February 6, 2013 Transcribed by: Jade Canada Freedom of Expression vs.

Right to Privacy Public Figure Doctrine

AYER VS. CAPULONG 160 SCRA 861

hostage na duon sila Ramos, Honasan, Enrile. Would it be a true historical account if Enrile would be deleted? Well actually that effect would already be a public in fact not only of national interest but also international interest. It has acceded it to something that is of the public realm. It becomes now to the public. So it can be called without prior restraint. Now as to the fear of Enrile as to his right to privacy, to strike that balance between FoE and Right of Privacy, the proposed

So what is a public figure? A public figure has been defined

as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.'

picture/ motion picture must be fairly truthful and historical in its presentation of events so as not to attack violation of right to privacy. There must, in other words, be no knowing or reckless disregard of truth in depicting the participation of private respondent in the EDSA Revolution. No presentation of the private life of the
unwilling private respondent and certainly no revelation of intimate or embarrassing personal facts.

He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an

actor, a professional baseball player, a pugilist, or any other entertainment. So in other words celebrity, it includes those positions where public attention is focused on him as a person. Now, there are qualifying reasons why they have lost to some extent (at least noh) their right to privacy.

If that is __ that there would be no clash to another right to privacy. In fact the Four Day Revolution does not relate to the life of Enrile. It relates to that Historical event. Feeling lang niya na xa ang bida duon (lol) I think gusto nia si Richard Gomez ang dadala sa kanya (haha) PHIL. JOURNALIST, INC. VS. THEONEN 477 SCRA 482 (2005) The article was an attack against a private person. Unlike in the prior cases, these were involved public figures. Now what about if the attack is against a private person? This time, libel may come in. When it comes to private person, that private person certainly can invoke his right to privacy. So if there be a report, it must be a fair report because it now toss the right of defamatory. So here, that a newspaper or broadcaster publishing defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim a constitutional privilege against liability, for injury inflicted, even if the falsehood arose in a discussion of public interest. Now, this is very closely related to the crime/ offense of libel. Now what is libel? It is of course an offense defined in the RPC when one others defamatory remarks against another. So an allegation is considered defamatory if it ascribes to a person the commission of a crime (kawatan ka!), the possession of a vice or defect (palahubog ka! ) , real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead. As a rule, under the RPC when Libel is filed what comes in? First: ever defamatory words uttered is presumed to be malicious If I say na perfect si ano sa exam kasi may leakage xa and somebody else heard, and then when you approached me why did you say that? I did not mean it thats not your defense because every defamatory words is presumed to be malicious. Malice is presumed. Another one is, Second: truth is not a defense. Si kuan kay boring and the boring will present evidence to prove that she is not a boring (kerida lang lol) whether true or not, the fact that he uttered those defamatory words already means that it was uttered w/ malice regardless of whether youre telling the truth or not thats the GR. But what about the words that you uttered are criticisms against the government? Or public officials?

1.) that they had sought publicity and consented

Like Kris Aquino is not a public official but she is a public figure- she had sought publicity, consented to it, therefore she cannot complain when she receives that publicity

to it, and so could not complaint when they received it;

2.) that their personalities and their affairs has

already public, and could no longer be regarded as their own private business; press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public interest

3.) the

This is the discussion in the case of Ayer vs. Capulong. Now when is public figure doctrine in instances of clash between FoE and right to privacy, which would prevail? In most instances the SC believes the balancing of interest test. LAGUNZAD vs. SOTTO 92 SCRA 476 (1979) It is a movie depiction of the life of Moises Padilla. Moises Padilla was a public figure when he died, involved also in the murder is another public figure so apparently, his story is already within the realm of the public, it belongs to the public and an artist for example, it depicted in the movie without fear that his FoE will be tempered. However, in this case of Lagunzad vs. Sotto, since it was focused on the person, the movie also reveals the public affairs of Padilla. That is the family of Padilla or the heirs complained. Initially they consented to the showing thereof, there was a Licensing Agreement to which the producer failed to fully pay. So the SC here said : that the fact the person is a public figure does not in toto a person's right to privacy. When it comes into depiction of life in the movie, once the life in that movie has a public figure, it must only be with the __. That is why the Licensing Agreement is relevant because it gives the consent to show private affairs. So indeed, as a citizen or a journalist one has a right to express his thoughts in film or a public figure such as Moises Padilla without prior restraint. But there is that limitation only. So here the right of privacy must accede to FoE. The striking balance is that Licensing Agreement. There was a consent. In Ayer vs. Capulong, it was Enriles turn to question his character in the Edsa Revolution in the movie the The Four Day Revolution. According to him, he did not consent to it so he must not appear there.

Criticisms Against Public Officials Now we have to reconcile that with FoE. What did we say about FoE? The right to publicly say anything, against, or for the government or anything with public interest. Now, when it comes to official acts. Official acts are legitimate subjects of public comments. These people are the people have to right to scrutinize and comment or condemn the conduct of their chosen representatives in the government. So as long as their comments are made in good faith and with justifiable ends, they are insulated from

Now would that his public depiction / movie depiction (historical event in the Philippines) would that be true to its depiction if Enrile were to be erased in that scene. Diba na

prosecution of damage suits for defamation. In other words, you can criticize the government w/o fear of being charge of libel because that is the essence of democracy. When it comes to libel therefore, and the defamatory words is against the government, that is a more liberal rule. So regardless of criticism of official/ conduct in general, the more liberal rule is taken. It was held, that the public official must not be too thin-skinned with reference to comment upon his official acts. The essence of democracy is the freedom to criticize the government including public officials. So lets go back to the general rule, what about malice? The malice now, the words against public officials, the malice is no longer presumed. The burden of proof is in the public official to prove that he spoke those words with malice. With malice means with knowledge that it was false or with reckless disregard of the ___ or not so yun ang difference bet a private and a public official. Another one, truth this time is a defense. When you say Si Congressman kawatan ug manok now actually when that is the utterance, the burden to prove that your allegations are false is with the public official because as it is its not malicious. So baliktad when it comes to public officials. RECAP: So the burden of proof therefore when it comes to criticisms against public official, the burden of proof is w/ the public official to show that that the utterances are one malicious and the utterances are false. Other than that, one cannot be held liable for libel.

Do you think that it would be the same rule if the subject of the attack is the Supreme Court? The answer is NO! In the successive cases of Zaldivar vs. Sandiganbayan, IN RE: Tulfo, and IN RE: Emil Jurado, all these cases the SC said that although there is freedom of expression and although anyone has the right to criticize the government, if the criticism is addressed against the court, whats the rule? "It is the cardinal condition of all such criticism that it shall be bona fide and shall not spill over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand, and abuse and slander of courts and the judges (or justices) thereof, on the other. Intemperate and unfair criticism is a gross violation of the duty of respect to courts." It is such conduct, which subjects the lawyer or a private person to liability. Another one, the decisions of the courts are open to criticisms for as long as they are couch in respectful language and above all the merits of the case. Where, however, comment in the guise of a critique is intended merely to degrade and ridicule the Court, as well as to insult its members, thereby causing or conditioning the public to lose its respect for the Court and its members, the comment becomes clearly an obstruction or affront to the administration of justice; hence, it is contemptous. The SC is more concerned on the respect to courts to maintain that authority as it administers justice. Now in your private person, you may be liable for contempt but if you are a lawyer, even if you acted as a journalist and your article is against the SC / the court, not only will you be cited for contempt you may also be administratively liable. So you wrote this article against the SC attacking its decision in the case of De Villa. Where the SC legalized the checkpoints. Now the first article, he entitled idiotic decisions. That the SC rendered idiotic decisions in legalizing the checkpoints and he followed it up with another title Sankatutak na bobo now the ruling again, he was cited for contempt, but had it been address against a public official will the decision be the same? I dont think so. So by leeway, the SC could be thin-skinned. Like in this case of De Vera IN RE: PUBLISHED ALLEGED THREATS AGAINST MEMBERS OF THE COURT IN THE PLUNDER LAW CASE HURLED BY ATTY. LEONARD DE VERA [A.M. No. 01-12-03-SC. July 29, 2002] De Vera according to the SC is threatening the SC that if they will declare as unconstitutional the plunder law, the people will go to the streets and the SC did not like it. Respondents

A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as members of a self-governing community. Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled.
Diba if you were readily liable for libel, no one will talk against the government or public official so as one justice said, public discussion is a political duty and the greatest menace to freedom is an inert people. VASQUEZ VS. CA 314 SCRA 460 (2000) Where the subject of the attack not only that he connived with NHA to grab land, but also that we was kawatan of manok and he was sugarol is a brgy captain. So question, so the burden to show/ proof that the allegations are true with the accused. If I was the one who said that kawatan xa ug manok, do I have to prove it/ show it that it is true NO because hes a public official. What will happen is he has to prove that its false so that I can be liable. And not only that it is false, because even if it was false but it was uttered without malice, I am still not liable. BORJAL vs. CA 301 SCRA 1 (1999) Respondent here is actually a private citizen, but he was at that time Executive Director First National Conference on Land Transportation (FNCLT) this is a 1-week participated national conference sponsored/ owned by the private development organizations. So both private and government agencies participated in this conference. The objective is to draft an Omnibus Bill that will embody a long term land transportation policy for presentation to Congress in its next regular session in July. Now, there were several issues published in the Philippine Star attacking this private person that he has been engaged in some anomalous activities. He filed for libel.

utterances pressuring the Court to rule in favor of the constitutionality of the Plunder Law or risk another series of mass actions by the public cannot be construed as falling within the ambit of constitutionally-protected speech, because such statements are not fair criticisms of any decision of the Court, but obviously are threats made against it to force the Court to decide the issue in a particular manner, or risk earning the ire of the public.

As if the SC will be threatened. Who is this De Vera to threaten the SC, pero sabi ng SC youre already threatening the court so which statement showed disrespect not only for the court but also for the judicial system as a whole. So if the SC is really vent in preserving the integrity as the institution which administers the justice. I think they mishandled the Corona case because he was issuing public statements, they were several tactics by lawyers. look at the other justices they just kept mumped. If that is what they want, they should not expose themselves to these issues. Media Practitioners Quisumbing vs. Lopez 96 Phil 510 (1955)

So who has the burden to prove malice? Is malice in this case presumed? Or has the burden shifted to the victim?
If he were a private person who has the burden to show malice? Its presumed. But in this case, although he is a private person, he was at that time a public figure being the Executive Director of FNCLT so he was considered by the SC as public figure. Who therefore has the burden to prove malice that the article printed is malicious? Yung victim because he was a public figure that time. So government official should not be too thin-skinned.

A daily newspaper published an article entitled NBI MEN RAID OFFICES OF 3 CITY USURERS so these 3 city usurers allegedly filed a case of libel because they are already called usurers when they are supposedly called suspects If you read the body of the article, they were actually described as business offices of the alleged money lenders . so there was a mistake in the description, the newspaper admitted to that. So who should it be held liable? The SC said: The newspapers should be given such leeway and tolerance as to enable them to courageously and effectively perform their important role in our democracy. In the preparation of stories, press reporters and editors usually have to race with their deadlines; So mistakes are allowed provided that they are not confronted by personal __ or spite. As long as it is with good faith and reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or imperfection in the choice of words. But the ruling in this Quisumbing vs Lopez was not use in this case of >>>> Lopez vs. CA 34 SCRA 1970 In this case, a weekly magazine published an article about this Fidel G. Cruz , a sanitary inspector assigned in Babuyan Islands. It was a good story/ controversial story because this person sent a distress signal to a passing United States Airforce so the plane interrupt, emergency-sustenance kit containing, among other things, a two-way radio set. So he reported that there were a lot of killings going on here. So the Philippines sent an army to rescue the police and when they reached the place, they did not find any killing but they just found Fidel Cruz who just wanted transportation back home. Gusto na niyang umuwi. So because this is a good story they published it in the magazine. The problem is, they published another Fidel Cruz (picture of another Fidel Cruz someone living in Manila) . so this Fidel Cruz (magkapangalan sila, di sila mag kamukha) filed for libel. Now they used the ruling of Quisumbing vs. Lopez. And the SC said this time it will not be applicable because there was no pressure of a daily deadline to meet no occasion to act with haste as the picture of respondent was published in a weekly magazine. So what we have here is a weekly magazine, there is that requirement of reasonable care. They have sufficient time to check and counter check the correctness of the article so thats the distinction between a daily newspaper and a weekly magazine. Eastern Broadcast Corp vs. Dans 137 SCRA 356 (1985) When it comes to broadcasting, it is the broadcast for one broadcasting has to be licensed because not everybody could use air frequencies. And then the freedom of radio and television broadcasting is somewhat lesser in scope when compared to the freedom accorded to the newspaper/magazine. Why? They have a wider coverage. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. Radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling (or even children) who happen to be within reach of a blaring radio or television set.

print media. The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos, Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance.

So between print media or broadcasting media, which has lesser freedom of the press? BROADCAST MEDIA. Well continue next meeting.

FROM THE CASE:

All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and