrets regarding military, diplomatic and other national security matters." (Chavez v.
PCGG, et. Al [GR No. 130716; 299 SCRA 744)

National Security Issues

1. Sedition. The following circumstances illustrates that could bring about charges to
sedition, post martial law.

Perfecto Fernandez, retired law professor, during the Estrada administration, filed
a case against the Philippine Daily Inquirer for allegedly degrading the presidency.
His 22-page complaint alleged the PDI abused its power "under the guise of press
freedom by engaging in partisan journalism and had used it as a weapon of
political vendetta and terrorism." Fernandez claimed that the articles PDI
circulated distracted the President from delivering his functions and maligned not
only the man but his office.

In 2004 national elections, Koalisyon ng Nagkakaisang Pilipino (KNP) led by


Fernando Poe, Jr. insisted that Poe won the elections after PGMA emerged as
winner. Rumors of a coup aiming at impeding the proclamation of winners moved
PGMA to threaten to file charges of sedition against people plotting to stop the
proclamation.

2. Rebellion. In 2003, PGMA berated and accused Tina Panganiban-Perez, GMA-7


reporter of "abetting rebellion" after having an exclusive interview with Sen.
Gringo Honasan who went hiding in the midst of the Proclamation 427 which
declared a state of rebellion in the country which was spurred by the controversial
Oakwood Mutiny, where Honasan was allegedly the mastermind.

3. The Drug Menace. In 2001, a senate inquiry into the alleged involvement of
Senator Panfilo Lacson in the drug trafficking, money laundering, illegal wire
tapping and in kidnap for ransom. This elicited various opinions from the media
sector but one thing was certain, these allegations against the senator was a threat
to national security.

4. Terrorism. The series of kidnappings in the country's southern parts and the
media's coverage of the events has led PGMA to appeal a media block out to these
events. PGMA begged the media to stop the giving coverage to terrorist group, Abu
Sayyaf since "that is what makes them braver".

KBP's response was Circular No. 091-00 which presented guidelines in covering
news in Sulu and other conflict areas.

KBP Guidelines for News Coverage of Incidents Invoking Extremist Groups


1. Stations shall not allow themselves to be used for propaganda by extremist
groups.
2. Live on-air interviews with representatives of such groups should be
avoided in the interest of responsible journalism.
3. Invitations for on-site coverage by extremist groups should be turned down,
except when government offices are involved.
4. The duty of media is to report the news. Negotiations should be left to
proper authorities.

On February 15, 2005, KBP issued Circular No. 05-014 to all members of regarding
reporting on terrorist activities in view of the new round of terrorist bombings:
1. Report the events soberly and factually.
2. Avoid sensationalism and put the events you report in proper perspective.
Observe balance in your reports at all times.
3. Do not unnecessarily create panic and alarm.
Guard against airing speeches, interviews, and other material which will
openly advocate the overthrow of government by force or violence or which
serve the purposes of terrorist groups.

5. Proclamation No. 1017. PGMA declared the country in a state of national


emergency. By virtue of Proclamation No. 1017, Randolf David, Ronald Llamas
were arrested without warrant; the dispersal of rally and warrantless arrest were
also served to KMU and NAFLU-KMU members; standards on media or any prior
restraint were also imposed on the press; the Tribune offices were searched
without warrant.

David, et al. v. Gloria Macapagal-Arroyo (GR No. 171396 may 3, 2006)


consolidated seven cases alleging that in PP 1017, PGMA committed a grave abuse
of discretion and therefore petitioned that PP1017 be void for being
unconstitutional. The Court held that PP1017 is constitutional.

However, the Court also held that the actions imposed on the petitioners are not
authorized by the Constitution, the law and jurisprudence, not even by the valid
provisions of PP 1017.

6. Calibrated Preemptive Response or CPR and the Public Assembly Act (BP 880).
Bayan et.al v. Ermita, et.al. (GR No. 169838, April 25, 2006) consolidated three
cases where all the petitioners assailed Batas Pambansa No. 880 (Public Assembly
Act) and the Calibrated Preemptive Response. They sought to stop violent
dispersals of rallies under the "no permit, no rally" policy and the CPR
announced.

BP 880 provides, among others, that a written permit shall be required for any
person or persons to organize and hold a public assembly in a public place.
However, no permit is required when the public assembly shall be done or made
in a freedom park duly established by law or ordinance or in private property.
Although the law prohibits law enforcement agencies from interfering with the
holding of a public assembly, a law enforcement contingent under the command of
a responsible police officer may be detailed and stationed at least 100 meters
away from the area of activity to ensure public safety. The law enforcers shall
observe "maximum tolerance" in performing their duties. Calibrated Preemptive
Response (CPR) states that unlawful mass actions will be dispersed, which is just a
statement that synonymous to the "maximum tolerance" cited in already existing
BP880.

"Maximum Tolerance" means the highest degree of restraint that the military,
police and other peace keeping authorities shall observe during a public assembly
or in the dispersal of the same. It is for the benefit of the rallyist and not the
government.

In sum, the Court reiterated: "its basic policy of upholding the fundamental rights
of our people, especially freedom of expression and freedom of assembly." The
Court held that BP 880 is constitutionally grounded; however, it ruled the struck
down of CPR as it "has no place in our legal firmament and must be struck down as
it confuses our people and is used by some police agents to justify abuses."

3. Libel

The law recognizes the value of such reputation and imposes upon him who attacks it,
by slanderous words or by libelous publication, the liability to make full compensation
for damages done (Worcester c. Ocampo 22 Phil. 42 [1912]) The purpose of libel laws is
to encourage victims to civil suit instead of taking the law into their own hands (U.S. v
Sotto, 33 Phil. 666 [1918]).

Criminal and Civil Aspects of Libel Law


A person prosecuted and found guilty of libel, he or she may suffer imprisonment
(criminal liability) or be required to pay a fine (civil liability), or both. Libel deprives a
person of his good reputation.

• Civil Aspect: "Since reputation is a thing of value, truly rather to be chosen rather
than great riches, an impairment of it is a personal wrong. To redress this
personal wrong, money damages are awarded to the injured person". (Hale's law
of the Press, 3rd ed. 1948) as cited in Lopez v. Court of Appeals (34 SCRA 122
[1970]).

• Criminal case: in the same case above, "publication of defamatory statements


tends strongly to induce breach of the peace by the person defamed, and hence is
of peculiar moment to the state as to the guardian of the public peace."

Element of Defamation
1. Imputation of a crime, or vice or defect (real or imaginary), or any act, ommission,
condition, status or circumstance
2. Imputation must be made publicly
3. Malicious
4. Directed at a natural juridical person, or one who is dead
5. Tend to cause dishonor, discredit, or contempt or the person defamed

People v. Gomez (GR No. 32815, June 25, 1980; 70 OG 2321, May 4, 1981) and Roberto
Brillante v. Court of Appeals et. al. (GR Nos. 118757 & 121571, October 19, 2004) cites
the four element that would establish libel:
1. Defamatory allegation
2. Publication.
• "to make public; to make known to people in general; to bring before the
public"
• Orfanel v. People (30 SCRA 819[1969]): writing a letter to another person
defamed is sufficient to constitute publication.
• Alonzo v. C.A. (241 SCRA 51 [1995]): if the statement is sent straight to the
person whom it is written, there is no publication of it.
3. Identifiabilty
• Newsweek, Inc. v. Intermediate Appellate Court (142 SCRA 171 [1986]):
"libel can be committed only against individual reputation"
• Borjal v. CA (301 SCRA 1, 20 [1999]): "a third person can identify him (the
person attacked or defamed) as the object of the libelous publication"; it is
not a requisite that the victim be named in a publication, neither is it
sufficient that the offended party recognized himself.
4. Malice
• What is malice? It is the essence of the crime of libel (Rice v. Simmons, Del 2
Har. 309, 310 in Borjal p 28.)
• The fact that the offender is prompted by personal ill-will or spite and
speaks not in response to duty, but merely to injure the reputation of the
person defamed. (US v. Cañete 38 Phil 253 [1918])
• Implies an intention to do ulterior or justifiable harm (Id., cited in Borjal v.
CA 301 SCRA 1 [1999])
• Malice is bad faith or bad motive (Potts v. Dies, 132 Fed. 734, 735)
• Malice in fact -- shown by proof of ill will, or purpose to injure (U.S. v.
Montalvo 29 Phil. 595). Where malice in fact is present, justifiable motives
cannot exist and the imputations become actionable. (Lu Chu Sing v. Lu
Tiong Gui 76 Phils 676 [1946]). The plaintiff must bring home to the
defendant the existence of malice as the true motive of his conduct. (White v.
Nicholls [1845], 3 How., 266 in US v. Bustos (37 Phils. 731 [1918])
• Malice in law -- presumed to exist from the defamatory imputation and proof
is not required (Art. 345, 1st sentence); it is granted in view of the grossness
of the imputation. (People v. Andrada, CA 37 OG 1783).
Presumption of Malice

Art. 345 (RPC) states that "every defamatory imputation is presumed to be


malicious, even if it be true.." Simply, this is malice in law; the plaintiff doesn’t have
to prove that there was malice on the part of the defendant. On the other hand, the
defendant has to prove that there is no malice, the defamatory imputation is true,
and/or it was published with good intention and that there was justifiable motive
for making it, in order to be acquitted.

In Policarpio v. Manila Time Publishing Co., Inc. (5 SCRA 148 [1962]) the
defendants maintained that their alleged malice in publishing the news item in
question had not been established by the plaintiff. But the Court held Art. 354 in
the case and cited that the defendants presented the plaintiff in a far worse light
than she in fact was, claiming that the report is not a fair and true report.
Accordingly the defamatory imputations contained in the article were "presumed
to be malicious".

Malice is not presumed in privilege communications


In instances of privileged communication, malice in fact must be proven to convict
the accused on a charge of libel. Actual libel must be proven, in that, the offended
party must show the libelous statements to "have been written or published with
the knowledge that they are false or in reckless disregard of whether they are
false or not" (376 US 254, in Borjal). Privilege destroys presumption. The onus of
proving malice then lies on the plaintiff. Falsehood an probable cause will amount
to proof of malice (White vs. Nicholls [1845], 3 How., 266 cited in U.S. Bustos, 37
Phil 743 [1918]).

Privilege Communication wherein malice is not presumed:


1. Private communication in performance of any legal, moral or social duty;
2. Fair and true report, made in good faith, without any comments or remarks,
of
• any judicial, legislative or other official proceedings which are not of
confidential nature
• any statement, report or speech delivered in said proceedings
• Any other act performed by public officers in the exercise of their functions
3. "Commentaries on matters of public interest are likewise privileged".

The doctrine of privileged communication rests upon public policy, 'which looks
to the free and unfettered administration of justice, though, as an incidental result,
it may in some instances afford an immunity to the evil-disposed and malignant
slanderer." (Abbott v. National Bank of Commerce, Tacoma [1899], 175 US, 409,
411) Thus, it has to be considered that the fact that a communication is privileged
does not mean it is not actionable; it only does away with the presumption of
malice which has to be proven by the plaintiff. (Lu Chu Sing v. Lu Tiong Gui [76
Phils. 676 [1946]).

There are two types of privilege communication:


1. Absolute privilege - a communication that is not actionable, even if its
author acted in bad faith. This covers a) statements made by members of
the Congress in discharge of their official functions, b) official
communications allegations or statements made by parties or their counsel
in their pleadings or motions or during the hearing of judicial proceedings,
provided such statements and/or utterances are relevant and pertinent to
the issues and questions at hand.
2. Conditionally or qualified privilege - communications that which although
containing defamatory imputations, would not be actionable unless made
with malice and bad faith (US v. Bustos [1918])

Novicio v. Aggabao (GR No. 141332, December 11, 2003) is a clear example
of qualified privileged communication. Novicio, stockholder and treasurer of
Philippine International Life Insurance Company sent a letter to the
company's depository banks informing them that several stockholders of the
company had been restrained by the Court of Appeals (CA) from exercising
their rights as shareholders. Aggabao, which was included in Novicio's
notice, sued Novicio for libel. Novicio moved to quash the information
alleging that the facts therein did not constitute libel. The trial court denied
the motion. Novicio filed a petition for certiorari in the Court of Appeals.

The Supreme Court held that the facts alleged in the information did not
constitute libel on the basis that only one element of libel was justified:
identification. But the failure to establish the existence of malice weighed the
greatest since the letter in consideration was viewed as qualified privilege
(it was Novicio's duty to inform the banks in which the company maintained
its corporate accounts of the CA's resolution and corresponding change of
bank signatories).

In case of Filipinas Broadcasting Network (FBNI) v. Ago Medical and Educ.


Center-Bicol Christian College of Medicine (AMEC), et. al. (GR No. 141994,
January 17, 20050 the court debunked the appeal of the petitioners of
qualified privilege communication. The Supreme Court held that
defamatory imputation is presumed malicious and that Rima and Alegre,
commentators of radio morning radio program aired under DZRC-AM under
FBNI, after commenting on student gripes against AMEC, failed to show
adequately their good intention and justifiable motive in airing such
commentaries.

The commentators relied on the words of the students "because they were
many and not because there is proof that what they were saying is true"
where they could have had leveraged the veracity of the facts of the
information they broadcasted to prove that they acted in good faith. The
Court maintained that the broadcasts are not privilege and they were
libelous per se.

The Court, cognizant of the Radio Code of the KBP, annotated some of its
provisions in said case:
• Public affairs program shall present public issues free from personal
bias, prejudice and inaccurate and misleading
information…Furthermore, the station shall strive to present balanced
discussion of issues…
• The stations shall be responsible at all times in the supervision of
public affairs, public issues and commentary programs so that they
conform to the provisions and standards of this code.
• It shall be the responsibility of the newscaster, commentator, host and
announcer to protect public interests, general welfare and good order
in the presentation of public affairs and public issues.

Doctrines related to Privileged Communication


1. Doctrine of fair comment -- comment which is true, or which, if false,
express the real opinion of the author, such opinion having been
formed with a reasonable degree of care and on reasonable grounds
(Steph. Dig. Cr. Law, Art. 274)

"If a comment is an expression of opinion, based on established facts, then it


is immaterial that the opinion happens to be mistaken, as long as it may be
inferred from the facts." (Borjal v. CA (301 SCRA 21 [1999], citing People v.
Velasco, 40 OG, No. 18, p3694)

Baguio Midland Courier (BMC) v. Court of Appeals and Ramon Labo, Jr. (GR
No. 107566. November 25, 2004) invoked the petitioner's claim to this
doctrine. Mayoralty candidate, Labo filed a civil action for libel against BMC
which published a series of article that dealt with the candidates for the
various elective positions in Baguio city in a column. One of the articles
featured Labo's inability to pay his debts to doctors and BMC.

Thus applying the principle of privilege communication, which the


petitioners claimed, the presumption that the article was of malicious
character was lifted. The burden of proving actual malice rested on Labo.
Labo wasn't able to prove actual malice in the articles in question. The
records showed proof that Labo incurred a debt until the time the
questioned article was published.

The Court held : The effect would be have been adverse to the private
respondent but public interest in this case far outweighs the interest of
private respondent Labo, who promised to donate millions of his own
money to his would be constituents. By virtue of fair comment , BMC just
provided the public information as regards to his financial status, with
respect of Labo's indebtedness.

1. Pivilege of fair criticism

Fair criticism supposes that the everyone is entitled to his own opinion
on matters of public interest; but it must not be expedient to allow
false and unfounded allegations of fact.

"The interests of society require that immunity should be granted to


the discussion of public affairs, and that all acts and matters of a public
nature maybe freely published with fitting comments and strictures,"
(US v. Sedano [GR No L-4998, October 25, 1909])

2. Neutral reportage.

"A republisher who accurately and disinterestedly reports certain


defamatory statements made against public figures is shielded from
liability, regardless of the republisher's subjective awareness of the
truth or falsity of the accusation" (Filipinas Broadcasting Network v.
Ago Medical and Educ. Center-Bicol Christian College of Medicine, et.al.
[GR No. 141994, January 17, 2005])

"The privilege of neutral reportage applies where the defamed person


is a public figure who is involved in an existing controversy, and a
party to that controversy makes the defamatory statement." (50 Am
Jur. 2d, Libel and Slander § 313)

It is to community standards -- not personal or family standards -- that a court must


refer in evaluating a publication claimed to be defamatory. (Bulletin Publishing
Corp. v Noel [167 SCRA 255, (1988)])

PROOF OF TRUTH
Truth is not an element in libel. In general, truth of an information, as long as it
blackens someone's reputation, is not a defense. In cases of privilege
communication, truth is neither a defense.

In cases where truth may be given in evidence, it should be supported that such
was published with good motives and for justifiable ends, for the defendants to be
acquitted. Truth can also only be admissible when an imputation is directed
against a government employee with respect to facts related to the discharge of
their official duties.

In Vasquez v. Court of Appeals (314 SCRA 460 GR No. 118971 [1991]) the issue
was the liability of a citizen who denounced Olmendo, a Barangay Chairman for
misconduct in office. The Court held the acquittal of Vasquez, who wrote an article
denouncing Olmendo for allegedly conniving with some officials of the National
Housing Authority to effect illegal transfer of title of land, on the basis that
Vasquez acted with the right and duty of every citizen to see to it that public duty
is discharged fully and well; thus Vasquez did not have to prove that he acted with
good faith and for justifiable ends. Citing Sullivan, the Court held that actual malice
must be shown by the public official, which he failed to do so.

DEFENSES
• If it is defamatory it is still not actionable if it was published with good
motives (Art 361 applied in Alonzo vs. CA)
• Privilege communication is a defense, but it is qualified and may be lost by
proof of malice (Mercado v. CFI, 116 SCRA 93 [1982])
• A retraction published to correct a mistake does not wipe out the
responsibility arising from the defamatory publication but it mitigate
amount of damages (Lopez v. CA)
• Fair comment affords legal immunity for the honest expression of opinion
on matters of legitimate public interest. Its emphasis is opinion based on
fact. But malice would negate the defense of fair comment (N.Y. Times v.
Sullivan, 376 US 254)

4. Obscenity

While there may be laws that exists to protect the stakeholders of the State from the
corrupting and degrading effects of obscenity, proving obscenity in actual cases proved
to be taxing since there is not clear cut definition of "obscenity" itself, where "one
person's obscenity is another person's art."

In the case of Jacobellis v. US (1964), US Supreme Court Justice Stewart said "I can't
define it, but I know when I see it."

Vaguely defined, obscenity is described as "utterly without redeeming social


importance" (Roth v. US 476 [1957]). This inexact definition is compounded by the
divergent and highly relative perceptions of men and women (Pita v. Court of Appeals,
178 SCRA 362 at 373 [1989]).

The Revised Penal Code punishes but does not define obscenity; thus Philippine
jurisprudence use "tests" in the determining whether something is obscene or not.

1. Hicklin test or "Isolated Pages" test. [Regina v. Hicklin (LR 3 QB 360 [1868]) in
People v. Kottinger 45 Phil. 352 (1923)]

Suspect material to be judged by the effect of isolated pages upon persons


particularly susceptible to prurient appeal or lustful thoughts, without regard
to the total effect of the entire work.

Stirring up a sizzling debate between what is art and what is obscene is the case of
People v. Pandan y Alova (101 Phil. 749 [1957]) where the defendants were
prosecuted for performing carnal intercourse for the benefit of paying viewers.
The Court held that the act was obscene. In it there was no room for art and it can
have no "redeeming" feature. The "redeeming element" was first introduced to
Philippine jurisprudence in this case.

Using the Hicklin test, the Court furthermore viewed the movie as "nothing but
lust and lewdness, and exerting a corrupting influence specially on the youth of
the land".

2. Roth Test. [Roth vs. US 354 US 589 (1957)]

This test works on the dictum: "whether to the average person, applying
contemporary community standards, the dominant theme of the material
taken as a whole appeals to prurient interests."

"Prurient" using standards meant "itching, longing, uneasy with desire or longing;
of persons having itching, morbid, or lascivious longings; of desire, curiosity, or
propensity or lewd."

Roth test was used in the case of Gonzales v. Katigbak (137 SCRA 717 [1985])
where producers of the film Kapit sa Patalim filed to the Supreme Court an action
against the MTRCB for classifying the film as "For Adults Only", which in view of
the producer is an impermissible restraint of artistic expression and a grave abuse
of discretion on the part of Maria Kalaw Katigbak, MTRCB chairperson during that
time being.

MTRCB thru EO 816 uses "contemporary Filipino cultural values" as standard in


rating films, which is analogous to the Roth test.

The court concluded that there was an abuse in discretion on the part of MTRCB,
but such abuse was not grave enough to grant the petitioner his pleading. This
decision was bolstered by the explanation of the Board why the film was rated as
such: "scenes were taken in theatre clubs and a good portion of the shots
concentrated on some women erotically dancing unclad on stage. Another scene
on stage depicted the women kissing and caressing as lesbians."Obviously, these
scenes were unfit for young viewers.

3. Memoirs v. Massachusetts (1966)


1. Statement of Roth Standard
2. A test that the material be patently offensive because it affronts
contemporary community standards relating to the description or
representation of sexual matters
3. A test that the material be utterly without redeeming social value
4. Miller's test. (Miller v. California [413 US 15 (1973)]). Being the latest test used,
this test overthrown Memoirs. President Ramos gave a directive to the Board of
the MTRCB to use the test in reviewing and classifying materials submitted to it.
1. Roth test. (see above)
2. Whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law;
3. Whether the work, taken as a whole, lack serious literary, artistic,
political or scientific value

MTRCB has the power to review and censor, subject to review by the courts. The
genesis of this agency's power and function is promulgated by Article 201 of the
Revised Penal Code and Presidential Decree 1986 -- where Art. 201 of the RPC asserts
punishments and penalties for immoral doctrines, obscene publications and exhibitions,
and indecent shows, while PD 1986 created the board.

To have a clearer definition of obscenity, Teodoro and Kabatay asserted that it is


tantamount to pornography. Furthermore, according to the Catechism of the Catholic
Church, Section 2354, pornography:
• consists in removing real or simulated sexual acts from the intimacy of partners,
in order to display them deliberately to third parties
• offends against chastity because it perverts the conjugal act, the intimate giving of
spouses to each other
• gravely injures the dignity of its participants, since each one becomes an object of
base pleasure and illicit profit for others

Fr. Gaston clarified that pornography is not a purely personal affair. "Other people are
always affected and hurt." Fr. Gaston explained the progress of pornography into the
commission of sexual crimes. His assertions were akin to Victor Cline, Ph. D. who
postulated a "near universal four factor syndrome" among users of pornography:
1. Addition effect - wanting and coming back for more.
2. Escalation effect - more explicit, rougher and more deviant kinds of sexual
material to get "high"
3. Desensitization - the material which was initially regarded as shocking, repulsive
and immoral passes with time as acceptable and commonplace
4. Increasing tendency to act out.

Other studies have shown that there is a correlation between pornography and deviant
sexual and antisocial behaviors. Ted Bundy, a convicted rapist and serial killer, gave a
face to this researches when he confessed that pornography and violence in media
brought him to face his death in the electric chair. His last words "There are many Ted
Bundies out there" gives a staunch caveat to law makers and officers to act on obscenity
and pornography.

Thus, in response to this pressing and alarming circumstances, spurs the role of the
State to protect its stakeholders against these threats in the pursuit and right to
maintain a decent society.

This police power is vested in the MTRCB which disposes its parens patriae function
(called upon to manifest an attitude of caring for the welfare of the young) and in some
instances disallows the public showing or requires deletion of some parts of some films,
prior to public exhibition, without necessarily curtailing the freedom of expression.

Freedom of expression may be limited only when it passes the clear and present danger
test. Censorship is allowable only under the clearest proof of a clear and present danger
of a substantive evil to public safety, public morals, public health or any other public
health or any other legitimate public interest.

Presently, MTRCB's power is limited to merely a classifying Board, whereas the


classification shall be based on the treatment of theme, violence, language, nudity, drug
abuse, and other similar elements. The Board also is directed to evaluate films on the
basis of its entirety and base their decisions on what is heard or seen, not on what is
imagined.

The deletion of scenes was transferred to the applicant thru the mandate of PD 1986, so
as not to dictate to the applicant particular scenes, shots, or dialogue for deletion or
cuts in order for the applicant to avail himself a desired classification.

5. Fair Administration of Justice and Contempt

When press freedom is abused effecting the obstruction of the fair administration of
justice, one may be held liable for contempt.

Rule 71 Sec. 3(d) of the Rules of Court of the Philippines (1997 Rules of Civil Procedure,
as amended, effective July 1, 1997) provides that any improper conduct, tending,
directly or indirectly, to impede, obstruct, or degrade the administration of justice.

What constitutes Fair Administration of Justice?


• Parties have a constitutional right to have their causes tried fairly in court by an
impartial tribunal, uninfluenced by publications and public clamor.
• Free from outside coercion or interference
• Independence of judiciary

Galang v. Santos (307 SCRA 582 [1999]) is an example of how in a judge who engages in
activities of the press may affect fair administration of justice. Here, the SC dismissed
Judge Santos from service, due to acts of unbecoming of a judge by engaging in the
publication of a gossip tabloid, as editor and legal adviser, and as a gossip-mongering
columnist of another local newspaper.

Sub judice
• A general term to describe the fact that an issue is before a court its
determination, before a judge; a pending suit.
• Anyone who publishes comments on a sub judice which may obstruct the fair
administration of justice may be held for contempt.

Contempt
In re: Jones, (9 Phil. 355 [1907]) contempt is in general must be some act or conduct
which tends to interfere with the business of the court:
1. By refusal to obey some lawful order of the court;
2. Some act of disrespect to dignity of the court, tending to interfere with or hamper
the orderly proceedings of court

The first major contempt case was In re Kelly (35 Phil. 944 [1916]). American Anzi Kelly
who was found guilty for contempt, requested for a hearing. But pending final decision,
a Manila paper published Kelly's letter. The court found that Kelly's letter constituted
contempt.

In re Brillantes (42 OG 59 [1946]) midwifed a new judicial approach from the general
rule. After the Manila Guardian published an editorial after the case involving the
validity of the 1994 Bar exam had terminated, the editorial stated that the said Bar
exams were conducted in a farcical manner. The editor was declared in contempt of
Court, adopting the dissenting opinion of Justice Moran in People v. Alarcon(65 Phil. 265
[1939]), which has now been adopted as the rule in contempt cases. Two types of
contempt arose from this dissenting opinion:
1. A publication which tends to impede, obstruct, embarrass or influence the courts
in administering justice in a pending suit or proceedings
2. With or without a pending case, a publication which tends to degrade the courts
and public confidence in them or that which that bring disrepute to the courts, in
any way
People v. Gadoy presents a judicial guidance on the present state of statutory laws on
contempt. In case of post-litigation publication, there may be contempt of court when:
1. It tends to bring the court into disrespect, or in other words, to scandalize the
court;
2. There is a clear and present danger that the administration of justice would be
impeded.

Forum shopping as direct contempt

Viva Production v. Court of Appeals, H. Webb (269 SCRA 664 [1997]) is an example of
direct contempt of court. Respondent Webb filed two cases against Alfaro on the same
day at two different courts: 1) Petition for Contempt in Paranaque which issued Cease
and Desist Order for the showing of The Jessica Alfaro story which touched on the sub
judice case of the Vizconde Massacre, where Alfaro is the star witness, 2) Injunction
with damages at Makati which issued a Temporary Restraining Order. The Court viewed
this as "forum shopping" hence the two cases where dismissed, and at the same time,
an act of direct contempt of court, which includes a possible criminal prosecution and
disciplinary action against the erring lawyers.

Indirect contempt

Regina Jimenez-David was found to be in indirect contempt by court after she wrote in
her column two separate articles pertaining to the pending cases on Republic Real
Estate Corporation (RREC). RREC contended that David's commentaries on her column
tend to impede, obstruct or degrade the administration of justice; that they insult the
intelligence, sense of fairness and objectivity of the Supreme Court; that they insinuate
that the Court cannot render a correct and just judgment; and that they condition the
mind of he people to expect a decision in RREC's favor.

David countered that she cannot be held guilty of indirect contempt as "mere criticisms
or comments on the correctness or wrongness, soundness or unsoundness of the
decision of the court in a pending case made in good faith may be tolerated." She
invoked freedom of speech and of the press.

The Court ruled that David's statements were not fair or legitimate comments and she
cannot invoke free speech to justify her contemptuous act. Lessons learned: "Liberty of
the press is subordinate to the independence of the judiciary and the proper
administration of justice."

Acceptable Criticism so as not to be liable for contempt. So long as the critics confine their
criticisms to facts and base them on the decisions of the court, they commit no contempt
no matter how severe the criticisms may be.

Prejudicial Publicity. People v. Tehankee, Jr. [249 SCRA 54 (1995)] cites an instance
where the Court found that "pervasive publicity is not per se prejudicial to the right of
the accused to fair trial".

The trial court convicted accused Claudio Tehankee, Jr. for 2 murders and 1 frustrated
murder. Tehankee, Jr. contended that "publicity given him was massive and
overwhelming, and prejudicial as to effective deny him of his right to impartial trial." In
that he blamed the press for his conviction.

The Court did not sustain Tehankee's appeal, instead it ruled that "their mere exposure
to publications and publicity stunts does not per se fatally infect their impartiality…To
be sure, responsible reporting enhances an accused's right to a fair trial…The press does
not simply publish information about trials but guards against the miscarriage of justice
by subjecting the police, prosecutors, and judicial process to extensive public scrutiny
and criticism".

The court's exercise of the power to punish for contempt has a two-fold aspect:
1. Criminal contempt 2. Civil Contempt
• Conduct directed against the • Failing to do something ordered by
dignity and authority of the a court in a civil action
court; it is an offense against • It is an offense against the party in
society, an offense against public whose behalf the violated order is
justice made
• Intent is a necessary element • Intent is immaterial
• State -- real prosecutor • Should be instituted by an
• Consists of indirect contempt, aggrieved party or someone who
any improper conduct tending has pecuniary interest in the right
directly, or indirectly to impede, to be protected
obstruct or degrade the
administration of justice

Norms for the Proper Exercise of Press Freedom (enumerated by the Supreme Court in
In re Emil Jurado)

1. Constitutional Law Norms


• Free speech should be balanced against equally important public interests
2. Civil Law
• "to act with justice, give everyone his due and observe honesty and good
faith" (Art. 19 of Civil Code)
3. Philippine Journalist's Code of Ethics
• "I shall scrupulously report and interpret the news taking care not to
suppress essential facts nor to distort the truth by improper omission or
emphasis. I recognize the duty to air the other side and the duty to correct
substantive errors promptly."
4. Right to Private Honor and Reputation
• Members of the Judiciary cannot be regarded as having forfeited their right
to private honor and reputation.
• This right prohibits the reckless disregard of private reputation by
publishing or circulating defamatory statements without any bona fide effort
to ascertain the truth.
THE PHILIPPINE JOURNALIST'S CODE OF ETHICS

1. I shall scrupulously report and interpret the news, taking care not to suppress
essential facts nor to distort the truth by omission or improper emphasis. I
recognize the duty to air the other side and the duty to correct substantive
error promptly.
1. Scrupulous news gathering and beat coverage is required. Relying exclusively on the
telephone or on what fellow reporters say happened at one's beat is irresponsible.
2. The ethical journalist does not bend fact to suit his biases or to please benefactors. He gathers
all the facts, forms a hypothesis, verifies it and arrives at an honest interpretation of what
happened.
3. The duty to air the other side means that the journalist must contact the person or persons
against whom accusations are lodged. A news story or editorial column that fails to present
the other side is like a court that does not hear the side of the defense.
4. Correcting substantive errors is the mark of mature newspapers.

2. I shall not violate confidential information on material given me in the


exercise of my calling.
1. Professional confidence is protected if both sides understand the ground rules:
• A writer cannot write an off-the-record comment or interview.
• A not-for-attribution comment can be written provided the source is not identified by name
or unmistakable designation.
• Comments or remarks made by someone who does not know he is being covered by a
journalist cannot be reported. The journalist should give full disclosure to his subject that he
is a reporter and would like to write on what the subject said.
2. Using confidential information one acquired as a journalist in order to promote one's private
gains is unethical.

3. I shall resort only to fair and honest methods in my efforts to obtain news,
photographs and/or documents, and shall properly identify myself as a
representative of the press when obtaining any personal interview intended
for publication.
1. Unfair methods of obtaining news are:
• Tapping phone conversations in stealthy manner
• Tapping phone calls or listening on extensions
• Taking photographs with a hidden camera unless a crime is being committed and
the persons involved are presumed to be transgressors of the law
• Interviewing innocent family members regarding secret activities of the family
• Stealing documents from office desks or files (instead of asking them)

4. I shall refrain from writing reports which will adversely affect a private
reputation unless the public interest justifies it. At the same time, I shall fight
vigorously for public access to information, as provided for in the
Constitution.
1. Ethical journalist tries to weigh the demands of public interest against the right to privacy.
The journalist must adhere to laws and statutes that protect the privacy of minors and
women.
2. Public officials have a duty to the public to keep their private lives clean.
3. If the news subject is not a public official but only a social celebrity, the demand of public
interest should be taken into proportion to his/her relationship with the public.

5. I shall not let personal motives or interests influence me in the performance of


my duties; nor shall I accept or offer any present, gift or other consideration of
a nature which may cast doubt on my professional integrity.
1. The role of the press as fiscalizer of a government and society demands the strictest honesty
in its reporting and interpreting of events. Journalist must refrain from writing about close
relatives or friends, or about parties to whom they owed favors in the past.
2. Presents, cash gifts, privileges must be viewed in relation to the motives of the givers, the
effect on the receivers and the effect on society.
• Token gifts are presented as a gesture of goodwill without any expectations from the givers,
nor the consequent obligation upon the reciever.
• Dinner invitations and free tickets may be voluntarily given by sponsoring parties because
the journalist-receiver is needed to cover the event and to gather information. No strings
attached.
• Money in envelops given to journalists cannot be considered gestures of goodwill. The intent
to bribe is obvious and bribe-taking is not only unethical, but is a crime. The journalist who
cannot live on his meager income should transfer to a more lucrative job rather than sell his
honor for money in an envelope.
3. Female journalists who dangle sexual favors to get facts from sources comprise their
professional integrity. Ditto for males with opposite numbers.

6. I shall not commit any act of plagiarism.

7. I shall not in any manner ridicule, cast aspersions on, or degrade any person
by reason of sex, creed, religious belief, political conviction, culture or ethnic
origin.

8. I shall presume person accused of crime of being innocent until proven


otherwise. I shall exercise caution in publishing names if minors and women
involved in criminal cases, so that they may not unjustly lose their standing in
society.

9. I shall not take unfair advantage of a fellow journalist.


1. Journalism is a highly competitive game. But the line must be drawn between competition
and malice.

10. I shall accept only such tasks as are compatible with the integrity and dignity
of my profession, invoking the 'conscience clause' when duties imposed on me
conflict with the voice of my conscience.
1. The source of unethical behavior is really the taskmaster,i.e., editor, general manager,
publisher

11. I shall conduct myself in public or while performing my duties as a journalist


in such a manner as to maintain the dignity of my profession. When in doubt,
decency should be watchword.
1. The journalist should always dress properly, i.e. business suits or its equivalent national dress
for press conferences or formal interviews. Photographers and video teams are allowed to
wear shirts or vests because of the nature of their equipment, but are expected to have decent
footwear, not sports or beach shoes.
2. Foul language and dirty gestures are taboo for the journalist.
3. The "ambush interview" with the reporter chasing the news source is demeaning to the
journalist and should be discouraged.