DOJ Opinion No. 031, s. 1999

DOJ OPINION NO. 031 , s. 1999 April 16, 1999 Ms. Armida P.E. Siguion Reyna Chairman, Movie and Television Review and Classification Board Francisco Bldg., 1373 E. Rodriguez Ave. Quezon City M a d a m : Reference is made to a request for opinion from that Office on the following specific points: 1. Do news programs fall within the coverage of the Movie and Television Review and Classification Board (MTRCB), as provided for in Sections 3 and 7 of Presidential Decree No. 1986? 2. Does the MTRCB have the power to deny or cancel the exhibition permit of any television program, including news programs, for failure to comply with P.D. 1986 and its Implementing Rules and Regulations, including the failure to pay the corresponding fees and charges, in accordance with Section 3, paragraphs (d) and (g)? 3. Do television stations fall within the purview of "other similar establishments engaged in the public exhibition of motion pictures and television programs" cited in Section 3, paragraph (f), which the Board may close if proven to have violated the provisions of P.D. 1986 and the Rules and Regulations? It is stated that the MTRCB has approved its Revised Implementing Rules and Regulations that became effective on August 13, 1998. The Rules prescribe more defined procedural guidelines concerning motion picture prints and promotional materials, television programs, theaters and TV stations. It is further stated that the present Board has also taken the position that all television programs are subject to its jurisdiction and therefore require permits from the Board prior to their airing. Likewise, it has adopted the policy that all TV programs should be liable for the payment of fees for the issuance of permits, whether the program airs original episodes or replays. Such actions have elicited different reactions from the broadcast industry. It is in this light that a request for opinion has been requested from this Office, specifically on the three aforestated issues. Regarding the first issue, it is our view that news programs do not fall within the coverage of the MTRCB as provided for in Sections 3 and 7 of Presidential Decree No. 1986. News programs pertain to the presentation of news. News, by definition, refers to a report of a recent event, intelligence, information about some person or thing (Words and Phrase, Vol. 28, p. 161-162 citing Werner v. Southern Cal. Associated Newspapers, Cal. App., 206 P. 2d. 952, 961). Also, it concerns reports of happenings of recent occurrence of a varied character, such as political, social, moral, religious and other subjects intended for the information of the general readers ( Ibid ., citing McDonald v. Shreveport Mut. Bldg. Ass'n. 152 So. 318, 319, 178 La. 645). Thus, straight and objective news reports are the subjects of news programs. LexLib On the other hand, the pertinent powers and functions of MTRCB are laid down in the following provisions of P.D. No. 1986: "SECTION 3. Powers and Functions . . . . (b) To screen , review and examine all motion pictures as herein defined, television programs , including publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for general viewing, imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for export; (c) To approve or disapprove , delete objectionable portions from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph. . . . xxx xxx xxx (d) To supervise , regulate and grant , deny or cancel , permits for the importation, exportation, production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and material as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television. (e) To classify motion pictures, television programs and similar shows into categories such as "G" "For General Patronage" (all ages admitted), "P", or "Parental Guidance Suggested", "R" or "Restricted" (for adults only), "X" or "Not for Public Viewing", or such other categories as the BOARD may determine for the public interest; xxx xxx xxx." (Emphasis supplied.) "SECTION 7. Unauthorized Showing or Exhibition . It shall be unlawful for any person or entity to exhibit or cause to be exhibited in any moviehouse, theater or public place or by television within the Philippines any motion picture, television program or publicity material, including trailers, and stills for lobby displays in connection with motion pictures, not duly authorized by the owner or his assignee and passed by the BOARD ; or to print or cause to be printed on any motion picture to be exhibited in any theater or public place or by television a label or notice showing the same to have been previously authorized, except motion pictures, television programs or publicity material imprinted or exhibited by the Philippine Government and/or its departments and agencies, and newsreels ." (Emphasis supplied.) The above-quoted provisions of P.D. No. 1986, reveal that MTRCB has the power to 'screen, review and examine all motion pictures as herein defined, television programs , including publicity materials such as advertisements, trailers and stills. The old MTRCB Implementing Rules and Regulations which continues to apply by virtue of Section 41 of the new MTRCB Rules, defines television program as 'any television program including live shows, product and/or service advertisements, dramas and/or motion pictures originally shown in theaters' (Section 1, Chapter 1, old MTRCB Implementing Rules and Regulations). On the other hand, news is separately defined in the same section as 'referring to straight and objective news reporting as distinguished from news analyses, commentaries and opinions and editorials' ( Ibid .). The fact that news program is not included in the definition of a television program and that news is given a distinct meaning in the same Rules shows that news program does not come within the scope of television program over which the Board has the authority to screen, review and examine. LLjur Significantly, Section 7, supra , which penalizes the unauthorized showing or exhibition of television program , among others, which has not been duly authorized or passed by the Board, expressly excludes from the ambit of said penal provision "motion pictures, television programs or publicity material imprinted or exhibited by the Philippine Government and/or its departments and agencies, and newsreels ". This clearly evinces the intent of the law not to include news programs within the area of MTRCB powers. Indeed, the straight and objective character of news reporting will be rendered ineffective if news programs were to be subjected to MTRCB review and classification. Significantly, there is a fundamental reason why news programs are, and should be deemed, removed from the scope of MTRCB regulation. It would be violative of the constitutional freedom of expression and of the press which is protected under Section 4, Article III of the 1987 Constitution which states: "SECTION 4. No 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." (Emphasis ours.) Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment (Reyes vs. Bagatsing, 125 SCRA 553 citing Cf. Thornhill vs. Alabama, 310 US 88 [1940]). Freedom of expression is identified with the right to a full discussion of public affairs (US vs. Bustos, 37 Phil. 731, 740 [1918]). Justice Laurel was partial to the ringing words of John Milton, who "denounced the suppression of truth and appealed for 'the liberty to know, to utter, and to argue freely according to conscience, above all liberties'" (Planas v. Gil, 67 Phil. 62, 81 [1939]). Justice Holmes, in Abrams v. United States (250 US 616, 630 [1919]), has laid it down beautifully when he uttered that: ". . . the ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that TRUTH is the only ground upon which their wishes safely can be carried out." (Emphasis supplied.) The truth can only be known to citizens who are well-informed of facts and events as they happen. This can only be possible through free and uninhibited news reporting. Relevantly, placing the news program within the coverage of the Board is tantamount to the exercise of prior restraint. Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. (J. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Ed., p. 205). As early as 1909, the Supreme Court of the Philippines already made clear that freedom of the press consists in the right to print what one chooses without any previous license (Gonzales vs. Kalaw Katigbak, 137 SCRA 717, citing U.S. vs. Sedano, 14 Phil. 338). The Court further held on to the principle that freedom of expression is the rule and restriction the exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity ( Ibid ., citing Bantam Books, Inc. vs. Sullivans, 372 US 58 [1962]). The test to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent (Sec. of Justice Op. No. 137, s. 1986). The Secretary of Justice, quoting the case of Gonzales vs. Kalaw Katigbak, supra , further stated that the danger must not only be clear but also present. "The basic postulate, therefore, is that where the movies, theatrical productions, radio scripts, television programs, and other such media of expression are concerned included as they are in freedom of expression censorship especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public safety, public morals, public health or any other legitimate public interest. There is merit to the observation of Justice Douglas that 'every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor'." It is well-accepted that news plays a major role in our society. The privilege of giving publicity to news, and other matters of public interest, was held to arise out of the desire and the right of the public to know what is going on in the world, and the freedom of the press and other agencies of information to tell it. "News" includes all events and items of information which are out of the ordinary humdrum routine, and which have that indefinable quality of information which arouses public attention (Bernas, the 1987 Constitution of the Republic of the Philippines, supra ). No less than Section 7, Article III of the Constitution demands that: "SECTION 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transaction, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law." (Emphasis supplied.) Hence, the Supreme Court, in Manuel vs. Pano (172 SCRA 225 [1989]), conveyed that: "This right is now effectively enjoyed with the help of the mass media , which have fortunately resumed their roles as an independent conduit of information between the government and the people. It is the recognized duty of the media to report to the public what is going on in the government, including the proceedings in any of its departments or agencies, save only in exceptional cases involving decency or confidentiality when disclosure may be prohibited. To protect them in the discharge of this mission, the law says that as long as the account is a fair and true report of such proceedings and made without any remarks or comment, it is considered privileged and malice is not presumed. Its publication is encouraged rather than suppressed or punished. This is one reason why the Court looks with disapproval on censorship in general as an unconstitutional abridgment of freedom of expression. Censorship presumes malice at the outset. It prevents inquiry into public affairs and curtails their disclosure and discussion, leaving the people in the dark as to what is happening in the public service. By locking the public portals to the citizen, who can only guess at the goings-on in the forbidden precincts, censorship separates the people from their government. This certainly should not be permitted. 'A free press stands as one of the great interpreters between the government and the people', declared Justice Sutherland of the U.S. Supreme Court. 'To allow it to be fettered is to fetter ourselves'". The right of the press to inform and the right of the people to know must always stay supreme over any government instrumentality's attempt to curtail and censor. In New York Times vs. United States (403 U.S. 713), the Court put it well: "In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national affairs may lie in an enlightened citizenry in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people." Anent the second query, the MTRCB has the power to deny or cancel the exhibition of any television program for failure to comply with P.D. No. 1986 and the Implementing Rules and Regulations, including failure to pay the corresponding fees and charges, pursuant to Section 3, paragraphs (d) and (g) of said law. The provisions adverted to provide, to wit: "SECTION 3. Powers and Functions . xxx xxx xxx d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation, production, copying, distribution, sale, lease, exhibition , and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television; xxx xxx xxx g) To levy, assess and collect , and periodically adjust and revise the rates of, fees and charges for the work of review and examination and for the issuance of the licenses and permits which the Board is authorized to grant in the exercise of its powers and functions and in the performance of its duties and responsibilities." (Emphasis supplied.) LLphil However, the above-mentioned powers of the Board do not apply to news programs. Based on the earlier discussion that news programs do not come within the purview of the MTRCB, it follows that the Board does not have the authority to deny or cancel the exhibition permit of news programs. The third question is likewise answered in the affirmative. The pertinent provision states: "SECTION 3. Powers and Functions . The BOARD shall have the following functions, powers and duties: xxx xxx xxx (f) To close moviehouses and other similar establishments engaged in the public exhibition of motion pictures and television programs which violate the provisions of this Act and the rules and regulations promulgated by the BOARD pursuant hereto;" (Emphasis supplied.) The abovequoted provision empowers the MTRCB to close moviehouses and other similar establishments engaged in the public exhibition of motion pictures and television programs which violate the provisions of the Act. The pivotal issue is whether television stations are engaged in the public exhibition of motion pictures and television programs. Obviously, they are. Television stations in fact cater to public viewership, and thrive on public patronage, as strongly evidenced by the stiff competition among television stations for prime-time programming of popular TV shows and the vigorous bid of competing TV stations to get the exclusive coverage of important events. Television programs are rated according to their popular acceptance or patronage by the viewing public. "Public" refers to the "community or the people as a whole" (Webster's New Dictionary and Roget's Thesaurus, p. 570) while to "exhibit" means to "show; display especially to public view" ( Ibid ., p. 251). cdlex In this connection, it is worthy to note the ruling of the Supreme Court in Gonzales vs. Kalaw Katigbak (137 SCRA 717) where the Court held that the power of the MTRCB is limited to the classification of films, but was quick to add that this ruling applies to motion pictures. With respect to television programs, a less liberal approach should be applied. The Court explained thus: "It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs therein shown. As was observed by the Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young." (see at p. 729) Wherefore, your queries are answered accordingly. Very truly yours, (SGD.) JUSTICE SERAFIN R. CUEVAS Secretary