SECTION 3 – PRIVACY OF COMMUNICATION AND CORRESPONDENTS
00, as
Ramirez v. CA, G.R. No. 93833, 248 SCRA 590, September 28, 1995
“Recording of conversation through a tape recorder”
The language of the Anti-Wire Tapping Law is clear and unambiguous.
The provision clearly makes it illegal for ANY person, NOT AUTHORIZED BY
ALL PARTIES to any private communication to secretly record such
communication by means of a tape recorder.
• A civil case was filed by petitioner Ramirez alleging that the private
respondent, Garcia, allegedly insulted and humiliated her during a
confrontation in the office, in an offensive manner contrary to morals, good
customs and public policy.
• To support her claim, petitioner produced a verbatim transcript of the event
and sought moral damages.
• In response, private respondent filed a criminal case alleging violation of
ANTI-WIRE TAPPING LAW for secretly taping the confrontation.
Whether the act of recording through a tape constitutes an offense? YES.
• The Court ruled that the language of the law is clear and unambiguous. The
provision clearly makes it illegal for ANY person, NOT AUTHORIZED BY
ALL PARTIES to any private communication to secretly record such
communication by means of a tape recorder.
• The law makes no distinction as to whether the party sought to be
penalized by the statute ought to be a party other than or different from
those involved in the private communication. The statute's intent to penalize
all persons unauthorized to make such recording is underscored by the use
of the qualifier "any".
• The nature of the conversations is immaterial to a violation of the statute.
The substance of the same need not be specifically alleged in the
information. The mere allegation that an individual made a secret recording
of a private communication by means of a tape recorder would suffice to
constitute an offense under Section 1 of R.A. 4200.
• Petitioner's contention that the phrase "private communication" in Section 1
of R.A. 4200 does not include "private conversations" narrows the ordinary
meaning of the word "communication" to a point of absurdity. In its ordinary
signification, communication connotes the act of sharing or imparting
signification, communication connotes the act of sharing or imparting, as in
a conversation, or signifies the "process by which meanings or thoughts are
shared between individuals through a common system of symbols (as
language signs or gestures)."
• These definitions are broad enough to include verbal or non-verbal,
written or expressive communications of "meanings or thoughts" which
are likely to include the emotionally-charged exchange between petitioner
and private respondent, in the privacy of the latter's office.
• In Gaanan v. Intermediate Appellate Court, a case which dealt with the
issue of telephone wiretapping, we held that the use of a telephone
extension for the purpose of overhearing a private conversation without
authorization did not violate R.A. 4200 because a telephone extension
devise was neither among those "device(s) or arrangement(s)" enumerated,
following the principle that "penal statutes must be construed strictly in favor
of the accused."
• In this case, the use of tape recorder falls under the devices enumerated in
the law (Dictaphone, Dictagraph, Detectaphone, Walkie-talkie, and Tape
recorder).Therefore, the act of recording through the tape constitutes an
offense.
• The instant case turns on a different note, because the applicable facts and
circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity,
and the statute itself explicitly mentions the unauthorized "recording" of
private communications with the use of tape-recorders as among the acts
punishable.
Zulueta vs. Court of Appeals [GR 107383, 20 February 1996] Second
Division, Mendoza (J): 3 concur
Facts: Cecilia Zulueta is the wife of Dr. Alfredo Martin. On 26 March 1982,
Zulueta entered the clinic of her husband, a doctor of medicine, and in the
presence of her mother, a driver and Martin's secretary, forcibly opened the
drawers and cabinet in her husband's clinic and took 157 documents consisting of
private correspondence between Dr. Martin and his alleged paramours, greetings
cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The
documents and papers were seized for use in evidence in a case for legal
separation and for disqualification from the practice of medicine which Zulueta
had filed against her husband. Dr. Martin brought the action for recovery of the
documents and papers and for damages against Zulueta, with the Regional Trial
Court of Manila, Branch X. After trial, the trial court rendered judgment for Martin,
declaring him the capital/exclusive owner of the properties described in paragraph
3 of Martin's Complaint or those further described in the Motion to Return and
Suppress and ordering Zulueta and any person acting in her behalf to a
immediately return the properties to Dr. Martin and to pay him P5,000.
nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay
the costs of the suit. On appeal, the Court of Appeals affirmed the decision of the
Regional Trial Court. Zulueta filed the petition for review with the Supreme Court.
Issue: Whether the injunction declaring the privacy of communication and
correspondence to be inviolable apply even to the spouse of the aggrieved party.
Held: The documents and papers are inadmissible in evidence. The constitutional
injunction declaring "the privacy of communication and correspondence [to be]
inviolable" is no less applicable simply because it is the wife (who thinks herself
aggrieved by her husband's infidelity) who is the party against whom the
constitutional provision is to be enforced. The only exception to the prohibition in
the Constitution is if there is a "lawful order [from a] court or when public safety or
order requires otherwise, as prescribed by law." Any violation of this provision
renders the evidence obtained inadmissible "for any purpose in any proceeding."
The intimacies between husband and wife do not justify any one of them in
breaking the drawers and cabinets of the other and in ransacking them for any
telltale evidence of marital infidelity. A person, by contracting marriage, does not
shed his/her integrity or his right to privacy as an individual and the constitutional
protection is ever available to him or to her. The law insures absolute freedom of
communication between the spouses by making it privileged. Neither husband
nor wife may testify for or against the other without the consent of the affected
spouse while the marriage subsists. Neither may be examined without the
consent of the other as to any communication received in confidence by one from
the other during the marriage, save for specified exceptions. But one thing is
freedom of communication; quite another is a compulsion for each one to share
what one knows with the other. And this has nothing to do with the duty of fidelity
that each owes to the other.
Navarro vs. Court of Appeals, 313 SCRA 153 (1999)
FACTS: Two local media men, Stanley Jalbuena, Enrique Lingan, in Lucena City
wnet to the police station to report alledged indecent show in one of the night
establishment shows in the City. At the station, a heated confrontation followed
between victim Lingan and accused policeman Navarro who was then having
drinks outside the headquarters, lead to a fisticuffs. The victim was hit with the
handle of the accused's gun below the left eyebrow, followed by a fist blow,
resulted the victim to fell and died under treatment. The exchange of words was
recorded on tape, specifically the frantic exclamations made by Navarro after the
altercation that it was the victim who provoked the fight. During the trial, Jalbuena,
the other media man , testified. Presented in evidence to confirm his testimony
was a voice recording he had made of the heated discussion at the police station
between the accused police officer Navarro and the deceased, Lingan, which was
taken without the knowledge of the two.
ISSUES: 1. Whether or not the voice recording is admissible in evidence in view
of RA 4200, which prohibits wire tapping. 2. Whether the mitigating circumstances
of sufficient provocation or threat on the part of the offended party and lack of
intention to commit so grave a wrong may be appreciated in favor of the accused.
HELD:
1. The answer is affirmative, the tape is admissible in view of RA 4200, which
prohibits wire tapping. Jalbuena's testimony is confirmed by the voice recording
he had made.
The law prohibits the overhearing, intercepting, or recording of private
communications (Ramirez v Cpourt of Appeals, 248 SCRA 590 [1995]). Snce the
exchange between petitioner Navarro and Lingan was not private, its tape
recording is not prohibited.
2. The remarks of Lingan, which immediately preceded the acts of the
accused, constituted sufficient provocation. Provocation is said to be any unjust
or improper conduct of the offended party capable of exciting, annoying or
irritating someone. The provocation must be sufficient and must immediately
precede the act; and in order to be sufficient, it must be adequate to excite a
person to commit the wrong, which must be accordingly proportionate in
gravity. The mitigating circumstance of lack of intention to commit so grave a
wrong must also be considered. The exclamations made by Navarro after the
scuffle that it was Lingan who provoked him showed that he had no intent to kill
the latter.
Ople vs. Torres [Rights of Privacy]
GR No. 127685. July 23, 1998
FACTS: This is a petition raised by Senator Blas Ople to invalidate the
Administrative Order No. 308 or the Adoption of a National Computerized
Identification Reference System issued by President Fidel V. Ramos.
The petitioner contends that the implementation of the said A.O. will violate the
rights of the citizens of privacy as guaranteed by the Constitution.
ISSUE: Whether or not A.O. No. 308 violates the right of privacy.
HELD: Yes.
The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection.
The right of privacy is guaranteed in several provisions of the Constitution:
"Sections 3 (1), 1, 2, 6, 8 and 17 of the Bill of Rights
"Sec. 3. 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."
"Sec. 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."
"Sec. 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 complainant and the witnesses
he may produce, and particularly describing the place to be searched and the
persons or things to be seized."
"Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law."
"Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged."
"Sec. 17. No person shall be compelled to be a witness against himself."
The right to privacy is a fundamental right guaranteed by the Constitution, hence,
it is the burden of government to show that A.O. No. 308 is justified by some
compelling state interest and that it is narrowly drawn. A.O. No. 308 is predicated
on two considerations: (1) the need to provide our citizens and foreigners with the
facility to conveniently transact business with basic service and social security
providers and other government instrumentalities and (2) the need to reduce, if
not totally eradicate, fraudulent transactions and misrepresentations by persons
seeking basic services. It is debatable whether these interests are compelling
enough to warrant the issuance of A.O. No. 308.
But what is not arguable is the broadness, the vagueness, the overbreadth of
A.O. No. 308 which if implemented will put our people's right to privacy in clear
and present danger. The possibilities of abuse and misuse of the PRN, biometrics
and computer technology are accentuated when we consider that the individual
lacks control over what can be read or placed on his ID, much less verify the
correctness of the data encoded. They threaten the very abuses that the Bill of
Rights seeks to prevent.
The petition is granted and declared the Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" null and
void for being unconstitutional.
Pollo v. Constantino-David, G.R. No. 181881, 18 October 2011
Facts: Respondent CSC Chair Constantino-David received an anonymous letter
complaint alleging of an anomaly taking place in the Regional Office of the CSC.
The respondent then formed a team and issued a memo directing the team “to
back up all the files in the computers found in the Mamamayan Muna (PALD) and
Legal divisions.”
Several diskettes containing the back-up files sourced from the hard disk of PALD
and LSD computers were turned over to Chairperson David. The contents of the
diskettes were examined by the CSC’s Office for Legal Affairs (OLA). It was found
that most of the files in the 17 diskettes containing files copied from the computer
assigned to and being used by the petitioner, numbering about 40 to 42
documents, were draft pleadings or lettersin connection with administrative cases
in the CSC and other tribunals. On the basis of this finding, Chairperson David
issued the Show-Cause Order, requiring the petitioner, who had gone on
extended leave, to submit his explanation or counter-affidavit within five days
from notice.
In his Comment, petitioner denied the accusations against him and accused the
CSC Officials of “fishing expedition” when they unlawfully copied and printed
personal files in his computer.
He was charged of violating R.A. No. 6713 (Code of Conduct and Ethical
Standards for Public Officials and Employees). He assailed the formal charge and
filed an Omnibus Motion ((For Reconsideration, to Dismiss and/or to Defer)
assailing the formal charge as without basis having proceeded from an illegal
search which is beyond the authority of the CSC Chairman, such power
pertaining solely to the court.
The CSC denied the omnibus motion and treated the motion as the petitioner’s
answer to the charge. In view of the absence of petitioner and his counsel, and
upon the motion of the prosecution, petitioner was deemed to have waived his
right to the formal investigation which then proceeded ex parte.
The petitioner was dismissed from service. He filed a petition to the CA which
was dismissed by the latter on the ground that it found no grave abuse of
discretion on the part of the respondents. He filed a motion for reconsideration
which was further denied by the appellate court. Hence, this petition.
Issue: WON the search conducted by the CSC on the computer of the petitioner
constituted an illegal search and was a violation of his constitutional right to
privacy
Ruling: The search conducted on his office computer and the copying of his
personal files was lawful and did not violate his constitutional right.
Ratio Decidendi: In this case, the Court had the chance to present the cases
illustrative of the issue raised by the petitioner.
Katz v. United States 389 U.S. 437 (1967), the US Supreme Court held that the
act of FBI agents in electronically recording a conversation made by petitioner in
an enclosed public telephone booth violated his right to privacy and constituted a
“search and seizure”. Because the petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a personal telephone call, the
protection of the Fourth Amendment extends to such area. Moreso, the
concurring opinion of Mr. Justice Harlan noted that the existence of privacy right
under prior decisions involved a two-fold requirement: first, that a person has
exhibited an actual (subjective) expectation of privacy; and second, that the
expectation be one that society is prepared to recognize as reasonable
(objective).
Mancusi v. DeForte 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed2d 1154 (1968),thus
“recognized that employees may have a reasonable expectation of privacy
against intrusions by police.”
O’Connor v. Ortega 480 U.S. 709 (1987), the Court categorically declared that
“[i]ndividuals do not lose Fourth Amendment rights merely because they work for
the government instead of a private employer.” In O’Connor the Court recognized
that “special needs” authorize warrantless searches involving public employees
for work-related reasons. The Court thus laid down a balancing test under which
government interests are weighed against the employee’s reasonable expectation
of privacy. This reasonableness test implicates neither probable cause nor the
warrant requirement, which are related to law enforcement.
Social Justice Society (SJS) v. Dangerous Drugs Board G.R. Nos. 157870,
158633 and 161658, November 3, 2008, 570 SCRA 410, 427, (citing Ople v.
Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169),recognized the fact
that there may be such legitimate intrusion of privacy in the workplace.
The Court ruled that the petitioner did not have a reasonable expectation of
privacy in his office and computer files.
As to the second point of inquiry, the Court answered in the affirmative. The
search authorized by the CSC Chair, the copying of the contents of the hard drive
on petitioner’s computer reasonable in its inception and scope.
The Court noted that unlike in the case of Anonymous Letter-Complaint against
Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila A.M. Nos.
P-08-2519 and P-08-2520, November 19, 2008, 571 SCRA 361, the case at bar
involves the computer from which the personal files of the petitioner were
retrieved is a government-issued computer, hence government property the use
of which the CSC has absolute right to regulate and monitor.
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA,
Petitioners, vs ST. THERESA’S COLLEGE, MYLENE RHEZA T. ESCUDERO,
and JOHN DOES, Respondents. G.R. No. 202666 September 29, 2014
TOPIC: right to informational privacy, writ of habeas data
PREFATORY: The individual’s desire for privacy is never absolute, since
participation in society is an equally powerful desire. Thus each individual is
continually engaged in a personal adjustment process in which he balances the
desire for privacy with the desire for disclosure and communication of himself to
others, in light of the environmental conditions and social norms set by the society
in which he lives.
– Alan Westin, Privacy and Freedom (1967)
FACTS: Julia and Julienne, both minors, were graduating high school students at
St. Theresa’s College (STC), Cebu City. Sometime in January 2012, while
changing into their swimsuits for a beach party they were about to attend, Julia
and Julienne, along with several others, took digital pictures of themselves clad
only in their undergarments. These pictures were then uploaded by Angela on her
Facebook profile.
At STC, Mylene Escudero, a computer teacher at STC’s high school department,
learned from her students that some seniors at STC posted pictures online,
depicting themselves from the waist up, dressed only in brassieres. Escudero
then asked her students if they knew who the girls in the photos are. In turn, they
readily identified Julia and Julienne, among others.
Using STC’s computers, Escudero’s students logged in to their respective
personal Facebook accounts and showed her photos of the identified students,
which include: (a) Julia and Julienne drinking hard liquor and smoking cigarettes
inside a bar; and (b) Julia and Julienne along the streets of Cebu wearing articles
of clothing that show virtually the entirety of their black brassieres.
Also, Escudero’s students claimed that there were times when access to or the
availability of the identified students’ photos was not confined to the girls’
Facebook friends, but were, in fact, viewable by any Facebook user.
Investigation ensued. Then Julia, Julienne and other students involved were
barred from joining the commencement exercises.
Petitioners, who are the respective parents of the minors, filed a Petition for the
Issuance of a Writ of Habeas Data. RTC dismissed the petition for habeas data
on the following grounds:
1. Petitioners failed to prove the existence of an actual or threatened violation
of the minors’ right to privacy, one of the preconditions for the issuance of
the writ of habeas data.
2. The photos, having been uploaded on Facebook without restrictions as to
who may view them, lost their privacy in some way.
3. STC gathered the photographs through legal means and for a legal
purpose, that is, the implementation of the school’s policies and rules on
discipline.
ISSUE: Whether or not there was indeed an actual or threatened violation of the
right to privacy in the life, liberty, or security of the minors involved in this case. (Is
there a right to informational privacy in online social network activities of its
users?)
HELD: (Note that you can skip the preliminary discussions and check the ruling at
the latter part)
Nature of Writ of Habeas Data
It is a remedy available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party.
It is an independent and summary remedy designed to protect the image, privacy,
honor, information, and freedom of information of an individual, and to provide a
forum to enforce one’s right to the truth and to informational privacy. It seeks to
protect a person’s right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful means in
order to achieve unlawful ends.
In developing the writ of habeas data, the Court aimed to protect an individual’s
right to informational privacy, among others. A comparative law scholar has, in
fact, defined habeas data as “a procedure designed to safeguard individual
freedom from abuse in the information age.”
Issuance of writ of habeas data; requirements
1. The existence of a person’s right to informational privacy
2. An actual or threatened violation of the right to privacy in life, liberty or
security of the victim (proven by at least substantial evidence)
Note that the writ will not issue on the basis merely of an alleged
unauthorized access to information about a person.
The writ of habeas data is not only confined to cases of extralegal killings
and enforced disappearances
The writ of habeas data can be availed of as an independent remedy to enforce
one’s right to privacy, more specifically the right to informational privacy. The
remedies against the violation of such right can include the updating, rectification,
suppression or destruction of the database or information or files in possession or
in control of respondents. Clearly then, the privilege of the Writ of Habeas Data
may also be availed of in cases outside of extralegal killings and enforced
disappearances.
Meaning of “engaged” in the gathering, collecting or storing of data or
information
Habeas data is a protection against unlawful acts or omissions of public officials
and of private individuals or entities engaged in gathering, collecting, or storing
data about the aggrieved party and his or her correspondences, or about his or
her family. Such individual or entity need not be in the business of collecting or
storing data.
To “engage” in something is different from undertaking a business
endeavour. To “engage” means “to do or take part in something.” It does
not necessarily mean that the activity must be done in pursuit of a
business. What matters is that the person or entity must be gathering, collecting
or storing said data or information about the aggrieved party or his or her family.
Whether such undertaking carries the element of regularity, as when one pursues
a business, and is in the nature of a personal endeavour, for any other reason or
even for no reason at all, is immaterial and such will not prevent the writ from
getting to said person or entity.
As such, the writ of habeas data may be issued against a school like STC.
Right to informational privacy
Right to informational privacy is the right of individuals to control
information about themselves. Several commentators regarding privacy and
social networking sites, however, all agree that given the millions of OSN users,
“in this Social Networking environment, privacy is no longer grounded in
reasonable expectations, but rather in some theoretical protocol better known as
wishful thinking.” So the underlying question now is: Up to what extent is the
right to privacy protected in OSNs?
Facebook Privacy Tools
To address concerns about privacy, but without defeating its purpose, Facebook
was armed with different privacy tools designed to regulate the accessibility of a
user’s profile as well as information uploaded by the user. In H v. W, the South
Gauteng High Court recognized this ability of the users to “customize their privacy
settings,” but did so with this caveat: “Facebook states in its policies that,
although it makes every effort to protect a user’s information, these privacy
settings are not foolproof.”
For instance, a Facebook user can regulate the visibility and accessibility of
digital images (photos), posted on his or her personal bulletin or “wall,” except for
the user’s profile picture and ID, by selecting his or her desired privacy setting:
1. Public – the default setting; every Facebook user can view the photo;
2. Friends of Friends – only the user’s Facebook friends and their friends can
view the photo;
3. Friends – only the user’s Facebook friends can view the photo;
4. Custom – the photo is made visible only to particular friends and/or
networks of the Facebook user; and
5. Only Me – the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set up
barriers to broaden or limit the visibility of his or her specific profile content,
statuses, and photos, among others, from another user’s point of view. In other
words, Facebook extends its users an avenue to make the availability of
their Facebook activities reflect their choice as to “when and to what extent
to disclose facts about themselves – and to put others in the position of
receiving such confidences.”
LONE ISSUE:
NONE. The Supreme Court held that STC did not violate petitioners’ daughters’ right
to privacy as the subject digital photos were viewable either by the minors’ Facebook
friends, or by the public at large.
Without any evidence to corroborate the minors’ statement that the images were
visible only to the five of them, and without their challenging Escudero’s claim that the
other students were able to view the photos, their statements are, at best, self-serving,
thus deserving scant consideration.
It is well to note that not one of petitioners disputed Escudero’s sworn account that her
students, who are the minors’ Facebook “friends,” showed her the photos using their
own Facebook accounts. This only goes to show that no special means to be able to
view the allegedly private posts were ever resorted to by Escudero’s students, and that
it is reasonable to assume, therefore, that the photos were, in reality, viewable either
by (1) their Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is “Public,” it can be surmised
that the photographs in question were viewable to everyone on Facebook, absent any
proof that petitioners’ children positively limited the disclosure of the photograph. If
such were the case, they cannot invoke the protection attached to the right to
informational privacy.
US v. Gines-Perez: A person who places a photograph on the Internet precisely
intends to forsake and renounce all privacy rights to such imagery, particularly under
circumstances such as here, where the Defendant did not employ protective measures
or devices that would have controlled access to the Web page or the photograph itself.
United States v. Maxwell: The more open the method of transmission is, the less
privacy one can reasonably expect. Messages sent to the public at large in the chat
room or e-mail that is forwarded from correspondent to correspondent loses any
semblance of privacy.
The Honorable Supreme Court continued and held that setting a post’s or profile
detail’s privacy to “Friends” is no assurance that it can no longer be viewed by another
user who is not Facebook friends with the source of the content. The user’s own
Facebook friend can share said content or tag his or her own Facebook friend thereto,
regardless of whether the user tagged by the latter is Facebook friends or not with the
former. Also, when the post is shared or when a person is tagged, the respective
Facebook friends of the person who shared the post or who was tagged can view the
post, the privacy setting of which was set at “Friends.” Thus, it is suggested, that a
profile, or even a post, with visibility set at “Friends Only” cannot easily, more
so automatically, be said to be “very private,” contrary to petitioners’ argument.
No privacy invasion by STC; fault lies with the friends of minors
Respondent STC can hardly be taken to task for the perceived privacy invasion since it
was the minors’ Facebook friends who showed the pictures to Tigol. Respondents
were mere recipients of what were posted. They did not resort to any unlawful means
of gathering the information as it was voluntarily given to them by persons who had
legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of the
minors. Curiously enough, however, neither the minors nor their parents imputed any
violation of privacy against the students who showed the images to Escudero.
Different scenario of setting is set on “Me Only” or “Custom”
Had it been proved that the access to the pictures posted were limited to the original
uploader, through the “Me Only” privacy setting, or that the user’s contact list has been
screened to limit access to a select few, through the “Custom” setting, the result may
have been different, for in such instances, the intention to limit access to the particular
post, instead of being broadcasted to the public at large or all the user’s friends en
masse, becomes more manifest and palpable.
FREEDOM OF EXPRESSION
U.S. v Bustos G.R. No. L-12592 March 8, 1918
Facts: In 1915, 34 Pampanga residents signed a petition to the Executive Secretary
regarding charges against Roman Punsalan, the justice of the peace of Macabebe.
They wanted to oust him from his office.
Specific allegations against him included bribery charges, involuntary servitude, and
theft.
The justice denied the charges. In the CFI, not all the charges were proved. But, the
judge still found him guilty.
Punsalan filed charges alleging that he was the victim of prosecution and one Jaime,
an auxiliary justice, instigated the charges against him for personal reasons. He was
acquitted.
The complainants filed an appeal to the Governor General but it wasn’t acted upon.
Criminal action was instituted aganst the residents by Punsalan.
The CFI found almost all of the 34 defendants guilty and sentenced them to pay 10
pesos or suffer imprisonment in case of insolvency.
The defendants filed a motion for a retrial to retire the objection made by Punsalan.
The trial court denied the motion. All except 2 of the defendants appealed.
Making assignments of error.
1. The court erred in overruling motion for retrial.
2. Error in not holding that the libelous statement was not privileged
3. Error in not acquitting defendants
4. Evidence failed to show gult of defendants beyond reasonable doubt.
5. Erred in making defendants prove that the libelous statements were true.
6. Error in sustaining the prosecution’s objection to the introduction in evidence by the
accused of the affidavits upon which the petition forming the basis of the libelous
charge was based.
7. Erred in refusing to permit the defendants to retire the objection in advertently
interposed by their counsel to the admission in evidence of the expediente
administrativo out of which the accusation in this case arose.
Issue: Whether or not the defendants and appellants are guilty of a libel of
Roman Punsalan, justice of the peace in Pampanga.
Held: Yes. Defendants acquitted.
Ratio: Freedom of speech was non existent in the country before 1900.
There were small efforts at reform made by the La Solidaridad. The Malolos
Constitution, on the other hand, guaranteed freedom of speech.
During the U.S. period, President McKinley himself laid down the tenet
Magna Charta of Philippine Liberty when he wrote, “that no law shall be
passed abridging the freedom of speech or of the press or of the rights of the
people to peaceably assemble and petition the Government for a redress of
grievances." This was in the Philippine Bill.
In the Amrican cases it was held, there were references to “public opinion
should be the constant source of liberty and democracy.” It also said “the
guaranties of a free speech and a free press include the right to criticize
judicial conduct. The administration of the law is a matter of vital public
concern. Whether the law is wisely or badly enforced is, therefore, a fit
subject for proper comment. If the people cannot criticize a justice of the
peace or a judge the same as any other public officer, public opinion will
be effectively muzzled. Attempted terrorization of public opinion on the part
of the judiciary would be tyranny of the basest sort.”
“It is a duty which every one owes to society or to the State to assist in the
investigation of any alleged misconduct. It is further the duty of all who know
of any official dereliction on the part of a magistrate or the wrongful act of any
public officer to bring the facts to the notice of those whose duty it is to
inquire into and punish them.”
The right to assemble and petition is the necessary consequence of
republican institutions and the complement of the part of free speech.
Assembly means a right on the part of citizens to meet peaceably for
consultation in respect to public affairs. Petition means that any person or
group of persons can apply, without fear of penalty, to the appropriate branch
or office of the government for a redress of grievances. The persons
assembling and petitioning must, of course, assume responsibility for the
charges made.
Public policy has demanded protection for public opinion. The doctrine of
privilege has been the result of this. Privilged communications may in some
instances afford an immunity to the slanderer. Public policy is the “unfettered
administration of justice.”
Privilege is either absolute or qualified. Qualified privilege is prima facie
which may be lost by proof of malice. This is apparent in complaints made in
good faith against a public official’s conduct having a duty in the matter. Even
if the statements were found to be false, the protection of privilege may cover
the individual given that it was in good faith. There must be a sense of duty
and not a self-seeking motive.
A communication made bona fide upon any subject-matter in which the party
communicating has an interest, or in reference to which has a duty, is
privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would be
slanderous and actionable.
In the usual case malice can be presumed from defamatory words. Privilege
destroys that presumption. The onus of proving malice then lies on the
plaintiff. The plaintiff must bring home to the defendant the existence of
malice as the true motive of his conduct. Falsehood and the absence of
probable cause will amount to proof of malice.
It is true that the particular words set out in the information, if said of a private
person, might well be considered libelous per se. The charges might also
under certain conceivable conditions convict one of a libel of a
government official. As a general rule words imputing to a judge or a justice
of the peace dishonesty or corruption or incapacity or misconduct touching
him in his office are actionable. But as suggested in the beginning we do not
have present a simple case of direct and vicious accusations published in the
press, but of charges predicated on affidavits made to the proper official and
thus qualifiedly privileged. Express malice has not been proved by the
prosecution. Further, although the charges are probably not true as to the
justice of the peace, they were believed to be true by the petitioners. Good
faith surrounded their action. Probable cause for them to think that
malfeasance or misfeasance in office existed is apparent. The ends and the
motives of these citizens— to secure the removal from office of a person
thought to be venal — were justifiable. In no way did they abuse the
privilege. These respectable citizens did not eagerly seize on a frivolous
matter but on instances which not only seemed to them of a grave character,
but which were sufficient in an investigation by a judge of first instance to
convince him of their seriousness. No undue publicity was given to the
petition. The manner of commenting on the conduct of the justice of the
peace was proper.
People vs. Alarcon [GR 46551, 12 December 1939] En Banc, Laurel (J):
5 concur
Facts: As an aftermath of the decision rendered by the Court of First Instance of
Pampanga in criminal case 5733 (People s vs. Salvador Alarcon, et al.), convicting the
accused therein except one — of the crime of robbery committed in band, a
denunciatory letter, signed by one Luis M. Taruc, was addressed to His Excellency,
the President of the Philippines. A copy of said letter found its way to Federico
Mangahas who, as columnist of the Tribune, a newspaper of general circulation in the
Philippines, quoted the letter in an article published by him in the issue of that paper of
23 September 1937. The article provides, in part, that "Fifty-two (52) tenants in
Floridablanca, Pampanga, have been charged and convicted on a trumped up charge
of robbery in band because they took each a few cavans of palay for which they issued
the corresponding receipts, from the bodega in the hacienda where they are working.
These tenants contend that they have the right to take the palay for their food as the
hacienda owner has the obligation to give them rations of palay for their main tenance
and their families to be paid later with their share of their crop. But this is not all. When
the convicted tenants appealed the case and were released on bail pending their
appeal, court and public officials exerted pressure upon one of their bondsmen, as this
bondsman informed the tenants, to withdraw his bail for them, and the fifty two tenants
were arrested again and put in jail." On 29 September 1937, the provincial fiscal of
Pampanga filed with the Court of First Instance of that province to cite Federico
Mangahas for contempt. On the same date, the lower court ordered Mangahas to
appear and show cause. Mangahas appeared and filed an answer, alleging, among
others, that “the publication of the letter in question is in line with the constitutional
guarantee of freedom of the press.” On 29 November 1937, the lower court entered an
order, imposing upon Mangahas the nominal fine of P25, or in case of insolvency, 5
days in prison; this without prejudice to the action for libel that the public prosecutor
believes to be advisable to file against Luis M. Taruc. Mañgahas appealed from this
order to the Court of Appeals — which later certified the case to the Supreme Court as
involving only a question of law.
Issue: Whether the trial court properly cited Mangahas for contempt
inasmuch as the robbery-in-band case is still pending appeal.
Held: Newspaper publications tending to impede, obstruct, embarrass, or
influence the courts in administering justice in a pending suit or proceeding
constitutes criminal contempt which is summarily punishable by the courts.
The rule is otherwise after the cause is ended. It must, however, clearly
appear that such publications do impede, interfere with, and embarrass the
administration of justice before the author of the publications should be held
for contempt. What is thus sought to be shielded against the influence of
newspaper comments is the all-important duty of the court to administer
justice in the decision of a pending case. There is no pending case to speak
of when and once the court has come upon a decision and has lost control
either to reconsider or amend it. That is the present case, for here the letter
complained of was published after the Court of First Instance of Pampanga
had decided the criminal case for robbery in band, and after that decision
had been appealed to the Court of Appeals. The fact that a motion to
reconsider its order confiscating the bond of the accused therein was
subsequently filed may be admitted; but, the important consideration is that it
was then without power to reopen or modify the decision which it had
rendered upon the merits of the case, and could not have been influenced by
the questioned publication. If it be contended, however, that the publication
of the questioned letter constitutes contempt of the Court of Appeals where
the appeal in the criminal case was then pending, the interrelation of the
different courts forming our integrated judicial system, one court is not an
agent or representative of another and may not, for this reason, punish
contempts in vindication of the authority and de corum which are not its own.
The appeal transfers the proceedings to the appellate court, and this last
court be comes thereby charged with the authority to deal with contempts
committed after the perfection of the appeal.
Ayer Production Pty. Ltd. vs. Capulong [GR L-82380, 29 April 1988];
also McElroy vs. Capulong [GR L-82398] En Banc, Feliciano (J): 13
concur
Facts: Hal McElroy, an Australian film maker, and his movie production company,Ayer
Productions Pty. Ltd., envisioned, sometime in 1987, the filming for commercial
viewing and for Philippine and international release, the historic peaceful struggle of
the Filipinos at EDSA (Epifanio de los Santos Avenue). McEleroy discussed this
project with local movie producer Lope V. Juban, who advised that they consult with
the appropriate government agencies and also with General Fidel V. Ramos and
Senator Juan Ponce Enrile, who had played major roles in the events proposed to be
filmed. The proposed motion picture entitled "The Four Day Revolution" was endorsed
by the Movie Television Review and Classification Board as well as the other
government agencies consulted. General Fidel Ramos also signified his approval of
the intended film production. In a letter dated 16 December 1987, McElroy, informed
Juan Ponce Enrile about the projected motion picture enclosing a synopsis of it. On 21
December 1987, Enrile replied that "he would not and will not approve of the use,
appropriation, reproduction and/or exhibition of his name, or picture, or that of any
member of his family in any cinema or television production, film or other medium for
advertising or commercial exploitation" and further advised McElroy that "in the
production, airing, showing, distribution or exhibition of said or similar film, no
reference whatsoever (whether written, verbal or visual) should not be made to him or
any member of his family, much less to any matter purely personal to them." It appears
that McElroy acceded to this demand and the name of Enrile was deleted from the
movie script, and McElroy proceeded to film the projected motion picture. On 23
February 1988, Enrile filed a Complaint with application for Temporary Restraining
Order and Writ of Preliminary Injunction with the Regional Trial Court of Makati (Civil
Case 88-151; Branch 134), seeking to enjoin McElroy, et. al. from producing the movie
"The Four Day Revolution." The complaint alleged that McElroy, et. al.'s production of
the mini-series without Enrile's consent and over his objection, constitutes an obvious
violation of his right of privacy. On 24 February 1988, the trial court issued ex-parte a
Temporary Restraining Order and set for hearing the application for preliminary
injunction. On 9 March 1988, McElroy filed a Motion to Dismiss with Opposition
to the Petition for Preliminary Injunction contending that the mini-series film would not
involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary
injunction would amount to a prior restraint on their right of free expression. Ayer
Productions also filed its own Motion to Dismiss alleging lack of cause of action as the
mini-series had not yet been completed. In an Order dated 16 March 1988, the trial
court issued a writ of Preliminary Injunction against the McElroy, et. al. On 22 March
1988, Ayer Productions filed a Petition for Certiorari dated 21 March 1988 with an
urgent prayer for Preliminary Injunction or Restraining Order with the Supreme Court
(GR L-82380). A day later, or on 23 March 1988, McElroy also filed a separate Petition
for Certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction,
dated 22 March 1988 (GR L-82398). By a Resolution dated 24 March 1988, the
petitions were consolidated.
Issue: Wnether depiction of Enrile, as part of the events in the 1986 People
Power Revolution and not as to his personal life nor his family, in the film
“The Four Day Revolution” requires his prior consent.
Held: The freedom of speech and of expression includes the freedom to film
and produce motion pictures and to exhibit such motion pictures in theaters
or to diffuse them through television. In our day and age, motion pictures are
a universally utilized vehicle of communication and medium of expression.
Along with the press, radio and television, motion pictures constitute a
principal medium of mass communication for information, education and
entertainment. This freedom is available in our country both to locally-owned
and to foreignowned motion picture companies. Furthermore, the
circumstance that the production of motion picture films is a commercial
activity expected to yield monetary profit, is not a disqualification for availing
of freedom of speech and of expression. In our community, as in many other
countries, media facilities are owned either by the government or the private
sector but the private sector-owned media facilities commonly require to be
sustained by being devoted in whole or in part to revenue producing
activities. Indeed, commercial media constitute the bulk of such facilities
available in our country and hence to exclude commercially owned and
operated media from the exercise of constitutionally protected freedom of
speech and of expression can only result in the drastic contraction of such
constitutional liberties in our country. The counter-balancing claim of Enrile is
to a right of privacy. Our law, constitutional and statutory, does include a right
of privacy. It is left to case law, however, to mark out the precise scope and
content of this right in differing types of particular situations. The right of
privacy or "the right to be let alone," like the right of free expression, is not an
absolute right. A limited intrusion into a person's privacy has long been
regarded as permissible where that person is a public figure and the
information sought to be elicited from him or to be published about him
constitute matters of a public character. Succinctly put, the right of privacy
cannot be invoked to resist publication and dissemination of matters of public
interest. The interest sought to be protected by the right of privacy is the right
to be free from "unwarranted publicity, from the wrongful publicizing of the
private affairs and activities of an individual which are outside the realm of
legitimate public concern." Herein, there is a prior and direct restraint on the
part of the respondent Judge upon the exercise of speech and of expression
by McElroy, et. al. The Judge has restrained them from filming and producing
the entire proposed motion picture. The Judge should have stayed his hand,
instead of issuing an ex-parte Temporary Restraining Order one day after
filing of a complaint by Enrile and issuing a Preliminary Injunction 20 days
later; for the projected motion picture was as yet uncompleted and hence not
exhibited to any audience. Neither Enrile nor the trial Judge knew what the
completed film would precisely look like. There was, in other words, no "clear
and present danger" of any violation of any right to privacy that Enrile could
lawfully assert. The subject matter of "The Four Day Revolution" relates to
the non-bloody change of government that took place at Epifanio de los
Santos Avenue in February 1986, and the train of events which led up to that
denouement. Clearly, such subject matter is one of public interest and
concern, and also of international interest. The subject relates to a highly
critical stage in the history of this country and as such, must be regarded as
having passed into the public domain and as an appropriate subject for
speech and expression and coverage by any form of mass media. The
subject matter does not relate to the individual life and certainly not to the
private life of Ponce Enrile. "The Four Day Revolution" is not principally
about, nor is it focused upon, the man Juan Ponce Enrile; but it is compelled,
if it is to be historical, to refer to the role played by Juan Ponce Enrile in the
precipitating and the constituent events of the change of government in
February 1986. The extent of theintrusion upon the life of Juan Ponce Enrile
that would be entailed by the production and exhibition of "The Four Day
Revolution" would, therefore, be limited in character. The extent of that
intrusion may be generally described as such intrusion as is reasonably
necessary to keep that film a truthful historical account. Enrile does not claim
that McElroy, et. al. threatened to depict in "The Four Day Revolution" any
part of the private life of Enrile or that of any member of his family. The line of
equilibrium in the specific context of the present case between the
constitutional freedom of speech and of expression and the right of privacy,
may be marked out in terms of a requirement that the proposed motion
picture must be fairly truthful and historical in its presentation of events.
There must, in other words, be no knowing or reckless disregard of truth in
depicting the participation of private respondent in the EDSA Revolution.
There must, further, be no presentation of the private life of the unwilling
individual (Enrile) and certainly no revelation of intimate or embarrassing
personal facts. The proposed motion picture should not enter into a "matters
of essentially private concern." To the extent that "The Four Day Revolution"
limits itself in portraying the participation of Enrile in the EDSA Revolution to
those events which are directly and reasonably related to the public facts of
the EDSA Revolution, the intrusion into Enrile's privacy cannot be regarded
as unreasonable and actionable. Such portrayal may be carried out even
without a license from Enrile.
Borjal vs. Court of Appeals [GR 126466, 14 January 1999] Second
Division, Bellosillo (J): 3 concur, 1 concurs in result
Facts: Arturo Borjal and Maximo Soliven are among the incorporators of Philippines
Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily
newspaper. At the time the complaint was filed, Borjal was its President while Soliven
was (and still is) Publisher and Chairman of its Editorial Board. Among the regular
writers of The Philippine Star is Borjal who runs the column Jaywalker. Francisco
Wenceslao, on the other hand, is a civil engineer, businessman, business consultant
and journalist by profession. In 1988 heserved as a technical adviser of Congressman
Fabian Sison, then Chairman of the House of Representatives Sub-Committee on
Industrial Policy. During the congressional hearings on the transport crisis sometime in
September 1988 undertaken by the House Sub-Committee on Industrial Policy, those
who attended agreed to organize the First National Conference on Land
Transportation (FNCLT) to be participated in by the private sector in the transport
industry and government agencies concerned in order to find ways and means to solve
the transportation crisis. More importantly, the objective of the FNCLT was to draft an
omnibus bill that would embody a long-term land transportation policy for presentation
to Congress. The conference which, according to Wenceslao, was estimated to cost
around P1,815,000.00 would be funded through solicitations from various sponsors
such as government agencies, private organizations, transport firms, and individual
delegates or participants. On 28 February 1989, at the organizational meeting of the
FNCLT, Wenceslao was elected Executive Director. As such, he wrote numerous
solicitation letters to the business community for the support of the conference.
Between May and July 1989 a series of articles written by Borjal was published on protected by the constitutional guaranty of freedom of speech. This
different dates in his column Jaywalker. The articles dealt with the alleged anomalous constitutional right cannot be abolished by the mere failure of the legislature
activities of an "organizer of a conference" without naming or identifying Wenceslao. to give it express recognition in the statute punishing libels. The concept of
Neither did it refer to the FNCLT as the conference therein mentioned. Wenceslao
privileged communications is implicit in the freedom of the press. Public
reacted to the articles. He sent a letter to The Philippine Star insisting that he was the
"organizer" alluded to in Borjal's columns. In a subsequent letter to The Philippine Star,
policy, the welfare of society, and the orderly administration of government
Wenceslao refuted the matters contained in Borjal's columns and openly challenged have demanded protection of public opinion. The inevitable and
the latter by saying that he was prepared to relinquish his position in case it is found incontestable result has been the development and adoption of the doctrine
that he has misappropriated even one peso of FNCLT money, and, on the other hand, of privilege. Fair commentaries on matters of public interest are privileged
if he will be able to prove that Borjal has used his column as a "hammer" to get clients and constitute a valid defense in an action for libel or slander. The doctrine of
for his PR Firm, AA Borjal Associates, he should resign from the STAR and never fair comment means that while in general every discreditable imputation
again write a column. Thereafter, Wenceslao filed a complaint with the National Press publicly made is deemed false, because every man is presumed innocent
Club (NPC) against Borjal for unethical conduct. He accused Borjal of using his
until his guilt is judicially proved, and every false imputation is deemed
column as a form of leverage to obtain contracts for his public relations firm, AA Borjal
Associates. In turn, Borjal published a rejoinder to the challenge of Wenceslao not only
malicious, nevertheless, when the discreditable imputation is directed against
to protect his name and honor but also to refute the claim that he was using his column a public person in his public capacity, it is not necessarily actionable. In order
for character assassination. Apparently not satisfied with his complaint with the NPC, that such discreditable imputation to a public official may be actionable, it
Wenceslao filed a criminal case for libel against Borjal and Soliven, among others. must either be a false allegation of fact or a comment based on a false
However, in a Resolution dated 7 August 1990, the Assistant Prosecutor handling the supposition. If the comment is an expression of opinion, based on
case dismissed the complaint for insufficiency of evidence. The dismissal was established facts, then it is immaterial that the opinion happens to be
sustained by the Department of Justice and later by the Office of the President. On 31 mistaken, as long as it might reasonably be inferred from the facts. There is
October 1990, Wenceslao instituted against Borjal and Soliven a civil action for
no denying that the questioned articles dealt with matters of public interest. A
damages based on libel. After due consideration, the trial court decided in favor of
Wenceslao and ordered Borjal and Soliven to indemnify Wenceslao P1,000,000.00 for
reading of the imputations of Borjal against Wenceslao shows that all these
actual and compensatory damages, in addition to P200,000.00 for moral damages, necessarily bore upon the latter's official conduct and his moral and mental
P100,000.00 for exemplary damages, P200,000.00 for attorney's fees, and to pay the fitness as Executive Director of the FNCLT. The nature and functions of his
costs of suit. The Court of Appeals affirmed the decision of the court a quo but reduced position which included solicitation of funds, dissemination of information
the amount of the monetary award to P110,000.00 actual damages, P200,000.00 about the FNCLT in order to generate interest in the conference, and the
moral damages and P75,000.00 attorney's fees plus costs. Borjal and Soliven filed a management and coordination of the various activities of the conference
motion for reconsideration but the Court of Appeals denied the motion in its Resolution demanded from him utmost honesty, integrity and competence. These are
of 12 September 1996. Hence, the petition for review.
matters about which the public has the right to be informed, taking into
account the very public character of the conference itself. Concededly, Borjal
Issue: Whether Borja’s intemperate or deprecatory utterances appear
may have gone overboard in the language employed describing the
removes such speech from the protection of free speech, and opens him to
"organizer of the conference." One is tempted to wonder if it was by some
liability for libel.
mischievous gambit that he would also dare test the limits of the "wild blue
yonder" of free speech in this jurisdiction. But no matter how intemperate or
Held: In order to maintain a libel suit, it is essential that the victim be
deprecatory the utterances appear to be, the privilege is not to be defeated
identifiable although it is not necessary that he be named. It is also not
nor rendered inutile for. Debate on public issues should be uninhibited,
sufficient that the offended party recognized himself as the person attacked
robust and wide open, and that it may well include vehement, caustic and
or defamed, but it must be shown that at least a third person could identify
sometimes unpleasantly sharp attacks on the government and public
him as the object of the libelous publication. Regrettably, these requisites
officials. Furthermore, while, generally, malice can be presumed from
have not been complied with in the present case. The questioned articles
defamatory words, the privileged character of a communication destroys the
written by Borjal do not identify Wenceslao as the organizer of the
presumption of malice. The onus of proving actual malice then lies on
conference. The first of the Jaywalker articles which appeared in the 31 May
Wenceslao. He must bring home to Borjal the existence of malice as the true
1989 issue of The Philippine Star yielded nothing to indicate that Wenceslao
motive of his conduct. Wenceslao failed to substantiate by preponderant
was the person referred to therein. Surely, there were millions of "heroes" of
evidence that Borjal was animated by a desire to inflict unjustifiable harm on
the EDSA Revolution and anyone of them could be "self-proclaimed" or an
his reputation, or that thearticles were written and published without good
"organizer of seminars and conferences." As a matter of fact, in his 9 June
motives or justifiable ends. On the other hand, Borjal acted in good faith.
1989 column Borjal wrote about the "so-called First National Conference on
Moved by a sense of civic duty and prodded by his responsibility as a
Land Transportation whose principal organizers are not specified." Neither
newspaperman, he proceeded to expose and denounce what he perceived
did the FNCLT letterheads disclose the identity of the conference organizer
to be a public deception. Every citizen has the right to enjoy a good name
since these contained only an enumeration of names whereWenceslao was
and reputation, but Borjal has not violated that right nor abused his press
described as Executive Director and Spokesman and not as a conference
freedom.
organizer. The printout and tentative program of the conference were devoid
of any indication of Wenceslao as organizer. The printout which contained an
Reyes vs. Bagatsing [GR L-65366, 9 November 1983] En Banc,
article entitled "Who Organized the NCLT ?" did not even mention
Fernando (CJ): 6 concur, 3 concur in separate opinions, 1 dissents in
Wenceslao's name, while the tentative program only denominated
separate opinion, 1 voted for the issuance ex-parte of a preliminary
Wenceslao as "Vice Chairman and Executive Director," and not as organizer.
mandatory injunction, 1 on sick leave
No less than Wenceslao himself admitted that the FNCLT had several
organizers and that he was only a part of the organization. Significantly,
Facts: Retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition,
Wenceslao himself entertained doubt that he was the person spoken of in
sought a permit from the City of Manila to hold a peaceful march and rally on
Borjal's columns. The former even called up columnist Borjal to inquire if he
26 October 1983 from 2:00 to 5:00 p.m., starting from the Luneta, a public
(Wenceslao) was the one referred to in the subject articles. His letter to the
park, to the gates of the United States Embassy, hardly two blocks away.
editor published in the 4 June 1989 issue of The Philippine Star showed
Once there, and in an open space of public property, a short program would
Wenceslao's uncertainty. Identification is grossly inadequate when even the
be held. After the planned delivery of two brief speeches, a petition based on
alleged offended party is himself unsure that he was the object of the verbal
the resolution adopted on the last day by the International Conference for
attack. It is well to note that the revelation of the identity of the person
General Disarmament, World Peace and the Removal of All Foreign Military
alluded to came not from Borjal but from Wenceslao himself when he
Bases held in Manila, would be presented to a representative of the
supplied the information through his 4 June 1989 letter to the editor. Had
Embassy or any of its personnel who may be there so that it may be
Wenceslao not revealed that he was the "organizer" of the FNCLT referred to
delivered to the United States Ambassador. The march would be attended by
in the Borjal articles, the public would have remained in blissful ignorance of
the local and foreign participants of such conference. An assurance was
his identity. It is therefore clear that on the element of identifiability alone the
made to observe all the necessary steps "to ensure a peaceful march and
case falls. Further, indisputably, Borjal's questioned writings are not within
rally." Since Reyes had not been informed of any action taken on his request
the exceptions of Article 354 of The Revised Penal Code for they are neither
on behalf of the organization to hold a rally, on 20 October 1983, he filed a
private communications nor fair and true report without any comments or
suit for mandamus with alternative prayer for writ of preliminary mandatory
remarks. However this does not necessarily mean that they are not
injunction. The oral argument was heard on 25 October 1983, the very same
privileged. To be sure, the enumeration under Article 354 is not an exclusive
day the answer was filed. The Court then deliberated on the matter. That
list of qualifiedly privileged communications since fair commentaries on
same afternoon, a minute resolution was issued by the Court granting the
matters of public interest are likewise privileged. The rule on privileged
mandatory injunction prayed for on the ground that there was no showing of
communications had its genesis not in the nation's penal code but in the Bill
the existence of a clear and present danger of a substantive evil that could
of Rights of the Constitution guaranteeing freedom of speech and of the
justify the denial of a permit. The last sentence of such minute resolution
press. Publications which are privileged for reasons of public policy are
reads: "This resolution is without prejudice to a more extended opinion."
Hence the detailed exposition of the Court's stand on the matter.
Issue: Whether Reyes, et. al. can exercise their freedom of speech, press, or
to assemble in front of the US embassy.
Held: The Constitution is quite explicit: "No law shall be passed abridging the
freedom of speech, or of the press, or the right of the people peaceably to
assemble and petition the Government for redress of grievances."
Free speech, like free press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or
punishment. There is to be then no previous restraint on the communication
of views or subsequent liability whether in libel suits, prosecution for sedition,
or action for damages, or contempt proceedings unless there be a "clear and
present danger of a substantive evil that [the State] has a right to prevent."
Freedom of assembly connotes the right of the people to meet peaceably for
consultation and discussion of matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is not to be limited, much less
denied, except on a showing, as is the case with freedom of expression, of a
clear and present danger of a substantive evil that the state has a right to
prevent. The sole justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the danger, of a
character both grave and imminent, of a serious evil to public safety, public
morals, public health, or any other legitimate public interest. There can be no
legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally
would start. Neither can there be any valid objection to the use of the streets
to the gates of the US Embassy, hardly two blocks away at the Roxas
Boulevard. The novel aspect of the case is that there would be a short
program upon reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. Related to this, the second paragraph
of its Article 22 of the Vienna Convention on Diplomatic Relations (to which
the Philippines is a signatory) reads: "2. The receiving State is under a
special duty to take appropriate steps to protect the premises of the mission
against any intrusion or damage and to prevent any disturbance of the peace
of the mission or impairment of its dignity." That being the case, if there were
a clear and present danger of any intrusion or damage, or disturbance of the
peace of the mission, or impairment of its dignity, there would be a
justification for the denial of the permit insofar as the terminal point would be
the Embassy. Moreover, Ordinance 7295 of the City of Manila prohibits the
holding or staging of rallies or demonstrations within a radius of 500 feet from
any foreign mission or chancery; and for other purposes. Even then, if the
ordinance is nullified, or declared ultra vires, its invocation as a defense is
understandable but not decisive, in view of the primacy accorded the
constitutional rights of free speech and peaceable assembly. There was no
showing, however, that the distance between the chancery and the embassy
gate is less than 500 feet. Even if it could be shown that such a condition is
satisfied, it does not follow that the Mayor could legally act the way he did.
The validity of his denial of the permit sought could still be challenged. It
could be argued that a case of unconstitutional application of such ordinance
to the exercise of the right of peaceable assembly presents itself. As in this
case there was no proof that the distance is less than 500 feet, the need to
pass on that issue was obviated. The high estate accorded the rights to free
speech and peaceable assembly demands nothing less.
Pita V CA G.R. No. 80806 October 5, 1989
Facts: In 1983, elements of the Special Anti-Narcotics Group, and the Manila
Police, seized and confiscated from dealers along Manila sidewalks,
magazines believed to be obscene. These were later burned. One of the
publications was Pinoy Playboy published by Leo Pita.
He filed an injunction case against the mayor of manila to enjoin him from
confiscating more copies of his magazine and claimed that this was a
violation of freedom of speech. The court ordered him to show cause. He
then filed an Urgent Motion for issuance of a temporary restraining order
against indiscriminate seizure.
Defendant Mayor Bagatsing admitted the confiscation and burning of
obscence reading materials but admitted that these were surrendered by the
stall owners and the establishments were not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera, filed no
answer.
On January 11, 1984, the trial court issued an Order setting the case for
hearing on January 16, 1984 "for the parties to adduce evidence on the
question of whether the publication 'Pinoy Playboy Magazine alleged (sic)
seized, confiscated and/or burned by the defendants, are obscence per se or
not".
On February 3, 1984, the trial court promulgated the Order appealed from
denying the motion for a writ of preliminary injunction, and dismissing the
case for lack of merit
The CA also dismissed the appeal due to the argument that freedom of the
press is not without restraint.
In the SC, the petitioner claimed that:
1. The CA erred in holding that the police officers could without any court
warrant or order seize and confiscate petitioner's magazines on the basis
simply of their determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and,
in effect, holding that the trial court could dismiss the case on its merits
without any hearing thereon when what was submitted to it for resolution was
merely the application of petitioner for the writ of preliminary injunction.
Issue: Was the seizure constitutional?
Held: No. Petition granted
Ratio: Test for obscenity: "whether the tendency of the matter charged as
obscene, is to deprave or corrupt those whose minds are open to such
immoral influences and into whose hands a publication or other article
charged as being obscene may fall
Also, "whether a picture is obscene or indecent must depend upon the
circumstances of the case, and that ultimately, the question is to be decided
by the "judgment of the aggregate sense of the community reached by it."
(Kottinger)
When does a publication have a corrupting tendency, or when can it be said
to be offensive to human sensibilities?
The issue is a complicated one, in which the fine lines have neither been
drawn nor divided.
Katigbak- "Whether to the average person, applying contemporary
standards, the dominant theme of the material taken as a whole appeals to
prurient interest."
Kalaw-Katigbak represented a marked departure from Kottinger in the sense
that it measured obscenity in terms of the "dominant theme" of the work,
rather than isolated passages, which were central to Kottinger (although both
cases are agreed that "contemporary community standards" are the final
arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make
the determination of obscenity essentially a judicial question and as a
consequence, to temper the wide discretion Kottinger had given unto law
enforcers.
The latest say on American jurisprudence was Miller v. California, which
expressly abandoned Massachusettes, and established "basic guidelines," to
wit: "(a) whether 'the average person, applying contemporary standards'
would find the work, taken as a whole, appeals to the prurient interest . . .; (b)
whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (c) whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.
The lack of uniformity in American jurisprudence as to what constitutes
"obscenity" has been attributed to the reluctance of the courts to recognize
the constitutional dimension of the problem.
Apparently, the courts have assumed that "obscenity" is not included in the
guaranty of free speech, an assumption that, as we averred, has allowed a
climate of opinions among magistrates predicated upon arbitrary, if vague
theories of what is acceptable to society.
In the case at bar, there is no challenge on the right of the State, in the
legitimate exercise of police power, to suppress smut provided it is smut. For
obvious reasons, smut is not smut simply because one insists it is smut. So
is it equally evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization. What
shocked our forebears, say, five decades ago, is not necessarily repulsive to
the present generation.
But neither should we say that "obscenity" is a bare (no pun intended) matter
of opinion. As we said earlier, it is the divergent perceptions of men and
women that have probably compounded the problem rather than resolved it.
Undoubtedly, "immoral" lore or literature comes within the ambit of free
expression, although not its protection. In free expression cases, this Court
has consistently been on the side of the exercise of the right, barring a "clear
and present danger" that would warrant State interference and action. But
the burden to show this lies with the authorities.
"There must be objective and convincing, not subjective or conjectural, proof
of the existence of such clear and present danger."
As we so strongly stressed in Bagatsing, a case involving the delivery of a
political speech, the presumption is that the speech may validly be said. The
burden is on the State to demonstrate the existence of a danger, a danger
that must not only be: (1) clear but also, (2) present, to justify State action to
stop the speech.
The Court is not convinced that the private respondents have shown the
required proof to justify a ban and to warrant confiscation of the literature for
which mandatory injunction had been sought below. First of all, they were not
possessed of a lawful court order: (1) finding the said materials to be
pornography, and (2) authorizing them to carry out a search and seizure, by
way of a search warrant.
Has petitioner been found guilty for publishing obscene works under
Presidential Decrees Nos. 960 and 969? This not answered, one can
conclude that the fact that the former respondent Mayor's act was sanctioned
by "police power" is no license to seize property in disregard of due process.
The PD’s don’t give the authorities the permission to execute high-handed
acts.
It is basic that searches and seizures may be done only through a judicial
warrant, otherwise, they become unreasonable and subject to challenge.
There is of course provision for warrantless searches under the Rules of
Court but as the provision itself suggests, the search must have been an
incident to a lawful arrest and it must be on account fo a crime committed.
The Court rejected the argument that "[t]here is no constitutional nor legal
provision which would free the accused of all criminal responsibility because
there had been no warrant, and there is no "accused" here to speak of, who
ought to be "punished".
Second, to say that the respondent Mayor could have validly ordered the
raid (as a result of an anti-smut campaign) without a lawful search warrant
because, in his opinion, "violation of penal laws" has been committed, is to
make the respondent Mayor judge, jury, and executioner rolled into one.
ABS-CBN BROADCASTING CORPORATION vs. COMELEC
Facts: A Petition for Certiorari raised by ABS-CBN under Rule 65 of the
Rules of Court assailing Commission on Elections (Comelec) en banc
Resolution No. 98-14191 dated April 21, 1998. In the said Resolution, the
poll body RESOLVED to approve the issuance of a restraining order to stop
ABS-CBN or any other groups, its agents or representatives from conducting
such exit survey and to authorize the Honorable Chairman to issue the
same.
The Resolution was issued by the Comelec allegedly upon "information from
[a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with
PR groups, to conduct radio-TV coverage of the elections . . . and to make
[an] exit survey of the . . . vote during the elections for national officials
particularly for President and Vice President, results of which shall be
[broadcast] immediately."
The electoral body believed that such project might conflict with the official
Comelec count, as well as the unofficial quick count of the National
Movement for Free Elections (Namfrel). It also noted that it had not
authorized or deputized Petitioner ABS-CBN to undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed
for by petitioner. We directed the Comelec to cease and desist, until further
orders, from implementing the assailed Resolution or the restraining order
issued pursuant thereto, if any. In fact, the exit polls were actually conducted
and reported by media without any difficulty or problem.
Issue: Whether the assailed resolution is valid.
Held: The absolute ban imposed by the Comelec cannot be justified. It does
not leave open any alternative channel of communication to gather the type
of information obtained through exit polling. On the other hand, there are
other valid and reasonable ways and means to achieve the Comelec end of
avoiding or minimizing disorder and confusion that may be brought about by
exit surveys.
A specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters
may be kept at a reasonable distance from the voting center. They may be
required to explain to voters that the latter may refuse interviewed, and that
the interview is not part of the official balloting process. The pollsters may
further be required to wear distinctive clothing that would show they are not
election officials.48 Additionally, they may be required to undertake an
information campaign on the nature of the exercise and the results to be
obtained therefrom. These measures, together with a general prohibition of
disruptive behavior, could ensure a clean, safe and orderly election.
The freedom of expression is a fundamental principle of our democratic
government. It "is a 'preferred' right and, therefore, stands on a higher level
than substantive economic or other liberties. . . . [T]his must be so because
the lessons of history, both political and legal, illustrate that freedom of
thought and speech is the indispensable condition of nearly every other form
of freedom."14
Our Constitution clearly mandates that no law shall be passed abridging the
freedom of speech or of the press.15In the landmark case Gonzales v.
Comelec,16 this Court enunciated that at the very least, free speech and a
free press consist of the liberty to discuss publicly and truthfully any matter of
public interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment,
of attaining the truth, of securing participation by the people in social and
political decision-making, and of maintaining the balance between stability
and change.17 It represents a profound commitment to the principle that
debates on public issues should be uninhibited, robust, and wide open.18 It
means more than the right to approve existing political beliefs or economic
arrangements, to lend support to official measures, or to take refuge in the
existing climate of opinion on any of public consequence. And paraphrasing
the eminent Justice Oliver Wendell Holmes,19 we stress that the freedom
encompasses the thought we hate, no less than the thought we agree with.
In exit polls, the contents of the official ballot are not actually exposed.
Furthermore, the revelation of whom an elector has voted for is not
compulsory, but voluntary. Voters may also choose not to reveal their
identities. Indeed, narrowly tailored countermeasures may be prescribed by
the Comelec, so as to minimize or suppress incidental problems in the
conduct of exit polls, without transgressing the fundamental rights of our
people.
WHEREFORE, the Petition is GRANTED, and the Temporary Restraining
Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed
Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21,
1998 is hereby NULLIFIED and SET ASIDE. No costs.
Social Weather Stations Inc. vs. Commission on Elections [GR 147571,
5 May 2001] Second Division, Mendoza (J): 3 concur
Facts: The Social Weather Stations, Inc. (SWS), is a private non-stock, non-
profit social research institution conducting surveys in various fields,
including economics, politics, demography, and social development, and
thereafter processing, analyzing, and publicly reporting the results thereof.
On the other hand, Kamahalan Publishing Corporation publishes the Manila
Standard, a newspaper of general circulation, which features news-worthy
items of information including election surveys. SWS and Kamahalan
Publishing brought the action for prohibition with the Supreme Court to enjoin
the Commission on Elections from enforcing §5.4 of RA 9006 (Fair Election
Act), which provides that "Surveys affecting national candidates shall not be
published fifteen (15) days before an election and surveys affecting local
candidates shall not be published seven (7) days be- fore an election." SWS
states that it wishes to conduct an election survey throughout the period of
the elections both at the national and local levels and release to the media
the results of such survey as well as publish them directly. Kamahalan
Publishing, on the other hand, states that it intends to publish election survey
results up to the last day of the elections on 14 May 2001. They argue that
the restriction on the publication of election survey results constitutes a prior
restraint on the exercise of freedom of speech without any clear and present
danger to justify such restraint. They claim that SWS and other pollsters
conducted and published the results of surveys prior to the 1992, 1995, and
1998 elections up to as close as two days before the election day without
causing confusion among the voters and that there is neither empirical nor
historical evidence to support the conclusion that there is an immediate and
inevitable danger to tile voting process posed by election surveys. They point
out that no similar restriction is imposed on politicians from explaining their
opinion or on newspapers or broadcast media from writing and publishing
articles concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary voters to be
denied access to the results of election surveys, which are relatively
objective.
Issue: Whether §5.4 of RA 9006 constitutes an unconstitutional abridgment
of freedom of speech, expression, and the press.
Held: §5.4 of RA 9006 constitutes an unconstitutional abridgment of freedom
of speech, expression, and the press. §5.4 lays a prior restraint on freedom
of speech, expression, and the press prohibiting the publication of election
survey results affecting candidates within the prescribed periods of 15 days
immediately preceding a national election and 7 days before a local election.
Because of the preferred status of the constitutional rights of speech,
expression, and the press, such a measure is vitiated by a weighty
presumption of invalidity. Indeed, any system of prior restraints of expression
comes to the Supreme Court bearing a heavy presumption against its
constitutional validity. The Government thus carries a heavy burden of
showing justification for in enforcement of such restraint. There, thus a
reversal of the normal presumption of validity that inheres in every
legislation. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the
causal connection of expression to the asserted governmental interest
makes such interest "not related to the suppression of free expression." By
prohibiting the publication of election survey results because of the possibility
that such publication might undermine the integrity of the election, §5.4
actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by newspaper
columnists, radio and TV commentators, armchair theorists, and other
opinion takers. In effect, §5.4 shows a bias for a particular subject matter, if
not viewpoint, by referring personal opinion to statistical results. The
constitutional guarantee of freedom of expression means that "the
government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content." The prohibition imposed by §5.4
cannot be justified on the ground that it is only for a limited period and is only
incidental. The prohibition may be for a limited time, but the curtailment of the
right of expression is direct, absolute, and substantial. It constitutes a total
suppression of a category of speech and is not made less so because it is
only for a period of 15 days immediately before a national election and 7
days immediately before a local election. In fine, §5.4 is invalid because (1) it
imposes a prior restraint on the freedom of expression, (2) it is a direct and
total suppression of a category of expression even though such suppression
is only for a limited period, and (3) the governmental interest sought to be
promoted can be achieved by means other than suppression of freedom of
expression.
Francisco Chavez v. Raul M. Gonzales and National
Telecommunications Commission, G.R. No. 168338, February 15, 2008
FACTS: As a consequence of the public release of copies of the “Hello
Garci” compact disc audiotapes involving a wiretapped mobile phone
conversation between then-President Gloria Arroyo and Comelec
Commissioner Virgilio Garcillano, respondent DOJ Secretary Gonzales
warned reporters that those who had copies of the CD and those
broadcasting or publishing its contents could be held liable under the Anti-
Wiretapping Act. He also stated that persons possessing or airing said tapes
were committing a continuing offense, subject to arrest by anybody. Finally,
he stated that he had ordered the National Bureau of Investigation to go after
media organizations “found to have caused the spread, the playing and the
printing of the contents of a tape.”
Meanwhile, respondent NTC warned in a press release all radio stations and
TV network owners/operators that the conditions of the authorization and
permits issued to them by government like the Provisional Authority and/or
Certificate of Authority explicitly provides that they shall not use their stations
for the broadcasting or telecasting of false information or willful
misrepresentation. The NTC stated that the continuous airing or broadcast of
the “Hello Garci” taped conversations by radio and TV stations is a
continuing violation of the Anti-Wiretapping Law and the conditions of the
Provisional Authority and/or Certificate of Authority. It warned that their
broadcast/airing of such false information and/or willful misrepresentation
shall be a just cause for the suspension, revocation and/or cancellation of the
licenses or authorizations issued to the said media establishments.
Subsequently, a dialogue was held between the NTC and the Kapisanan ng
mga Brodkaster sa Pilipinas (KBP) which resulted in the issuance of a Joint
Press Statement which stated, among others, that the supposed wiretapped
tapes should be treated with sensitivity and handled responsibly.
Petitioner Chavez filed a petition under Rule 65 against respondents
Secretary Gonzales and the NTC directly with the Supreme Court.
ISSUES: 1. Will a purported violation of law such as the Anti-Wiretapping
Law justify straitjacketing the exercise of freedom of speech and of the
press?
2. Did the mere press statements of respondents DOJ Secretary and the
NTC constitute a form of content-based prior restraint that has transgressed
the Constitution?
RULING: [The Court voted 10-5 (CJ Puno, joined by JJ. Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio
Morales, Azcuna, Reyes and Tinga in the majority, as against JJ. Corona,
Chico-Nazario, Nachura, Leonardo-De Castro and Velasco in the
minority) in granting the petition insofar as respondent Secretary Gonzalez’s
press statement was concerned. Likewise, it voted 10-5 (CJ Puno, joined by
JJ. Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Carpio Morales, Azcuna, Reyes and Velasco in the majority, as
against JJ. Corona, Chico-Nazario, Nachura, Leonardo-De Castro and Tinga
in the minority) in granting the same insofar as NTC’s press statement was
concerned.]
1. NO, a purported violation of law such as the Anti-Wiretapping Law
will NOT justify straitjacketing the exercise of freedom of speech and of
the press.
A governmental action that restricts freedom of speech or of the press based
on content is given the strictest scrutiny, with
the government having the burden of overcoming the
presumed unconstitutionality by the clear and present danger rule. This
rule applies equally to all kinds of media, including broadcast media.
Respondents, who have the burden to show that these acts do not abridge
freedom of speech and of the press, failed to hurdle the clear and present
danger test. [T]he great evil which government wants to prevent is the airing
of a tape recording in alleged violation of the anti-wiretapping law. The
records of the case at bar however are confused and confusing, and
respondents’ evidence falls short of satisfying the clear and present danger
test. Firstly, the various statements of the Press Secretary obfuscate the
identity of the voices in the tape recording. Secondly, the integrity of the
taped conversation is also suspect. The Press Secretary showed to the
public two versions, one supposed to be a “complete” version and the other,
an “altered” version. Thirdly, the evidence of the respondents on the who’s
and the how’s of the wiretapping act is ambivalent, especially considering the
tape’s different versions. The identity of the wire-tappers, the manner of its
commission and other related and relevant proofs are some of the invisibles
of this case. Fourthly, given all these unsettled facets of the tape, it is even
arguable whether its airing would violate the anti-wiretapping law.
We rule that not every violation of a law will justify straitjacketing the
exercise of freedom of speech and of the press. Our laws are of
different kinds and doubtless, some of them provide norms of conduct
which[,] even if violated[,] have only an adverse effect on a person’s private
comfort but does not endanger national security. There are laws of great
significance but their violation, by itself and without more, cannot support
suppression of free speech and free press. In fine, violation of law is just a
factor, a vital one to be sure, which should be weighed in adjudging whether
to restrain freedom of speech and of the press. The totality of the injurious
effects of the violation to private and public interest must be calibrated in
light of the preferred status accorded by the Constitution and by related
international covenants protecting freedom of speech and of the press. In
calling for a careful and calibrated measurement of the circumference of all
these factors to determine compliance with the clear and present danger
test, the Court should not be misinterpreted as devaluing violations of
law. By all means, violations of law should be vigorously prosecuted by the
State for they breed their own evil consequence. But to repeat, the need to
prevent their violation cannot per se trump the exercise of free speech
and free press, a preferred right whose breach can lead to greater
evils. For this failure of the respondents alone to offer proof to satisfy the
clear and present danger test, the Court has no option but to uphold the
exercise of free speech and free press. There is no showing that the feared
violation of the anti-wiretapping law clearly endangers the national security
of the State.
2. YES, the mere press statements of respondents DOJ Secretary and
the NTC constituted a form of content-based prior restraint that has
transgressed the Constitution.
[I]t is not decisive that the press statements made by respondents
were not reduced in or followed up with formal orders or circulars. It is
sufficient that the press statements were made by respondents while in
the exercise of their official functions. Undoubtedly, respondent Gonzales
made his statements as Secretary of Justice, while the NTC issued its
statement as the regulatory body of media. Any act done, such as a
speech uttered, for and on behalf of the government in an
official capacity is covered by the rule on prior restraint. The concept
of an “act” does not limit itself to acts already converted to a formal
order or official circular. Otherwise, the non formalization of an act into
an official order or circular will result in the easy circumvention of the
prohibition on prior restraint. The press statements at bar are acts that
should be struck down as they constitute impermissible forms of prior
restraints on the right to free speech and press.
(THE DISINI CASE) Jose Jesus M. Disini, JR., Rowena S. Disini, Lianne Ivy
P. Medina, Janette Toral and Ernesto Sonido, JR., Petitioners vs. The
Secretary of Justice, The Secretary of the Department of the Interior and
Local Government, The Executive Director of the Information and
Communications Technology Office, The Chief of the Philippine National
Police, and The Director of the National Bureau of
Investigation, Respondents
Facts: These consolidated petitions seek to declare several provisions of
Republic Act (RA) 10175, the Cybercrime Prevention Act of 2012,
unconstitutional and void.
The cybercrime law aims to regulate access to and use of the cyberspace.
The cyberspace is a boon to the need of a current generation for greater
information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to
use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another
or bully the latter by posting defamatory statements against him that people
can read.
And because linking with the internet opens up a user to communication from
others, the ill-motivated can use the cyberspace for committing theft by
hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations.
The wicked can use the cyberspace, too, for illicit trafficking in sex or for
exposing to pornography guileless children who have access to the internet.
For these reasons, the government has a legitimate right to regulate the use
of cyberspace and contain and punish wrongdoings. The government
certainly has the duty and the right to prevent these tomfooleries from
happening and punish their perpetrators, hence the Cybercrime Prevention
Act.
But petitioners claim that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their
constitutional rights.
Pending hearing and adjudication of the issues presented in these cases, on
February 5, 2013, the Court extended the original 120-day temporary
restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until
further orders.
ISSUES:
1. The petitioners contend that Section 4(a)(1) fails to meet the strict
scrutiny standard required of laws that interfere with the fundamental
rights of the people. Is Section 4(a)(1) on Illegal Access
unconstitutional?
2. Petitioners claim that Section 4(a)(3) suffers from overbreadth in that,
while is seeks to discourage data interference, it intrudes into the area
of protected speech and expression, creating a chilling and deterrent
effect on these guaranteed freedoms.
3. Petitioners claim that Section 4(a)(6) or cyber-squatting violates the
equal protection clause in that, not being narrowly tailored, it will cause
a user using his real name to suffer the same fate as those who use
aliases or take the name of another in satire, parody, or any other
literary device.
4. Petitioners claim that Section 4(b)(3) violates the constitutional rights to
due process and to privacy and correspondence, and transgresses the
freedom of the press.
5. Petitioners claim that cybersex violates the freedom of expression
clause of the Constitution.
6. Petitioners are wary that a person who merely doodles on paper and
imagines a sexual abuse of a 16-year old is not criminally liable for
producing child pornography but one who formulates the idea on his
laptop would be.
7. Is Section 4(c)(3) unconstitutional for penalizing the transmission of
unsolicited commercial communications?
8. Petitioners dispute the constitutionality of both the penal code
provisions on libel as well as Section4(c)(4) of the Cybercrime
Prevention Act on cyberlibel.
9. Petitioners assail the constitutionality of Section 5 that renders
criminally liable any person who wilfully abets or aids in the commission
or attempts to commit any of the offenses enumerated as cybercrimes.
It suffers from overbreadth, creating a chilling and deterrent effect on
protected expression.
10. Is Section 6 on the penalty of one degree higher constitutional?
11. Is Section 7 on the prosecution under both the Revised Penal Code
(RPC) and RA 10175 constitutional?
12. Is Section 8 valid and constitutional?
13. Is Section 12 on Real-Time collection of traffic data valid and
constitutional?
14. Is Section 13 on preservation of computer data valid and constitutional?
15. Is Section 14 on disclosure of computer data valid and constitutional?
16. Is Section 15 on search, seizure and examination of computer data
valid and constitutional?
17. Is Section 17 on destruction of computer data valid and constitutional?
18. Is Section 19 on restricting or blocking access to computer data valid
and constitutional?
19. Is Section 20 on obstruction of justice valid and constitutional?
20. Is Section 24 on Cybercrime Investigation and Coordinating Center
(CICC) valid and constitutional?
21. Is Section 26(a) on CICC’s power and functions valid and
constitutional?
Ruling:
1. No. The strict scrutiny standard, an American constitutional construct, is
useful in determining the constitutionality of laws that tend to target a
class of things or persons. According to this standard, a legislative
classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a
suspect class is presumed unconstitutional. The Court finds nothing in
Section 4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is involved in
punishing what is essentially a condemnable act – accessing the
computer system of another without right. It is a universally
condemnable act.
2. Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by
means that unnecessarily sweep its subject broadly, thereby invading
the area of protected speech. Section 4(a)(3) does not encroach on
these freedoms at all. It simply punishes what essentially is a form of
vandalism, the act of wilfully destroying without right the things that
belong to others, in this case their computer data, electronic document,
or electronic data message. Such act has no connection to guaranteed
freedoms. Ergo, there is no freedom to destroy other people’s computer
systems and private documents. All penal laws, like the cybercrime law,
have of course an inherent chilling effect, an in terrorem effect, or the
fear of possible prosecution that hangs on the heads of citizens who
are minded to step beyond the boundaries of what is proper. But to
prevent the State from legislating criminal laws because they instil such
kind of fear is to render the state powerless in addressing and
penalizing socially harmful conduct.
3. No, the challenge to the constitutionality of Section 4(a)(6) is baseless.
The law is reasonable in penalizing the act of acquiring the domain
name in bad faith to profit, mislead, destroy reputation, or deprive
others who are not ill-motivated of the rightful opportunity of registering
the same. It is the evil purpose for which one uses the name that the
law condemns.
4. No. In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a
person has exhibited a reasonable expectation of privacy and, if so,
whether that expectation has been violated by unreasonable
government intrusion. The law punishes those who acquire or use
identifying information without right, implicitly to cause damage.
Petitioners fail to show how government effort to curb computer-related
identity theft violates the right to privacy and correspondence as well as
the right to due process. There is no fundamental right to acquire
another’s personal right. The Court has defined intent to gain as an
internal act which can be established through overt acts of the offender,
and it may be presumed from the furtive taking of useful property
pertaining to another, unless special circumstances reveal a different
intent on the part of the perpetrator. As such, the press, whether in the
quest of news reporting or social investigation, has nothing to fear since
a special circumstance is present to negate intent to gain which is
required by this Section.
5. The Court will not declare Section 4(c)(1) unconstitutional where it
stands a construction that makes it apply only to persons engaged in
the business of maintaining, controlling, or operating, directly or
indirectly, the lascivious exhibition of sexual organs or sexual activity
with the aid of a computer system as Congress has intended.
6. The constitutionality of Section 4(c)(3) is not successfully challenged.
The law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity
or duration of penalty is a legislative prerogative and there is a rational
basis for such higher penalty.
7. Yes, because to prohibit the transmission of unsolicited ads would deny
a person the right to read his emails, even unsolicited commercial ads
addressed to him. Commercial speech is a separate category of
speech which us not accorded the same level of protection as that
given to other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection. The State cannot rob him of this right
without violating the constitutionally guaranteed freedom of expression.
Thus, unsolicited advertisements are legitimate forms of expression.
8. Since the penal code and implicitly, the cybercrime law, mainly target
libel against private persons, the Court recognizes that these laws imply
a stricter standard of malice to convict the author of a defamatory
statement where the offended party is a public figure. The elements of
libel are: (a) the allegation of a discreditable act or condition concerning
another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.There is actual malice or malice
in fact when the offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of whether it was
false or not. The reckless disregard standard used here required a high
degree of awareness of probable falsity. There must be sufficient
evidence to permit the conclusion that the accused in fact entertained
serious doubts as to the truth of the statement he published. Gross or
 even extreme negligence is not sufficient to establish actual malice.
The defense of absence of actual malice, even when the statement
turns out to be false, is available where the offended party is a public
official or a public figure. But, where the offended party is a private
individual, the prosecution need not prove the presence of actual
malice. For his defense, the accused must show that he has a
justifiable reason for the defamatory statement even if it was in fact
true.
9. A governmental purpose, which seeks to regulate the use of
cyberspace communication technology to protect a person’s reputation
and peace of mind, cannot adopt means that will unnecessarily and
broadly sweep, invading the area of protected freedoms. If such means
are adopted, self-inhibition borne of fear of what sinister predicaments
await internet users will suppress otherwise robust discussion of public
issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and discriminatory
enforcement. The terms “aiding or abetting” constitute broad sweep that
generates chilling effect on those who express themselves through
cyberspace posts, comments, and other messages. Hence, Section 5
of the cybercrime law that punishes “aiding or abetting” libel on the
cyberspace is a nullity.
10. Yes, because there exists a substantial distinction between crimes
committed through the use of information and communication
technology and similar crimes committed using other means. In using
the technology in question, the offender often evades identification and
is able to reach far more victims or cause greater harm.
11. The Court resolves to leave the determination of the correct application
of Section 7 that authorizes prosecution of the offender under both the
Revised Penal Code and Republic Act 10175 to actual cases, with the
exception of the crimes of:
• Online libel as to which, charging the offender under both Section
4(c)(4) of Republic Act 10175 and Article 353 of the Revised
Penal Code constitutes a violation of the proscription against
double jeopardy; as well as
• Child pornography committed online as to which, charging the
offender under both Section 4(c)(2) of Republic Act 10175 and
Republic Act 9775 or the Anti-Child Pornography Act of 2009 also
constitutes a violation of the same proscription, and, in respect to
these, is void and unconstitutional.
12. Valid and constitutional, because the matter of fixing penalties for the
commission of crimes is as a rule a legislative prerogative.
13. Void and unconstitutional, because Section 12 does not permit law
enforcement authorities to look into the contents of the messages and
uncover the identities of the sender and the recipient. Thus, the
authority that Section 12 gives law enforcement agencies is too
sweeping and lacks restraint.
14. Valid and constitutional, because the user ought to have kept a copy of
that data when it crossed his computer if he was so minded. There was
no undue deprivation of property since the data that service providers
preserve on orders of law enforcement authorities are not made
accessible to users by reasons of the issuance of such orders.
15. Valid and constitutional, because what Section 14 envisions is merely
the enforcement of a duly issued court warrant. Disclosure can be
made only after judicial intervention.
16. Valid and constitutional, because Section 15 merely enumerates the
duties of law enforcement authorities that would ensure proper
collection, preservation, and use of computer system or data that have
been seized by virtue of a court warrant.
17. Valid and constitutional, because it is unclear that the user has a
demandable right to require the service provider to have that copy of
data saved indefinitely for him in its storage system.
18. Void and unconstitutional, because Section 19 not only precludes any
judicial intervention but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech.
19. Valid and constitutional insofar as it applies to the provisions of Chapter
IV which are not struck down by the Court.
20. and 21. Valid and constitutional, because cybercrime law is complete in
itself when it directed the CICC to formulate and implement a national
cybersecurity plan. The law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
GMA NETWORK, INC., Petitioner, vs. COMMISSION ON ELECTIONS,
Respondent.
TOPIC: Freedom of expression, of speech and of the press, airtime limits
FACTS: The five (5) petitions before the Court put in issue the alleged
unconstitutionality of Section 9 (a) of COMELEC Resolution No. 9615 limiting
the broadcast and radio advertisements of candidates and political parties for
national election positions to an aggregate total of one hundred twenty (120)
minutes and one hundred eighty (180) minutes, respectively. They contend
that such restrictive regulation on allowable broadcast time violates freedom
of the press, impairs the people’s right to suffrage as well as their right to
information relative to the exercise of their right to choose who to elect during
the forth coming elections
Section 9 (a) provides for an “aggregate total” airtime instead of the previous
“per station” airtime for political campaigns or advertisements, and also
required prior COMELEC approval for candidates’ television and radio
guestings and appearances.
ISSUE: Whether or not Section 9 (a) of COMELEC Resolution No. 9615
on airtime limits violates freedom of expression, of speech and of the press.
HELD: YES. The Court held that the assailed rule on “aggregate-
based” airtime limits is unreasonable and arbitrary as it unduly restricts and
constrains the ability of candidates and political parties to reach out and
communicate with the people. Here, the adverted reason for imposing the
“aggregate-based” airtime limits – leveling the playing field – does not
constitute a compelling state interest which would justify such a substantial
restriction on the freedom of candidates and political parties to communicate
their ideas, philosophies, platforms and programs of government. And, this is
specially so in the absence of a clear-cut basis for the imposition of such a
prohibitive measure.
It is also particularly unreasonable and whimsical to adopt the aggregate-
based time limits on broadcast time when we consider that the Philippines is
not only composed of so many islands. There are also a lot of languages
and dialects spoken among the citizens across the country. Accordingly, for
a national candidate to really reach out to as many of the electorates as
possible, then it might also be necessary that he conveys his message
through his advertisements in languages and dialects that the people may
more readily understand and relate to. To add all of these airtimes in
different dialects would greatly hamper the ability of such candidate to
express himself – a form of suppression of his political speech.
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST
REV. BISHOP VICENTE M. NAVARRA and THE BISHOPHIMSELF IN HIS
PERSONAL CAPACITY, Petitioners, vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER
OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.
G.R. No. 205728 January 21, 2015
TOPIC: Right to expression, right to political speech, right to property
FACTS: On February 21, 2013, petitioners posted two (2) tarpaulins within a
private compound housing the San Sebastian Cathedral of Bacolod. Each
tarpaulin was approximately six feet (6′) by ten feet (10′) in size. They were
posted on the front walls of the cathedral within public view. The first
tarpaulin contains the message “IBASURA RH Law” referring to the
Reproductive Health Law of 2012 or Republic Act No. 10354. The second
tarpaulin is the subject of the present case. This tarpaulin contains the
heading “Conscience Vote” and lists candidates as either “(Anti-RH) Team
Buhay” with a check mark, or “(Pro-RH) Team Patay” with an “X” mark. The
electoral candidates were classified according to their vote on the adoption of
Republic Act No. 10354, otherwise known as the RH Law. Those who voted
for the passing of the law were classified by petitioners as comprising “Team
Patay,” while those who voted against it form “Team Buhay.”
Respondents conceded that the tarpaulin was neither sponsored
nor paid for by any candidate. Petitioners also conceded that the tarpaulin
contains names ofcandidates for the 2013 elections, but not of politicians
who helped in the passage of the RH Law but were not candidates for that
election.
ISSUES:
1. Whether or not the size limitation and its reasonableness of the
tarpaulin is a political question, hence not within the ambit of the
Supreme Court’s power of review.
2. Whether or not the petitioners violated the principle of exhaustion of
administrative remedies as the case was not brought first before the
COMELEC En Banc or any if its divisions.
3. Whether or not COMELEC may regulate expressions made by private
citizens.
4. Whether or not the assailed notice and letter for the removal of the
tarpaulin violated petitioners’ fundamental right to freedom of
expression.
5. Whether the order for removal of the tarpaulin is a content-based or
content-neutral regulation.
6. Whether or not there was violation of petitioners’ right to property.
7. Whether or not the tarpaulin and its message are considered religious
speech.
HELD:
FIRST ISSUE: No.
The Court ruled that the present case does not call for the
exercise of prudence or modesty. There is no political question. It can be
acted upon by this court through the expanded jurisdiction granted to this
court through Article VIII, Section 1 of the Constitution..
The concept of a political question never precludes judicial review
when the act of a constitutional organ infringes upon a fundamental
individual or collective right. Even assuming arguendo that the COMELEC
did have the discretion to choose the manner of regulation of the tarpaulin in
question, it cannot do so by abridging the fundamental right to expression.
Also the Court said that in our jurisdiction, the determination of
whether an issue involves a truly political and non-justiciable question lies
in the answer to the question of whether there are constitutionally imposed
limits on powers or functions conferred upon political bodies. If there are,
then our courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such limits.
A political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political
bodies. Hence, the existence of constitutionally imposed limits justifies
subjecting the official actions of the body to the scrutiny and review of this
court.
In this case, the Bill of Rights gives the utmost deference to the
right to free speech. Any instance that this right may be abridged demands
judicial scrutiny. It does not fall squarely into any doubt that a political
question brings.
SECOND ISSUE: No.
The Court held that the argument on exhaustion of administrative
remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is
clear that the controversy is already ripe for adjudication. Ripeness is the
“prerequisite that something had by then been accomplished or performed by
either branch or in this case, organ of government before a court may come
into the picture.”
Petitioners’ exercise of their right to speech, given the message
and their medium, had understandable relevance especially during the
elections. COMELEC’s letter threatening the filing of the election offense
against petitioners is already an actionable infringement of this right. The
impending threat of criminal litigation is enough to curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative
remedies as COMELEC suggested in their pleadings prolongs the violation
of their freedom of speech.
THIRD ISSUE: No.
Respondents cite the Constitution, laws, and jurisprudence to
support their position that they had the power to regulate the tarpaulin.
However, the Court held that all of these provisions pertain to candidates and
political parties. Petitioners are not candidates. Neither do they belong to any
political party. COMELEC does not have the authority to regulate the
enjoyment of the preferred right to freedom of expression exercised by a
non-candidate in this case.
FOURTH ISSUE: Yes.
The Court held that every citizen’s expression with political
consequences enjoys a high degree of protection.
Moreover, the respondent’s argument that the tarpaulin is election
propaganda, being petitioners’ way of endorsing candidates who voted
against the RH Law and rejecting those who voted for it, holds no water.
The Court held that while the tarpaulin may influence the success
or failure of the named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin was not paid for or
posted “in return for consideration” by any candidate, political party, or party-
list group.
By interpreting the law, it is clear that personal opinions are not
included, while sponsored messages are covered.
The content of the tarpaulin is a political speech
Political speech refers to speech “both intended and received as a
contribution to public deliberation about some issue,” “fostering informed and
civic minded deliberation.” On the other hand, commercial speech has been
defined as speech that does “no more than propose a commercial
transaction.” The expression resulting from the content of the tarpaulin is,
however, definitely political speech.
FIFTH ISSUE: Content-based regulation.
Content-based restraint or censorship refers to restrictions “based
on the subject matter of the utterance or speech.” In contrast, content-neutral
regulation includes controls merely on the incidents of the speech such as
time, place, or manner of the speech.
The Court held that the regulation involved at bar is content-based.
The tarpaulin content is not easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity,
and this court has used the clear and present danger rule as measure.
Under this rule, “the evil consequences sought to be prevented
must be substantive, ‘extremely serious and the degree of imminence
extremely high.’” “Only when the challenged act has overcome the clear and
present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality.”
Even with the clear and present danger test, respondents failed to
justify the regulation. There is no compelling and substantial state interest
endangered by the posting of the tarpaulin as to justify curtailment of the
right of freedom of expression. There is no reason for the state to minimize
the right of non-candidate petitioners to post the tarpaulin in their private
property. The size of the tarpaulin does not affect anyone else’s
constitutional rights.
SIXTH ISSUE: Yes.
The Court held that even though the tarpaulin is readily seen by
the public, the tarpaulin remains the private property of petitioners. Their right
to use their property is likewise protected by the Constitution.
Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary or unreasonable
infringement of property rights is void, because it is repugnant to the
constitutional guaranties of due process and equal protection of the laws.
The Court in Adiong case held that a restriction that regulates
where decals and stickers should be posted is “so broad that it encompasses
even the citizen’s private property.” Consequently, it violates Article III,
Section 1 of the Constitution which provides that no person shall be deprived
of his property without due process of law.
SEVENTH ISSUE: No.
The Court held that the church doctrines relied upon by petitioners
are not binding upon this court. The position of the Catholic religion in the
Philippines as regards the RH Law does not suffice to qualify the posting by
one of its members of a tarpaulin as religious speech solely on such basis.
The enumeration of candidates on the face of the tarpaulin precludes any
doubt as to its nature as speech with political consequences and not
religious speech.
Doctrine of benevolent neutrality
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under certain
circumstances. Accommodations are government policies that take religion
specifically into account not to promote the government’s favored form of
religion, but to allow individuals and groups to exercise their religion without
hindrance. Their purpose or effect therefore is to remove a burden on, or
facilitate the exercise of, a person’s or institution’s religion.
As Justice Brennan explained, the “government may take religion
into account . . . to exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and practices
would otherwise thereby be infringed, or to create without state involvement
an atmosphere in which voluntary religious exercise may flourish.”