[Mirror] Domingo-Morales, Marga

SY 2011-2012, First Semester


Media Companies and Social Networking

Media companies in the Philippines have taken advantage of the rapid developments in information and communication technologies (ICT), the more popular ones include facebook and twitter. The use of these social networking sites has been brought about by the liberalization of, and competition in media markets occurring in both the local and international scenes.

Social networking sites are effective tools to reach a wider audience or maintain a certain “following” of people. They promote freedom of speech, of expression, and of the press not only of media companies but also of ordinary citizens given the interactive means in which these networking sites operate. This is a basic right guaranteed by our Constitution. [1]

Their use also supports the right to information on matters of public concern.[2] People are provided with timely and easy access to news and information on matters concerning public interests. Social networking sties play an important role in shaping public opinion, promoting awareness and advocacies on political and social issues, mobilizing resources, and enhancing capacities of our people during natural calamities and disasters.

However, the use of facebook or twitter can be subject to certain prohibitions and restrictions. Under the Philippine Constitution, the State preserves its right to regulate or prohibit monopolies when the public so requires, or prohibit combinations in restraint of trade and other unfair trade practices.[3] The Revised Penal Code penalizes fraudulent acts in restraint of trade or commerce, including acts which prevent by artificial means or, in combination with other persons, monopolize merchandises or objects, alter the price, and restrain free competition in the market.[4] The Civil Code likewise allows an injured person to collect civil damages arising from unfair competition or abuses of dominant positions through monopolies. Special laws such as the Corporation Code, Revised Securities Act, and the Intellectual Property Code also govern the various aspects of competition, trade, and business practices, defining and penalizing certain acts as illegal to protect consumers and safeguard public order.

Our laws follow those of the United States’ competition rules. The Sherman Act, which regulates dominant firms holding 50-60% of the market, provides that a person who shall monopolize, or attempt to monopolize or combine or conspire with any other person or persons to monopolize any part of trade or commerce, shall be deemed guilty of a felony. Using the so called “rule of reason approach,” the law finds illegal, acts which tend to abuse a dominant position and power in the market, and not dominance alone. Other laws such as the Clayton Act and the Robinson-Patman Act provide that acts that pertain to price determination and tying explicitly are illegal. [5]

The European Union (EU) has the same competition laws forbidding cartels, abuse of dominant position, and mergers and acquisitions that restrict free competition. Such practices are governed by the EU competition laws, particularly, the 1957 Treaty of Rome. Enforcement however is different in that the EU system is only administrative, not both criminal and administrative in character compared with the US and Philippine systems. [6]

At this point, I find the American system more applicable in the Philippines. Similar to the US, the Philippines guarantees the people’s basic right to information and free speech, while it also recognizes the State’s inherent police power to curtail such right when public order so requires. The Philippines’ special laws also promote free competition and protect the consumers’ right to self-determination.
Given this, media companies may continually be allowed to use ICT advances to promote a common good, provided that they are kept within the boundaries set by law. Philippine laws do not specifically restrict media companies from using social networking sites such as facebook and twitter to advertise their broadcast. An information and communication system which allows an account holder to choose his or her domain, following, or “friends,” including the right to disregard, delete, block, or “spam” certain information or data messages from his or her own account protects the consumer’s right to privacy and fair deal.

More importantly, we should not lose sight of the possible abuse of dominant position e.g., by infringement when the persistent use of such advertisements is without proper representation or authority from these sites. Advertising is basically a form of marketing and media remains, in this sense, a business created for profit. The free and unauthorized use of social networking sites not for personal but for commercial purposes borders on being abusive because they ride on the popularity of these sites for their own business advantage.


Endnotes

[1] Section 4, Article III Bill of Rights, Philippine Constitution.

[2] Section 7, Article III Bill of Rights, Philippine Constitution.

[3] Section 19, Article XII, National Economy and Patrimony, Philippine Constitution.

[4] Article 186, Chapter III of the Revised Penal Code.

[5] Brouwer, Maria. US and EU Competition Policy on Abuse of Dominance in High Tech Industries. University of Amsterdam Department of Economics. 2011.

[6] Brouwer. 2011 and Pereira, Miguel. 2002. EU Competition Law, Convergence, and the Media Industry. European Commission. Media and Music Publishing Unit.


Can we as ordinary citizens create our own version of wikileaks.org and post therein anomalies of government and major corporations?

Yes. Section 4, Article III of the 1987 Constitution provides that “no law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.” Section 18 paragraph 1 of Article III further states that “no person shall be detained solely by reason of his political beliefs and aspirations.” Freedom of speech is a basic right aligned with a democratic society that seeks to ensure the people’s right to express their views and ideas without fear or restraint. The exercise of free speech to criticize public officials promotes transparency and accountability in government thereby making the delivery of public and social services more effective and responsive to the needs of the people. [1] In the same vein, speech or expression exposing anomalies including unfair trade practices of major corporations supports consumer welfare and protection, free market and competition.

However, this constitutional provision is not without limitations. Following the “dangerous tendency” rule, the government may penalize persons who have uttered words or expressed acts which create natural tendencies for effecting or bringing about a substantive evil which the government or the state seeks to prevent. Under this rule, it is not necessary that the language used be specific as to incite persons to commit acts of force, violence, or unlawfulness but sufficient to use a language even so general to advocate the same effect as to cause injury. The government may restrict freedom of speech under the so called “clear and present danger” rule. In situations warranted by this rule, the “evil consequence of the comment or utterance must be made extremely serious and the degree of imminence extremely high before the utterance can be punished.” [2]

Further, in Espuelas v People (G.R. L-2990, 17 December 1951), the Court held that “the freedom of speech guaranteed by the Constitution does not confer an absolute right to speak or publish without responsibility whatever one may choose.” The right does not give critics immunity for the use of foul, infuriating, disturbing, or libellous language under the blanket authority of making exposes’ regarding anomalies committed in both the public and private sectors. Rather, the freedom comes with huge responsibility to provide balanced information from parties involved considering that the medium used is the internet which has a wide coverage and access by the public. In such situations, the state has the equal duty to protect the privacy of persons who eventually become jeopardized by libellous or defamatory words published or posted in the internet.


Endnotes

[1] See, for example, Wason v Walter, 4.L.R. 4 Q.B. 73 and Seymour vs. Butterworth, 3 F., 372.

[2] In Re Declaratory Relief Re Constitutionality of RA 4880; Gonzales v Commission on Elections [GR L-27833, 18 April 1969.]


May chanrobles.com, lawphil.net, or any private repositories of Philippine laws and jurisprudence be compelled by a private party whose name is mentioned in Supreme Court decisions to remove the same on the ground that it violates his right to privacy?

No. Philippine laws and jurisprudence are official records and documents to which the public has the right to know and be informed about following the constitutional provisions on the right to information. [1] In this context, private repositories such as chanrobles.com and lawphil.net have taken advantage of technological developments like the internet to make these legal resources readily available and easily accessible to students, researchers, and the public in general.

The policy of full public disclosure is however limited mainly to protect the individual’s right to privacy. Quite a number of statutes now impose confidentiality provisions. For example, Republic Act No. 7610, otherwise known as the Special Protection of Children Against Child Abuse, Exploitation, and Discrimination Act, and R.A. 9262 otherwise known as the Anti-Violence Against Women and Their Children Act of 2004 provide that all records pertaining to cases of violence against women and children shall be confidential to respect the dignity and privacy of the victims. These laws prohibit the publishing or disclosing of certain pertinent information such as name, address, and telephone number of the victim or an immediate family number, and penalize those who violate for contempt.

In People v Cabalquinto (G.R. No. 167693) promulgated on September 19, 2006, the Supreme Court refrained to use the true name of an 8-year old rape victim or her immediate family in the decision of the case in order to give effect to the confidentiality provisions of RA 7610. The decision also provided that full text of decisions in cases involving child sexual abuse should not be posted in the internet or web page following the request of the mother’s victim on the right to privacy.

Laws including judicial decisions however do not have retroactive effect unless the contrary is provided. [2] Supreme Court decisions issued prior to Cabalquinto could therefore not be covered by the new ruling on confidentiality unless by a new ruling or law its applicability is clarified. Meanwhile, private repositories of legal resources may not be unilaterally compelled by a private party to remove certain judicial decisions which in his own opinion violate his right to privacy. Private repositories do not by their own right have the capacity to alter, revise, or modify official texts or portions of judicial decisions. As their scope of mandate is mainly to facilitate the availability of information, private repositories should not encroach upon the authority of the Supreme Court which rendered and issued such decisions.


Endnotes

[1] Article III, Section 7 of the 1987 Constitution.

[2] Article 4, New Civil Code.

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