Tusi, Marie Joan: The Legal Implications of Online Broadcasting with Predominantly Filipino Viewership – Emphasis on Original Internet Programming

I. Introduction

Strange as it may seem, broadcasting has indeed turned its leap into a dynamic tool in the world of mass media when it finally goes online. Inasmuch as http://www.wikipedia.org/ defines it as the “distribution of sound and/or video signals which transmits to an audience” [1] and as Richard V. Duchey puts it as “provider for the transport of linear audio and video programming in real time”, [2] the move to online broadcasting has substantially changed its premise as the regular television and radio programming has now been transported to a non-conventional programming on Internet-related services such as the dissemination of information on the web via original internet programming.

This paper intends to explore the dynamism of online broadcasting vis-à-vis its legal implications on the majority of Filipino audience. Exclusively, the term “online broadcasting” will be referred here as to put more emphasis on the original internet programming cast via online. This programming covers a wide range of original television, radio and movies, among other audio-visual and cinematographic works, within the control of the individual creating his own channel of such works. Its scope encompasses the Philippine jurisdiction only, taking into consideration the arguments of other jurisdictions as well.

The discussion will be based on the pertinent laws of our State on whether or not it would resolve the existing concerns of online broadcasting with original programming as its focal point. It is essential to note, however, that this paper would not touch on other relevant issues of broadcast communications but only to the implications of online broadcasting with franchising and censorship issues. Up to what extent are the Philippine laws equipped to counter on the issue of internet censorship and to clear off the blur on the issue of franchising? Does original internet programming violate some of the rules in Philippine franchising laws? Is it deemed permissible to show some breach of standard modesty to sustain the constitutional right on the freedom of expression? These are some of the questions that this study determines to resolve.

The Dawn of Live Broadcasting

Because of its inexpensive and easy-to-use service, international jurisdiction has recently adopted live broadcast platform on the internet. Livestream, for instance, is an influential online broadcasting company in the United States of America which started catering original programming online in 2008. [3] “Its producers use the Livestream browser-based studio application to create live, scheduled and on-demand internet television to broadcast anywhere on the web through a single player widget with unique features that include the ability to mix multiple live cameras, imported video clips, and overlay graphics”. [4] Their vision is to “give their users the power to create live, original television programming, all done on their own global broadcasting channel”.[5] Killerstartups is also one of the sites hosting original internet programming. It provides a “handful of original shows produced to be broadcast exclusively over the internet and produces regular episodes of multiple series of programs which are reminiscent of some HBO shows with little or no restrictions at all and often deal with unusual themes or subgroups”. [6] It further welcomes new actors and producers, distribution sites (often aired over social networking sites), and national advertisers. [7]

In the Philippine arena, online broadcasting is one of the major online innovations as it dishes up the demands of the public to provide speedy and more accessible form of disseminating information. While it is true that broadcasting services are in demand on the web, live broadcasting which caters original programming is yet to expand here in the Philippines as an inclusive broadcast communications. There may be few, burly men who have already been trying to pull together an application as to provide a local adoption of online broadcasting with original programming but such may as yet to be in public or such still remain as a huge plan. The author, in fact, has been very curious about how this tool would serve the Filipino public’s demand and how would the latter make progress of such kind of technology. Unlucky enough, though, as the famous search engine can only give limited results with regard to the adoption of certain companies that provide original programming broadcasted on the Internet in the Philippine setting.

Concept of Original Programming on the Internet

As enlightened by my law professor, original internet programming is a method used in online broadcasting wherein its contents are made available directly on the Internet without being broadcasted (previously or simultaneously) in traditional media. Thus, this is the kind of programming which does not emanate from free or cable television.

Any type of audience is capable of adopting this technology, from the simplest to the most professional one. Yet, those who have a passion to share his thoughts through the Internet and have the desire to educate, communicate, and somehow, entertain the online viewers would have no problem using this medium. Herein, the producers of original programming aims to help the viewers become the next media mogul as they are given an opportunity to have their own live channel and customize it at best. [8]

II. What the Law Says

Formerly stated, the focus of this study will be centered on the legal implications of original programming broadcasted online on the issue of Philippine franchising and on the issue of censorship, among others.

A. Confusion on the Law of Franchising vis-à-vis Online Original Programming

A.1 Constitutional Provision

The 1987 Constitution Article XII, Section 11) states about legislative franchising, to wit: “No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right to be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common goods requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines”.

This provision governs that in order for a Filipino resident to operate any business; our jurisdiction mandates him to secure primarily a franchise issued by the Congress. Realating to the issue at hand, the authority to provide online broadcasting is called a “franchise.” In the Philippines, the legislative department and some authorized administrative departments are given the power to grant franchise, which is also known as the “franchising authority.” Hence, franchises are granted pursuant to negotiations between the broadcasting service provider and the franchising authority.

Online broadcasting, specifically on original programming, contemplates a form of business which involves the internet audience for the performance and operation of their service publicly. Now, the question lies on whether or not the producer who holds a certain online broadcasting company is considered part of the mandatory procedure of getting a license before they operate online; inasmuch as it is managed on the Internet, how does its nature affect the implementation of such provision as most of the laws of our State have not included the cyber laws explicitly as yet?

A.2 National Telecommunications Commission (NTC)

NTC has the power to administer and enforce all laws, rules and regulations in the field of Transportation and Communication pursuant to Executive Order No. 125-A, Section 5 (1987) and Executive Order No. 546 – thus, the country’s telecommunications and broadcasting regulator.

Likewise, according to RCPI vs. NTC ( 150 SCRA 450 ) which further elucidated in Manila Jockey Club vs. Court of Appeals, “franchise laws are privileges conferred by the government on corporations to do that “which does not belong to the citizens of the country generally by common right”. As a rule, a franchise springs from contracts between the sovereign power and the private corporation for purposes of individual advantage as well as public benefit. Thus, a franchise partakes of a double nature and character. In so far as it affects or concerns the public, it is public juris and subject to governmental control. The legislature may prescribe the conditions and terms upon which it may be held, and the duty of grantee to the public exercising it.”

Granting the abovementioned principle, how would the NTC go about regulating online broadcasting service on the issue of franchising? Do NTC have the authority to issue guidelines for the operation of such online broadcasting companies or do they have to wait for the Congress to pass an enabling law that would mandate and provide the procedures on franchising? It seems to me that NTC would rather wait for the decision of the Congress to act on the issue of regulating broadcast communications online. As NTC says, they need “careful assessment of such adaptation”; this is in connection with the recent issue on the migration to digital video broadcast (DVB) from analog which they keep their target five years hence.

B. Internet Censorship versus Online Original Programming

B.1 Constitutional Provision

As articulated in the 1987 Philippine Constitution Article III, Section 4 of the Bill of Rights, it is plainly stated that “no law shall be passed abridging the freedom of speech, of expression, or of the press, on the right of the people to peaceably assemble and petition the Government for redress and grievances”. This has been the defense of mass media on the principles of constitutionality and free speech. Therefore, on the deliberation of original programming in online broadcasting, this constitutional fountainhead would thus propagate the scenes, i.e. on the context of the promulgation of sexual content among others, so long it would not cross the bounds into “criminally prohibited obscenity”, [9]

Still on the matter of constitutionality, another provision of the 1987 Philippine Constitution Article II Section 24 on the Declaration of Principles, it has been provided that “the State recognizes the vital role of communication and information in nation-building.” Hence, all the acts in communication may be deemed permissible by the government as long as it contributes to the enhancement of the State’s institutions as well as the relationship between the latter and the public.

B.2 Movie and Television Review and Classification Board (MTRCB)

MTRCB is the State’s alter ego in combating and censoring the performance and exhibition of live programmed television shows and radio programs by imposing penalties in the event an individual or a corporation transgress the law set by the government. Its power to regulate though does not clearly include the power to remove or suppress what is considered morally, politically or otherwise distasteful on the dissemination of materials in cyberspace. What if, for instance, a local site hosting original internet programming allows the broadcast of MTRCB restricted (Rated X) movies online and uncut? Since it does not fall under the authority of MTRCB, what law now should govern the adjudication of such a case? How can we protect the proliferation of perpetrating immoral conduct and other criminal offenses (or we may say virtual offenses) involving the broadcast of original internet programming? Does the Congress need to enact law with an exclusive provisions and jurisdiction in the light of cyber-related crimes or it would be better for them to do some alterations on the existing and operational laws of our State?

III. What the Experts are Saying

The swifter the Internet expands, the bigger setback it gets. Issues to be resolved on the cyberspace are getting more complicated and thus pose more barriers for policy makers and lawyers to deal with it.

Regulating internet activities is one of the much debated issues nowadays. Original Internet Programming is just one of the recent emerging advancement on the Internet which may also be regarded as one of the new challenges for our Courts to handle.

Karniel, Yuval^Wismonsky, Haim suggested two approaches on how to deal with “whether the Internet should be regulated by a new independent set of legal principles under the rubric of “Internet” or “cyberspace” law (“cyberlaw”) or whether the Internet is nothing more than another important technological device which can be suitably adapted to existing jurisprudence”.[10] These are the following:

a. Revolutionary Approach – states that “Internet law is a separate, autonomous field with its own developing independent codes and unique guiding principles which cannot be addressed by traditional legal doctrine. As a result, all acts perpetrated in the virtual world are subject to a new and innovative test. Cyberspace is thus perceived as occupying another dimension located on its own “planet,” attached to no country and to which most domestic laws do not apply”.[11]

b. Moderate Approach – settles on the thought that “cyberlaw does not have the capability to occupy its own “space.” As Justice Easterbrook noted, “there was no more a ‘law of cyberspace’ than there was a ‘Law of the Horse.'” (3) The moderate approach views the Internet as a novel medium that traditional law can address by means of existing tools’. [12]

IV: Philippine Setting:

A. What Others Are Saying

Patricio Mangubat of http://www.filipinovoices.com in his article argued that uploading an X-rated work is a form of self expression which is constitutional. Cyber Law, for him, “is a primary example of a moral law which does not merit a place in our jurisdiction. It is also an exclusionary law because it punishes certain acts which will only benefit a particular sector of our society”. [13]

Further, Janette Toral of http://www.philippineinternetreview.blogspot.com believed that Internet censorship’s inevitability will depend on what matters most to the people involved, whether it is about their privacy, children’s online safety, freedom of information access, or national security. [14]

B. Where the Author Stands

The author believes in the freedom of expression as a constitutional right in terms of global information on the Internet. No one has to be deprived of how he expresses his awareness in any matters provided his expressions are not contrary to law, morals, public policy and public order. Same with original internet programming, Filipinos must be given equal opportunity to experience the comforts of new technology and to breathe exciting new life; that is, by giving them the access of creating their own channels online and express themselves by posting creative works whether it is in the form of a personal video or news line or anything that may be shared on the Internet.

Every person, however, should not fail to remember their responsibility to the younger ones as they might corrupt their fresh minds, no matter how interesting would it be for them to shout it out on the web. More than enough, they certainly should be more responsible in preserving the safety and well-being of every human race by not uploading brutally offensive materials. We should care for each other and live with the Golden Rule. As the “2012” movie actor says, “The moment we stop fighting for each other, that’s the moment we lose our humanity”.

V: The Bottom Line: Conclusions and Recommendations

Still strange as it may seem that broadcasting has indeed made its way into the cyber world, but knowing its implications would assert that the Internet, in general, is now facing a challenge in meeting the demands of the public – demands not only after the content that the consumers or viewers value but the demands on “meeting the challenge of communication and knowledge that requires creative responses from government agencies responsible for the policies on communication and regulation, from the national telecommunications industry, and from international governance bodies”. [15]

In retrospect as to the approaches previously cited, the author favors the “moderate approach” as it does not necessarily directs obligatory actions to have an autonomous jurisdiction on cyber laws but it implies that the Philippine government and its regulatory institutions should adopt variations to address the issue and a call for the lawmakers to be transparent, accountable and independent as to the issue of online broadcasting, including the citizen groups of the country to become active participants in the policy-making involving regulation on online activities.

Over and above, while there were confusions on the laws to be applied in online broadcasting with original internet programming, the government must come up with modifications or adaptations that need to be made within the framework of our existing laws in light with the nature of the commission of the offense in cyberspace. Tackling up with the area of law on franchising and censorship on original internet programming, the franchising and regulatory functions in line with the modifications must be performed efficiently with consultation, and should conform to our social and cultural values and rights. The government must not just amend laws according to its own perception but the government must see to it that the creation and implementation of those processes will result in a fully-informed, convinced, and participatory crowd.


Endnotes

[1] http://en.wikipedia.org/wiki/Broadcasting

[2] http://www.google.com.ph/url?sa=t&source=web&ct=res&cd=1&ved=0CAYQFjAA&url=http%3A%2F%2Fwww.isoc.org%2Finet96%2Fproceedings%2Fb3%2Fb3_2.htm&ei=HoXBS6S7JsiwrAeKgL2zCQ&usg=AFQjCNF44GUI10904CFwWLB06fwwJZ79ew

[3] http://www.livestream.com/info/about

[4] Ibid.

[5] Ibid.

[6] http://www.killerstartups.com/Video-Music-Photo/60frames-com-original-internet-programming

[7] Ibid.

[8] http://www.livestream.com/info/about

[9] http://www03.entrepreneur.com/tradejournals/article/115405914.html

[10] http://www03.entrepreneur.com/tradejournals/article/115405914_1.html

[11] Ibid.

[12] Ibid.

[13] http://filipinovoices.com/cyber-law-katrina-halili-hayden-kho-sex-scandal

[14] http://philippineinternetreview.blogspot.com/2008/01/is-internet-censorship-inevitable.html

[15] http://www.google.com.ph/url?sa=t&source=web&ct=res&cd=3&ved=0CA8QFjAC&url=http%3A%2F%2Fwww.isiswomen.org%2Findex.php%3Foption%3Dcom_content%26task%3Dview%26id%3D583%26Itemid%3D200&ei=HoXBS6S7JsiwrAeKgL2zCQ&usg=AFQjCNF7D8qAuWRFzTF2D6o0bYTaDWNGmQ

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