Prepared by: Atty. Hanna Mae Mata, J.D.

Source/s: Mass Media Law and Ethics by Atty. D.R. Aquino; Relevant Laws and Jurisprudence

COMMUNICATION MEDIA LAWS In essence:

AND ETHICS (a) Freedom of expression promotes the free free flow
ideas

flow of ideas essential to political democracy ~ for the betterment

INTRODUCTION
and democratic institutions, and limits the of a
democratic

society
ability of the State to subvert other rights and
A. INTERNATIONAL PROTOCOLS
freedoms;

(b) it promotes a marketplace of ideas, which > -

promotes the Search

(1) PACTA SUNT SERVANDA for truth

includes, but is not limited to, the search for
↳ truth;
about internationa -means that international agreements shall
agreements be adhered to in good faith.
(c) it is intrinsically valuable as part of the
-one of the fundamental principles of
UN Declaration
of Human Rights
self-actualization of speakers and listeners;
↳ declares fundamental human
international law
rights freedom of expression) and fulfillment talents
<
and potentialities
of one's
↳ treaties -requires the parties to a treaty to keep their
↳ PH signed this treaty
agreement therein in good faith. Adhered for the

sovereigns
(d) it is justified by the dangers for good >

maintence
> states , countries ,
of a

government of allowing its suppression. peaceful & functional

Basis of Pacta Sunt Servanda government

These are the same justifications why

Doctrine of Incorporation (dislike)

censorship is anathema to freedom of

-rules of international law form part of the law >
-
Censorship
expression. Censorship is that officious ↳ states tells you
not

V of the land, and no further legislative action to speak

whatever
international functionary of the repressive government Prior Restraint
-

be
, is needed to make such rules applicable in speaking
laws there may who tells the citizen that he may speak only ↳ prohibitation
of

PH immediately
incor
the domestic sphere. Subsequent
Punishment

those laws
to if allowed to do so, and no more and no less ↳ Action done after speaking
porates -country is bound by generally accepted
its domestic laws ,
than what he is permitted to say on pain of
principles of international law, which are
punishment should he be so rash as to
considered to be automatically part of our
disobey. Censorship may come in the form of
own laws.
prior restraint or subsequent punishment.
individual excerine
the
> is the imposition of liability
to

> judicial supression of material that

form of
his freedom and be in
any
grounds that may
would bepublishedon here
t he
and administrative
penalty.

(2) UNIVERSAL DECLARATION OF

(3) INTERNATIONAL COVENANT ON
HUMAN RIGHTS
CIVIL AND POLITICAL RIGHTS
L
(ICCPR)
Freedom and rights Guarantees that "everyone has the right to
of all people freedom of opinion and expression."
> Right to freedom and expressionArticle
19 of the International Covenant on
Rights ofSpeech Civil and Political Rights focuses on
absolute right Accordingly, this right "includes the
- not an

the individual rights to opinions and expression.

if it damages
of freedom to hold opinions without interference
good reputation
one's rights and impart information and ideas through
a. Everyone shall have the right to hold
any media regardless of frontiers."
opinions without interference.
b. Everyone shall have the right to
At the same time, our Constitution
freedom of expression; this right shall
mandates that "no law shall be passed
include freedom to seek, receive and
abridging the freedom of speech, of
impart information and ideas of all
expression, or of the press, or the right of the
kinds, regardless of frontiers, either
people to peaceably assemble and petition
orally, in writing or in print, in the form
the government for redress of grievances."
of art, or through any other media of
his choice.
Prepared by: Atty. Hanna Mae Mata, J.D.
Source/s: Mass Media Law and Ethics by Atty. D.R. Aquino; Relevant Laws and Jurisprudence

c. The exercise of the rights provided (3) EQUAL PROTECTION OF LAWS

for in paragraph 2 of this article
carries with it special duties and No person or class of person shall be
responsibilities. It may therefore be deprived of the same protection of laws
subject to certain restrictions, but which is enjoyed by other persons or other
these shall only be such as are classes in the same place and in like
provided by law and are necessary: circumstances.

a. For respect of the rights or A classification is reasonable where:

reputations of others;
b. For the protection of national (1) it is based upon substantial distinctions
security or of public order or of which make real differences:
public health or morals.
(2) these are germane to the purpose of the
law;
B. CONSTITUTIONAL BASIS
(3) the classification applies, not only to
(1)1987 PHILIPPINE CONSTITUTION present conditions, but, also, to future
conditions which are substantially identical to
What is a constitution? those of the present; and

Constitution is a definition of the powers of (4) the classification applies, equally to all
government. It is an instrument that those who belong to the same class.
espouses and declares our sovereignty, our
form and structure of government and our
rights. C. FREEDOM OF SPEECH

(2) DUE PROCESS No law shall be passed abridging the

freedom of speech, of expression, or of the
This presupposes the right to be press, or the right of the people peaceably to
heard/opportunity to be heard. One which assemble and petition the Government for
hears before it condemns; which proceeds redress of grievances.
upon inquiry, and renders judgment only
after trial. It is responsiveness to the Note that speech covers every form of
supremacy of reason and obedience to the expression and therefore it is a right against
dictates. prior restraint.

Before a man can be deprived of his life, Freedom of speech and of expression, like all
liberty, or property, he must be given an constitutional freedoms, is not absolute and
opportunity to defend himself. When one that freedom of expression needs on
speaks of due process of law, a distinction occasion to be adjusted to and
must be made between matters of procedure accommodated with the requirements of
and matters of substance - procedural due equally important public interests.
process "refers to the method or manner by
which the law is enforced," while substantive
due process "requires that the law itself, not Illustrative Example
merely the procedures by which the law
would be enforced, is fair, reasonable, and (In re: Laureta G.R. No. 68635. March 12,
just. " 1987):
Prepared by: Atty. Hanna Mae Mata, J.D.
Source/s: Mass Media Law and Ethics by Atty. D.R. Aquino; Relevant Laws and Jurisprudence

"Respondents' reliance on the 'privacy of imminent lawless action, and danger to

communication' is misplaced. Letters national security.
addressed to individual Justices, in
connection with the performance of their All other expression is not subject to prior
judicial functions become part of the judicial restraint.
record and are a matter of concern for the
entire Court." Any content-based prior restraint on
protected expression is unconstitutional
"The right to be free from unwarranted without exception. A protected expression
exploitation of one's person or from intrusion means what it says. -it is absolutely protected
into one's private activities in such a way as from censorship.
to cause humiliation to a person's ordinary
sensibilities.” Thus, there can be no prior restraint on public
debates on the amendment or repeal of
Free speech has never countenanced the existing laws, on the ratification of treaties,
publication of falsehoods, specially the on the imposition of new tax measures, or on
persistent and unmitigated dissemination of proposed amendments to the Constitution.
patent lies.
To reiterate, any false reports about a public
official or other person are not shielded from
D. FREEDOM OF EXPRESSION sanction by the cardinal right to free speech
enshrined in the Constitution. Even the most
The freedom of expression is a means of liberal view of free speech has never
assuring individual self-fulfillment, of countenanced the publication of falsehoods,
attaining the truth, of securing participation specially the persistent and unmitigated
by the people in social and political decision- dissemination of patent lies.
making, and of maintaining the balance
between stability and change.
(Discuss: AMPATUAN MASSACRE, 2009;
In the case of Chavez us. Gonzales, the High ABS-CBN closure, 2020)
Court held that freedom of expression has
gained recognition as a fundamental https://www.nytimes.com/2020/07/10/world/
principle of every democratic government, asia/philippines-congress-media-duterte-
and given a preferred right that stands on a abs-cbn.html
higher level than substantive economic
freedom or other liberties.
E. FREEDOM OF THE PRESS
Taking our due from Gonzales us. Katisbak,
such test to determine whether freedom of Naturally implies two rights:
expression may be limited is the clear and
present danger of an evil of a substantive 1. inviolable right to publish without prior
character that the State has a right to restraint.
prevent. 2. right to publish without fear of
persecution of views advanced.
The exceptions, when expression may be
subject to prior restraint, apply in this Press freedom in the Philippines has met
jurisdiction to only four categories of repressions, most notable of which tons the
expression, namely: pornography, false or closure of almost all forms of existing mass
misleading advertisement, advocacy of media upon the imposition of martial law on
21 September 1972.
Prepared by: Atty. Hanna Mae Mata, J.D.
Source/s: Mass Media Law and Ethics by Atty. D.R. Aquino; Relevant Laws and Jurisprudence

Access to official records, and to documents,

In Bantam Books vs. Sullivan, the U.S. and papers pertaining to official acts,
Supreme Court stated: "Any system of prior transactions, or decisions, as well as to
restraint of expression comes to this Court government research data used as basis for
bearing a heavy presumption against its policy development, shall be afforded the
constitutionality." It therefore declared that citizen, subject to such limitations as may be
in this jurisdiction, prior restraint on the provided by law.
exercise of free expression can be justified
only on the ground that there is a clear and To be covered by the right to information, the
present danger of a substantive evil which information sought must meet the threshold
the State has the right to prevent. requirement that it be a matter of public
concern.

Four Aspects of Freedom of the Press “Public concern” like “public interest” is a
and Limitations term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which
1. freedom from prior restraint the public may want to know, either because
2. freedom from punishment after these directly affect their lives, or simply
publication because such matters naturally arouse the
3. freedom of access to information interest of an ordinary citizen.
4. freedom of circulation
The incorporation in the Constitution of a
Our democratic way of life is actualized by guarantee of access to information of public
the existence of a free press, whether print concern is a recognition of the essentiality of
media or broadcast media. As with print the free flow of ideas and information in a
media, free expression through broadcast democracy which in the same way that free
media is protected from prior restraint or discussion enables members of society to
subsequent punishment. The franchise and cope with the exigencies of their time -
licensing requirements are mainly access to information of general interest aids
impositions of the laws of physics which the people in democratic decision-
would stand to periodic reassessment as making by giving them a better
technology advances. The science of today perspective of the vital issues
renders state regulation a necessity. confronting the nation.

Newman’s Privilege Information But the High Court also declared that - the
constitutional guarantee to information on
'The sanctity of a newsman's source of matters of public concern is not absolute.
information is not only intended to protect a
newsman but also the source of his It does not open every door to all information.
information. When a person transmits Under the Constitution, access to official
confidential information to a newsman, he is records, papers, etc., are "subject to
exercising his freedom of speech on Iimitations as may be provided by law". The
condition of anonymity. law may therefore exempt certain types of
information from public scrutiny, such as
those affecting national security.
F. RIGHT TO INFORMATION
It follows that, in every case, the availability
The 1987 Constitution provides that - the of access to a particular public record must
right of the people to information on matters be circumscribed by the nature of the
of public concern shall be recognized. information sought, i.e.,
Prepared by: Atty. Hanna Mae Mata, J.D.
Source/s: Mass Media Law and Ethics by Atty. D.R. Aquino; Relevant Laws and Jurisprudence

(a) being of public concern or one that 1. Right to Privacy - The right to
involves public interest, and, privacy so highly valued in civilized society
(b) not being exempted by law from the must not be diluted.* This is defined as "the
operation of the constitutional guarantee. right to be free from unwarranted exploitation
of one's person or from intrusion into one's
To date, there is a continuing balancing of private activities in such a way as to cause
interests being made by the government to humiliation to a person's ordinary
observe the constitutional right of the people sensibilities." This right refers to the
to information on one hand and to ensure the guarantee that the privacy of communication
survival of the state on matters of national and correspondence shall be inviolable
security, on the other. except upon lawful order of the court, or
when public safety or order requires
There is no fixed formula nor established otherwise as prescribed by law.
guideline to determine which may be
restricted from those that may be publicly 2. Prior Restraint - is defined as the
disseminated. The rule, however, is to "official governmental restrictions on the
ultimately determine which mechanism at a press or other forms of expression in
given situation or instance, would best serve advance of actual publication or
the public good. dissemination." The power to exercise prior
restraint is not to be presumed, rather the
Mass media and its practitioners, serve a presumption is against its validity. This is can
vital role in the people's access to be justified only on the ground that there is a
information. Thus, given this enormous clear and present danger of a substantive
responsibility - it now rests upon the able of which the State has the right to prevent.
shoulders of media practitioners to determine The exceptions, when expression may be
where the line should be drawn and more subject to prior restraint, apply in this
importantly, if certain situations or jurisdiction to only four categories of
circumstances would allow them to cross expression, namely:
said line.
*pornography,
*false or misleading advertisement,
G. LIMITATIONS *advocacy of imminent lawless action,
*and danger to national security.
To reiterate, the fundamental law
guarantees that no law shall be passed 3. Overbreadth Doctrine – a law is
abridging the freedom of speech, of considered void for governmental purpose to
expression, or of the press, or the right of be control or prevent activities constitutionally
people peaceably to assemble and petition subject to State regulations may not be
the Government for redress of their achieved by means which sweep
grievances. Note that speech covers every unnecessarily broadly and thereby invade the
form of expression and therefore it is a right area of protected freedoms.
against prior restraint.

4. Balancing of interest rule

The State, however, under extreme
circumstances, may limit the exercise of This is where different factors are
this right through its police power under considered between what is beneficial to the
certain accepted tests. government on one hand and what is
beneficial to the individual on the other. The
right of freedom of expression, indeed,
Prepared by: Atty. Hanna Mae Mata, J.D.
Source/s: Mass Media Law and Ethics by Atty. D.R. Aquino; Relevant Laws and Jurisprudence

occupies a preferred position in the

"hierarchy of civil liberties." It is not, however,
without limitations.

The prevailing doctrine is that the clear

and present danger rule is such a limitation.
Another criterion for permissible limitation on
freedom of speech and of the press, which
includes such vehicles of the mass media as
radio, television and the movies, in the
"balancing-of-interests test."

The clash of rights demands a delicate

balancing of interests approach which is a
"fundamental postulate of constitutional law.'
The approach requires that we 'take
conscious and detailed consideration of the
interplay of interests observable in a given
type of situation.' These interests usually
consist in the exercise of the individual of his
basic freedoms on the one hand, and the
government's promotion of fundamental
public interests or policy objectives on the
other.

5. Clear and present danger

This means danger of a substantial evil

which the state has the right to prevent. This
danger must only be clear but present. What
is feared must be traced to the expression
complained of. Also, there must be
reasonable apprehension about its
imminence.