Rolling in the Deep: The Right of Reply Monkey Wrench in the FOI Bill

IN an opinion piece published last October, political economy expert and Akbayan Party-List Rep. Walden Bello wondered whether or not there was an ideological connection between Malacañang’s lack of support for the passage of the Freedom of Information bill and its vigorous push for cyberlibel. At the same time, Rep. Bello had wondered, and hoped, that the situation was merely one of President Aquino getting bad advice.

            But if it was indeed “a case of an ideological position,” Rep. Bello felt that it was “truly disturbing” as it hints at a “conservative, elitist stance on free speech and transparency issues.”
            President Aquino himself would later volunteer a plain, clear answer to Rep. Bello’s question in his speech before the management conference of the Kapisanan ng mga Brodkaster ng Pilipinas on November 15.
            The President said:
Sa karanasan ko po, tila ba nakasanayan na ng media ang magpaulan ng batikos sa mga lumalabas na balita. Allergic po yata ang iba sa good news – kundi man iiwasan ang mga ito, ay hahanapan naman nila ng masamang anggulo….
 
[In my experience, it looks like the media has gotten used to raining criticisms in the news that come out. I guess others are allergic to good news — if these can’t be avoided they will look for a negative angle…]
 
“Sa dulo po nito, tayo ring mga Pilipino ang makikinabang sa makatotohanan at kumpletong pamamahayag. Kapag may sapat at  tamang impormasyon si Juan dela Cruz sa mga isyung panlipunan—hindi lamang siya armado sa kaalaman—gaganahan at maeengganyo rin siyang makilahok sa pagpapaunlad ng bayan.
 
[At the end, it is also us Filipinos who will benefit from truthful and complete journalism. If Juan dela Cruz has sufficient and correct information about issues of society – not only is he armed with – he will also be inspired and encouraged to participate in the effort to develop the country.]
           
“Hindi po nalalayo sa diwang ito ang paninindigan natin ukol sa mga isyu tungkol sa media at publiko, tulad ng Right of Reply. Ika nga: the truth will set you free – kung patas na naibabalita ang magkabilang panig ng bawat storya, kung wasto ang detalye ng bawat ulat, at kung nabibigyang-halaga ang kalayaan ng mga Pilipinong bumuo ng sariling pananaw at pasya sa mga usaping panlipunan, wala naman pong dapat alalahanin ang sinumang mamamahayag, ’di po ba?”
 
[This idea is not far from my conviction about issues concerning the media and the public, such as Right of Reply. As they say: the truth will set you free – if the two sides of every story is reported equally, if every detail is accurate, and if the freedom of Filipinos to form their own view and decision on public issues, every journalist has nothing to fear, right?]
            It is one thing for the President to express his views on how he thinks the press should be doing its reporting; it is another thing altogether to propose to enforce it by legislation.
            The notion that fairness, positive slant, and accuracy in reporting can be made a legal requirement, as the President seems to suggest by making these the context for his mention of the Right of Reply, is repugnant to both our Constitutional guarantee and international human rights standards on freedoms of speech, expression, opinion, and the press.
            Section 4 of our Bill of Rights provides that no law shall be passed abridging the freedom of speech, of expression, or of the press. A right of reply to enforce fairness is an abridgement.
            A US case (Miami Herald Publishing Co. v. Tornillo) decided in 1974 is illustrative.
            In 1972, Tornillo ran for a seat in the Florida House of Representatives. Miami Herald published editorials critical of his candidacy. When Tornillo’s demand for printing of his reply was refused, he sued Miami Herald based on a Florida right of reply statute. This statute gives a candidate the right to demand the printing of a reply, free of cost to the candidate, if his nomination or election is assailed with respect to his personal character or official record by any newspaper, under pain of penalty should the demand be refused.
            The US Supreme Court declared the statute unconstitutional. It said:
“x x x A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated.
Appellee’s argument that the Florida statute does not amount to a restriction of appellant’s right to speak, because “the statute in question here has not prevented the Miami Herald from saying anything it wished,” begs the core question. Compelling editors or publishers to publish that which “‘reason’ tells them should not be published” is what is at issue in this case. The Florida statute operates as a command in the same sense as a statute or regulation forbidding appellant to publish specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as appellee contends, that a newspaper is not subject to the finite technological limitations of time that confront a broadcaster, but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available.
Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electoral coverage would be blunted or reduced. Government-enforced right of access inescapably “dampens the vigor and limits the variety of public debate.”
 
            In terms of international human rights standards, Article 19 of the International Covenant on Civil and Political Rights states:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”
            In General Comment No. 34 (102nd session, Geneva, 11-29 July 2011), the United Nations Human Rights Committee (UNHRC) provided guidance for the interpretation and observance of the said Article 19. It emphasized that no restriction is allowed on grounds not specified in Article 19 (3). If any restriction is at all imposed, it must conform to “the strict tests of necessity and proportionality” and “may not put in jeopardy the right itself.”
            Not only are the objectives contemplated for introducing the idea of a Right of Reply in the President’s speech not among the list of grounds for restrictions in the provision, they attack the very rights protected by Article 19. Freedom is abridged through mandatory publication of a reply for the purpose of shaping and balancing reportage.
            What is worse, the area where the restriction is sought to apply — the media coverage of matters of public interest or concern — is one which the law accords even higher protection.
            In the case of Borjal vs. CA (G.R. No. 126466 January 14, 1999), the Supreme Court states: “A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community.”
            We hear politicians cry of the media being “too powerful”.
            What citizens must not lose sight of is that the purpose of the guarantee of a free press is not to accord the press a privileged standing. It is to protect citizens from the abuse by government officialdom of the power and authority we entrust to them as well as the taxes that we pay for government operation.
            In US vs. Bustos (G.R. No. L-12592, March 8, 1918), the Supreme Court points out: “The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts.”
            The Court, in Borjal vs. CA, did take the opportunity to “remind media practitioners of the high ethical standards attached to and demanded by their noble profession.” But to promote responsibility, the Court pointed to self-regulation as “the ideal mean” rather than “self-censorship that would necessarily accompany strict liability for erroneous statements.”
            The idea of the right of reply takes concrete form in a proposed rider to the FOI bill by Rep. Rodolfo Antonino. He inserts in his version the provision:
“Opportunity to Reply. – Any person natural or juridical who came to be involved directly or indirectly in the issue publicly obtained must be given the opportunity to account for, explain, manifest or throw light upon the issue concerned in the following manner:
(a) That, it shall be in the same space of the printed material, newspapers or magazines, newsletters or publications circulated commercially or for free;
(b) That, it shall be aired over the same program on radio, television, website, or any electronic device as the case may be;
(c) That mandatory explanation on the part of the person natural or juridical who is involved or happened to be involved in the public information obtained shall be published or broadcasted not later than three (3) days;
(d) That the explanation shall be thorough, clear and complete as to shed light on the issue of public concern.”
            Elsewhere in his bill, Rep. Antonino provides the consequences for failure to publish or broadcast the reply: “The publisher and editor-in-chief of the publication or the owner and station manager of the broadcast media who fails or willfully refuses to publish or broadcast the manifestation of the person who happened to be involved in the issue concerned as mandated in this Act shall be fined an amount not exceeding P10,000 for the first offense; P50,000 for the second offense; P100,000 for the third offense and closure or suspension  as the case may be, of the franchise of the publication or broadcast media outlet or station for 30 days.”
            Thus, mere being “involved directly or indirectly in the issue publicly obtained” gives a natural or juridical person the right to demand the publication of a reply, on pain of fines and even closure. Every publication (and the proposed provision is all encompassing, not limited to media publication) of a matter making use of information obtained through the FOI law carries with it a legal responsibility to publish a reply of any natural or juridical person “involved directly or indirectly in the issue”. The requirement, which carries with it a penalty, obtains whether or not you want to publish a reply, the reply is relevant, or you have the resources for such reply. Where is the guarantee of freedom in that?
            In the advocacy for the passage of the FOI bill in the 15th Congress, we engaged the government in earnest to address various concerns on the bill. The changes we accepted, subject to safeguards, were major: expansion of the national security exception, addition of executive privilege, reclassification of offenses from criminal to administrative, and allowing the defense of good faith for violations of the act.
            We, citizens, not just the media, recognize the responsibility that goes with our exercise of our right to information.
            To address the concerns over possible abuse of the FOI, we worked out with the Senate committee the following provision:
“No abuse in the exercise of rights and in the performance of duties under this Act. – Public officials and employees, in the performance of their duties under this Act, as well as citizens in the exercise of their rights under this Act, shall act with justice, give everyone his or her due, and observe honesty and good faith.
Public officials and employees as well as citizens shall endeavor to handle information kept or obtained under this Act with due care, to the end that inaccuracies and distortions are avoided.
Any public official or employee, or citizen who, in the performance of duties or exercise of rights under this Act, willfully or negligently causes loss, damage or injury to another, in a manner that is contrary to law, morals, good customs or public policy, shall compensate the latter for the damage incurred. This is without prejudice to other remedies available to the aggrieved party under any other law for the same acts.”
            We requested Rep. Antonino to consider adopting the said approach, without prejudice to the House committee taking up the Right of Reply separately to allow its full deliberation, without holding hostage the FOI bill.
            But Rep. Antonino would insist on a patently unconstitutional rider to the FOI bill. Clearly, it is intended to throw a monkey wrench to the FOI bill’s passage. He must now feel affirmed by President Aquino’s express support for the right of reply.
            My colleague in Action for Economic Reforms, Manuel Buencamino, verbalized in his recent column supporting Rep. Antonino’s right of reply, what in reality has already unfolded. He says, “Let’s have freedom of information and the right of reply. Both or nothing.” Every Filipino’s right to information now falls victim to the administration’s beef with media.
            It has to be stressed that FOI is not for the media alone. It is for pensioners who seek to clarify inaccuracies in their service records, for would-be beneficiaries who follow-up on the status of their claims to government services, for students and academics who seek hard-to-obtain government data for their research, for workers and farmers who ask for texts of negotiations and decisions that affect their livelihoods, for ordinary citizens who want to know how their hard-earned taxes are spent by government.
            Citizens’ direct access to information — perhaps, there lies the fundamental fear of FOI.
            And so we get nothing.
            Pop singer Adele has the perfect words for our wake-up call: “But you played it with a beating.”
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