DOJ Opinion No. 022, s. 1975

DOJ OPINION NO. 022 , s. 1975 February 3, 1975 The Director-General National Economic Development Authority Manila Sir : This is in reply to your request for opinion on the following queries: "1. In view of the provision of Art. XV, Sec. 7(1) of the Constitution which limits the ownership and management of mass media to Filipino citizens or to associations or corporations wholly owned and managed by such citizens, and the rules of the Media Advisory Council (MAC), approved by the President, which includes advertising in all its phases in its definition of 'mass media', should local advertising agencies continue to turn down offers being made to them by foreign advertising agencies for the purchase of 30% equity in their firms? "2. In the affirmative, how will such ruling apply to advertising agencies, the capital stocks of which are presently already owned in whole or in part by foreigners? "3. If notwithstanding the MAC definition of mass media and advertising agencies, it is ruled that advertising agencies do not form part of mass media under the Constitution, will such ruling cover advertising agencies which themselves actually disseminate information in whatever form for commercial and/or business purposes?" The Constitution provides in Article XV, Section 7(1) as follows: "The ownership and management of mass media shall be limited to citizens of the Philippines or to corporations or associations wholly owned and managed by such citizens." You state that advertising agencies have been subject to the supervisory authority of the defunct Media Advisory Council pursuant to the rules and regulations of the said body, which included "advertising in all its phases" in the definition of "mass media". LexLib We are informed that essentially the function of advertising agencies is to serve as agents or counsellors of advertisers by writing, preparing or producing the commercial messages or materials used by advertisers in selling their goods and services, and by selecting and recommending the medium or media to be used as the vehicle for disseminating such messages to the public, It is pointed out that advertising agencies do not actually disseminate the materials they prepare as they have to utilize or avail of the facilities of mass media, i.e., newspapers, radio, television, etc., for this purpose, in the same manner that a motion picture producer would have to go to a film exhibitor to make his films available to the public. If this is so, I agree with you that advertising agencies are not mass media, as this term is understood in its ordinary acceptation, which is the connotation that the Constitution should be deemed to employ. There would seem to be no doubt that advertising agencies do not operate or control any medium of communication designed to reach the masses (see Op. No. 163, s. 1973) although activities of such agencies, by their nature, are closely related to those of mass media. The conclusion that advertising agencies do not fall within the scope of the citizenship requirement imposed on mass media, is bolstered by a comparison of the text of Article XV, Section 6 of the Revised Official Working Draft of the New Constitution, which states "SEC. 6. The ownership and management of mass media, cinema, advertising agencies, and commercial telecommunications shall be limited to Filipino citizens or to cooperatives or juridical entities wholly owned and managed by such citizens." and the language of Article XV, Section 7(1) in the final draft of the Constitution, earlier quoted. The deletion of "advertising agencies" from the final text is a strongly persuasive indication of the deliberate intent to exclude the same from its purview. We are likewise guided in this view by the familiar principle in construction to the effect that laws that are restrictive and in derogation of common or natural right should be strictly interpreted and confined in the application to the literal import of its terms. The first query is therefore answered in the negative. This conclusion, needless to state, does not purport to resolve a related issue, i.e. whether advertising agencies are mass media within the meaning of the various presidential decrees purporting to regulate mass media activities (P.D. Nos. 36, 191 & 576), since it appears that under existing guidelines, they are so considered. Suffice it to observe that P.D. No. 36 was enacted before the ratification of the new Constitution, and the rules promulgated in implementation thereof need not control in the interpretation of the provisions of the Constitution. For instance, P.D. No. 36 and P.D. No. 191 would seem to place telecommunication facilities within the regulatory authority of the defunct Mass Media Council and Media Advisory Council, respectively, and yet the Constitution itself imposes a different nationality requirement with respect to commercial telecommunications. The second query is rendered academic by the above answer. Anent the third query, if the advertising agency actually disseminates information, i.e. operates or controls or otherwise engages in the business of mass media, like for instance, an outdoor advertising firm which sells billboard space to advertisers, I think they would come within the purview of the constitutional limitation. LexLib Opinion No. 163, s. 1973 of this Office is clarified accordingly. Very truly yours, (SGD.) VICENTE ABAD SANTOS Secretary of Justice