Wake Up, Philippines!

The right to reply

Posted in Congress, Constitutional Rights, Legislation, Media by Erineus on March 11, 2009

By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 01:20:00 03/08/2009

WHEN a senator or representative delivers a libelous accusation against another person, he incurs no liability because of his parliamentary immunity for any speech or debate within the halls of Congress. The usual recourse of the supposed victim is to challenge his detractor to repeat his charges outside the legislature so they can be litigated before a court of justice.

If the solon does not respond, the public will conclude that his charges are true except that he does not have the evidence to prove them. That is in fact the reason for his parliamentary immunity. But if he decides to accept his target’s demand, he then allows himself, at his own risk, to be subject to judicial action. If he is unable to prove his accusations, he will then be liable for civil damages or imprisonment and/or fine; otherwise, he will have established the truth of his remarks.

Sen. Claro M. Recto successfully employed this device to remove a high government official during the administration of President Elpidio Quirino. Not that it would have done him any good, but that person did not have the facility offered by the right to reply bill recently passed by the Senate. President Macapagal-Arroyo has already threatened to veto it although it has not yet even been approved by Congress.

Under this bill, any person attacked by the media, through the press, television or radio, is given the right to reply, in the same medium and with equal prominence, to deny or explain his side. The purpose is to enable him to refute the effects of the accusation upon his name, good or bad. The trouble is that this opportunity would normally be barred at the present time, given the power of the press over easily cowed judges and the expenses and other inconveniences of litigation.

The result, it is argued, would leave the accusation unpunished and the reputation of the innocent subject tarnished for lack of denial or explanation. In many cases, the barrel of the gun is the final answer against the accusing journalist, who is presumed by the bill as biased and with an evil motive when in fact his only purpose was to expose the wrong and reveal the truth.

In my view, the presumption of the bill is that all adverse criticism of any person, especially public officials who are often the object of journalistic attacks, is per se untrue and motivated by evil designs. This is unfair. It debases freedom of expression itself that Justice Sutherland described as “one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.”

The bill dishonors the great writers who came to be known during the French Revolution as the Fourth Estate for their powerful influence in opposing the decadent aristocracy. It is an insult to our own freedom of expression that sustained our struggles to be free with the fiery words of Rizal, Plaridel, Lopez Jaena, Jacinto, Mabini and other heroes of our race. They did not need a right to reply bill to moderate their courage against the foreign invaders.

It is true that there are so-called journalists in this noble profession who would pollute it with their tabloid career of blackmail and extortion. But they constitute only a small percentage of its worthy membership. The great majority of its practitioners are dedicated to the pursuit of truth as their only goal even at the risk of their safety and the cost of their lives. Their accusations serve as a useful warning to the public against the persons they criticize and their suspiciously illicit operations.

The press should be given its full measure of encouragement and freedom in the dissemination of “matters that touch the heart of the existing order.” If vital news is suppressed to accommodate a senseless defense from the offended party, this will intrude not only upon the media’s editorial policies but also on their property rights to the space they have to reserve for the required statutory reply. This may placate the private person’s ego but not the general public that paid for but will not receive the needed but excluded information.

There should always be a proper balance between private rights and the public interest. It is true that under the Bill of Rights, the lone individual should be regarded as a majority of one against the entire, united nation. But in the case before us, it is hard to sustain this questionable right against freedom of expression—“at once the instrument and the guaranty and the bright consummate flower of all liberty”—as a correct exercise of the police power of the State.

Fortunately, the proposal is still only a bill and has yet to be debated in the House of Representatives where it is likely to be scrutinized and rejected if only because it is the approved act of its traditional rival and frequent antagonist. Even if the measure should also pass there, there is still the final deliberation of the conference committee on the still unresolved differences between the two chambers that may yet kill the controversial measure.

And, yes, even if the bill should reach Malacañang, remember that President Arroyo has already announced she would veto it. The only hitch is that she also promised in 2003 that she would not run in the 2004 presidential election but did.

http://opinion.inquirer.net/inquireropinion/columns/view/20090308-192922/The-right-to-reply

Right to reply: legislative blackmail

Posted in Congress, Constitutional Rights, Legislation, Media, Right To Information by Erineus on March 6, 2009

By Amando Doronila
Philippine Daily Inquirer
First Posted 22:45:00 03/05/2009

The Right of Reply Bill seeks to enhance the access to the mass media of the people “who feel aggrieved by stories or commentaries which may be biased, inaccurate, and unfair to them,” according to its sponsors.

In his sponsorship speech, Sen. Aquilino Pimentel Jr. said the bill was drafted “in response to the frequent complaints of people who are the subjects of defamatory articles over the refusal or failure of newspapers or broadcast networks to present their side.”

“If the press has the right to offend or to mortify, the people should have the right to reply,” Pimentel said, emphasizing that the freedom of the press “is not the monopoly of members of the press.”

When Pimentel speaks of expanding the right to reply to “the people” who are offended by media reports, we have to ask, who are the people who are mortified and offended by these reports? Clearly, from verifiable evidence, Pimentel appears to be referring to a tiny segment of the people—the political elite, to which he belongs — who are mortified by media reports holding the power-holders accountable for their official acts and abuses in public office.

The right of reply bill seeks to protect a certain group of politically privileged citizens from media reports that expose abuses and corruption of officials. The poor, the underprivileged and the disadvantaged have no reason to complain or to clamor for the right to reply against newspaper reports simply because they have never been the targets or victims of media attacks. The media have historically and traditionally been on the side of the underdogs, who are abused and oppressed by power holders (including legislators, executive officials, police, security forces, bureaucrats). Unlike the power-holders and functionaries with public authority, the media have not bullied and trampled underfoot the underdogs of society. These are the groups which, according to the creed of President Ramon Magsaysay, have less in life and should have more in law.

The politically and socially disadvantaged comprise the majority of the population. They cannot see the relevance of these bills to the exercise of their freedom of speech, especially to join protests against corruption of the elites and the violence of security authorities in suppressing these protests. They cannot understand the concerns of the political elites, such as Pimentel and Rep. Monico Puentevella and those who have endorsed their bills, over media reports exposing abuses of power.

Consequently, there is no way Pimentel’s Senate Bill 2150 and Puentevella’s House Bill 3306 can benefit the underdogs — the victims of abuses of power by the elites. These bills are irrelevant to the underdogs because they have no use for this legislation. These bills are elitist and anti-poor in the sense that they would muzzle the media from denouncing the abuses and corruption of the political elites and curtail the right and responsibility of the media to expose wrongdoing in public office.

Pimentel is making false claims when he says that his bill extends the right of reply to “the people.” In reality, he is referring to a narrow segment of the people, who are already enjoying the legislative privilege of immunity from which the rest of “the people” are excluded. The bill expands the elite’s platform to attack private citizens and groups, as it curtails the freedom of editors to determine the stories they publish or broadcast. The bills grab space from private media to accommodate replies of offended persons, mostly legislators and other power holders, reacting to media attacks centered on public issues.

The political elites have closed ranks behind these bills to gang up on the media. This is a bad sign. The Senate, which is not always a bulwark of press freedom despite senators’ claim to be champions of civil liberties, has passed Senate Bill 2150 in a disgraceful 21-0 vote. The House of Representatives is reported to be sending back House Bill 3306 to the committee on information for review and amendments after further dialogue with media representatives. These steps, claimed to be in observance of “democratic process” in legislation, do not alter the fact that the media face an uphill struggle in getting Congress to kill the legislation. Legislators have warned the media against taking a hardline position, which is that the media cannot compromise their constitutionally-protected freedom to publish stories unfettered by legislated prior-restraint censorship. Indeed, despite all these appearances of a developing compromise, the conflict has hit an impasse.

It does not bode well for a resolution that the chair of the House committee on information, Rep. Bienvenido Abante Jr. has issued a veiled threat that journalists faced dire violent consequences if the media insisted in blocking the right of reply bill. “If you can’t ventilate in writing,” Abante said, “what will a person do but assassinate the journalist? If we include this [provision], it might drastically reduce such incidents.” He was referring to the scores of journalists killed during the past few years.

This is a false assumption. This statement is no different from the Mafia warning that if you interfered in the bootleg racket you would be riddled with submachine-gun bullets.

Unfortunately, many congressmen share this view. They are attracted to a solution that offers facile explanation to the orgy of assassinations of provincial journalists who attacked local officials for wrongdoing. The publication of replies could not have averted the assassinations. The reasons for the killings are complex.

This orgy of killings cannot be stopped by legislative blackmail on the right of reply bill.

http://opinion.inquirer.net/inquireropinion/columns/view/20090305-192554/Right-to-reply-legislative-blackmail

Lame concession

Posted in Censorship, Congress, Constitutional Rights, Editorial, Legislation, Media by Erineus on February 27, 2009

Members of media have taken an unequivocal stand against the right-to-reply bill. The proposal to require print and broadcast journalists to give equal space or time to those who wish to defend themselves against attacks, actual or perceived, is seen as unnecessary and an assault on press freedom.

Now comes Senator Aquilino Pimentel Jr., sponsor of the Senate version of the bill, claiming he is listening and is open to making concessions.

Pimentel has come up with the idea of imposing fines instead of jail time for journalists found violating the right-to-reply rule. “We want to be reasonable,” he says.

Apparently, the senator remains unreasonable.

The dilemma is not between going behind bars and shelling out money for fines. Last we looked, the libel law—existing and working well, by the way—still carries the pain of imprisonment. In spite of this, the accusations keep on coming; stories we see, hear and read every day are anything but sanitized.

The bill’s inherent flaw is that it strikes at the heart of journalists’ sense of fairness. The presumption is that everybody in the business is mindful of the ethics that govern the profession. Those who overstep the bounds are aberrations, and there is a law that takes care of this, as well. The industry, for its part, can find ways to raise its standards. But it must be left alone.

Enough arguments have been put forth. Sadly, what we are seeing now are either face-saving acts by those who supported the bill but later on realized they needed friends in the media, or the obstinacy of some who claim to listen but really only want to have their way.

If the lawmakers are truly listening, they must realize that scrapping the bill altogether is the only reasonable step.

‘Media should regulate selves’–CHR

Posted in Censorship, Constitutional Rights, Legislation, Media by Erineus on February 27, 2009

MANILA, Philippines — The controversial right of reply bill pending could be an “undue intrusion” into the rights of media, Commission on Human Rights (CHR) chairperson Leila de Lima said on Thursday.

Instead of passing a bill that would require media outfits to publish the reply of parties offended by reports or commentaries, lawmakers said the media should be allowed to “self regulate.”

“I always believe that it should be self-regulation by media, no legislation is needed. Self-regulation is the best tack,” De Lima said at a press conference in Camp Crame.

But De Lima refused to provide more details of the CHR’s stand on the issue, saying they will be releasing an official statement on the matter soon.

Media organizations and outfits on Monday launched a campaign against the passage of the bill, calling it an “act of terrorism against the media” and a violation of the Constitution.

The Senate passed its version of the measure, principally authored by Minority Leader Aquilino Pimentel Jr., last year, while House Bill 3306 filed by Bacolod Representative Monico Puentevella is pending in the lower chamber.

Both bills seek to require that media publish or air the reply of a party offended by a news story in the same space and with the same prominence as the offending story and carry sanction, including hefty fines and, in the House version, jail time, for those who fail to comply.

For his part, Philippine National Police (PNP) Director General Jesus Verzosa said they respect the code of ethics practiced by the media.

“But also we must have to consider also the wisdom that is being forwarded by our legislators as to why they came up with that proposed bill for the right of reply, so we will wait for the outcome of the processing of the proposed bill of the right of reply,” he said.

By Abigail Kwok
INQUIRER.net
First Posted 17:06:00 02/26/2009

The right to edit

Posted in Censorship, Constitutional Rights, Legislation by Erineus on February 27, 2009

On Wednesday, Senate Minority Leader Aquilino Pimentel Jr. challenged his “friends in the media” to offer him a “reasoned argument” against his right of reply bill, which has passed third reading in the Senate. We are not sure if the burden of proof, so to speak, falls on the media; Pimentel’s counterpart in the House of Representatives, Manila Rep. Bienvenido Abante Jr., for example, gives us all the proof we need that, in the wrong hands, a right to reply law does pose a grave danger to our civil liberties.

Pimentel offers a much more solid argument for a right of reply law, as an expansion of the freedom of the press. As a lawyer, however, Pimentel knows that God (or the devil, depending on which quotation one prefers) is in the details.

And the details are revealing indeed. No distinction between news and opinion (thus killing, in one swoop, the entire tradition of fair comment). No consideration of the cost of reply (thus weighing down news organizations, very few of which actually turn a profit, with an onerous financial burden). And no regard for industry discipline (thus ignoring, sweepingly, decades of practice at self-regulation).

The core of the issue, however, is this: What we have in the right of reply bill (as formulated in Senate Bill 2150, for example) is the right to edit.

Readers scan a newspaper regularly, viewers tune in to a newscast daily, listeners turn to the radio news broadcast hourly, in part because they trust the editors and directors and producers — in short, the news managers — who do the job. The same pattern of trust can be discerned in the emerging media: The most popular websites and the most influential blogs have distinct personalities (in the case of blogs, quite literally).

To choose an example near to Pimentel’s heart: Let us say that in the not-too-distant future, a practiced attention-getter decides that the martial-law era did not in fact happen; that the arrests of Benigno Aquino and Jose Diokno and countless others (including, yes, Pimentel) did not in fact take place; that oppositionists were not in fact tortured and dissidents were not in fact killed. An impossible proposition? Not at all — as the cautionary growth of the Holocaust-denial industry, despite the universe of evidence, should warn us.

Under a right of reply regime, no good deed goes unpunished. Any criticism of a martial-law denier must be paid back in full, with the denier enjoying equal treatment. Even if a newspaper or a TV network or a radio station had already painstakingly shown, perhaps through a comprehensive special report, that martial law did in fact happen and many thousands were in fact left victimized, each news organization would be obliged, under penalty of law, to grant the denier space or airtime equal to the criticism, each time his patent nonsense is criticized.

Does anyone think this is an ideal state of affairs?

News managers — editors, news directors, executive producers — have the duty to judge what is newsworthy. That is part of the unwritten contract readers and viewers and listeners and users enter into. Under a right-of-reply regime, however, a news manager’s duty to spare her audience from the insanity of a martial-law denier is undermined. Indeed, in complying with the strictures of such a law, she will be compelled to propagate the very nonsense she ought to protect her audience from.

Is this an isolated, unlikely case? Not at all — as the shameless growth of the Gloria Macapagal-Arroyo administration’s double-speak factory, despite or perhaps because of its lack of credibility, should tell us.

Executive Secretary Eduardo Ermita wants us to believe that President Arroyo did not snub the EDSA People Power I anniversary rites last Wednesday; she merely had a full schedule. We have the duty to report this statement, of course; on paper it does not look as insane as it sounds. But did no one in Malacañang realize that the anniversary always falls on February 25? It is our bounden duty to point out the inconsistency in Malacañang’s statement, the political savvy behind Malacañang’s use of holidays to mark anniversaries or holidays it welcomes — and thus the hypocrisy in Malacañang’s position on EDSA People Power.

Under a right of reply regime, the media’s constitutionally protected responsibility to sift information from misinformation falls victim to the most flattering form of insincerity: mere lip service.

Philippine Daily Inquirer
First Posted 00:26:00 02/27/2009

http://opinion.inquirer.net/inquireropinion/editorial/view/20090227-191261/The-right-to-edit

Insidious censorship

Posted in Censorship, Constitutional Rights, Human Rights, Legislation, Media by Erineus on February 27, 2009

No democratic country in the world has ever passed legislation that requires the media to provide equal space and time to the replies of citizens offended by news stories.

The members of Congress have taken the lead of reinventing Philippine democracy by initiating legislation that claims to expand freedom of the press while pretending to ensure fairness to citizens who are victims of some news reports or commentaries. Their initiative takes the form of Senate Bill 2150, and House Bill 3306. Both would require the media to publish or broadcast the reply of a party offended by a news story on the same space and with the same prominence as the offending report.

This provision is at the heart of the controversy over the right of reply bill. In practice, it is offensive to the freedom of the press and leads to its curtailment.

On closer examination, the bill amounts to a legislated censorship as pernicious as the muzzling of the press by totalitarian dictatorships. In effect, the bill constitutes prior restraint on the exercise of that freedom by editors in the selection of stories they publish or broadcast.

I am arguing from the operational effects of the bill on the media, not from the legal point of view of its constitutionality. In that context, strong arguments can be mounted against the legislation.

I am referring to the 1974 decision of US Chief Justice Warren Earl Burger who said the choice of material to go into a newspaper, the decision as to the size and content of the paper, and on the treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. Concurring with the majority opinion, Justice Byron Raymond White emphatically held that a newspaper or magazine is not a public utility subject to “reasonable” government regulation on matters affecting the exercise of editorial judgment as to what shall be printed. He said that prior compulsion by government in matters going to the very nerve center of a newspaper — the decision of what copy will or will not be included in a given edition — collides with the freedom of the press clause of the (US) constitution.

US jurisprudence on freedom of the press has been a model and inspiration of Philippine Supreme Court decisions on the issue. From the vantage of the purely operational consequences of the legislated right of reply, I can see the havoc it would wreak on the media industry. We are facing a possible nightmare of disruptions in media operations.

First, let us examine who can, under the bill, compel the media to publish their replies. These are parties “criticized by innuendo, suggestion, or rumor for any lapse in behavior in private or public life.” This provision unlocks the dikes to a flood of demands, converting the media into dumping grounds for all sorts of complaints arising from reports they have published or aired.

The bill appropriates, through legislative fiat, premium newspaper space to these demands for publication of replies on the same spot and same length as the offending story. This requirement is worse than Pravda’s during Stalin’s times. It restricts the media’s choice of stories to use. It prevents editors from touching space pre-allocated to replies. It encroaches on their editorial judgments and independence, which are essential to a free press. It ignores the quality of the stories and gives equal weight to stories regardless of whether they have substance or are full of nonsense. This puts in the same category idiotic and intelligent stories, a parity that does not ensure fairness to offended parties.

The front page of a newspaper is so designed that it reflects the view of the world, as evaluated by editors trained to assess important news. The notion of pre-allocated space, mandated by legislation, distorts social and political reality unfolded by dynamic events. It replaces this empirical reality with an artificial construct built on replies of offended citizens to negative stories.

It would be hard for editors to put out newspapers with these restrictions on choice and placement of stories. They don’t have all the space to accommodate such replies, which tend to create their own cycles of endless replies. One reply leads to another reply, a process which makes it hard to accept Sen. Aquilino Pimentel’s claim that his bill could expand freedom of the press. Freedom to publish of nonsense would be a better word for it.

The most obvious beneficiaries of the bill are the politicians, especially legislators, who can use the right of reply to settle scores with their political adversaries and critics and to protect and promote their own private interests. They are bound to become the foremost users of the right.

Among the members of the political class, legislators, with their privilege speeches, are ahead of other public officials in using newspaper and broadcast space. They need the right of reply more than businessmen, military men, bishops, civil society activists and bureaucrats. This is why Pimentel cannot claim his bill will expand press freedom.

Impressionistic evidence indicates that the privilege speech and parliamentary statements made under cover of legislative immunity are often the source of demands for the right of reply. Private citizens slandered and attacked by privilege speeches seldom seek redress in the media, because it does not help them. They have no use for the Pimentel bill. Reply in the media to privilege speeches can only invite swift retaliation from legislators shielded by parliamentary immunity.

Thus, the right of reply bill is another bludgeon legislators can use to reinforce their parliamentary immunity.

By Amando Doronila
Philippine Daily Inquirer
First Posted 00:34:00 02/27/2009

http://opinion.inquirer.net/inquireropinion/columns/view/20090227-191266/Insidious-censorship

‘Right to Reply’ leads to confusion, absurdity

Posted in Constitutional Rights, Human Rights, Legislation, Media by Erineus on February 24, 2009

NO SUCH RIGHT?: My eyes have grown bleary reading and rereading the Bill of Rights (Article III of the Constitution). But I cannot find any so-called “Right to Reply” for persons cited in newspapers and other mass media.

What I see instead are two sections:

“Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

“Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”

*      *      *

OTHER SIDE: The framers of the Constitution overdid themselves inserting all conceivable concerns of a nation emerging from Marcosian dictatorship. If they saw a basic right to anything important, they would have included it in the Bill of Rights.

But even with their penchant for thoroughness, the wise men and women who wrote the 1987 Charter did not include a Right to Reply that some quarters now insist on exercising in reaction to media reports.

There is really no need to insist. Legitimate media know it is to their best interest to print also the “other side” — not really as a matter of right of an interested party, but as a matter of policy of the paper and a matter of good practice of the writer.

The problem is that the process is so complicated that it borders on the absurd.

*      *      *

SYMPATHY: Readers who do not know how a newspaper operates are likely to sympathize with the demand that media publish with equal prominence the side of anybody claiming to have been mentioned in an unfavorable light.

Those who are familiar only with the theories (but not the realities) of the press latch on to the romantic notion that everyone must have his side read or heard.

Many Right to Reply advocates address in scattergun fashion all newspaper items, without realizing that maybe they should be focusing only on news stories, the main fare of newspapers.

We should, for instance, differentiate between news stories and opinion pieces. We will cite later the difference between the two forms and show why a Right to Reply demand may not always apply.

*      *      *

CONSTRAINTS: Reporters always strive to file a complete story within the constraints of time and space. Time refers to deadline, and space refers to the spot on a page where the story is to come out.

If the story touches on an issue where there are conflicting opinions, or if at least two persons are hurling accusations back and forth, how does the reporter present a complete story by deadline time and leave everybody happy?

The writer and his editor can hold the story until they have the complete details and all the sides balanced — but there is the real danger that by the time they finally come out with it, the competition has beaten them by a mile.

A good rule for a fast-breaking big story is to go with what you have, and whip up a follow-up on the double. You delay printing till the next edition and the competition would have grabbed your reader the next morning.

*      *      *

VALUE JUDGMENT: Many times, some persons mentioned in, or omitted from, a story complain about their side not having been properly ventilated. Some of them then demand equal space to air their side.

Now, that is a big problem.

In this lumpy-bumpy world, not all opinions expressed on a subject deserve equal treatment. The writer and the editor have to exercise value judgment and give emphasis where due. You just have to trust them.

If newspapers accede to every Right to Reply demand, they would go bankrupt spending half of their time and resources printing the “other side.” Ironically, after the “other side” is printed, we are not even sure if we have seen the whole truth.

*      *      *

COSTLY CONFUSION: Newspapers would have to double their pages (and double the costs) because aside from the day’s regular news, they would be carrying the replies to yesterday’s news.

Half of the front page would be reserved for replies to the previous day’s main stories. Layout artists would go crazy trying to balance things.

One story could spawn not one reply but several, because if many persons were mentioned and most of them demand to put in their side, the paper would end up with a reaction longer than the original story.

A way out of this costly confusion is not to mention names in delicate stories, so nobody can invoke a Right to Reply. Might as well convert the paper into a scandal sheet retailing nothing but blind items.

*      *      *

OUT OF PLACE: I said earlier that we should differentiate between news stories and opinion pieces.

Opinion pieces include editorials, columns and commentaries. By definition, these are opinionated and are unabashedly subjective.

Precisely, a columnist is putting forward his position on an issue. It is therefore out of place to demand that he also give equal space and prominence to “the other side.”

Actually, the “other side” is — like the columnist’s piece — nothing but also opinion. The “other side” is not necessarily the truth.

*      *      *

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By Federico D. Pascual Jr.

Updated October 16, 2008 12:00 AM
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