[Mirror]: Cipriano, Vladie May

SY 2011-2012, First Semester


Sexy billboards who says: porn or art?

The aim of art is to represent not the outward appearance of things, but their inward significance. -Aristotle

According to an article, Sexy’ billboards in Metro go down, by Marlon Ramos in the Philippine Daily Inquirer last 06/09/2009, 37 billboards showing models and celebrities in skimpy outfits have either been taken down voluntarily by billboard operators or by members of the DPWH’s Oplan Baklas Billboards, according to DPWH Assistant Director for Metro Manila Armando Estrella.

Estrella said in a statement that the operators of outdoor signages volunteered to take down the huge ads after “they realized that many people were against indecent and immoral billboards.”

“They were conscience-stricken,” he said, adding, “They fear the backlash in public opinion will affect the products they are endorsing.”

After two years of the controversial take down of billboards, the sexy billboards of actresses Angel Locsin and Anne Curtis were recently ordered taken down by the Metro Manila Development Authority. Prior to that, the sexy billboards that featured the Philippine Volcanoes, the country’s rugby team, were also ordered taken down by the mayor of Mandaluyong City.The reasons for the removal of the billboards was lack of permit and for being offensive. The question is when is a billboard too sexy or racy that it becomes offensive? Should these sexy ads be taken down or prevented from being shown in billboards? Is this is a form of censorship? Or is it valid exercise of police power to allow the MMDA and other local government officials to set standards despite the fact that there is a private entity that is responsible for the same?

One article posted in abs-cbnNEWS.com last 07/09/2011, Metropolitan Manila Development Authority (MMDA) Chairman Atty. Francis Tolentino expressed his support for the removal of offensive and inappropriate billboards across Metro Manila.

The legal basis for taking down the sexy billboards is consistent with National Building Code and Section 16 of General Welfare Clause of Local Government Code. This was taken down because of its offensive content and for violating size restrictions. There should be an easement of 10 meters from the Pasig River.

A new committee was formed to regulate billboard content, headed by Marikina Mayor Del de Guzman, according to Tolentino. Fr. Roderick Castro, parish priest of the National Shrine of Our Lady of Guadalupe, was also tapped by the MMDA to be part of the committee.

Jones Campos, executive director of the AdBoard, earlier expressed his dismay over the decision to take down the controversial underwear ad.

According to ANC’s “The Rundown” on Friday, OAAP’s president Ed Acosta insisted there is nothing wrong with the controversial billboard. Acosta said the billboard had earlier passed the scrutiny of the Ad Standard Council (ASC).

In this case, the regulatory board for the billboard is a private entity, Ad Standard Council (ASC). However, when public welfare and morality is compromised by the latter’s indiscretion, the state will step in to regulate. This is in cognizance with the inherent power of the state, the police power. Under constitutional law, the state through its instrumentalities.

Police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property. It is the most pervasive, the least limitable, and the most demanding of the three fundamental powers of the State. The justification is found in the Latin maxims salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo ut alienum non laedas (so use your property as not to injure the property of others). As an inherent attribute of sovereignty which virtually extends to all public needs, police power grants a wide panoply of instruments through which the State, as parens patriae, gives effect to a host of its regulatory powers. (JMM Promotions & Mgt. Inc. v. CA, G.R. No. 120095, August 5, 1996, 260 SCRA 319). The power to “regulate” means the power to protect, foster, promote, preserve, and control, with due regard for the interests, first and foremost, of the public, then of the utility and of its patrons. (Phil. Assn. of the Service Exporters, Inc. v. Torres, G.R. No. 101279, August 6, 1992, 212 SCRA 298).

In this case the Metropolitan Manila Development Authority (MMDA) as headed by Chairman Atty. Francis Tolentino, represents the State in exercising the inherent power of the state to regulate and form a committee particularly to screen billboard content.

Another legal basis is with the National Building Code and Section 16 of the General Welfare Clause of Local Government Code.


REACTION PAPER

Would it be appropriate for a broadcasting company to announce and ask the audience or public to follow particularly on twitter or facebook? Or does it curtail public preference?

Should we follow the French rule or the American rule?

Trademark infringement and unfair competition

Trademark infringement is an invasion of the property rights of another and is committed against the registered mark. The property rights pertain to another person who, by virtue of being a registered trademark or tradename owner, is entitled to the exclusive use of the mark.

On the other hand, unfair competition is a violation of another’s goodwill. Registered trademarks or names are entitled to protection against unfair competition under the laws on intellectual property. The wide range of practices which constitute unfair competition includes trademark infringement. In the Philippine setting, the essential elements of an action for unfair competition are (1) confusing similarity in the general appearance of the goods, and (2) intent to deceive the public and defraud a competitor. Thus, there can be trademark infringement without unfair competition when there exists confusing similarity minus the intent to deceive the public or defraud a competitor.

Establishing trademark infringement requires three elements. The trademark owner must prove that the (1) mark is valid and legally protectable; (2) plaintiff owns the mark; and (3) defendant’s use of the mark to identify goods or services results in a likelihood of confusion concerning origins of goods or services. The gravamen of trademark infringement is likelihood of confusion. Thus, malice or intent to deceive is not required.

Unfair competition, on the other hand, only has two elements as previously stated, namely 1) confusing similarity in the general appearance of the goods, and 2) intent to deceive the public and defraud a competitor. While trademark infringement is a trespass on property right, unfair competition is a violation of another’s goodwill. The test of unfair competition is whether the acts of the defendant are such as are calculated to deceive the ordinary buyer in making his purchases under the ordinary conditions which prevail in the particular trade to which the controversy relates. The scope of unfair competition is broader than that of trademark infringement. “An unfair competitor need not copy the entire mark to accomplish his fraudulent purpose. It is enough if he takes the one feature which the average buyer is likely to remember.”

Unfair competition is the employment of deception or any other means contrary to good faith by which a person shall pass off the goods manufactured by him or in which he deals, or his business, or services, for those of another who has already established goodwill for his similar goods, business or services, or any acts calculated to produce the same result. [Sec. 29, Republic Act No. 166, as amended]. The law further enumerates the more common ways of committing unfair competition, thus:

Sec. 29.

In particular, and without in any way limiting the scope of unfair competition, the following shall be deemed guilty of unfair competition:

[a] Any person, who in selling his goods shall give 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 devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor of such goods or any agent of any vendor engaged in selling such goods with a like purpose.

[b] Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; or

[c] Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another.

In this case, a broadcasting company can legally advertise by stating to follow them on twitter or like them on facebook. The actuations does not violate the foregoing requisites as a violation for unfair competition.


Can we create our own wikileaks.org to publish government anomalies?

The legal issues pertaining to the wikileaks in the US can be evident and explained through the following published articles:

Because WikiLeaks acted only as a publisher and did not itself violate U.S. law in obtaining the leaked documents it is highly likely to enjoy protection under the First Amendment for publication of government files.

The potential legal threats faced by WikiLeaks in other countries are less clear. Free speech protection outside of the U.S. is often significantly lower than that accorded by the First Amendment. However, other countries, such as Sweeden, provide strong protection for publishers.

-WikiLeaks: Secrets and Legal Liability
December 2, 2010 http://www.thelawinsider.com

“In terms of finding a law that has been violated, the question is harder than might appear at first. This is mostly because our tradition of free press makes it hard to punish people for publishing the truth,” he added.

However Richards said that in terms of the First Amendment, the pressmedia can be punished for the contents of its articles if one of four things are met: the material is false, not newsworthy, illegally obtained, or if there is a state interest of the highest order.

Senator Joseph Lieberman and Attorney General Eric Holder have suggested a number of possibilities, including the Espionage Act and state secrets statutes, which punish the disclosure of national security information harmful to the United States.

“The first two exceptions aren’t relevant here because the WikiLeaks cables are both true and newsworthy. Indeed, this it’s is exactly because people want to know the embarrassing truth contained in the cables that the government wants to restrict it,” he added.

Media may face legal issues for publishing Wikileaks cables
AGENCIES Dec 11, 2010, 06.23pm IST

Experts said that making a case against a government employee who promised to keep the nation’s secrets is pretty easy from a legal standpoint. By contrast, Washington defense attorney Abbe Lowell said, prosecuting the website WikiLeaks is no slam-dunk.

Prosecuting WikiLeaks: It’s Not Going To Be Easy
by CARRIE JOHNSON

In the Philippines the Constitutional right of information is self-executing. It guarantees each citizen the right to public information. However, to what extent should this right be exercised? In creating our own wikileaks would create a clash between the right to information and the right of the state against espionage compromising national security. The legal basis are as follows:

The Revised Penal Code of the Philippines

Art. 117. Espionage. — The penalty of prision correccional shall be inflicted upon any person who:

  1. Without authority therefor, enters a warship, fort, or naval or military establishment or reservation to obtain any information, plans, photographs, or other data of a confidential nature relative to the defense of the Philippine Archipelago; or
  2. Being in possession, by reason of the public office he holds, of the articles, data, or information referred to in the preceding paragraph, discloses their contents to a representative of a foreign nation.

The penalty next higher in degree shall be imposed if the offender be a public officer or employee.

Section Two. — Provoking war and disloyalty in case of war

Art. 118. Inciting to war or giving motives for reprisals. — The penalty of reclusion temporal shall be imposed upon any public officer or employee, and that of prision mayor upon any private individual, who, by unlawful or unauthorized acts provokes or gives occasion for a war involving or liable to involve the Philippine Islands or exposes Filipino citizens to reprisals on their persons or property.

The Philippine Constitution guarantees the right of its people to information on matters of public concern. 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.”

Jurisprudence has so far clarified key aspects of the right of the people to information on matters of public concern, particularly its nature and scope. As regards its nature, the Philippine Supreme Court has proclaimed that the right to information is not a private right, but a public right, which may be asserted by any citizen. Regarding its enforceability, the Philippine Supreme Court in the case of Legaspi vs. Civil Service Commission [1] has held that the Constitutional provisions on the right to information are self executing. As to the scope of the guarantee, it covers such information that relates to matters of public concern.

Despite the Constitutional guarantee and the judicial affirmation of the right, denial of access to information on matters of public concern in the Philippines remains widespread. This situation can be mitigated by a law on public access to official information that will complement the existing Constitutional guaranty and relevant jurisprudence.

-HB 2993


Endnotes

[1] GR No. 72119; 29 May 1988

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