[Mirror] Cervantes, Erika Liv

SY 2011-2012, First Semester

• To Like, To Follow and The Broadcasting Companies
• The Right to Privacy and The Right to Publicity

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To Like, To Follow and The Broadcasting Companies

We often hear the words like us on Facebook or follow us on Twitter. It is undeniably a trend which sets out what is in and what is not. Advertising of a company’s goods or services is usually for a certain price. However, what will a company lose if it gives preference to another if in return they also get what they want — cheaper or even for free advertising of their television shows. I say there is reciprocity which is convenient to both parties.

Social networking is unquestionably the most popular way to reach to people in different social status. Nowadays, Facebook and Twitter are the most commonly used social networks. Let us not forget that there are other social networks that also offer applications and games distinct of their own. Nevertheless, I cannot blame if Facebook and Twitter are at its best. They too have their share of struggle for recognition. It is for the viewers to choose whether they will like it or not or to follow or not.

Are the Broadcasting Companies wrong to give preference?

In my point of view, these Broadcasting Companies have their freedom to choose what kind of marketing strategy to use for their benefit. It is still in hands of the viewers whether to agree to the invite or not. We must also bear in mind that social networks do not have the same features, they may be similar but not entirely the same. So, one social network may be better than the other. Hence, Broadcasting Companies may choose what is more convenient to them.

Is there Unfair Competition?

You can refer to Section 168.3 of the Intellectual Property Code of the Philippines (R.A. 8293) for better understanding of who shall be deemed guilty of Unfair Competition.

Broadcasting networks may not be influencing its viewers in order to deceive and defraud them, neither inducing its viewers to false beliefs nor making false statements. However, in my opinion, there is unfair competition committed against the other social networks for giving preference to Facebook and Twitter because these Broadcasting Companies overlooked the existence of other social networks. Viewers were only given utmost two options either to like or to follow.

In my opinion, viewers are not naive. They have their own preference in watching television shows or what social network to log in to. It is up to the social networks to develop competent applications , games and the like that can catch the interest of the people and not rely to “free advertisement” of Broadcasting Companies. It is the unique concept of features that separates what is best from the others. In the end, both Social Networks and Broadcasting Networks share the same interest — to win favorable response from the people.

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The Right to Privacy and The Right to Publicity

The case of People vs. Melchor Cabalquinto G.R. No. 167693 September 19, 2006 presents an opportunity for the Court to effectuate the provisions of Republic Act No. 7610, otherwise known as the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, and its implementing rules, RA 9262, otherwise known as the Anti-Violence Against Women and Their Children Act of 2004, and its implementing rules, and our own Rule on Violence Against Women and their Children.

The provisions on confidentiality of these enactments uniformly seek to respect the dignity and protect the privacy of women and their children. Sec. 29 of RA 7610 provides:

Sec. 29. Confidentiality. — at the instance of the offended party, his name may be withheld from the public until the court acquires jurisdiction over the case.

It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in the case of television and radio broadcasting, producer and director in the case of the movie industry, to cause undue and sensationalized publicity of any case of a violation of this Act which results in the moral degradation and suffering of the offended party.

Sec. 44 of RA 9262 similarly provides:

Sec. 44. Confidentiality.—All records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics or hospitals shall respect the right to privacy of the victim. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter’s consent, shall be liable to the contempt power of the court.

Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred Thousand Pesos (P500,000.00).

Likewise, the Rule on Violence Against Women and their Children states:

Sec. 40. Privacy and confidentiality of proceedings.—All hearings of cases of violence against women and their children shall be conducted in a manner consistent with the dignity of women and their children and respect for their privacy.

Records of the cases shall be treated with utmost confidentiality. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer or other identifying information of the parties or an immediate family or household member, without their consent or without authority of the court, shall be liable for contempt of court and shall suffer the penalty of one year imprisonment and a fine of not more than Five Hundred Thousand (P500,000.00) Pesos.

It is worth mentioning in this connection that the Court has resolved to refrain from posting in its Internet Web Page the full text of decisions in cases involving child sexual abuse in response to a letter from a mother of a child abuse victim addressed to the Chief Justice expressing anxiety over the posting of full text decisions of the Supreme Court on its Internet Web Page. The mother submitted that confidentiality and the best interest of the child must prevail over public access to information and pleaded that her daughter’s case, as well as those of a similar nature, be excluded from the Web Page.

The Court required the Office of the Solicitor General (OSG), the Integrated Bar of the Philippines (IBP), National Press Club (NPC), Philippine Press Institute (PPI), Kapisanan ng mga Brodkaster sa Pilipinas (KBP) and the Department of Social Welfare and Development (DSWD) to comment on whether or not it is proper to post the full text of decisions of similar cases on the Supreme Court Web Page.

The OSG submits that the posting of the full text of decisions in cases involving child abuse on the Supreme Court Web Page violates the right to privacy of the aggrieved parties. In order to determine whether the subject matter upon which the right to privacy being invoked falls within the constitutionally-protected zone of privacy, it must be shown that the person’s expectation of privacy is reasonable. The reasonableness of such expectancy depends on a two–part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable.

According to the OSG, the fact that the aggrieved child may have consented, through a parent or guardian, to a public hearing of the case does not negate the expectation of privacy which the child may later invoke because child victims cannot be presumed to have intended their initial agreement to extend beyond the termination of their case to the posting of the decision reached by the Court on the Web Page. Moreover, such an expectation of privacy is reasonable considering the various statutes and rules which reveal the intention of the State to maintain the confidentiality of information pertaining to child abuse cases.

The OSG invites the Court’s attention to a New Jersey statute which provides that all court documents which state the name, address and identity of a child victim in certain sexual assault, endangering the welfare and abuse and neglect cases should remain confidential. The name of the victim shall not appear in any public record; rather, initials or a fictitious name shall appear. The offenses covered by the law include aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, endangering the welfare of children, and any action alleging an abused or neglected child. Thus, in Application of V Pub. Corp., 120 N.J. 508 (1990), and Div. of Youth & Fam. Serv. V. J.B., 120 N.J. 112 (1990), the New Jersey Supreme Court provided guidelines in the implementation of this statute.

In conclusion, the OSG suggests the adoption of a system of coding which could include the use of pseudonyms in cases of a similar nature. Short of withdrawing the full text of decisions in such cases from the Web Page, the OSG proposes that the Court instead replace the material information, such as the name of the child-victim, in its decisions.

The DSWD imparted the same sentiment. It submits that the court records of child abuse cases should be treated with strict confidentiality not only throughout the court proceedings, but even after the promulgation of the decision in order to protect the right to privacy of the child and her family and to preclude instances where undue disclosure of information may impair the treatment and rehabilitation of the child-victim.

The Court likewise appreciates the separate comments of the KBP and NPC. The KBP informs the Court that its members have agreed not to identify in their broadcasts the names of children who are victims of abuse or are in conflict with the law. The NPC, on the other hand, tells us that the prevailing media practice is to inquire whether these individuals wish to have their names appear in the report. If they do not, media would normally take off the names and merely provide a very general description of the individual in recognition of the need to carefully balance the right to information with the welfare of the parties involved.

Taking all these opinions into account and in view of recent enactments which unequivocally express the intention to maintain the confidentiality of information in cases involving violence against women and their children, in this case and henceforth, the Court shall withhold the real name of the victim-survivor and shall use fictitious initials instead to represent her. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well those of their immediate family or household members, shall not be disclosed.

As gleaned from the above jurisprudence, the use of fictitious names will be used in order to protect the privacy of the victim and nothing was mentioned that the people mentioned in the case or the victim can compel the removal of the publishing of the judicial decision on the internet.

Publishing of cases in the internet have impacts in the lives of the people that are mentioned in the cases. These people may become victims of humiliation or ridicule by people who knew them and these instances can definitely hurt their feelings. The Court takes into account these situations and that is the reason why the Court also protects these helpless victims by not publishing their real names. However, not all aggrieved partied can avail of this right. There are only selected situations were the identities of the aggrieved parties are regarded with anonymity.

There is a big difference of using fictitious names and from removing the entire case on the internet. It is noteworthy to say that citizens have rights to be protected by the State. The Right to Privacy and Right to Publicity or to Access to Information are both protected by law. Judicial decisions form part of the law of the land. No right was violated when the name of the aggrieved party is published and it will be self-serving to allow an individual to compel repositories of law to remove the entire case from the internet.