The Issues of Privacy in Philippine Mass Media Broadcasting and Communication
by Adelino Guyos Villa
I. Introduction
The evolution of Mass Media Broadcasting has been dynamic and challenging for the past several years_ The developments of different mass media communication facilities, from television, radio, print and other electronic wire or wireless means seem to be unstoppable due to modern innovations brought about by the demands of competitive world of mass media communications.
The primary goal of this paper is to present the importance of the balance between the right of the Freedom of Expression as enshrined in the 1987 Philippine Constitution and the Right to Privacy which is also mandated on the same fundamental law. It is believed that no matter how important and pressing the value of mass media communication, the principal concern should be given to the protection of the right to privacy of the person.
The focus of this case study is the Philippine Mass Media Communication. The Television as a media vehicle is touted as one of the most influential mass medium that the extent of it’s influence have grown in an enormous proportion not only here in the country but especially in the developed countries where advance technologies are sufficiently available.
In fact, a recent comparison claim that the votes received by the rival winners of the Television show fame American Idol, has surpassed the number of votes garnered by an elected American President in a recent popular election. The number maybe staggering but the participation is more revealing, considering the votes cast on the reality shows are via text messaging with standard text fees applied as compared to the free and patriotic obligation to vote in the Presidential election.
The data maybe amusing but the revelation is quite alarming because the proportion of the public’s inclination towards mass media, especially television, has grown into unprecedented popularity that the dangers of privacy and other rights infringement maybe compromised.
II. Background
A. Brief History of Philippine Mass Media Broadcasting and Communication
The History of Philippine Mass Media has undergone colorful and challenging times much like the history of a country itself. The developments of mass media in the country was shaped by the dynamic political and cultural heritage of the Nation. Considering the Constitutional revisions and amendments of the fundamental laws of the land namely the 1935, 1973, the Freedom Constitution of 1986, and the 1987 Philippine Constitution has molded the direction and growth of the mass media. Since, the Right or Freedom of Expression is the cornerstone of the “Fifth State” otherwise known as the mass media.
The political transitions from martial law regime to a return to a democratic governance not to mention the lasting effects of colonial and imperialistic influence to the liberalization regime of different foreign forces.
In this setting, the role of mass media assumes primary importance. Mass media being the major means by which the flow of information between government and the governed maybe realized. It is also important to discuss the amazing development of sophisticated technologies that is primarily responsible for the enormous popularity and influence of mass media. In the case of advance computer programming, the interests is especially worth mentioning in the real time satellite transmission of broadcasting and the liberalization of media access to as many viewers, listeners, addresses and receivers. The growth of mass media is way beyond the imaginable boundaries of development.
B. The Emergence of Philippine Television Broadcasting and Communication Setting
The Television Broadcasting and Communication Industry in the country remain to be popular and entertaining from the very start of its evolution from black and white talkless format to now available digital, high definition and wireless electronic cable transmission.
Indeed, the transitions of television formatting in the country is not far from it’s foreign and modern counterpart. It can be attributed to the unprecedented development of television technologies that the world sums so compact and near.
In the Philippines, through subsequent legislations by Congress, the liberations of franchise and permits paved the way for other television industry player to join the growing business of television mass media productions.
The emergence of different programs and format settings are indications that the television industry keeps the demand of the viewing public to cater their needs.
C. Relevant Laws, Regulations and Jurisprudence Governing the Philippine Television and Broadcast Communications
Since the focus of the study deals with the issues concerning the right to privacy in the Television Media Communication, it is but appropriate to lay down the governing laws, statutes and jurisprudence that regulates such agency of mass media.
a.) Legislative Franchise
By virtue of the the provision of the 1987 Constitution Article XII, Section 11:
“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 be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so 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.”
It is mandated under the Constitution as enunciated in the case of RCPI vs NTC ( 150 SCRA 450), that a franchise cannot be exclusive in nature, nor can a franchise be granted except that it must be subject to amendment, alteration or even repeal by the Legislative when the common good so requires.
b.) National Telecommunication Commission
It has the power to administer and enforce all laws, rules and regulations in the field of Transportation and Communication as provided and in pursuance to Executive Order No, 125-A, Section 5, 1987 and Executive Order No. 546.
c.) Certificate of Public Convenience and Necessity
In pursuant to the directive imposed under Executive Order No. 546, to be granted by the National Telecommunication Commission.
d.) Movie and Television Review and Classification Board ( MTRCB)
As the name implies, it has the authority to Review Public Affairs Programs to classify, publicly broadcasted programs.
e.) Optical Media Board (OMB)
Formerly known as the Video Regulatory Board and regulates the importation, exportation, acquisistion, sale or distribution of optical media, manufacturing equipment, parts and accessories, manufacturing materials used or intended for use in mastering, manufacture or replication of optical media.
f.) Article III, the Bill of Rights
This is the fountainhead of all laws affecting Philippine Mass Media in the Philippine Constitution, enshrined under Article III Section 4:
“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 same Constitutional Provision is the embodiment of the “Freedom of Expression” that guided the evolution of the Philippine Mass Media. And under the provision of the 1987 Philippine Constitution’s Declaration of Principles Section 24, Article II, “The State recognizes the vital role of communication and information in nation-building.”
g.) The Intellectual Property Code of the Philippines or Republic Act No. 8293
Under the provision of Section 172 (L) Audio visual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audiovisual recordings are protected by copyright.
Copyright protects the works that are literary and artistic creations by the sole fact of their creation, irrespective of their mode or form of expression as well as their content, quality and purpose.
h.) Kapisanan ng mga Broadkaster sa Pilipinas or Association of Broadcasters of the Philippines. (KBP)
i.) Civil Code of the Philippines
III. The issue of Privacy in Philippine Television Broadcast and Communications
The issue of the right to privacy in the Philippine television broadcasting and communication is treated together with rights against defamation in the issue of protection of one’s dignity. In privacy, the balance of right of freedom of expression against the right of individuals to be let alone while in defamation the balance of the right of individual to protect their reputations.
Although, privacy tend to be commonly regarded ad constitutional right but the same word never appear in the Constitution. Compared to other rights such defamation privacy in a relatively new legal concept with many facets.
Concern for privacy in the 80’s are diverse involving such varied issues on the dissemination of personal credit information via computerized system, electronic eaves droppings, the protection of newsrooms from police searches, relevance of personal information about individuals by government. And a right to know what is one’s own academic records. While the development of mass media broadcasting grew faster and more complicated the connotation of privacy issue become wider in scope.
This paper is concerned primarily with invasion of privacy as a tort-a civil wrong or inquiry. Although the recognition of privacy torts varies from country to country, scholars generally have recognized four different torts or branches of invasion of privacy:
- One of those related to the news gathering stage, of the communication process: intruding on the plaintiff’s physical solitude. It is akin to tort of trespass;
- The publication or production of private (true) facts which put the plaintiff in a false light in the public’s eye;
- The appropriation of another’s name or likewise in commercial or trade purposes;
- And the “false-light” tort comes closest to the tort of defamation because it is the only one that involves falsity.
The State recognizes the vital and powerful role of Television communication in the field of mass media. The issue of privacy must not be compromised in its pursuit to attain the objective of it’s medium. The issue of privacy is very important that the right of the privacy which may be set against the government is also found in the same Bill of Rights which Mass Media practitioners must abide.
Under the 1987 Constitution, Article III Section 2:
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complaianant and the witnesses he may produce, and particulary describing the palce to be searched and the persons or things to be seized.”
Section 3:
(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this act or the preceding section shall be inadmissible for any purpose in any proceeding.
Again the privacy of an individual in mass media especially television broadcasting and communication is the balance of the right of freedom of expression against the right of the person to be let alone.
IV. Remedies and Protection of the Right to Privacy and Other Rights Involved against Infringement and Violations in the Philippine Setting
The issue of violations and infringement of the basic right to privacy and other rights involves in Philippine television is a pivotal challenge that poses before our government as the inherent defender of these Constitutional mandated rights. It is considered a serious job since what is involved is the right to privacy of a person; property and effect enshrined under the Bill of Rights and the Declaration of the State Policies of the 1987 Constitution. And not to overlook the powers that be, of the television medium not only to create but sadly to destroy a person’s protected privacy and integrity.
The State through it’s different governmental agencies such as the Motion Television Review and Classification Board tasked to classify and censor the performance and exhibition of live programmed television shows and imposed penalties sanctions and even suspension to erring television stations, personalities and entities.
The Department of Transportation and Communication that issues licenses and permits to construct and operate broadcast stations and to purchase radio transmitting equipments. It is responsible for the allocation of frequencies and implementation of technical standards. The DOTC is tasked to regulate and if necessary revoke licenses of those who broadcast. They issue certificate of convenience and necessity.
The Department of Trade and Industry is responsible as a watchdog of the people to supervise, regulate the commercial functions of television advertisements and authenticity of the and endorsements not only of products but the whole program as well in line with their industry.
The Congress of the Philippines is responsible for a valid legislation to issue legislative franchise. They can revoke or amend such franchise if necessary.
The Optical and Media Board or the OMB formerly the VRB which regulate the importation, exportation, acquisition, sale or distribution of optical media, manufacturing equipment, parts and accessories and manufacturing materials used or intended for use in mastering, manufacturing or replication of optical media. The OMB is tasked to prevent the proliferation of unauthorized replication and infringeable copyrighted films distributed in the market. One major task of the OMB related to the issue of privacy is the confiscation and destruction of unlicensed and uncensored audio visual materials made publicly available in the market that infringes and violate the right of a person to privacy and property.
The KBP or Kapisanan ng mga Broadkaster sa Pilipinas (Broadcaster Association of the Philippines) is the long standing association of the broadcast journalists both in radio and television that promotes freedom of expression through responsible and balance news reporting. They can suspend and even remove erring numbers.
The availability of the remedies through the right to:
- Due Process as provided under Article III Section 1
- Forms of Abridgement of Expression
- Prior Restraint
- Freedom from subsequent punishment such as :
- The Dangerous Tendency Rule of the Freedom of Expression: the constitutionality of the statute curtailing speech is determined in the same manner that the constitutionality of the statute is determined by answering is a statute reasonable?
- The Clear and Present Danger Test of the Freedom of Expression- it permits punishment of expression when the words are used in circumstance and are of such nature as to create a clear and present danger that they will bring about a substantive bad that the State has the right to avoid.
- The Balancing of Interest Test in Freedom of Expressionthe duty of the court is to determine which of the two conflicting interests demand the greater protection under the particular situation presented.
V. Conclusion
The issue of privacy in the Philippines Mass Media Broadcasting and Communication especially the Philippine Television Media Broadcasting is an important and sensitive issue that our government media practitioner should deal with. The power and influence of mass media is unstoppably growing and the trend of the use and purpose of mass media is seemingly inclined for economic gain since the competition to share and capture the viewing public is growing stiffer everyday because the number of industry players are getting bigger and the market is already partly saturated. The pressure to come up with revenues are often times the rallying point of television networks to create, articulate and sadly sometime violate the right of individuals to privacy, to his person and property. Again, the costs of the sacrifice of infringing or violating these rights do not even come close to attaining financial gain or higher ratings. The mass media is a very effective, powerful, influential and creative source of information dissemination but it can be destructive and a tool to destroy, humiliate and malign and put the person or persons, products and other entity into their instant oblivion or destruction.
The rights of privacy to person, property or effects is enshrined in the highest court and most fundamental laws of the land the Philippine Constitution, primarily to inculcate in our minds the importance of these rights and value or impact to one’s existence.
The trends of the fast changing evolutions of the mass media industry may be unstoppable and unpredictable but the Constitution and other laws that laid down the protection of these rights and that regulate and limit the mass media practitioner in our country is reliably consistent and dependable.
Sources:
- Carter, Franklin, et.al., “The First Amendment and the Fifth State: Regulation of Electronic Mass Media,” Minnesota New York, The Foundation Press Inc., 1986.
- Intellectual Property Code of the Philippines, Republic Act No. 8293. 3. 1987 Constitution of the Philippines
