SY 2011-2012, First Semester
- Would it be appropriate for a broadcasting network company, to announce trade names or should it be “follow us on a social network of your choice”
- Can we, as ordinary citizens, create our own version of wikileaks.org to expose anomalies of the State or of major corporations?
- Whether the Chan Robles Law Firm be compelled by a private person to remove any jurisprudence on the claim that it violates his rights to privacy?
Social network systems have been a fast growing trend not only among teenagers but also among adults alike since its introduction in the Philippines. Because of which, various means and methods for its promotion were made but despite this, limitations regarding lawful methods of promotion and advertisement should not be disregarded.
Trade name as defined under Sec. 121.3 Part III of the Intellectual Property Code (R.A. 8293) refers to the name or designation identifying or distinguishing an enterprise. To announce trade names through any form of broadcast media, which includes television, radio, magazines, cinema, billboards, posters, streamers, hand bills, leaflets, mails and the like as defined under Art. 4 (a) of R.A. 7394 or the Consumer Act of the Philippines, will effectively promote the enterprise. As reiterated in the Preamble of the Broadcast Code of 2007, broadcasting is a powerful medium in shaping our country’s cultural, social and economic growth and development.
But, although broadcasting is a powerful medium, the Code of Ethics on Advertising also provides that the principles of fair competition, promotion of common interests, and a spirit of mutual respect and harmony shall guide the relationship among member suppliers and sectors in the conduct of their craft and business.
Advertising on the other hand, is defined under Art. 4(b) of R.A. 7394 as the business of conceptualizing, presenting or making available to the public, through any form of mass media, fact, data or information about the attributes, features, quality or availability of consumer products, services or credit.
However, in order to regulate advertising in relation to the Code of Ethics in Advertising, Sec. 168.3 of R.A. 8293 enumerated the scope where unfair competition may be considered while Sec. 169.1 (a) of the same Act provides for false description or representation wherein any person, who, or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol or device, or any combination thereof, of any false designation or origin, false or misleading description of facts, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship or approval of his or her goods, services, or commercial activities, by another person.
A careful scrutiny of the provisions herein provided referring to both advertising and unfair competition will help us conclude that broadcasting networks which announce trade names of the social network system cannot be considered as unfair competition since it only involves promotion of the social networking site without any intent of creating any form of disguise for unfair competition and does not tend to mislead or deceive the public in any manner.
In line with our constitutional right to be served with utmost responsibility, integrity, loyalty and efficiency by those who are in the public office, as mandated under Art. XI sec 1 of the 1987 Constitution and the constitutional obligation of the State under Art. II sec 28 of the 1987 Constitution to adopt and implement a policy of full public disclosure of all its transactions involving public interest, even ordinary citizens, may create their own version of wikileaks.org to expose anomalies of the State or of major corporations.
However, the Constitution also expressly provided that such right and obligation is limited to those which will affect the public interest and to those reasonable conditions prescribed by law. Our freedom of expression is not without limitations.
Gathering, transmitting or losing information respecting the national defense from a warship, fort or naval or military establishment with intent to injure the Republic of the Philippines falls squarely within the elements of espionage which is considered as a crime against national security.
Malicious publication or causing to be published any official resolution or document without proper authority, or before they have been published officially is also punishable as an unlawful use of means of publication under Art. 154 of the Revised Penal Code.
Other restrictions on the access to information also include other national security matters and intelligence information, trade secrets and banking transactions and other confidential information.
But to ensure justice and fair play, there are various tests to determine the validity of government intervention to freedom of expression, namely: 1) Clear and Present Danger Rule, where such words are used in such circumstances that will bring about the substantive evil that the State has a right to prevent; or 2) Dangerous Tendency Rule, where the words will create a dangerous tendency of an evil which the State has a right to prevent; or 3) Balancing of Interest Rule, where the courts will determine which of the two conflicting interests between national security and abridgement of freedom of speech will demand greater protection under the particular circumstances.
On the other hand, anomalies which involve those acts expressly provided as graft and corrup practice under sec. 3 of R.A. 3019, as amended, or the Anti-Graft and Corrupt Practices Act, and violations of R.A. 1379 or an Act Declaring Forfeiture of Ill-gotten Wealth of Public Officers and Employees should be revealed as well as when the notion of a separate juridical personality is used to defeat public convenience, justify wrong, protect fraud or defend a crime, or is even used as a device to defeat the labor laws, since any person, whether natural or juridical who knowingly allows or assents to such acts, is also held liable under Philippine laws and jurisprudence.
In sum, although ordinary citizens are mandated by the Constitution and statutory laws to expose anomalies, such freedom or right however, should only be within the reasonable conditions provided by law and of public interest, since to go beyond what is authorized, allows any person whose right to privacy in life, liberty or security was violated or threatened, to file a petition for writ of habeas data as a remedy against the unlawful act or omisson of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.
Article 8 of the New Civil Code expressly provides that “Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.”
Jurisprudence has also been a very important tool in helping students and lawyers alike, to adequately interpret the applicable laws based on similarities on facts and circumstances.
A better option therefore, instead of removing jurisprudence, as opined by the National Press Club will be to 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. The Office of the Solicitor General also suggests the adoption of a system of coding which could include the use of pseudonyms.
In the Cabalquinto case, the Supreme Court held that in response to a mother’s plea for her daughter’s right to privacy, and in consideration of all the opinion submitted by the various agencies required under A.M. No. 99- 7 -06 -SC to comment, 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 as those of their immediate family or household members, shall not be disclosed.
Such respect for privacy is expressly provided under sec. 29 of R.A. 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act); sec. 44 of R.A. 9262 (Anti-Violence Against Women and their Children Act) and; sec. 20 of the Rules and Regulations on the Apprehension, Investigation, Prosecution and Rehabilitation of Youth Offenders.
However, to limit such ruling among women, children and youth offenders will seemingly contradict the Constitutional provision on privacy under Art. III sec. 1 of the 1987 Constitution where it also expressly provides that “nor shall any person be denied equal protection of the laws.” Of equal importance therefore, will be the right to privacy of those who might have been accused but not yet convicted, and do not fall within the scope of women and children.
In sum, in compliance with existing laws and jurisprudence on right to privacy, any private person, whether victim or accused, may compel any repository for jurisprudence and laws, such as the Chan Robles Law Firm to apply the En Banc decision of the Supreme Court in People v Cabalquinto promulgated on September 19, 2006.