[Mirror] Gesulga, Rowena

SY 2011-2012, First Semester


Should the usage of broadcasting companies of statements; “Follow us in Twitter” or “Like us in Facebook” be banned for being violative of unfair competition

The world is now on a fast pacing milieu influenced by innovations and technology. Traditional approaches in advertising, information dissemination, and social interaction are being set aside or much had been forgotten. Now comes in the picture the giants, prevalent, social network websites that persuaded the significant number of Filipino and even people around the world regardless of status. The media, broadcasting companies, packaged with powerful upshot, are, in an obvious way, benefiting from the alleged free advertisement from the 2 top well-known social network websites. By merely taking the statements “Follow us in Twitter” or “Like us in Facebook”, they are becoming more known to the public. Through those inexpensive modes, commons are likely to be hooked in this technology trend. Philippines is proven to be consistently a growing country in technological and socialization aspects. Facebook & Twitter has been part of routine of people worldwide in order to sustain a dynamic social life.

In general, the media is utilizing these 2 social network websites for a reasonable purpose. It is to advance the social awareness of people, to keep them updated of what’s happening in & out of the country, more so the world. Although of course, such act maybe coupled with interest in relation to marketing aspects. The issue will now fall on whether or not such practice of broadcasting companies is valid considering the disadvantages it produces against other social network websites and does it violates fair competition among them.

Relative to the matter, France issued the following ruling: TV and radio show hosts must refrain from uttering ‘Facebook’ or ‘Twitter’ unless it’s in direct relation to a specific news story on the subject. As for them, Facebook or Twitter is deemed to be promoting commercial enterprises, that, these two are commercial brands like Coca-Cola or L’Oreal or any other. There are many social networking sites on many topics – cooking, animals – why should mention just these two and excludes others? It would be a distortion of competition to give preference to the two which is worth billions of dollars, when there are many other social networks that are struggling for recognition.

If this shall be applied to our country, I am not amenable on this. The means employed by media justified the noble end which is to create a cognizant society. Though it may be seemed that there is a secret advertisement, such is not a sufficient ground to ban media on mentioning the two social network websites. We do not have laws specifically addressing the issue at hand. We are limited with Intellectual Property Laws which do not resolve the issue. Nor the provisions of Revised Penal Code on unfair competition, fraudulent registration of trade name, trademark or service mark, fraudulent designation of origin, and false description governs this. Neither the Consumer Act of the Philippines has expressed provision on this. Unless, legislation takes place, this will be acted accordingly. Those entities are involved in lawful business operations, which exclude them from prohibition but mere regulation so not to violate their right to due process.


References:


Issue: Can we create our own version of wikileaks.org and post therein anomalies of the government or corporations?

The right to freedom of expression has been the most controversial human right. In our country, the 1987 Constitution guarantees and limits the exercise of such. It is a right preferred over any property right. The following Sections of the Constitution relative to the matter are as follows:

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

Art. III Sec. 7
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 the citizen, subject to such limitations as may be provided by law.

These rights conferred by the Constitution are nonetheless be subjected to a critical evaluation in relation to ethical accountability so as not to violate any privacy right. Acts contrary to or abusive of these rights are deemed punishable.

WikiLeaks is a not-for-profit media organization which aims to bring important news and information to the public. It has combined high-end security technologies with journalism and ethical principles. Like other media outlets conducting investigative journalism, Wikileaks is an essential implement in informing the public of the real condition of the government, whether or not it is able to carry out the functions expected from it. Irregularities, anomalies & inconsistencies on its performance must be known to the public, for they owe the public the duty to inform the matters concerning the society’s interest. The general welfare of the people lies not only on the acts of the people themselves, but coupled with the actions of the government of the state. Public officials committing immoral, unlawful acts or omissions are liable to its inhabitants and obliged to provide the people what is due upon them.

Democracy as against privacy must be harmonized. Privacy laws should not be stringently enforced, over powering the freedom of expression. Wikileaks provides for transparency of the Government. And to suppress its operation is a clear deprivation of right of the people to be informed. As how Wikileaks stands, all its information are true, reliable and correct for it assures that it probes accurately. It is a noble deed to prevent the continuing abuse and malicious undertakings of public officials which, once known to the people, will provoke the latter to create change in the society by taking steps such as street demonstrations, throwing inquires via media, etc, in order to achieve the truth. The political and economic state of the country will be saved once abuse has stopped.

Due to the progressive information technology, public can easily access this tool and get informed and educated of what transpires in and out of the society. Everything publicized in Wikileaks works as guide for each and every citizen and accede them to open their eyes and awaken their senses to guard their rights from exploitation. Those people whose unlawful acts are exposed by means of this publication should not be given the opportunity to invoke their right to privacy as opposed to right to freedom of expression. They must be held accordingly and must not be allowed to escape their liabilities to the people. Yet, anything to be exposed should be authentic. Wikileaks must have correctly identified the veracity of every document it will publish. All data must be treated with utmost confidentiality.

Yes, I am amenable on the creation of our own version of Wikileaks.org and post therein anomalies of the government or corporations. However, it must goes hand in hand with high regard on ethical principles of journalism and privacy. In order to fully utilize what Wikileaks offer, regulations must be implemented for control purposes. Time and again, public interests must be balanced and the general welfare of people must prevail.


Is posting of jurisprudence in Lawphil, Chan Robles or other repository of laws a violation of right to privacy of persons mentioned therein?

The Constitution has explicit provisions on the matter of right to privacy and right to information on the matters of public concern.

Article III, Sec. 3 (1)
The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

Article III, Sec. 7
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 the citizen, subject to such limitations as may be provided by law.”

Article VIII of the Civil Code reads, “Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.

The Philippine Constitution expressly guarantees only the privacy of communication and correspondence of an individual. With that, right to privacy is limited to informational privacy. Jurisprudence are in the nature of public documents and the public have constitutional right to access such subject to limitations as provided by law. Practically, consideration must be endowed to those whose names are cited in cases particularly scandalous in nature. This exposure places them in uncomfortable, embarrassing and degrading situation, (both parties) that consequently affects their behavior and other psychological facets. Emotionally speaking, it also hinders them to ensue a better life after. They’ve somehow lost their reputation and the opportunities that will regain their dignity.

On the other hand, posted cases decided by Supreme Court are informative in nature and very relevant for public awareness and education. It is very helpful to Law students, lawyers, judges and law enforcers in continuous development of legal system in the country. Yea, judicial decisions are not law. But, they are evidence of what the law means. The interpretation placed upon the written law by a competent authority has the force of law.

As held in Kilusang Mayo Uno, et al., vs. The Director General National Economic Development Authority, et al., and Bayan Muna Representatives Satur C. Ocampo, et al vs Eduardo Ermita respectively, “The basic attribute of an effective right to informational privacy is the individual’s ability to control the flow of information concerning or describing him, which however must be overbalanced by legitimate public concerns. To deprive an individual of his power to control or determine whom to share information of his personal details would deny him of his right to his own personhood. For the essence of the constitutional right to informational privacy goes to the very heart of a person’s individuality, a sphere as exclusive and as personal to an individual which the state has no right to intrude without any legitimate public concern.”

Legitimate public concerns justify the publication of jurisprudence in internet and make it be accessible to the public. People who enter in suit or any various legal proceedings, deemed waive their rights to privacy. And anything contained in such legal proceedings are deemed to be included in public documents, in effect any third person may have access on it.

By way of exception, some information are not subject to be disclosed.

R.A. No. 9262 – Violence Against Women and their Children in 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.

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.

R.A. No. 8505 – Rape Victim Assistance and Protection Act of 1998

Protective measures – 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. Towards this end, the police officer, prosecutor, or the court to whom the complaint has been referred may, whenever necessary to ensure fair and impartial proceedings, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial and that 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.

Laws pertaining to rights to privacy must be strictly applied to sensitive matters or affairs. The degree of sensitivity must be determined reasonably.


References:

  • G.R. No.167798 – Kilusang Mayo Uno, et al., versus The Director General, NEDA, et al, April 19, 2006
  • G.R. No.167930 – Bayan Muna Representatives Satur C. Ocampo, et al., versus Eduardo Ermita, et al. April 19, 2006
  • 1987 Constitution
  • Civil Code of the Philippines, R.A. No. 386, As Amended
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