[Mirror] Makasiar, Ma. Brimar

SY 2011-2012, First Semester


Legal Tech: Would it be appropriate for a broadcasting company to say “follow us” on a particular social networking site?

QUESTION: Would it be appropriate for a broadcasting company to say “follow us” on a particular social networking site?

DEFINITION:

First, let us define the following terms as provided in the Intellectual Property Code:

BROADCASTING ORGANIZATION – shall include a natural person or a juridical entity duly authorized to engage in broadcasting. (Sec. 202.8)

BROADCASTING – means the transmission by wireless means for the public reception of sounds or of images or of representations thereof; such transmission by satellite is also “broadcasting” where the means for decrypting are provided to the public by the broadcasting organization or with its consent.
(Sec. 202.7)

COMMENT:

Broadcasting is a way of spreading out information. It is also a mean of obtaining public opinion on a particular matter. Broadcasting company must choose a topic for discussion/ reaction/comment that will not create controversies. They must consider the effect of their subject matters especially to young generation. And also, they must be aware of their duties and responsibilities to limit the distribution of information so as not to injure anybody, corrupt people’s mind or be misinterpreted by others.

Generally speaking, encouraging the public to follow them (broadcasting company) in a particular social networking site may be considered legal for there is no provision in the law prohibiting such act but limitation must be set.


WIKILEAKS

QUESTION: Can we create our own wikileaks to expose government or corporations’ anomalies?

COMMENT/REMARK:

No, we cannot create our own wikileaks to expose anomalies pertaining to government or major corporations. Using or creating a website to be used for for posting items, articles, or information regardless whether such items, articles, or information are for personal, commercial, or public use, is a form of publication. For publication is a mean or way of communicating matters to 3rd person or persons.

One must consider the following before using or creating a website:

  1. objective for exposing acts of the entity
  2. effect of the exposure not only to the entity but to the industry as a whole
  3. reaction of those affected entity or industry

In using the website to post expose anomalies may be considered libellous for it will inflict a malicious imputation that will dishonour, discredit or taint the name of a person or entity. For as defined in Art. 353 of the Revised Penal Code – Libel is a public, malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonour, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. It is a defamatory act with the following elements, which must be present:

  1. There is an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance.
  2. The imputation must be made publicly;
  3. It must be malicious;
  4. the imputation must be directed at a natural or juridical person, or one who is dead;
  5. the imputation must tend to cause the dishonour, discredit or contempt of the person defamed.

Likewise as provided by Art. 354 – Requirements of publicity – Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

  1. A private communication made by any person to another in the performance of any legal, moral or social duty;
  2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

The two (2) exceptions mentioned are privileged communication. It is only in these instances wherein publicity can be considered not malicious.

Furthermore, it is not the intention of the person who posted the item, article or information that is material but the fact which is passed on and retained in the mind of the person/s of reasonable understanding, discretion and candour that matters. Also, we should take into consideration the surrounding circumstances which were known to the reader or viewer.


VIOLATION OF PRIVACY RIGHTS?

QUESTION: Can PHILJURIS, CHAN ROBLES and other repository of jurisprudence be compelled to remove cases in their webpage wherein the names/identities of the parties are mentioned because it violates their privacy right?

COMMENT/REMARK:

No, repositories of jurisprudence such as LawPhil, Chan-Robles, PhilJuris, etc., cannot be compelled to remove cases posted in their websites. These cases are public documents and no one shall be deprived to know how the case progressed and how the Courts ruled in the case. What the party-victim may do is to file a petition asking the Supreme Court to make a modification or to issue a resolution for the repositories to make amendments in the names of the party-victim such as using a pseudonyms or alias to protect the name or identity of the party-victim, as suggested by the Office of the Solicitor General in People of the Philippines vs. Cabalquinto (G.R. No. 167693, Sept. 19, 2006): “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.” This is to safeguard the privacy of the party-victim and also to protect them from the humiliation which insensitive people may give them.

However, protecting the right to privacy must be within the constitutionally-protected zone of privacy. It must show 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 and expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable. xxx” Because the party-victim may have given its consent to the public hearing, such not consent does not extend up to the termination of the case.

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