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.
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.
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.
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.