[Mirror] Mercado, Edwina

SY 2011-2012, First Semester


Secret Advertising Is It Illegal in the Philippines?

France’s Conseil Supérieur de l’Audiovisuel (CSA) banned the use of the words “Facebook” and “Twitter” on French Television unless they are included in news stories about the respective social networks. This is reported in the news.

According to French authorities the use of the words” Facebook” or “Twitter” is equivalent to advertising and promoting those social networks over others. As a result advertisers looking to promote their presence on the social networks will have to use the generic terminology, such as “Find us on social networking sites,” instead of, “Find us on Facebook,” or, “Follow us on Twitter.” As pointed out by Christine Kelly, CSA spokeswoman, “Why give preference to Facebook, which is worth billions of dollars, when there are many other social networks that are struggling for recognition? This would be a distortion of competition. If we allow Facebook and Twitter to be cited on air, it’s opening a Pandora’s Box — other social networks will complain to us saying, ‘Why not us?’”

Is there any legal basis to this? Apparently, according to CSA, mentioning a particular social network by name was akin to engaging in secret, unfair advertising which was banned by law in 1992. Is this overreacting? I would say France is overreacting. Will this ban hold up under Philippine set-up? I do not think so.

The Philippines has a wide range of laws and statutes that deal with the various aspects of competition law such as monopolies and combinations in restraint of trade, restrictive business practices, price control measures and consumer protection. However, no specific law that deals with this kind of issue. The law, a special law that is, that comes close is the Consumer Act of the Philippiness (1992) which prescribes conduct for business and industry. It sets penalties for deceptive, unfair and unconscionable sales practices to protect and promote the interest of consumers. It also covers consumer product quality and safety standards. In particular Sec 110 of Consumer Act of the Philippiness, the provision that deals with false, deceptive and misleading advertisement provides:

Art. 110. False, Deceptive or Misleading Advertisement. – It shall be unlawful for any person to disseminate or to cause the dissemination of any false, deceptive or misleading advertisement by Philippine mail or in commerce by print, radio, television, outdoor advertisement or other medium for the purpose of inducing or which is likely to induce directly or indirectly the purchase of consumer products or services.

An advertisement shall be false, deceptive or misleading if it is not in conformity with the provisions of this Act or if it is misleading in a material respect. In determining whether any advertisement is false, deceptive or misleading, there shall be taken into account, among other things, not only representations made or any combination thereof, but also the extent to which the advertisement fails to reveal material facts in the light of such representations, or materials with respect to consequences which may result from the use or application of consumer products or services to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.

Looking closely, nowhere in the said provision comes close with the issue of secret advertising, and since there is no law prohibiting such act in our country, I would say it is not unlawful. In fact, when companies pitch these social media addresses, what they are really saying to listeners is to learn more about our products and services. This is tantamount to saying ‘go to this website’ or ‘visit us at this address.’ These are calls to action that any legitimate advertiser includes in their spots in order to generate a response. A social media such as Facebook is a unique brand identifier that that informs consumers how to directly connect to a particular brand. It’s no different from a phone number or mailing address. Since mentioning a phone number or mailing address is not illegal, why would mentioning “Find us on Facebook,” or, “Follow us on Twitter” inappropriate, more so illegal?


Balancing the Conflicting Goods of Secretiveness and Transparency

Can we as ordinary citizens create our own version of Wikileaks.org and report therein the anomalies of the State and the major corporations?

As defined by Wikipedia, WikiLeaks is an international non-profit organization that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Whether or not it is good or bad for civil society is still an unanswered question. Some have praised the site as a sign of free speech. Others have criticized it as a threat to national security and with its allies. Those who have assailed WikiLeaks also say that because the site has either directly published names of informants or other identifying information, it has endangered the lives of people around the world who are fighting terrorism.[1]

WikiLeaks has also become a dividing and controversial issue also among civil rights organizations. Many organizations agree on the undeniable value that WikiLeaks has had by indicating violations of human rights and civil liberties. According to Glenn Greenwald, lawyer and civil rights activist, the amount of corruption which WikiLeaks has exposed is unique in history and there is no other organization that comes close to WikiLeaks regarding exposures of misuse of power [2]

Hence, we ask the question: Can we as ordinary citizens create our own version of Wikileaks.org and report therein the anomalies of the State and the major corporations?

Considering, that the there is a very low level of bureaucratic commitment to openness and if we base it on the fair rules and justified functionality of democracy and civil society it- the answer seems to be in the affirmative. If secrecy of administrative documents is used to cover government misbehavior, especially inhuman conditions and killing of people, there must be legal grounds to overcome formal borders of secrecy. It is a justified way to protect democratic society and citizen against secret arbitrary government power [3]. As provided by Section 7 of the Bill of Rights of the 1987 Constitution reads: “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 limitations as may be provided by law.” Further, Article II (Declaration of Principles and State Policies), Section 28 also states: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

However; I think the rights we enjoy are not natural but derive ultimately from the laws of a properly constituted state, and I am wary of attacks upon its institutions. I believe that states and corporations enjoy privacy rights like individuals and that any human system requires secrecy for its effective management. Neither innovations, nor art, nor contracts, nor representative government, nor marriages, nor anything valuable at all would exist without secrets. I believe there are exceptions to what information we may report therein. First, if the revelation of the information will create a clear and present danger of war, invasion or any external threat to the State; Second, The information pertains to the foreign affairs of the Republic of the Philippines, when its revelation would unduly weaken the negotiating position of the government in an ongoing bilateral or multilateral negotiation or seriously jeopardize the diplomatic relations of the Philippines with one or more states with which it intends to keep friendly relations; Third, when the information pertains to internal and external defense and law enforcement, when the revelation thereof would render a legitimate military operation ineffective, unduly compromise the prevention, detection or suppression of a criminal activity, or endanger the life or physical safety of confidential or protected sources or witnesses, law enforcement and military personnel or their immediate families.[4]

Secrets breed like weeds, and all over the world they have grown to occlude everything that is done by those who govern us or sell us things; technology has made it easier for states and corporations to keep such secrets; and a corrective toward transparency is long overdue [5]. Like equality and freedom, we must balance the conflicting goods of secretiveness and transparency.


Endnotes

[1] http://news.blogs.cnn.com/2010/11/29/what-is-wikileaks-2/

[2] Is WikiLeaks’ Julian Assange a Hero? Glenn Greenwald Debates Steven Aftergood of Secrecy News / Democracy Now (Video & transcript), 3.12.2010

[3] What is the effect of WikiLeaks for Freedom of Information? by Päivikki Karhula

[4] http://www.minimalgovernment.net/media/atin_20090714.pdf

[5] http://www.technologyreview.com/blog/pontin/26314/


Naming Names

The people’s right to official information is an indispensable element of a functioning representative democracy. The ideal of a “government by the people” presupposes that the people have access to information on matters of public concern in order to effectively exercise its governing power [1]. As observed by the Philippine Supreme Court in one case, “there can be no realistic perception by the public of the nation’s problems, nor a meaningful democratic decision-making if they are denied access to information of general interest.” The free flow of information about the affairs of government paves the way for debate in public policy, and fosters accountability in government.” [2] The Supreme Court has proclaimed that the right to this information is not a private right, but a public right, which may be asserted by any citizen. This information includes laws and jurisprudence which are undoubtedly of public concern.

However, exception is made to this rule. The Court has resolved to refrain from posting in its Internet Web Page the full text of decisions in cases involving child sexual abuse in response to a letter from a mother of a child abuse victim addressed to the Chief Justice expressing anxiety over the posting of full text decisions of the Supreme Court on its Internet Web Page. The mother submitted that confidentiality and the best interest of the child must prevail over public access to information and pleaded that her daughter’s case, as well as those of a similar nature, be excluded from the Web [3]. As mentioned the Supreme Court in its decision, there is New Jersey statute which provides that all court documents which state the name, address and identity of a child victim in certain sexual assault, endangering the welfare and abuse and neglect cases should remain confidential. The name of the victim shall not appear in any public record; rather, initials or a fictitious name shall appear. The offenses covered by the law include aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, endangering the welfare of children, and any action alleging an abused or neglected child. Furthermore, Sec. 29 of RA 7610 provides:

Sec. 29. Confidentiality. — at the instance of the offended party, his name may be withheld from the public until the court acquires jurisdiction over the case.

It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in the case of television and radio broadcasting, producer and director in the case of the movie industry, to cause undue and sensationalized publicity of any case of a violation of this Act which results in the moral degradation and suffering of the offended party.

Sec. 44 of RA 9262 similarly provides:

Sec. 44. 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.

Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred Thousand Pesos (P500,000.00).

Likewise, the Rule on Violence Against Women and their Children states:

Sec. 40. 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.

Records of the cases shall be treated with utmost confidentiality. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer or other identifying information of the parties or an immediate family or household member, without their consent or without authority of the court, shall be liable for contempt of court and shall suffer the penalty of one year imprisonment and a fine of not more than Five Hundred Thousand (P500,000.00) Pesos.

Similarly, I believe parties in a case can file a petition in court to withhold their names when such cases were posted in the Internet Web Page the full text of decisions of the cases they were involved. I agree with Office of the Solicitor General in its comment that in order to determine whether the subject matter upon which the right to privacy being invoked falls within the constitutionally-protected zone of privacy, it must be shown that 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 an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable.[4]

Then again, I do not support the view that criminals should be protected from the publicity of posting in its Internet Web Page the full text of decisions. Criminals must answer to the law for their unlawful acts but if the l their names be withheld from the public, they do not have to answer to the community. Moreover, the community does not know of the crimes committed by these law-breakers – because their names from the public – and that makes the community vulnerable to the criminals’ next crime.


Endnotes

[1] House Bill No. 2993 Introduced by Reps. Emmanuel Joel J. Villanueva, Del R. De Guzman, Lorenzo R. Tañada III, Loretta Ann P. Rosales, Mario J. Aguja and Ana Theresia Hontiveros-Baraquel

[2] Baldoza vs. Dimaano, Adm. Matter No. 1120-MJ, 5 May 1976

[3] People of the Philippines vs. Melchor Cabalquinto G.R. No. 167693 September 19, 2006

[4] People of the Philippines vs. Melchor Cabalquinto G.R. No. 167693 September 19, 2006

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