[Mirror] Abando, Laura Jean

SY 2011-2012, First Semester


SEE US… FOLLOW US…. NO MORE?

Recently spreading the internet is this topic:

“Twitter and Facebook reminders banned from French airwaves Media regulator prohibits phrases such as ‘Follow us on Twitter’ in move against leading social networks” [1]

Is this reasonable?

Kim Willsher of guardian.co.uk cited in her above article this statement of Christine Kelly, spokeswoman for the Conseil Supérieur de l’Audiovisuel (CSA), the government broadcasting authority: “Why give preference to Facebook, which is worth billions of dollars, when there are 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?'” [2]

Given the convenience of being updated of the news and talks now due the famous Facebook, Twitter and other social networking sites, almost all of us have been used to saying to friends, families, colleagues and, even, acquaintances to just check us out or follow us on these social networking sites instead of emailing; the old way of calling up through phone; or the very primitive letter writing.

This online social networking has been a word of mouth of so many that even in delivering all forms of information, it is seen effective. Advertising, advisories and news reporting have found these sites a beneficial avenue for data conveyance.

However the numerous and various websites, only a few have been favorites; thus, getting a way bigger share of the avid populace. May be due to its various features, i.e. socials, games, learnings and etc., but most probably, on how this networks are effectively passed upon one another and best way to do it is to let it be disseminated via the mass media.

Now, the question is:

Is it proper for a television or radio network to advise and announce to the public to check out and follow them at their preferred social networking sites?

Proper, as used in here, is to be correct or appropriate. Further, two qualifications being proper is seen, one being legal and the other being ethical.

First, do our laws provide for prohibition or, even only, regulation of this somewhat monopolizing act by TV and radio networks over a few social networking sites?

Article III, Section 4 Our Bill of Rights stated in the 1987 Philippine Constitution says, 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. The freedom of expression, though zealously protected by our constitution, is permissibly restricted. Speeches which are lewd, obscene and, those which by their utterance inflict injury or tend to incite an immediate breach of the peace are prevented. (Chaplinsky v. New Hampshire, 315 US 568). Considering this, the announcement of a particular social networking site, so long that it is lewd, obscene or injurious cannot by this restriction be abridged.

However the explicit support that certain TV networks express towards these few social networking sites, though not directly injurious to other social networking sites but indirectly injures the same by the greater support given to few who enjoys the power of influence that some TV networks have over the public. As such the question leads now to, “Is there unfair competition?”

Unfair competition as defined in the case of Alhambra Cigar vs. Mojica [3], unfair competition consists in passing off or attempting to pass off upon the public the goods or business of one person as and for the goods or business of another. It consists essentially in the conduct of a trade or business in such a manner that there is either an express or implied representation to that effect. It may be stated broadly that any conduct the end and probable effect of which is to deceive the public or pass off the goods or business of one person as and for that of another, constitutes actionable unfair competition. Unfair competition, as thus defined, is a legal wrong for which the courts afford a remedy. It is a tort and a fraud.

Unfair competition in a sense means that the competitors compete on unequal terms, because favorable or disadvantageous conditions are applied to some competitors but not to others; or that the actions of some competitors actively harm the position of others with respect to their ability to compete on equal and fair terms. It contrasts with fair competition, in which the same rules and conditions are applied to all participants, and the competitive action of some does not harm the ability of others to compete. Often, unfair competition means that the gains of some participants are conditional on the losses of others, when the gains are made in ways which are illegitimate or unjust. [4]

Section 168.2 of Republic Act 8293 otherwise known as the Intellectual Property Code of the Philippines provides that Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefor.

Unfair competition, in business, is a result of an intentionally deceptive or fraudulent act of a person against his competitor causing the former advantage over the latter’s disadvantage. This means that the injustice is primarily committed by the competitor himself and not his supporter or follower, unless the same may have manipulated by the said competitor.

Given that, the act of TV networks being a mere subscribers as anyone else of these few social networking sites cannot be accused as causing unfair competition as they are not individuals qualified to commit the same against other social networking site developers. Thus, it as if giving developers of these social networking sites a free roll of advertising time.

Republic Act 7394 otherwise known as the Consumer Act of the Philippines provides in Article 110 entitled False, Deceptive And Misleading Advertisement – it shall be unlawful for 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 of which is likely to induce directly or indirectly the purchase of consumer products or services [5].

Advertisement shall be false, deceptive or misleading if it is not in conformity with the provisions of this Act [RA 7394] 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 representation made or any combination thereof, but also the extent to which the advertisement fails to reveal material facts in the lights of such representations, or materials with the 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 as usual.

However, this law provision again has not covered as misconduct the unregulated quoting of few social networking sites on mass media to the dismay of unfamiliar others. Our laws have delve more on regulating and preventing one to say false or menacing accusation against another and not to regulate or to prevent favoritism on few products or services to evolve in media.

Now we lead to the next question is the practice of some TV and radio networks ethical?

It seems not. I agree with the French revolution on this aspect, such culminates the essence of fair play and mass media should at all be part of it. Further the Philippine Government has to make a move regarding this, even though almost social networking site developments are not Philippine – based, we may better take a stand in preventing such mode of conduct that in essence evades our law against unfair competition.


Endnotes

[1] http://www.guardian.co.uk/media/2011/jun/06/france-bans-twitter-facebook-news-announcements

[2] http://www.guardian.co.uk/media/2011/jun/06/france-bans-twitter-facebook-news-announcements

[3] G.R. No. L-8937, March 21, 1914

[4] Wikipedia

[5] Article 4 of RA 7394 provides: q) “Consumer products and services” means goods, services and credits, debts or obligations which are primarily for personal, family, household or agricultural purposes, which shall include but not limited to, food, drugs, cosmetics and devices.


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

No as ordinary citizen or even any entity cannot create our own version of Wikileaks.org and report therein anomalies of the State particularly on major corporations.

Although there is the Constitutional grant of the freedom of information, as enunciated in Section 7 of Article III of the 1987 Philippine Constitution, the same qualified and limited such right to those only of public concern.

Section 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.

Anomalies in major corporations considered herein are that of public interest that the Title IV of Act No. 3815 otherwise known as the Revised Penal Code has expressly enumerated, to wit:

Art. 186. Monopolies and combinations in restraint of trade. — The penalty of prision correccional in its minimum period or a fine ranging from 200 to 6,000 pesos, or both, shall be imposed upon:

  1. Any person who shall enter into any contract or agreement or shall take part in any conspiracy or combination in the form of a trust or otherwise, in restraint of trade or commerce or to prevent by artificial means free competition in the market;
  2. Any person who shall monopolize any merchandise or object of trade or commerce, or shall combine with any other person or persons to monopolize and merchandise or object in order to alter the price thereof by spreading false rumors or making use of any other article to restrain free competition in the market;
  3. Any person who, being a manufacturer, producer, or processor of any merchandise or object of commerce or an importer of any merchandise or object of commerce from any foreign country, either as principal or agent, wholesaler or retailer, shall combine, conspire or agree in any manner with any person likewise engaged in the manufacture, production, processing, assembling or importation of such merchandise or object of commerce or with any other persons not so similarly engaged for the purpose of making transactions prejudicial to lawful commerce, or of increasing the market price in any part of the Philippines, of any such merchandise or object of commerce manufactured, produced, processed, assembled in or imported into the Philippines, or of any article in the manufacture of which such manufactured, produced, or imported merchandise or object of commerce is used.

If the offense mentioned in this article affects any food substance, motor fuel or lubricants, or other articles of prime necessity, the penalty shall be that of prision mayor in its maximum and medium periods it being sufficient for the imposition thereof that the initial steps have been taken toward carrying out the purposes of the combination.

Any property possessed under any contract or by any combination mentioned in the preceding paragraphs, and being the subject thereof, shall be forfeited to the Government of the Philippines.

Whenever any of the offenses described above is committed by a corporation or association, the president and each one of its agents or representatives in the Philippines in case of a foreign corporation or association, who shall have knowingly permitted or failed to prevent the commission of such offense, shall be held liable as principals thereof.

Section Two. — Frauds in commerce and industry

Art. 187. Importation and disposition of falsely marked articles or merchandise made of gold, silver, or other precious metals or their alloys. — The penalty of prision correccional or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed on any person who shall knowingly import or sell or dispose of any article or merchandise made of gold, silver, or other precious metals, or their alloys, with stamps, brands, or marks which fail to indicate the actual fineness or quality of said metals or alloys.

Any stamp, brand, label, or mark shall be deemed to fail to indicate the actual fineness of the article on which it is engraved, printed, stamped, labeled or attached, when the rest of the article shows that the quality or fineness thereof is less by more than one-half karat, if made of gold, and less by more than four one-thousandth, if made of silver, than what is shown by said stamp, brand, label or mark. But in case of watch cases and flatware made of gold, the actual fineness of such gold shall not be less by more than three one-thousandth than the fineness indicated by said stamp, brand, label, or mark.

Art. 188. Subsisting and altering trade-mark, trade-names, or service marks. — The penalty of prision correccional in its minimum period or a fine ranging from 50 to 2,000 pesos, or both, shall be imposed upon:

  1. Any person who shall substitute the trade name or trade-mark of some other manufacturer or dealer or a colorable imitation thereof, for the trademark of the real manufacturer or dealer upon any article of commerce and shall sell the same;
  2. Any person who shall sell such articles of commerce or offer the same for sale, knowing that the trade-name or trade- mark has been fraudulently used in such goods as described in the preceding subdivision;
  3. Any person who, in the sale or advertising of his services, shall use or substitute the service mark of some other person, or a colorable imitation of such mark; or
  4. Any person who, knowing the purpose for which the trade-name, trade-mark, or service mark of a person is to be used, prints, lithographs, or in any way reproduces such trade-name, trade-mark, or service mark, or a colorable imitation thereof, for another person, to enable that other person to fraudulently use such trade-name, trade-mark, or service mark on his own goods or in connection with the sale or advertising of his services.

A trade-name or trade-mark as herein used is a word or words, name, title, symbol, emblem, sign or device, or any combination thereof used as an advertisement, sign, label, poster, or otherwise, for the purpose of enabling the public to distinguish the business of the person who owns and uses said trade-name or trade-mark.

A service mark as herein used is a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others and includes without limitation the marks, names, symbols, titles, designations, slogans, character names, and distinctive features of radio or other advertising.

Art. 189. Unfair competition, fraudulent registration of trade-mark, trade-name or service mark, fraudulent designation of origin, and false description. — The penalty provided in the next proceeding article shall be imposed upon:

  1. Any person who, in unfair competition and for the purposes of deceiving or defrauding another of his legitimate trade or the public in general, shall sell his goods giving them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves, or in the wrapping of the packages in which they are contained or the device or words thereon or in any other features of their appearance which would be likely to induce the public to believe that the goods offered are those of a manufacturer or dealer other than the actual manufacturer or dealer or shall give other persons a chance or opportunity to do the same with a like purpose.
  2. Any person who shall affix, apply, annex or use in connection with any goods or services or any container or containers for goods a false designation of origin or any false description or representation and shall sell such goods or services.
  3. Any person who by means of false or fraudulent representation or declarations orally or in writing or by other fraudulent means shall procure from the patent office or from any other office which may hereafter be established by law for the purposes the registration of a trade-name, trade-mark or service mark or of himself as the owner of such trade-name, trade-mark or service mark or an entry respecting a trade-name, trade-mark or service mark.

And while our existing penal law defines these corporation – related anomalies as crimes against public interest such or any other law give license to anyone to accuse someone of such crime and use such accusation to incriminate another without the observance of due process of law.

Regulating one’s civil right to information and expression is the another’s right to due process of law.

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. [The Philippine Constitution of 1987]

In this regard, it is mandatory that we abide to our Rules on Criminal Procedure, such that the accused is presumed innocent until the contrary is proved beyond reasonable doubt. The Rules on Evidence define “proof beyond reasonable doubt” as that proof of moral certainty or that degree of proof which produces conviction in an unprejudiced mind. And all of these can only determined in a judicial proceeding and decided upon by the judiciary and not any ordinary citizen.


Privacy in Judicial Decision

Whether Chan Robles Virtual Law Library, Lawphil.net or UST Repository of Law and Jurisprudence and others like them be compelled by a private person to remove his name mentioned in a case decided by the Supreme Court on the claim that it violates right to privacy, please see my answer:

Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively. [1]

Privacy is an inherent right of a person, where in the Philippines is protected by its Fundamental Law. The Bill of Rights protects against unlawful searches and recognizes privacy of communication. Apparently, such law guarantees protection only to private affairs and ends upon lawful exposure of such affair.

Whenever we fight for our cause, the disclosure of matters, be it personal and delicate to us, is a requirement that we cannot avoid. Hence at times, it can be said that to incriminate one is to disgrace oneself.

This defamatory proneness took advancement due to availability information in the Internet. The creation of electronic libraries made access to all kinds of information easier and speedier. This evolution is not wholly be glorified, because this as well instigated the ready invasion of one’s privacy. Thus, regulation of information declared and disclosed at such medium was limited by the same rules against invasion of privacy and defamation.

Nonetheless, this limitation to the worldwide web needs still be given due evaluation. What if the limitation is enforced against a lawful conduct a generally allowed business? Further, can we limit disclosure of ought to be publicly known, such as among others judicial decisions?

Here we are faced with a hypothetical issue, which may not be sensational as that of the Divorce Bill or the Reproductive Health Bill, might find its way to several fora in the future:

Whether Chan Robles Virtual Law Library, Lawphil.net or UST Repository of Law and Jurisprudence and others like them be compelled by a private person to remove his name mentioned in a case decided by the Supreme Court on the claim that it violates right to privacy.

The question deals with a person, which may be a natural or juridical person; a person of either sex or of different age; the offender, offended or a third party stakeholder. Yet it is clear that such person claims protection to privacy.

Presently, legislation has granted privacy protection to victims of sexual assault and that of crimes against women and their children, as enunciated in Republic Act (RA) Nos. 8505 or the Rape Victim Assistance and Protection Act of 1998, 7610 or the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act; and 9262 or the Anti-Violence Against Women and Their Children Act of 2004.

Further, in the case of People vs. Cabalquinto, GR No. 167693 in September 2006, the Supreme Court, to maintain the confidentiality of information in cases involving violence against women and their children, decided to withhold the real name of the victim-survivor and shall use fictitious initials instead to represent her. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well those of their immediate family or household members, shall not be disclosed.

However, these legislative enactments and judicial decisions seemed to safeguard only the women and children victims of crimes against chastity. How about the others that may in some way be dragged to defamation arising from the unlawful incident tried, heard and decided in the judicial arena, and then eventually be published to be used for information and reference, especially to students and practitioners of law.

To answer this, the author opts to adopt the elements relied upon by the Office of the Solicitor General in the case of People vs. Cabalquinto that for right to privacy of a person be given due credence, 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.

For the first element, the expectation of privacy must be perceptible. Generally, all persons expects of privacy, especially if an incident or fact shall tend to humiliate him.

However, such expectation must be completed with reasonableness. However strong his expectation, the offender cannot reasonably invoke right to privacy on overt acts evidencing his guilt. The courts cannot allow concealment of this information for to do so adversely affects public interest.

On the other hand, for that of the offended, other than those previously mentioned, needs profound evaluation. The undersigned believed that equal protection or, if not, equal recognition of the right to privacy of offended parties, other than those victims of the above-stated crimes. Especially those that be it for the incident has been morally or socially been deprived. Those who, after laying their affairs in litigation and allowing their stories to be written and published so as to speed up the administration of justice, must face scrutiny of the prejudicial society.

Unfortunately, this is only my personal opinion. The reasonableness cited in the Cabalquinto case relied on existing laws. The protection intended in raised issue is not clearly found in present laws.

Although the protection of privacy of offended is believed to be coherent. The imposition can only be given strength by legislation.

As such, in conclusion if the person, is not among those expressly granted by law of the protection of confidentiality of basic information of his or her person relative to case specified in the same laws, I say no.

No, Chan Robles Virtual Law Library, Lawphil.net or UST Repository of Law and Jurisprudence and others like them cannot be compelled by a private person to remove his name mentioned in a case decided by the Supreme Court on the claim that it violates right to privacy. These law and jurisprudence repositories are dependent only to what the Supreme Court may provide the public. On matters like these, they merely act as extensions of the Supreme Court. And so long as the information are freely given by the Supreme Court, these websites may the same do so, unless, a law shall prohibit the same.


Endnotes

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

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