EYE ON ETHICS

The last elections demonstrated how some of the current laws in the Philippines infringe on press freedom.

One such law is Republic Act 9006 or The Fair Election Act. On paper, the law seems a genuine attempt to level the playing field for all candidates during elections. The law mandates the State, “during the election period, (to) supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and fora among candidates and assure free, orderly, honest, peaceful and credible elections.”

The law’s intent seems laudable, but its implementing rules and regulations are violative of press freedom.

Lawyer Theodore “Ted” Te, regional director of the Free Legal Assistance Group (FLAG), pointed out in an March 5 roundtable discussion with the Center for Media Freedom and Responsibility (CMFR) that the law gives the Commission on Elections (Comelec) certain powers over media time and space. He said that the State is intruding, by way of regulation, into the realm of private property as far as media time and space are concerned, since networks have franchises while newspapers and other publications are privately owned.

Comelec Resolution 8758, or the Act’s implementing rules and regulations, also contains sections that copy Philippine Journalist’s Code of Ethics provisions.

The section of the IRR directly lifted from the Philippine Press Institute Code of Ethics is section 14, which reads: “All members of the media, television, radio, or print shall scrupulously report and interpret the news, taking care not to suppress essential facts or distort the truth by omission or improper emphasis. They shall recognize the duty to air the other side and the duty to correct substantive errors promptly without prejudice to the right of said broadcast entities to air accounts of significant news or newsworthy events and views on matters of public interest.”

Te said this should not have been included in the law at all, since it is one of the tenets every professional journalist should know and follow.

Aside from this fact, the set of implementing rules and regulations is also dangerous since it does not define or specify the terms that would have clarified the law. Te reiterated that the Act contains a lot of qualitative standards that make the whole thing vague. For example, in the only provision on the media, the term “campaign volunteer” is mentioned. The law should have at least provided guidelines or definitions that might describe what makes one a “campaign volunteer”.

A paragraph in section 9 (Prohibited forms of Election Propaganda) of Comelec Resolution 8758 states:

“For any radio, television, cable television station, announcer or broadcaster to allow the scheduling of any program, or permit any sponsor to manifestly favor or oppose any candidate, political party, party-list group, organization, and/or coalition thereof by unduly or repeatedly referring to, or unnecessarily mentioning his name, or including therein said candidate, political party, party-list group, organization, and/or coalition thereof.”

The law, still according to Te, should have defined “manifestly favor” and “unduly or repeatedly referring to, or unnecessarily mentioning his name”. When would you say that a certain station or a media practitioner is manifestly favoring or opposing a candidate? If a certain news story is about a political candidate, when is mentioning his name considered “unnecessary”? Te said that is significant [to note] that the law itself does not define what prohibited election propaganda is per se; this particular section just tells us what is unlawful.

Te added that it is the Comelec that would define the meanings of these vague, qualitative standards, since the law provides no such definitions or even guidelines.

The Right of Reply Bill

The Right of Reply Bill would require all media entities to provide “equal space” or “airtime” to the subjects of media reports. The Fair Election Act guarantees this right and extends it to party-list groups, all registered parties, and other bona-fide candidates during the election.

A Right of Reply bill still pending in Congress has been questioned for containing vague provisions and for putting freedom of the speech in danger. It is supposed to be a law to ensure fair reporting, but undoubtedly undermines press freedom.

CMFR was the first media advocacy organization to warn in 2009 that by compelling the media to publish replies, the prospective law would intrude into the editorial prerogative of deciding what to publish, air or print that’s at the heart of the exercise of press freedom.

Last year, many journalists denounced the Bill and expressed fear that candidates who will run for office in 2010 may take advantage of it. “The cost of compliance would be a flood of so-called ‘replies’ among which one can expect more than a fair amount of efforts at free and biased publicity, and at the cost of reporting on other issues of public interest,” CMFR said in a March 2009 statement.

Advertising laws and loopholes

According to Comelec Resolution 8758, national candidates can have 120 minutes of broadcast advertising over each television channel and 180 minutes over each radio station, whether by purchase or donation. Local candidates are allowed 60 minutes of advertisements on each TV station and 90 minutes on each radio station.

A lot of candidates splurged on advertisements early in the campaign period and spent a huge chunk of their allotted time, and found ways to skirt the limits set by the law.

Some aspirants were able to get around the set limits by using the airtime of other candidates and political parties. Nothing would be deducted from let’s say a presidential candidate’s bulk of allowable advertising time if he appears on a commercial which deliberately says it is not about the presidential bet but about the senatorial candidate or party list, even if it seems to be the other way around. Presidential candidates Manuel “Manny” Villar Jr. and Benigno Simeon “Noynoy” Aquino III had utilized this strategy, appearing in campaign ads of several party lists and senatorial candidates.

William Esposo of The Philippine Star suggested in his column “As I Wreck This Chair” that the Comelec should disallow the use of party media allocations or those of other party candidates by a presidential candidate. “That limit of 120 minutes for one TV station is useless if the presidential candidate can poach from the allocation for the party or their other candidates,” he said.

Another loophole is television guest appearances. Villar and vice presidential candidate Manuel “Mar” Roxas II had already used this tactic even before the campaign period started. October last year, Villar appeared in ABS-CBN 2’s noontime show Wowowee and gave away six houses and lots to lucky studio contestants. Roxas appeared in the same show months earlier to propose to broadcast journalist Korina Sanchez. Since guesting is not covered by the rules and regulations, the candidates would not be facing any legal sanctions.

The Comelec does not impose limits on Internet advertising, mainly because regulators would find it impossible to monitor every site that a candidate would choose to advertise. Candidates took this opportunity to flood the information superhighway with their propaganda. Not only did they advertise on Facebook, they also created several groups and fan pages where they can interact directly with their supporters. Google ads and other established media websites were also used for the campaign.

Dangers to the Press

Section 4 of the Bill of Rights states that “[n]o 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.”

This constitutional provision seems to have escaped the attention of those who passed the Fair Election Act. Although only Article 6 of the said Act has any bearing on the mass media (the rest applies to candidates), it puts not only media practice but also the practitioners’ livelihood in great jeopardy.

Section 6, paragraph 6 of the Fair Election Act reads:

“Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign period: Provided, That any media practitioner who is an official of a political party or a member of the campaign staff of a candidate or political party shall not use his/her time or space to favor any candidate or political party.”

News reporters would not be affected by this law at all if they stick to the journalistic code of ethics, if they present both sides of an issue when reporting. This applies as well to media columnists and commentators, but it must be noted that the very nature of their jobs is to express their views and opinions about a certain issue. The election is not an exception.

There is a difference in exercising their free speech rights and being part of a candidate’s campaign machine, but given the unclear terms used in the provision, one cannot tell if the provision is denying the commentators their right to express themselves or not. The commentators can say who they like for a certain position or who they oppose because they are given the constitutional freedom to do that, but deliberately campaigning for someone—whether they are paid to do it or not—is undoubtedly unfair.

It seems self-evident that a journalist cannot be a candidate’s spokesman, even if he or she is donating his or her services and is not being paid by the candidate or politician. A conflict of interest is inevitable given the journalist’s duty to report or comment fairly on what the politicians are saying or doing, and, on the other hand, the obligations he would have to assume as a campaigner.

Dangers to Entertainment People

Television celebrities also claim that this provision abridges their freedom of expression and adversely affects their livelihood, even if only temporarily. TV personalities in other countries, particularly in the United States, do not face any legal sanction when they endorse candidates they like.

Lawyer Renato Bautista, former host of cable television talk show Straight Views, said that requiring non-candidate celebrities or media personalities to resign or abstain from work under pain of penal sanctions for campaigning for or against a candidate, other than through their movie or television programs, impinges on constitutionally protected speech.

“The law does not only regulate the time, place and manner of the speech involved, but targets the content itself. It in effect restricts political speech by celebrities because it forces them to choose between engaging in political speech or their means of livelihood,” said Bautista.