BALANCING THE FREEDOM OF THE PRESS WITH THE RIGHT OF PEOPLE TO DEFEND THEMSELVES

By Senator Aquilino Pimentel

Statement of Sen. Nene Pimentel at the meeting of Newspaper Editors at the Century Park Hotel,

October 19, 2007

RIGHT TO REPLY

Ø BASIS: FREEDOM OF SPEECH GUARANTEED BY THE CONSTITUTION.

But before we discuss details, allow me to state the bill on the right to reply has a companion measure to decriminalize libel.

There is a need to decriminalize libel so that the freedom speech that the Constitution guarantees is more fully enjoyed by our people.

I filed a bill to that effect in my first term as Senator (1987 – 1992).

Then, I sponsored bill to decriminalize libel in 2003.

Let me hasten to add that decriminalizing libel does not mean that the libeled would no longer have any remedy in law.

Civil action plus

They would still have an avenue in law to vindicate their good name or reputation that might have been traduced. And that is to file civil actions for damages against the defamer.

Should decriminalizing libel come about, the additional remedy that the offended party may take in addition to the action for damages that we mentioned would be his or her right to reply.

Paramount value

From the outset, let me state my position as clearly as I can: the freedom of speech and of the press is a paramount value in a democratic state.[1]

Without freedom of speech and of the press, people are reduced to automatons and are more readily oppressed by the powerful.

That is why in any authoritarian state, witness Myanmar today and our country during the martial law years of yesterday, among the very first targets for government suppression are the mass media.

We cannot and must not allow the suppression of the mass media in our country.

We did not risk our lives, limbs and property during the martial law years struggling for freedom, justice and peace, just to revive the oppressions of martial law.

And so, just to emphasize the obvious, we hold the freedom of the speech (and of the press) to be sacrosanct values that we must always uphold in a democratic society.

As William Shawcross once said:

“Freedom of speech is indivisible.  Once that freedom is   lost, all other freedoms are lost within.”

No choice

Somebody has famously said that if given a choice between having a bad press or no press in society, he would choose living with the bad press.

In our conception, freedom of speech embraces the concept of freedom of the press. That means the freedom of people to speak freely, without prior censorship, on any topic under the sun.

I believe that under that concept, just to repeat, criminal libel has no justification.

I believe that society would be better off if libel laws were decriminalized. If libel laws were retained, they would constitute as a threat – like the proverbial sword of Damocles hanging over the heads of people – that stifles their right to speak out.

People’s right also

That said, if the press has the freedom to write or speak freely, so have the people.

If the press has the right to provide information to the people, the latter also have the right to receive accurate information so that they may form an enlightened public opinion for the good of society.

If the press accuses or criticizes any person in a public manner through their medium (print or broadcast), the latter should have the right to defend himself or herself and to state his or her position on the accusations or criticisms also in a public manner.

Since the press does their accusations or criticisms through their medium (print or broadcast), I suggest that the right of the people thus accused or criticized to defend themselves or to reply may be exercised through the same medium.

This conclusion is based on two premises: 1. freedom of speech and of the press is not absolute; and 2. the State in the exercise of police power – to ensure a more orderly society – has the right to prescribe laws whereby persons who are libeled or defamed or criticized should get fair treatment even at the hands of the libeler or defamer.

Easier in broadcast medium

The right to reply may be easier to impose on the broadcast medium. The reason is that the industry uses the air lanes of the nation to transmit their broadcasts. And, therefore, the State may easily justify imposing stipulations for the use of these air lanes.

It is a little more problematic with the print media.

In any event, the thrust of the right to reply will be more easily understood if at this point we define what the bill purports to do.

Equal space and time

The right to reply would make it mandatory for media (print and broadcast) to allocate more or less equal space and time to the defense or position of one who is the target of outright defamation or criticism.

Subject to refinement, the bill would require its publication or airing on the same page or radio-tv time where the defamation or criticism was made. Its airing or publication must be done without undue delay.  Otherwise things can get out of hand as they often do in this country.

Penalties

If the mass medium involved does not observe the requirements, then, it is penalized with fines.

The penalty rises in severity with the repeated non-observance of the requirements that may include imprisonment for not more than 30 days for the 3rd offense.

Benefits

What are the benefits that society can derive from giving offended parties the right to reply to libelous, defamatory or critical media statements?

At the very least, by legally instituting the right to reply:

1. The rules of fair play in societal communications are given emphasis in that the freedom of speech and of the press is not meant to be enjoyed by the media alone but also by the people;

2. It would minimize resort to violence by people who are unduly libeled, defamed or criticized;

3. It would lessen court litigation and save money – and time – all around; and

4. Perhaps, it would compel our media practitioners to be a little more responsible in the exercise of their profession and, thus, more reliable as sources of information.

Voluntary adoption?

May the right to reply be voluntary adopted by the industry instead of its being instituted as law?

Of course, it may be done so by the print and broadcast media. The question is will they? And can they make their decision stick?

If they can, by all means, let us allow them to police their own ranks.

Sunset Clause

As an additional caution that the bill does not intend to unduly restrain to freedom of speech and of the press, we may also provide that a provision be added whereby the law on the right to reply would lapse in five years from its approval by the President there being a showing that media institution like PPI and the KBP are able to police their own ranks in the matter of ensuring that their members follow the requirements of the law on the right to reply.

Balancing of rights

We already have so many problems in our hands as government. If we can pass some of the problems to the private sector, the mass media, for instance, in relation to the right to reply bill, let’s do it.

But let us also make sure that we have an honest to goodness working remedy to balance the right of the mass media to publish what they want to publish with the right of the objects of their libel, defamation or criticism to explain their side within the ambit of the right to reply bill.

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