[Mirror] Lavina, Robert

SY 2011-2012, First Semester

Is it appropriate for a broadcasting company to announce the use of a particular social networking site?

Almost all major broadcasting companies now ride on the popularity of the social networking websites (SNW) to further expand the scope and the mode by which they can reach the public. Whether it be in furtherance of the delivery of services or simply enticing the public to connect with them for information, entertainment or product promotions, these broadcasting companies have utilized particular names of SNW (e.g. facebook, twitter, etc.) wittingly or unwittingly, to the disadvantage of other less popular SNW. An issue may then be raised regarding the propriety of announcing a particular social networking site or sites as vehicle for their company promotions. ABS-CBN, GMA, ABC, the three leading local broadcasting channels (based on number of viewers) in the Phillippines for example suggest to their viewers to follow them on their respective Twitter accounts or like them in their Facebook page.

Wikipedia listed around 300+ SNWs and at least a third said list will fall within the category of the two popular sites above named, i.e. Facebook and Twitter. The reason why these two SNWs were particularly chosen is obviously due to its popularity not only in this country but worldwide. Undoubtedly, these two companies are benefitting one way or the other, to the said free advertisements being done by these broadcasting companies. However, as mentioned above, this seemingly unconscious endorsement may arguably be causing injury to the other SNWs because of the resulting unfair competition. It may not be a deliberate or intentional act on the part of the broadcasting companies, but the result is still the same. An unfair playing field is created, where the popular becomes more popular and the less popular becomes lesser known.

At first glance, said act of the broadcasting companies is seemingly harmless. But a closer look may give us inkling that there probably is something wrong. The act of endorsing a particular brand of commercial products for example without giving similar opportunity to the other competitor product can be construed as anti-competitive, in that they increase the power of firms within a market to the extent that this inhibits competitive conduct . This is similarly true with SNWs which are also generally profit-oriented business enterprises relying on the existence of a level playing field. This notwithstanding, this author is of the opinion that our existing laws, although recognizes in principle the maintenance of such “level playing field”, does not specifically address this issue to the extent that it can actionable in court or administrative tribunals.

At present, the Philippines has no explicit competition policy framework. The promotion of competition has been implicit at best, by the passage of laws meant to address specific situations. The Philippine Constitution, The Revised Penal Code, The Civil Code of the Philippines all contain provisions proscribing monopolies and combinations in restraint of trade. The Intellectual Property Code provides for the protection of patents, trademarks and copyrights. The Corporation Code of the Philippines provides for the rules regarding mergers and consolidations, and the acquisition of all or substantially all assets or shares of stock of corporations. The Revised Securities Act which complements the Corporation Code proscribes the manipulation of security prices and insider trading. The Price Act criminalizes certain acts of price manipulation such as hoarding, profiteering and cartels. And the Consumer Act of the Philippines which, among others, provides for consumer product quality and safety standards. Other laws exist but similarly pertaining to a particular act or situations in various sectors of the economy.
This dearth of law to address the specific issue at hand, calls for remedial legislation in order to strengthen the economy’s competition regime. There is a need to enact at least a law specifically to address the issue. Or better yet, enact a comprehensive competition policy framework in order to address the inadequacies of past legislations dealing with unfair trade measures.

Question: Should we adopt the American Rule of the French Rule?

Under the American Rule, the mere mention of a business enterprise such as the situation here is not per se constitutive of anti-competition act. In contrast, under the French Rule, mere mention of “follow us on Twitter” or “check out our Facebook page,” in the eyes of the French government, represents subliminal advertising and promotion of those platforms.

Read more: http://newsfeed.time.com/2011/06/05/french-say-adieu-to-twitter-and-facebook-on-tv/#ixzz1S8QL7jEc

In view hereof, this author is of the view that, the French Rule should be adopted in this jurisdiction if we are to protect those other businesses, particularly the smaller ones or those new entrants from being “swallowed” by the large and already “established” business enterprises.

Wikileaks in the Philippines?

In 2010, although already in existence for more than four years, Wikileaks became the center of international media attention when it began releasing through the internet, information which are considered by the US government as sensitive and highly classified. These includes among others, a video (dubbed as Collateral Murder) taken by a U.S. attack helicopter, showing what sounded like a trigger-happy crew killing civilians alongside their intended targets, cables from US embassy, other documents such as Pentagon Reports and War Logs in Iraq and Afghanistan. The releases were staggered and rather anticipated in the later part. But the US government did not waste a second in condemning the act with a simultaneous threat of legal actions against the organization in general and to its founder, Julian Assange in particular. Amongst the law alleged to have been violated in connection with such releases were the Espionage Act of 1917, Computer Fraud and Abuse Act, and Conspiracy. However, to date, with the clear absence of factual and legal bases needed to establish the violations alleged, the threat remains as it was, an act of desperate intimidation. The act which is clearly within the ambit of the freedom of speech and of the press guaranteed by no less than the First Amendment to the US Constitution and a catena of jurisprudence some of which are almost in four square with the controversy makes the Administration think twice about pursuing their threat of legal actions. As the US Supreme Court put it in the context of considering criminal liability of a broadcaster who had broadcast illegal materials, the First Amendment does not permit prosecution of a journalist transmitting truthful information of public interest “absent a need of the highest order.” It is well settled in US jurisdiction that a journalist who passively receives illegally obtained information is privileged to publish it.

Considering the above predicament, the US government resorted to what can be called extra-legal means or avenues by applying pressure on private companies to stop providing services to Wikileaks on pain of possible legal prosecution. Technically termed as the distributive denial of service (DDoS) attack, the US government indirectly threatened those companies which provide services to wikileaks with potential legal liability and loss of business opportunity if they continue transacting with wikileaks. One by one, EveryDNS, Amazon, OVH, Pay Pal, Visa, Master, and Bank of America discontinued their services to wikileaks.

Is it possible to do a “wikileaks” here in the Philippines?

Not only is it possible, I think it is quite probable. Our present Constitution undoubtedly is patterned to the US Constitution. The Bill of Rights is almost an adaptation of that of its counterpart in the US, including especially and pertinently that concerning freedom of speech, and of the press. We have in fact cited as an authority US jurisprudence relating to this rights guaranteed by the constitution.

Can anyone post anything for or against the government or private corporations?

Posting and or releasing information in the internet is not entirely a matter of right. The Bill of Rights is not without its limitations. As may be gleaned from the Wikileaks experience, the government will not take anything of such nature as national security and interest sitting down. Somehow, Wikileaks is lucky the justice system in the US gives utmost respect to the First Amendment and considers its curtailment possible only in cases of the highest order. In the Philippines, the situation shall we say is not totally in the same category as that of the US. Now and then we can hear some anomaly in the judicial system. This is without saying that we are not protected, but still there is always the possibility that we may not be as lucky as wikileaks when we do what it did in this country.

At the very least, let it be noted that wikileaks is able to escape criminal prosecution in the US because of the fact that what it did is not illegal under the present legal setting. As already pointed out, there is no law prohibiting the publication of passively received albeit illegally obtained truthful information of public interest. Anything outside this classification is another story. For example, if the publisher actively participated or is himself the one who procured the information through illegal means would be criminally liable. Also in situations that include the journalist knowing both that the information would cause imminent harm and that it did not have high public value.

Finally, those who would dare undertake what wikileaks did may be in for a different class of “extra-legal measures” quite unlike that which was employed by the US Administration. The politico-social setting here in this country is not similar to the US. Whistleblower here usually suffers persecution or finds himself alone after the issue has been forgotten or overtaken by another controversy.

May publication of jurisprudence be restrained on ground of violation of privacy?

Question: May the repositories of Philippine jurisprudence on the internet (e.g. ChanRobles, LawPhil, etc.) be compelled by a private entity whose names were mentioned in the said jurisprudence to remove said items on the ground that it violates his privacy?

There are quite a number of websites now on the web serving among others as databank or repositories of Philippines laws and jurisprudence. To name a few, we can browse the following sites: chanrobles.com, lawphil.net, batasnatin.com. dlsu.edu, corpusjuris.com, philippinelaw.info, abogabdo.com, etc. These sites provide a more or less exhaustive compilation of, among others, Philippine jurisprudence or decisions laid down by the highest tribunal on the land, the Supreme Court. Compilation includes decisions published through Philippine Reports (Phil.), Official Gazette (O. G.), Supreme Court Reports Annotated (SCRA) and Supreme Court Advanced Decisions (SCAD). Under the law, “Judicial decisions applying or interpreting the laws or the constitution shall form part of the legal system of the Philippines” (Art. 8, New Civil Code). From this provision arise the principle of “stare decisis et non quieta movere” which enjoins adherence to judicial precedents. It requires our courts to follow a rule already established in a final decision of the Supreme Court. That decision becomes a judicial precedent to be followed in subsequent cases by all courts in the land. This doctrine is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument (De Mesa vs. Pepsi Cola, G.R. No. 153063-70, Aug. 19, 2005). It is thus important that these precedent cases be made known and available for reference and guidance of the courts, judges, lawyers, party litigants, concerned entities and the general public.

In many instances however, the subject matter of the cases or certain facts and circumstance mentioned therein are of such nature that it necessarily touch upon the sensitivities of the personalities involved. As the need of the case require, information are revealed which may either be shameful, disgraceful, reprehensible, dishonorable, discreditable, shocking, appalling to some personalities or entities. Cases in point are those relating crimes against chastity, honor, persons or public morals which usually involve private persons as complainants. In general however, all persons, whether he is the offender or the offended party will be affected by the inevitable disclosure of their private circumstances. In most cases, such circumstances are of such character that the parties wish will remain secret.

A question may now be asked: May a private entity whose private circumstance were disclosed in certain jurisprudence compel those websites above-mentioned to remove such items for the reason that it violates his or her privacy?

This author is of the opinion that the answer should be in the negative. Although the privacy of persons involved may have been invaded or breached by the publication of a particular jurisprudence, such invasion is demanded by public interest and general welfare. The legal system will suffer in the absence of such jurisprudence. The study of law particularly of law students would be incomplete without reference cases of real incidents. Although some may suggest of an alternative, that is by changing or hiding the real name of the parties involve, but to date, there is no law that mandates such an act. A suit for libel will not also be availing. In order for libel to attach in Philippine Law, the following elements were enumerated in a Supreme Court decision: 1) It must be defamatory, 2) It must be malicious, 3) It must be given publicly, and 4) The victim must be identifiable (Diaz vs. CA, G. R. No. 159787). In general, if the accused proves the absence of any of the elements, then he is not liable. Under the situation at hand, while it may be admitted that the material is defamatory, made public and refers to the person particularly, it certainly cannot establish that there is malice. Not only because the websites cannot be said to be driven by such malicious intent, but because the materials are merely republication of materials published by no less than the Supreme Court. These materials are public records not in the nature of confidential documents. Under the Doctrine of Qualified Privileged Communication under Article 354 of the Revised Penal Code a fair and true report of any official proceeding, or of any statement, report, or speech, made thereat which must 1) not be confidential, 2) without any unnecessary comment or libelous remarks and 3) accurate and should not intentionally distort facts is a defense against the element of malice which applies to both libel and oral defamation.

Clearly, an action grounded on defamation will not prosper.

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