Philippine Media in the New ASEAN Environment

The author traces the development of mass media laws in the Philippines from colonial times to the present and then goes on to extrapolate future trends and directions.

ATTY PABLITO A. PEREZ

he colonial history of Philippine mass media reveals lengthy periods of state control of media dangerous to the political status quo. The repressive Spanish era (15211898) was challenged by a revolutionary Propaganda Movement. The American period (1900-1942) transplanted the First Amendment and other democratic principles, but only insofar as these freedoms did not endanger American rule. The Japanese occupation (1942-1945) was a wartime government. The martial law years between 1972 to 1986 wholly denied media rights. Basking in relative freedom, Philippine media today enjoys a period of maturation and self-assessment of its role and participation in political exercises, judicial proceedings and executive decision-making. More and more, Philippine society is relying on mass media to cleanup government, dispense justice, and bring about social changes. On its own, Philippine mass media must face the demands of new technology.

become effective only after they have been published in the manner required by law.1 The legal system does not allow judicial legislation, since the power to make laws is constitutionally vested exclusively in the bicameral Congress.2 However, judicial interpretations of law, made in the course of resolving actual cases or controversies, have the binding effect of law.3 The court system is composed of one Supreme Court,4 whose decisions have precedential value; a Court of Appeals, a mid-level appellate court which decides cases by divisions of three members; regional, metropolitan, and municipal courts, which are single-judge courts which hears and decides cases involving issues of fact and/or law at the first instance. All justices and judges are appointed by the President.

Sources of Philippine Media Law

The sources of media law in the Philippines are the Constitution, statutes passed by the legislature, rules and regulations enacted by administrative agencies in the exercise of their rule-making powers, and judicial precedents. As an independent republic, the Philippines has had a different constitution enacted in the highpoints of its history: In 1935, after the Commonwealth period, in 1973, as an apparatus of the martial law government and in 1987, at the resurrection of democratic institutions after the martial law regime. The freedom of speech and of the press, which is the constitutional baseline of all mass media rights, had been protected in all these constitutions. However, mainly in reaction to the excesses of the martial law years, the 1987 Constitution introduced the explicit recognition of the

Philippines a Civil Law Country

The Philippines is a civil law jurisdiction. Its legal system is built on written laws, rules and regulations and is very strictly bound by precedents. Laws, rules and regulations

Atty Pablito A. Perez is a Co-managing Partner and Head Litigation Partner of Row, Bunag, Kapunan, and Migallos law offices, a professional partnership engaged in the general practice of law in the Philippines and a lecturer in Media Law and Ethics at the Dept of Communications, Ateneo de Manila University.

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right of expression, the right to information, the policy of transparency in official transactions, a statement of policy on mass media monopoly and anti-competitive combinations, and the strict regulation of the advertising industry. Like any other business, media entities are equally subject to the limitations and duties imposed by laws on the incorporation of companies,5 labor relations,6 copyrights7 and taxation.8 Recent media-specific statutes include legislation allowing political advertisements and providing a right of reply,9 and imposing limitations on advertising content to protect consumers. The print media is not subject to and is thus almost wholly free of the strictures of administrative rules, except rules intended to protect consumers against false and misleading advertisements. Broadcast media however, is subject to regulation both as mass media and public utility. Thus television and cable broadcasts content is reviewed by the Movie and Television Review and Classification Board10 to ensure conformity with broadcast standards against obscenity and indecency, subversive and seditious speech, libel and defamation, and discriminatory content,11 as a public utility, broadcasting organizations are regulated by the National Telecommunications Commission.12 During election periods, the Commission On Elections invoke broad constitutional powers13 to issue rule and regulations that affect media.

activities. The Shield Law19 continues to protect media against the disclosure of new sources, although in a recent case it was ruled that the Shield law does not absolve from liability for contumacious conduct.20 Also, all government officials and employees are enjoined to reply to public written requests for information.21 Finally, recent decisions upheld the right to information under conditions.22 The most important legislation affecting media was approved only in February 12, 2001. The Fair Election Act23 lifted the ban on political advertising in mass media, after 13 years and three failed attempts in the Supreme Court to nullify such ban on constitutional and other grounds.24 Political candidates may now advertise their candidacies in print and broadcast media under conditions specified in the law, and equally important, legislates a right of reply to charges published against candidates, imposes a duty to 'air the other side and ... correct substantive errors promptly', and regulates the conduct and publication of pre-election surveys and poll exit interviews. Unfortunately, Philippine law continues to lag in the field of regulation of the new media. Recent legislation on electronic commerce25 has no direct impact on media as it was limited to the establishment of authentication and evidence rules on electronic data and information.

Adversarial Situation
There does not exist institutional mechanisms that provide a forum for the amicable resolution of disputes between the state, media and legal institutions. The prevailing environment is characterized by self-regulation and judicial intervention. Thus, media sectors are organized privately both for purposes of self-regulation, self-protection and the protection of common interests. These organizations provide a forum for members to resolve internal disputes, lay down common standards of behavior and ethics, and the advocacy of issues that affect their sector. Where these private efforts fail, the only resource is judicial action. In the event of unacceptable judicial resolution, remedy may lie with amendatory legislation which is achieved by advocacy and lobbying activities in Congress.

Development of the Legal system and the State of Law

Many laws affecting media have remained largely unchanged. Thus, the penal code14 enacted in 1932 continue to define the law on sedition, immoral publications, libel and defamation, although judicial interpretation and legislative amendments have clarified their application. In the light of newly-established democratic principles, the repressive decrees in the martial law years have been invalidated and prosecution for seditious content has not been a success. Obscenity and indecency law track the developments of American law, and theMiller15 test remains its benchmark. In 1999,16 the Supreme Court strengthened the rule that for libel prosecutions filed by a public official to succeed, the aggrieved officer must prove actual malice, and the accused has no duty to prove either 'the truth of allegations of official misconduct' or 'good motives and/or justifiable ends' in making the publication. Private civil rights, and the redress for their violation, is still governed by the Civil Code17 enacted in 1950. Consequently, tortious conduct of media that result in private harm or injury will have to be resolved on the basis of civil law standards on human relations, fairness, honesty and dealings in good faith, and will award damages on the basis of abuse of rights. Actions arising from violations of privacy, reputation and the appropriation of the economic value of one's likeness or image are decided on the basis of tort principles.18 Likewise there have been recent efforts to strengthen the right to information, and thus media's newsgathering

Future Trends and Directions

Recent developments in Philippine media may be summarized as follows: 1. The broadening role of mass media in judicial processes. In the recent decision of the Supreme Court on March 3, 2001 upholding the legitimacy of the Arroyo presidency, 55 of 135 footnotes in the decision were from published reports of national dailies on the alleged resignation of President Estrada.26 In the impeachment trial itself, three media persons were summoned to testify on their reports on material events. A confession made in front of a reporter was admitted as conclusive proof of guilt of an accused charged with murder and rape, thus leading to his execution.27 Two recent high-profile cases28 involving
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criminal prosecution of prominent individuals involved the testimony of media persons. At the same time, this new role has brought forward the issue of unfair trial publicity. Resigned President Estrada had raised the impossibility of fair adjudication in view of prejudicial publicity both in the Supreme Court and in the impeachment trial, where live media coverage was a recurring issue, or had resulted in discussion on unfair editorializing or publication of un-offered evidence. In the Webb and Teehankee cases, a strong question on the fairness of the conviction was raised by reason of prejudicial publicity. 2. The Philippine Daily Inquirer, the largest circulated national broadsheet, launched on February 27, 2001 the first local Internet newspaper. Several other newspapers have for sometime maintained electronic sites where their papers can be viewed, but the PDI site is far advanced in that it allows archivability, interactivity and news on demand. As businesses have migrated from 'brick and mortar', print media may also be poised to migrate from 'ink and paper'. It must be stressed however that the internet network utilizes the radio spectrum, satellite frequencies and telephone wires which are highly regulated for various reasons. In the Philippines, utilization of these scarce resources are allowed only for franchised entities, and are strictly subject to laws and regulations affecting public utilities. Consequently, as print moves closer to the use of certain media in the same manner as broadcast, regulation may be a necessary consequence, both as to content and to actual operation. 3. With the inevitable convergence of technology, ownership issues including monopolies, combinations and cross-media ownerships need to be addressed more seriously in the Philippines. Under the Telecommunications Policy Act of 1995, no single franchise may authorize both telecommunications and broadcasting activities. This is not to say that a telecommunications company cannot engage in broadcast; simply that it must have two separate franchises. These ownership issues are urgent because of the gatekeeper functions inherent in the telecommunications sector, where the operator of the system has control of what may be allowed on its network. Thus the specter of control of content and opportunity for publication is real. 4. The Fair Election Act recognizes that the democratization of opportunity for political office will not come about by the expediency of denying media access to candidates. Electoral reform is indeed a valid, compelling and substantive government interest; however, any attempt to control mass media to achieve this purpose amounts to a cure worse than the disease, and may will result in the opposite effect of an ill-informed electorate. 5. Finally, if mass media is to effectively perform its role as a catalyst of change, newsgathering activities must be strengthened. The stage is set in the Philippines "for efforts in this direction, as the constitutional policies of transparency and the right to information of matters of public concern more than justify wider and more liberal access by media to information and news sources. At
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this time, when media is assuming greater roles in society, it is no longer acceptable to assert that media has no special rights of access where the general public has none.

Conclusion
Clearly, the ground on which mass media stands is shifting. The Philippine mass media is, at this time, not occupied by issues of freedom and right to publish. Its roles in society and political life are maturing, and we can only hope that media will grab the charging bull of democratic and technological change by the horns.

Notes
*This paper was delivered at the Consultation On Legal Challenges For The New ASEAN Media Environment, Singapore, March 8, 2001. 1. Article 2, Civil Code of the Philippines; Tanada vs. Tuvers, 146 SCRA 446 [1986]. 2. Article VI, Section 1,1987 Philippine Constitution. 'The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives xxx'. 3. Article 8, Civil Code of the Philippines.'Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.' 4. Article VIII, Section 1, 1987 Constitution. "The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.' 5. Batas PembansaBilang 68. ("The Corporation Code of the Philippines'). 6. Presidential Decree No. 442, as amended ("The Labor Code of the Philippines'). 7. Republic Act No. 8293 ('The Intellectual Property Code'). 8. Republic Act No. 7716 ("The Expanded Value-Added Tax Law'). 9. Republic Act No. 9006 [February 12,2001]. 10. Presidential Decree No. 1986 [October 5,1985]. 11. Chapter III, Section 6, Implementing Rules and Regulations of the MTRCB [February 3,1997]. 12. Republic Act No. 7925. 13. Article DCO, Section 2,1987 Philippine Constitution. 14. Act 3815 [January 1,1932]. 15. Miller vs. California, 413 U.S. 15 [1973]. In the exercise of its authority, the MTRCB will apply 'contemporary Filipino cultural values as standard'. 16. Vasquez vs. Court of Appeals, 314 SCRA 460 [September 15, 1999], involving libel prosecution of a citizen who denounced a barangay official for official misconduct. 17. Republic Act No. xxx 18. Article 2176, Civil Code of the Philippines. 'Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done xxx' 19. Act No. 53 xxx 20. In Ro Emil Jurado, 243 SCRA 299 [April 6,1995]. 21. Republic Act 6173 [February 20,1989]. 22. Gonzales vs. NAWASA, G.R. No. 140835, August 14, 2000; Valmonte vs. Belmonte, 170 SCRA 250 [1989]; and Legaspi vs. Civil Service Commission, 150 SCRA 530 [1987]. 23. Republic Act No. 9066. 24. Philippine Press Institute et al. vs. Commission On

PHILIPPINE MEDIA IN THE NEW ASEAN ENVIRONMENT

Created the Board of Censorship For Motion Pictures. November 11, 1931 Act No. 3846 ('The Radio Control Law') January 20, 1899 The Malolos Constitution Guaranteed every person's 'right to freely express his ideas or opinions, orally or in writing, through the use of the press and other similar means'. April 7, 1900 Transplanted the First Amendment guarantee under the American Constitution, through US President Mckinley's Instruction to the Second Philippine Commission that 'no law be passed abridging the freedom of speech and of the press'. The Philippine Bill of 1902 That no law shall be passed abridging the freedom of speech or of the press or of the right of the people to peaceably assemble and petition the Government for a redress of grievances.' Act No. 277 (Repealed by Act 3815) Defined and punished the crime of libel and obscene and indecent publications. Act No. 292 (Repealed by Act 3815) Defined and punished the crimes of treason, insurrection and sedition. Act No. 1692 (Repealed by Act 3815) Defined and punished public utterances subversive of public peace and order. February 4, 1916 Act No. 2580 Required the publication and recording in the Bureau of Posts of the names and postal addresses of editors, publishers, owners, managers and stockholders of newspaper publications. Jones Law of 1916 ("The Philippine Autonomy Act') "That no law shall be passed abridging the freedom of speech or of the press or of the right of the people to peaceably assemble and petition the Government for a redress of grievances.' November 27, 1929 Act No. 3582 October 5, 1946 Republic Act No. 53, as amended by Republic Act No. 1477 on June 15, 1956 ('The Shield Law') Guarantees the confidentiality of news sources, in that except as demanded by the security of the State, the publisher, editor or duly accredited reporter of any newspaper, magazine, or periodical of general publication cannot be compelled to reveal the source of any published news report or information. August 30, 1950 Republic ActNo. 386 ('The Civil Code of the Philippines') Defines the law that governs the private rights and duties of individuals, including the law on human relations, contracts and obligations, ownership of intellectual property, torts or negligent harm, and damages. June 19, 1965 Republic Act No. 4200 ('The Anti-Wiretapping Act') Defined and punished the crime of unauthorized wiretapping and other violations of the privacy of communications. 'Article III, Section 1(8). No law shall be passed abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances.' November 7, 1936 Commonwealth Act No. 146 ('The Public Service Law') Created the Public Service Commission as the licensing and regulatory agency over public utilities, including telecommunication entities. Provided for the regulation of all radio stations and radio communications in the Philippines. January 1, 1932 Act No. 3815 ('The Revised Penal Code') Codified penal laws; defined and punished crimes including those against public order (rebellion, sedition, inciting to sedition, illegal assemblies and associations); those against decency and good customs (immoral doctrines, obscene publications and exhibitions, andindecent shows); and those against honor (libel and defamation). The 1935 Constitution of the Republic of the Philippines

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September 21, 1972 Proclamation No. 1081 Declared martial law in the Philippines. September 22, 1972 Letter of Instructions No. 1 Directed the state take-over of all newspapers, magazines, radio and television facilities, and other mass media on the ground of national security and interest. November 2, 1972 Presidential Decree No. 36 Directed the cancellation of all franchises and permits of all mass media that had engaged in subversion, and the creation of the Mass Media Council with the power to grant licenses or certificate of authority to operate mass media facilities. January 17, 1973 The Philippine Constitution of 1973 'Article IV, Section 9. No law shall be passed abridging the freedom of speech, or of the press, or of the right of the people to peaceable assemble and petition the government for the redress of grievances.'

publications or other media of mass communications. February 2, 1987 The 1987 Constitution of the Republic of the Philippines 'Article III, Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances.' 'Article III, 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 data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.' 'Article II, Section 28. 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.' 'Article XVI, Section 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country. In accordance with a policy that respects the freedoms of speech and of the press.' 'Article XVI, Section 11(1). The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. (2) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing directors of such entities must be citizens of the Philippines.' December 3, 1985 BatasPambansaBilang 881 ('The Omnibus Election Code')

1976 Presidential Decree No. 885 ('The Anti-Subversion Act')

Expanded the crime of subversion under the penal code to include the printing, publication and distribution of documents, leaflets and any other type of publications subversive of national security and interests. June 11, 1978 Presidential Decree No. 1498 ('The National Security Code') Compiled all decrees, orders, instructions and policies affecting national security and public order, and included control, censorship and punishment of the publication, distribution, circulation and broadcast of subversive rumor, news and information. October 5, 1985 Presidential Decree No. 1986 Created the Movie and Television Review and Classification Board, with power to classify, delete or prohibit television and film content. September 12, 1980 Presidential Decree No. 1980 ('The Public Order Act') Granting the President the power to close of subversive

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Granted the Commission on Elections the power of supervision over the use and employment of press, radio and television facilities to give candidates equal opportunity in mass media. January 5, 1988 Republic Act No. 6646 ('The Electoral Reforms Law of 1987') Imposed a ban on the sale or donation of print space or air time for campaign or other political purposes. February 20, 1989 Republic Act No. 6713 ('Code of Conduct and Ethical Standards for Public Officials and Employees') Directed all public officers and employees to respond to requests for information within fifteen (15) days from request, under pain of punishment. October 22, 1991 Supreme Court Resolution Prohibited the live media coverage of all court proceedings. June 15, 1992 Republic Act No. 7394 ('The Consumer Protection Act') Penalized false or misleading advertisements and sales practices.
May 28, 1994 Republic Act No. 7716 (The Expanded Value-Added Tax Law')

activities of other media. March 1, 1995 Republic Act No. 7925 ('The Telecommunications Policy Act') Defined national policies on the telecommunications industry. June 5, 1995 Republic Act No. 8047 ('The Book Industry Development Act') Exempted the sale and/or importation of newspapers, books, magazines and periodicals from value-added tax. January 1, 1998 Republic Act No. 8293 ("The Intellectual Property Code') Codified all the laws on trademarks, patents and copyrights, and created the Intellectual Property Office. February 12, 2001 Republic Act No. 9006 (The Fair Elections Act') Lifted the ban on political advertising on the print and broadcast media, and allows political candidates to buy print space and broadcast time under conditions and limitations in the law or to be imposed by the Commission On Elections. Provided for a right to reply.

Subjected to VAT taxation all advertising activities of print media, and all broadcast, advertising and promotional

This paper was presented at the Consultation on 'Legal Challenges in the New ASEAN Media Environment', held in Singapore from 8-9 March 2001.

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