[Mirror] Faustino, Melencio

SY 2011-2012, First Semester

Will it be appropriate for a broadcasting company to endorse or advise their audience to follow them in a particular social network?

The appropriateness to advise or endorse will be dependent on the views of the three players involved in this topic: broadcasting companies, audiences and social networks.

The global scenario depicts the involvement of social networking in almost all levels of business transaction not only in the field of broadcasting. Data from the Nielsen Report released in August 2010 showed that different businesses are embarking on social networking; 65% of Fortune Global 100 companies have active Twitter accounts, 54% have Facebook pages, 50% have YouTube channels, and 33% have a weblog (“blog”) of some kind. This trend has created a niche in the market and its usage has exponentially increasing.

These data also stated that “social media” is indeed the next frontier in marketing, customer relations, investor relations, recruiting, and even vendor relations. As a result, the social networks are enjoying the newfound liberty to do and be in business with easy access to customers and other vendors.

Likewise, the audiences are offered tremendous options to choose and log in for continuous information, data and services in a seemingly free stand. To date, about two-thirds of internet users are actively involved on social media websites.

At the onset, the broadcasting companies have their own business interest to protect for their sustainability and stability. They enjoy the constitutional privilege given to them–the freedom of speech and expression. This gives them the liberty to use the medium to educate, inform and transact business and provide endorsement. However, the coming of social media and later the involvement of such platform in their business itself becomes a crucial mean to enhance and be with the trend. Though costly, this move is an essential strategy to perpetuate and to upgrade business in broadcasting. And to optimize the business deal, the broadcasting companies claim to capitalize the social networking for the sake of reciprocity and productivity; they are endorsed all-over and advise audience to follow them. The selection as to who to endorse is within the prerogative of the broadcasting company. What they deem to choose is their choice, it may not be the best product; this is what “free enterprise” is all about.

Perhaps, to look into legal aspect of the proliferation of the different universal social network is a notable point to consider. Since the business is conducted via air, the areas of jurisdiction must be specified. Are the laws and regulation the country and the audience they cater be applied to them? Where do they pay their taxes? Will their jurisdiction solely be for the company that hired them? What are the limits and extend of their obligations and responsibility?

Likewise, the audiences are not just mere recipients to both the broadcasting companies and social media platforms; they are also actively involved by perpetuating the usage of both medium and adopt options offered. They are governed by their free will to weight their options and make choices. And as they do business, it is best to evaluate whether their rights are violated or neglected.

Thus, the existing triumvirate between the three stakeholders (broadcasting companies, audiences and social networks) must be examined since the emergence of this kind of relationship will create new opportunities and concerns.

Just recently, the Twitter and Facebook were banned in radio broadcasts in France. As has been reported, the Conseil Supérieur de l’Audiovisuel (CSA), the independent authority to protect audiovisual communication freedom of the country, advised local broadcasters to no longer mention “Facebook” and “Twitter” on air. The reason behind the ruling is that to mention a popular social network on air may constitute advertising to the detriment of less popular and less exposed networks. This means that the French will no longer hear “For more on this story, follow us on Twitter @…,” or “find us on Facebook at…” at the end of their news broadcasts.

Will the issue be changed if MySpace, FaceSpace, CatBook were endorsed instead? Was there a violation and if there was, to whom the violation was made? Was it to Twitter and Facebook or to the less popular, dwindling and countless thriving social networks?

A review of the mission of Conseil Supérieur de l’Audiovisuel (CSA) was made—

“The Conseil Supérieur de l’Audiovisuel (CSA) has two essential further missions: making television accessible to all, in particular, to deaf or hearing-impaired persons; and, making sure audiovisual media reflect the diversity of French society. The media have a responsibility to present an image reflecting the reality of today’s France and to combat discriminations.”

Likewise, CSA profile stressed on—-

“Communication freedom is at the heart of the CSA’s raison d’être and it is not an empty phrase. One of the primary rules applied by the Conseil is diversity, in terms of both, audiovisual supply, and operators. The media represent a means of expression that must be as widely open as possible. The Conseil keeps a watchful eye on this absolute democratic necessity.”

If the sanction is secondary to discrimination, there is a point of contention based on the mission stated above. But since, communication freedom is also part of their mandate, and there is still the freedom of choice and the freedom of speech to consider, the broadcast network has its own prerogative and can always make a choice. If CSA truly values communication freedom, then the blanket message is not necessary, the network and the broadcaster can make its endorsement freely.
These seemingly baseless violations has a business and ethical consideration that has to be given a second and deeper look by having an international regulatory body that will resonate the global mission fitted to limitless society created by social media. Moreover, the country offended must state its reason clearly citing the guidelines and the contract that was violated with corresponding remedial measure. This is a test of fire for CSA as it announced the adoption a brand new approach of seeing regulation as régulation, as opposed to réglementation, a kind of regulation that favors consultation over coercion in the past.

And since all players or vendors are given choices, all must try to do its best to be on top. This competiveness in the business is the bloodline that maintains the dynamism and the fast mode trend, making one more saleable and highly competitive. Although, competition is necessary, it is synergy now that counts. The thrust is towards generalized reciprocity. Therefore, it would be very expensive for TV and radio broadcasting to secure licenses from all networks platform despite its wish to be a fair player. This is business sense. The network will have its preference, their choice must be respected. This dictum also goes for the audience who patronize what or who they choose.

The French story is unlikely to happen in the Philippines, since our regulatory bodies are less stringent and the existing laws are not totally expounded. The creation of definite regulatory or the monitoring unit aspect is yet to come since the social media craze has sipped in fast Filipino homes, offices and businesses. The concern here is different; police reports claimed that social networks are being used as means to access privacy in order to perpetuate crimes of deceitfulness and violence. I guess each country has its distinct concern relative to the peculiarity of the culture, economy and governance.

Can an ordinary citizen create his/her our own version of WikiLeaks.org to expose the anomalies of the government and major corporations?

Yes, any ordinary citizen can create his/her own version of WikiLeaks.org and expose the anomalies in the government and major corporations because the right to information is one of the fundamental rights of the citizen guaranteed under the Constitution of the Philippines.

The right to information is the right of individual to access information held by the government. It is a guaranteed right under the constitution which provides that the “(t)he the right of the people to information on matters of public concern shall be recognized. 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, shall be afforded to citizen, subject to such limitations as may be provided by law.”

From the above quoted provision of law, it is clear that such right is subject only to limitations as may be provided by the law. Fortunately, there is no specific law which prohibits the exposure of anomalies in the government and major corporations through social networking. At most, the affected officials of government/major corporations can do are to sue the ordinary citizen for libel.

Creating social network similar to WikiLeaks.org will minimize if not totally eliminate the perennial problems of corruptions, inside trading, rigged bidding and such other unethical practice of governance in the major corporations. Also, it will encourage more whistle blowers to come out in the open and expose the anomalies in their respective government agencies/major corporations. They can now easily publish such anomalies in the network without risk of losing their jobs and reprisal from their superiors.

Of course the officials concerns may argue on the right to privacy, but the right to information of public concerns is far more superior than the right to privacy. Information of public concern should and must be available to the public as these affect their lives and security. Similarly, the government/major corporations will invoke national interest and security, but then again, the network will exposed only anomalies in the governance and seldom had it touch on matters of national security and interests. If ever national security/interest is the content of exposure, the government can very well exercised its police power within the bounds of law.

Likewise, both scenarios can be addressed by creating regulatory bodies mandated to monitor the guidelines and rules to curb and regulate the expression of the freedom of press, freedom of expression, digital rights and information security.

It is therefore clear from the foregoing disquisition that in the absence of law which prohibits the creation of WikiLeaks.org-like network and with the right to information guaranteed under the Constitution, it is possible for an ordinary citizen to create his own version of WikiLeaks.org and exposed the anomalies in the government and in major corporations.

Whether or not Chan Robles, Arellano Lawphil, UST Repository of laws and other Philippine’s social networks repository of laws can be compelled to remove the names of the persons mentioned therein on the ground of privacy

The gist of the issue in this topic calls for the alteration of the case long decided by the Supreme Court.

A reading of the 1987 Constitution, Article VIII, Sec 4(3) provides that Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.

And under the doctrine of finality of judgment or immutability of judgment, a decision that has acquired finality becomes immutable and unalterable, and may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the land. Any act which violates this principle must immediately be struck down. The exception to this doctrine, as provided in the case of Villa v. GSIS, G.R. No. 174642, October 31, 2009, are: (1) the correction of clerical errors; (2) the so-called nunc pro tunc entries which cause no prejudice to any party; (3) void judgments; and (4) whenever circumstances transpire after the finality of the decision rendering its execution unjust and inequitable.

Also in a long line of decisions decided by the Supreme Court (U.S. vs. Vayson, 27 Phil. 447; U.S. vs. De Iro, 33 Phil. 14; U.S. vs. Balliad and Tamaray, 35 Phil. 14; People vs. Buyson Lampa, 58 Phil. 757. See also Sec. 7, Rule 120, Rules of Court), It is the settled rule in this jurisdiction that the court has power to alter, modify, or even set aside, its own decisions, and even order a new trial, at any tiReame before the decision becomes final, or before an appeal from that decision has been perfected.

Prescinding from the above-mentioned legal basis, it can be safely deduced that social networks repository of laws in the Philippines cannot be compelled by any person whose name stated therein to remove their name on the ground of privacy.

Firstly, the Constitution is clear that only the court sitting en banc can modify the doctrine it has lay down; secondly, the doctrine of immutability of judgment, as lay down by the Supreme Court, forbids the modification of the decision with certain exceptions; thirdly, the modification or alteration of the decision on the ground of privacy is not one of the exception enumerated to be exempted from the immutability of judgment, and fourthly, granting that the decision can be modified by removing their names therein as demanded by the affected persons, the social network has no power to do it as it clear from the long line of decided cases that only the Supreme Court has power to alter, modify, or even set aside, its own decisions .

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