Legal Concerns in Investigative Journalismpcij.org/.../Diokno_Legal_Concerns_in_Investigative_Journalism.pdfLegal Concerns in Investigative Journalism ... Ayer Productions v. Capulong,

Legal Concerns in Investigative Journalism

Jose Manuel I. DioknoPCIJ Training Course on Investigative Journalism, Baguio City26 September 2007

Legal Concerns of the (Investigative) Journalist

1. What are my legal rights as an investigative journalist?

2. What are the valid legal limitations on those rights?

3. What are my legal duties, obligations and liabilities as an investigative journalist?

Other Legal Concerns of the Investigative Journalist

4. The New Writs (Amparo, Habeas Data)

5. The Human Security Act.

1. My legal rights as an investigative journalist. Right to information on matters of public

concern (Sec. 7, Art. III, 1987 Constitution); Right to be free from prior restraint

(Constitution, jurisprudence); Right to report on any legislative, judicial or

other official proceedings and the statements made in those proceedings, or any other acts of public officers in the exercise of their functions (Art. 354, Revised Penal Code);

1. My legal rights as an investigative journalist.

Right to report on matters of public concern and the conduct of public officials and public figures (Lopez v. CA, G.R. L-26549, 31 July 1970);

Right to protect your sources (R.A. 53 as amended by R.A. 1477).

Right to information

“SECTION 7 [Art. III, 1987 Constitution]. The right of the people to information on matters of public concern shall be recognized. Access to official records and to documents, as well as government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”

The Right to Information is...

A right of access to information, official records and documents, and government research data used as basis for policy development,

On matters of public concern, Subject to “such limitations as may be

provided by law.”

Right to information > Rationale

“The right to information is an essential premise of a a meaningful right to speech and expression ...The right to information goes hand in hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well [as] checking abuse in government.”

--Valmonte v. Belmonte, G.R. 74930 (1989).

“A matter of public concern...”

In determining whether or not information is of public concern there is no rigid test..Public interest and public concern.. embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen..It is for the courts to determine on a case by case basis...”

--Valmonte v. Belmonte, G.R. 74930 (1989).

Info sought in Valmonte: List of members of the Batasang Pambansa

who acquired “clean loans” from the GSIS through the intercession of Imelda Marcos.

GSIS position: Sorry, no can do...our duty to preserve the confidentiality of transactions, unless ordered by a court, is paramount.

The Supreme Court held that... The information is clearly of public concern:

Public nature of funds loaned; Public office held by the alleged

borrowers. GSIS must give petitioners access to the

documents evidencing such loans, even if they were made by the previous (Marcos) regime...

BUT...

[Court-imposed limitations...]

BUT such access shall be “subject to reasonable regulations on the manner and hours of examination, to avoid: Damaging or losing the records; Unduly interfering with the duties of

the custodian of the records, and Infringing on the rights of others

also entitled to inspect the records.

Is the right to information limited only to consummated contracts?

Chavez v. PCGG, G.R. 130716 (1998)

Petition to compel the PCGG to make public all negotiations and agreements entered into with the Marcos heirs, whether ongoing or perfected.

SC held...

“There is no doubt that the recovery of the Marcoses’ alleged ill-gotten wealth is a matter of public concern... We may also add that ill-gotten wealth by its very nature, assumes a public character...

But does the constitutional provision likewise guarantee access to information regarding ongoing negotiations or proposals prior to the final agreement? The same clarification was sought and addressed by the constitutional commissioners during their deliberations:

Con Com DeliberationsMr. SUAREZ: And when we say “transactions” which should be distinguished from contracts, agreements or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself?MR. OPLE: The “transactions” used here , I suppose, is generic, and therefore it can cover both steps leading to a contract and already a consummated contract, Mr. Presiding Officer.MR. SUAREZ: This contemplates inclusion of negotiations leading to the consummation of the transaction?MR. OPLE: Yes, subject to reasonable safeguards on the national interest.

On the scope of accessible information...

“Considering the intent of the framers of the Constitution..it is incumbent upon the PCGG and its officers..[and] other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the stage when common assertions are still...being formulated or are in the ‘exploratory’ stage.

Chavez v. PCGG on the Limitations of the Right to Information:

There are no specific laws prescribing the exact limitations within which the right (to information) may be exercised...However, the following are some of the recognized restrictions: (1) National security matters and intelligence information:

Military, diplomatic and other “state secrets” which need to be protected, including diplomatic correspondence.

“But where there is no need to protect such state secrets, the privilege may not be invoked to withhold documents and other information, provided that they are examined in strict confidence and given scrupulous protection.”

Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.”

(2) Trade or industrial secrets (under the Intellectual Property Code and related laws) and banking transactions (under the Secrecy of Bank Deposits Act);

(3) Classified law enforcement matters, such as those relating to the apprehension, prosecution and detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution.

E.g., police information regarding rescue operations, whereabouts of fugitives, or leads on covert criminal activities.

(4) Other confidential or “classified” information which public officers and employees are prohibited from disclosing under R.A. 6713 (Code of Conduct of Public Officers):

“Confidential or classified information officially known to them by reason of their office and not made available to the public.”

And... Closed door Cabinet meetings; Executive sessions of either

House of Congress; and The internal deliberations of the

Supreme Court.

R.A. 6713 is a two-edged sword... Cannot compel disclosure or access to confidential

or classified information, but you can compel public officers and employees to provide information on their policies and procedures in clear and understandable language “except when otherwise provided by law or when required by the public interest.”

The law mandates free public access, at reasonable hours, to the annual performance reports of offices and agencies of government and GOCCs and the statements of assets, liabilities and financial disclosure of all public officials and employees.

Right to be Free from Prior Restraint

“Prior restraint” occurs when the government gets a court to stop publication of some material rather than punish the publisher later, after publication.

Prior restraint is fundamentally different from subsequent punishment because the flow of information to the public is stopped even before it reaches them.

Prior restraint = censorship.

The rule is that a prior restraint cannot be imposed on speech unless there is a “clear and present danger” that it will bring about the substantive evils Congress has a right to prevent:

“[The clear and present danger test]...means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high before the utterance can be restrained. The danger to be guarded against is the substantive evil sought to be prevented...Under this rule, the advocacy of ideas cannot constitutionally be abridged unless there is a clear and present danger that such advocacy will cause harm [that Congress has a right to prevent].”

--See Reyes v. Bagatsing (1985)

But “clear and present danger” is not the only test the courts have employed in deciding cases of prior restraint...

The “Dangerous Tendency” Test If the words uttered create a dangerous

tendency which the state has a right to prevent, then such words are actionable. It is not necessary that some definite or immediate acts of force, violence or unlawfulness are advocated...It is sufficient if the natural tendency and probable effect of the utterance is to bring about the substantive evil which the legislative body seeks to prevent.

The “Balancing of Interests” Test“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, is the balancing of interests test. The principle requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation..”

--Zaldivar v. Sandiganbayan, 170 SCRA 1 (1989).

Ayer Productions v. Capulong, 160 SCRA 861 (1988) J.P.E. filed suit to stop Ayer Productions from

coming out with a documentary – EDSA: The Four Day Revolution.

Court rejected his petition: JPE is a public figure; The matter is of legitimate public interest and

concern.

Prior Restraint and the Internet The Pentagon Papers case.

DND Papers evaluating U.S. policy in the Vietnam war. U.S. government requested the New York Times not to

publish the papers; NYT refused. U.S. gov’t sought an injunction to stop the New York

Times on the ground that the papers contained gov’t secrets, were stolen from the gov’t, and to publish them would put U.S. soldiers at risk and embarrass the U.S. internationally.

For the government to succeed in a claim that a printing should be stopped, it must show “irreparable harm” – harm so significant and irreversible that the Court must intervene to prevent it. In such situations, the government has a compelling interest that the courts should protect.

But note: irreparable harm can only occur if the matter is not published elsewhere.

And here is where the Internet comes in...

Right to report on legislative, judicial and other official proceedings (and other acts of public officers in the exercise of their functions)

Article 354, Revised Penal CodeEvery defamatory imputation is presumed to be malicious, even

if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

Right to Report on Matters of Public Concern and on the Conduct of Public Officials and Public Figures

Lopez v. CA, G.R. L-26549, 31 July 1970:“(F)reedom of the press..include(s)..the widest latitude

of choice as to what items should see the light of day so long as they are relevant to a matter of public interest...”

“..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 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...”

Lopez v. CA, G.R. L-26549, 31 July 1970:

“So long as it is done in good faith, newspapers have the legal right to have and express opinions on legal questions. To deny them that right would infringe upon the freedom of the press.”

Citing New York Times v. Sullivan, a case decided by the U.S. Supreme Court in 1964:

“The constitutional guarantees require...a rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Xxx (S)uch immunity (covers)..public figures regardless of whether or not they are government officials.”

...

Right to Protect your Sources

The “Shield” Laws

R.A. 53 as amended by R.A. 1477... Prohibits disclosure of the source of

any news report or information related in confidence unless the court or a House or committee of Congress finds that such disclosure is demanded by the security of the State.

R.A. 53 as amended by R.A. 1477... Sec. 1. Without prejudice to his liability under civil and criminal

laws, the publisher, editor, columnist or duly accredited reporter of a newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any information or news report appearing in said publication which was related in confidence to such publisher, editor, or reporter unless the court or a Committee of Congress finds that such revelation is demanded by the security of the state.

The Press in Legal Proceedings

“We do not want a press that is free, more or less, just as we should not tolerate trials that are almost fair. x x x The paradox is that neither value can be absolute, yet we cannot accept the diminution of either one.” --Crime and Publicity by Alfred Friendly and Ronald Goldfarb (1967).

RE: Request for Radio-TV Coverage of the Erap Plunder Trial (A.M. No. 01-4-03-SC) Majority View: Television coverage of judicial

proceedings involves an inherent denial of the due process rights of a criminal defendant: Prejudicial effect of telecasting on witnesses; May also affect the judge’s performance; Trial by publicity; Carnival-like atmosphere instead of the “judicial

atmosphere and decorum” required for a fair and impartial trial.

Dissenting opinion of then Associate Justice (now C.J.) Reynato Puno: “On a case to case basis, televising criminal trials

should be addressed to the sound discretion of the trial judge.”

Live radio-TV coverage of a criminal trial cannot be demanded as a matter of right, but its absolute denial is also constitutionally suspect.

It is therefore respectfully submitted that the matter of whether or not the proceedings in a criminal trial should be televised, totally or partially, should be addressed to the sound discretion of the trial judge on a case to case basis.

The exercise of the judge’s discretion will depend on the facts of each case and will involve the delicate balancing of: The constitutional right of the accused to a fair

trial; Due process of law; The right of the press and the public of access

to trials in criminal cases; The right of the state to prosecute crimes

effectively; The duty of courts to ensure the fair and orderly

administration of justice.

“...No witness, especially a witness for the accused, upon his written objection, should be compelled to have his testimony televised. In balancing the above rights, the judge should deny the motion to televise trial upon specific proof of prejudice and of reasonable likelihood that the right to a fair trial of the accused will be endangered.

Additionally, it shall be the duty of the trial judge to provide and impose the necessary rules and regulations to assure that the televised trial will not detract from the solemnity, decorum and dignity of the court.

Among others, the rules and regulations should insure that: (1) The television cameras and related

equipments must be unobstrusive, must not produce distracting sounds and shall not in any manner interfere with the proceedings;

(2) The media representatives shall present a neat appearance in keeping with the dignity of the proceedings and should not move unnecessarily about the court while it is in session;

(3) No film, videotape, photography and audio reproductions may be used for advertising or commercial purposes;

(4) Only a single fixed camera set-up shall be installed in the courtroom and the audio-visual output of the fixed set-up will be fed only to broadcast stations to avoid too many photographers and TV camera crew in the courtroom; and

(5) That radio-television broadcasters should give a balanced coverage of the prosecution and the defense. The trial judge should be given the power at any time to terminate the televised proceedings upon a showing that the right to a fair trial of the accused is being prejudiced by its continuance.”

The Sub Judice Rule “Sub judice” = Latin for “under the law” The sub judice rule limits comment and disclosure

relating to judicial proceedings in order not to prejudge the issue, influence the court, or obstruct the administration of justice.

Violation of the sub judice rule may make you liable for contempt of court.

Lawyers, litigants, witnesses are covered by the rule.

Media practitioners too, even if they never stepped into the courtroom.

Applies not only to pending cases but even to cases that have already become final.

People v. Godoy, 243 SCRA 64 (1995) “The Philippine rule, therefore, is that in case of post-

litigation newspaper publication, fair criticism of the court, its proceedings and its members, are allowed. However, there may be a contempt of court, even though the case has been terminated, if the publication is attended by either of these two circumstances:(1) Where it tends to bring the court into disrespect, or... to scandalize the court;(2) Where there is a clear and present danger that the administration of justice would be impeded.

In Re Jurado, 243 SCRA 299 (1995)

“Contempt is punishable, even if committed without relation to a pending case..(S)currilous attacks against the courts calculated to bring them into disrepute, even when made after the trial stage or after the end of the proceedings [are actionable]. The original doctrine...in People v. Alarcon – that there is no contempt if there is no pending case – has been abandoned in subsequent rulings of this Court...”

The Presentation of Suspects by the Police and Military in Press Conferences In 1964, as a direct outgrowth of the Warren

Commission’s study of the assassination of President Kennedy, the American Bar Association came out with a Report on Fair Trial and Free Press where they recommended a ban on this practice:

“The committee further recommends that every police and law enforcement agency should be prohibited from deliberately posing persons in custody for photographers, or allowing them to be interviewed, when the accused, after being informed of his rights to consult a lawyer, requests this in writing. The committee also suggested a ban on extra-judicial (out of court) statements by witnesses before and during trial.”

What are my legal duties, obligations and liabilities as an investigative journalist?

My Duties as an Investigative Journalist: Respect the right of privacy; Avoid speech that defames or injures the right to

reputation; Protect your sources; Respect the courts and legal proceedings; Report the news fairly, accurately, and in good faith; Make fair comment; and Respect the rights of women and children.

Right of Privacy Covers the privacy of —

The (natural) person, His/her home, car and personal belongings, Correspondence and communication.

Artificial persons not covered. Provides protection from—

Governmental intrusion (prohibition against warrantless searches and arrests, wiretapping, etc.)

Private intrusions More limited in scope Press’ potential civil and criminal liability

The Right of Privacy of Public Officers and Public Figures Narrower than the ordinary citizen because

the public officer or public figure has voluntarily relinquished a part of his/her right of privacy;

No prior restraint may be imposed so long as: The matter is of legitimate public concern; Does not involve private affairs or reveal

intimate or embarrassing personal facts; and Does not present a clear and present danger that

the applicant’s right of privacy will be violated by the publication of the matter.

Defamation

Defamation

Types: Libel (written, published, or aired); Slander (oral defamation); Slander by Deed.

Nature of Legal Action: Civil, or Criminal.

Essential Elements Defamatory imputation (harmful to reputation); Malice:

In law, or Actual malice (knowing it was false or with a reckless

disregard of whether it is false or not) Identifiable victim:

Natural person, or Juridical person

Made public; and Tending to cause dishonor of, discredit to or

contempt of the victim.

Defamatory Imputation Based on the standards of the community, not

personal hurt or injury. “A libel is harmful on its face. If a man sees fit to

publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, [he] will [be] liable...”

If a statement exposes the offended party to more than trivial ridicule, dishonor, or contempt, or discredits his/her reputation, or imputes anything immoral or involving moral turpitude on the offended party, it is prima facie actionable.

“Malice” If the speech is defamatory, malice is

presumed (“malice in law”) unless: The offended party is a public official

or public figure; The communication is privileged; or It was made with good intentions and

justifiable motives.

Actual Malice

When the offended party is a public official or public figure, and the utterance or writing relates to his public conduct, the burden is on the prosecution to prove that the journalist acted with “actual malice” – knowing that it was false, or with a reckless disregard for whether it is false or not.

Defenses Absolute Privileged Communication:

Even if made in bad faith, not actionable. Applies to answers of witnesses on the witness stand, if

relevant; and To statements of the parties and their counsels in

pleadings, motions and during trial, if relevant to the issues.

Qualified Privileged Communication: Not actionable unless made in bad faith. (1) Fair and true reports, made in good faith and without

commentary, on official proceedings; Cannot be invoked where the proceeding is confidential in

nature; (2) Or any statements made in those proceedings; and

(3) Or any other acts of public officers in the exercise of their functions;

(4) Or any news report, made in good faith, on matters of public interest or concern.

Public Officer/Public Figure (Actual Malice); Fair Comment/honest expression of opinion on a

matter of legitimate public concern or interest. Truth as a defense.

Persons Liable Anyone who publishes, exhibits or causes the

publication or exhibition of any defamation in writing or by similar means;

The author and/or editor of a book or pamphlet containing defamatory material;

Editor and/or business manager of a daily newspaper, magazine or serial publication containing defamatory material;

The person who utters slanderous/ defamatory words or who commits slander by deed.

Persons Liable—Take Note! It’s not the official designation but the actual

function. “Author” includes writer, utterer and the one

who repeats it. Newspaper editor has a duty to direct,

inspect and supervise the matters to be published.

It’s no defense for the newspaper editor or business manager to say they didn’t know about or didn’t consent to the publication.

But note—People v. Luis Beltran (CA Decision): The Court exonerated Max Soliven as

publisher on the ground that he had established, during the trial, that the Star had a policy of not editing Beltran’s column.

“Obiter dicta.”

The New Writs (Amparo and Habeas Data)

The writ of amparo...

Amparar, the root word of amparo, means “to shelter” in Spanish.

Justice Adolf Azcuna: “..(A) constitutional remedy to enforce constitutional

rights..” [Under a writ of amparo] “..you could have more pro-active

measures like first, the protection of witnesses...and another would be perhaps an order from the court for an investigation into the matter.”

[Bulletin, 16-17 July 2007, p. 4, of the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances]

“Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.” –Inter-American Declaration of Human Rights (1948)

“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights guaranteed him by the Constitution or by law.” --Universal Declaration of Human Rights (1948)

The Writ of Habeas Data Related to right to information. Not just access but in order to correct

erroneous or misleading entries or information.

May be viewed as an “exception to the exception.” An exception to the rule that prohibits

disclosure of intelligence information. Without this writ, practically impossible

to access this information.