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MEDIA AND THE LEGAL PROFESSION

(A Special Topic in Legal Ethics)


Eugenio H. Villareal
Joaquin Bernas, SJ Center for Continuing Legal
Education & Research
2012
The Lawyer and the Media

➢ Relationship (often accidental, sometimes


deliberate)
➢ Co-players in a Controversy – it is not only
legal
➢ Commonality
➢ Interest in the Truth
➢ Interest in Justice
The Lawyer and the Media
Truth – equality of the intellect with its object; a
natural thing is true with respect to its
conformity with the divine intellect insofar as
it fulfills the end to which it is ordained by such
intellect (Aquinas).
The Lawyer and the Media
• In conformity with human intellect, something
is true insofar as it causes a “true” estimate
about itself.
• known through reason (natural) and faith
(supernatural)
The Lawyer and the Media
• natural – certain truths are available to all
through human nature; can be known through
correct reasoning (it is when reasoning is
warped and not in accord with a thing’s
natural end that both media and the law get
into problems)
• both natural and supernatural can go together
as they form one unity: the truth
The Lawyer and the Media
Justice – rendering unto another what is due to the
latter (Aquinas).
➔➔ the crucial term here is “due-ness”
The Lawyer and the Media
• Recall also every lawyer’s favorite “parachute”
provision: both media and the legal
profession are obliged “to act with justice,
give everyone his due, and observe honesty
and good faith.” (Article 19, Civil Code; cf. In
Re Emil Jurado, 243 SCRA 99)
What is Media?

“The term mass media refers to the print medium of


communication, which includes all newspapers,
periodicals, magazines, journals, and publications
and all advertising therein, and billboards, neon signs
and the like, and the broadcast medium of
communication, which includes radio and television
broadcasting in all their aspects and all other
cinematographic or radio promotions and advertising
.” (Presidential Decree No. 1018)
“Speech,” “Expression,” “Press”

Speech, expression, and press include every form of


expression, whether oral, written, tape or disc
recorded. It also includes movies as well as symbolic
speech, such as the wearing of an arm band as a sign
of protest.
(Bernas, S.J., on the Free Speech and Press Clause)
Surely, the Media is interested in the
Law…
Freedom of Expression – “No law shall be passed abridging
the freedom of speech, of expression, or of the press,
….” (§4, Article III, 1987 Philippine Constitution)
Right to Information – “The right of the people to
information of matters of public concern shall be
recognized. Access to official records, and to documents,
and papers pertaining to the official acts, transactions, 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.” (§7, Article III, 1987 Philippine Constitution)
In addition…

§10, Article XVI, 1987 PC – The State shall provide the policy
environment for the full development of Filipino capability
and the emergence of communication structures suitable to
the needs and aspirations of the nation and the balanced flow
of information into, out of, and across the country, in
accordance with a policy that respects the freedom of speech
and of the press.
And the Media is not spared from legal
constraints…
§2, Article III, 1987 PC – Right to be secure in persons,
houses, papers, and effects
§3, Article III, 1987 PC – Right to privacy of
communication and correspondence
§4, Article IX-C, 1987 PC – Power of the COMELEC
during the election period to supervise or regulate
the utilization of all franchises and permits for the
operation of media of communication with the
objective of holding free, orderly, honest, peaceful
and credible elections
Note also that …

• “While all forms of communication are entitled to


the broad protection of the freedom of expression
clause, the freedom of television and radio
broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media.”
(Eastern Broadcast Corporation v. Dans, Jr. , 137
SCRA 628)
More on broadcast media…

• “(B)roadcast media have established a uniquely


pervasive presence in the lives of all citizens;
material presented over the airwaves confront the
citizen not only in public, but in the privacy of his
home…selectivity cannot be done in radio and
television, where the listener or viewer is constantly
tuning in and out.” (Federal Communications
Commission v. Pacifica Foundation, 438 U.S. 726)
Rules on Live Radio and Television Coverage of
Court Proceedings
• 22 October 1991 Supreme Court Resolution –
prohibited live radio and television coverage of court
proceedings to avoid miscarriage of justice
– video footage of court hearings for news purposes
restricted to shots of the courtroom, the judicial
officers, the parties, and their counsel prior to the
start of official proceedings.
Rules on Live Radio and Television Coverage of
Court Proceedings
➢ did not apply to Estrada impeachment because the
same was a political exercise pertaining to the
legislative branch
➢ Section 14, Rule 119, Rules of Court - the court may,
upon its own motion, exclude the public from the
courtroom if the evidence produced from the trial is
of such character as to offensive to decency or public
morals
Rules on Live Radio and Television Coverage of
Court Proceedings
Rule on Examination of Child Witness (15 December
2000)
✧ governs examination of child witnesses (below 18 at
the time of giving testimony except that in child
abuse cases, covers one over 18 but is found by the
court as unable to fully take care of or protect
him/herself vs. abuse, neglect, cruelty, exploitation,
or discrimination because of a physical or mental
disability or condition)
✧ who are victims of crime, accused of a crime, and
witnesses to a crime
✧ applies to all proceedings, criminal or non-criminal
✧ when a child testifies, the court may order the
exclusion from the courtroom of all persons,
including members of the press, who do not have a
direct interest in the case
Child Witness Rule …

✧ whoever publishes or causes to be published


in any format the name, address, telephone
number, school, or other identifying
information of a child who is, or is alleged to
be, a victim or accused of a crime or a witness
thereof, xxx shall be liable for contempt.
Another Confidentiality Rule…

Rule 139, Section 6 – proceedings against judges


shall be private and confidential
❖ the same holds true, incidentally for bar
discipline cases
Lawyers’ Responsibilities in relation to
Media
Canon 3 (CPR) – A lawyer in making known his legal
services shall use only true, honest, fair, dignified
and objective information or statement of facts.
Rule 3.04 – A lawyer shall not pay or give anything of
value to representatives of the mass media in
anticipation of, or in return for, publicity to attract
legal business.
Lawyers’ Responsibilities…

• relates to Rule 2.03 prohibiting lawyers from


soliciting legal business
• key words: “attract legal business”
• may extend to indirect advertisements, such as
furnishing or inspiring newspaper comments,
procuring one’s photographed to be published in
connection with causes in which the lawyer is
engaged, etc. – norm is to avoid “self-laudation”
Points of Advice (CPR, Annotated – ABA-Rule of Law of
Law Initiative, IBP, & USAID)

The lawyer must ensure that he or she:


➢ maintains his objectivity at all times (in all communications to
the public, only objective verifiable data should be presented)
(belonging to an esteemed and privileged profession, it is
natural for the lawyer to have a higher estimation of his or
her person and capabilities – thus, all the more should the
lawyer be conscious of the “caprice of self-laudation”)
➢ avoids employing deception or fraud for self-gain
Statements over Media

Canon 13, CPR – A lawyer shall rely upon the merits of


his cause and refrain from any impropriety which
tends to influence, or gives the appearance of
influencing the courts.

Rule 13.02 - A lawyer shall not make public


statements in the media regarding a pending case
tending to arouse public opinion for or
against a party.
Relate to the fair administration of justice (sub
judice rule)
➢ There is a difference between freedom of expression and
compromising the dignity of the court through publications of
emotional outbursts and destructive criticism. (Galang v.
Santos, 307 SCRA 582, where a judge was dismissed from the
service for making use of his own newspaper column to
ventilate his biases against certain people or institutions, cf.
Court Employees of the RTC, Branch 27, Ginoog City v. Galon,
265 SCRA 770)
Fair administration of justice (sub judice rule)
➢ Sub judice is a term to describe the fact that an issue
is before a court for its determination, literally:
before a judge. (Sibal, Phil. Legal Encyclopedia, cited
by Teodoro, Jr. and Katabay, Mass Media Laws,
Rules, and Regulations in the Philippines, 3rd ed.)
➢ Rule: anyone who publishes comments on a pending
suit which may obstruct the fair administration of
justice may be held liable for contempt (n.b. and for
a member of the Bar as well as the Bench, there may
also be administrative liability).
➢ “The rule is well established that xxx publications tending to
impede, obstruct, embarrass, or influence the courts in
administering justice in a pending suit or proceeding
constitute criminal contempt which is summarily punishable
by the courts.” (People v. Alarcon, 65 Phil. 265 and related
cases) (cf. Rule 71, §3[d])
➢ Generally, the rule is otherwise after the case is terminated.
(ibid.)
➢ However, such “post-litigation” exception is not absolute. (In
re Brillantes, 42 O.G. 59; also People v. Godoy, 243 SCRA 64)
People v. Godoy essayed the rule on
post-litigation fair criticism:
“The Philippine rule xxx is that in case of a
post-litigation xxx publication, fair criticism of the
court, its proceedings and its members, (is) allowed.
However, there may be contempt of court, even
though the case has been terminated, if the
publication is attended by either of these
circumstances: (1) where it tends to bring the court
into disrespect, or xxx to scandalize the court; or
where there is a clear and present danger that the
administration of justice would be impeded.
Further considerations…
• A publication which tends to degrade the courts and
destroy public confidence in them, or that which
brings them to disrepute is also criminal contempt.
Contempt exists, with or without a pending case, as
what is at stake is the court’s dignity and the
confidence reposed in it by the people (cf. Godoy
and In Re Emil Jurado, 243 SCRA 299)
• Note that contempt proceedings are sui generis (of
their own kind) and may generally be tried by the
court whose authority is being challenged or is
villified (50 ALR 2d 1103, etc.).
True criticism is licit (RREC v. Jimenez-David, G.R. No.
134677, 19 June 2001, and related litigation)…
• So long as the critics confine their criticism to facts
and base them on the decisions of the court, they
commit no contempt no matter how severe the
criticism may be; but when they pass beyond that
line and charge that judicial conduct was influenced
by improper, corrupt , or selfish motives, or that such
conduct was affected by political prejudice or
interest, the tendency is to create distrust and
destroy the confidence of the people in the courts.”
True criticism’s attributes:
• deals with matters which invite public attention or
comment
• never attacks the person, but only his or her work
• never imputes dishonorable motives (unless justice
ABSOLUTELY requires it) and only on the clearest
proofs
• does not take advantage of the situation to gratify
private malice, or to attain any other object beyond
fair discussion and/or judicial guidance of public
taste.
Indeed…
• False and libelous utterances present a clear and
present danger to the administration of justice. (17
CJS on Contempt, §25, cf. Jimenez-David case)
• Liberty of the press is subordinate to the
independence of the judiciary and the proper
administration of justice. (Jimenez-David, supra, and
RREC v. Baltazar Endriga, G.R. No. 134914, 19 June
2001)
• But: pervasive publicity is not per se prejudicial to
the right of an accused to a fair trial. In fact, it may
enhance chances for one.
Recalling People v. Teehankee, Jr. (249 SCRA 54), which involved
the fatal shooting of Roland Chapman and Maureen Hultman…
➢ The right of an accused to a fair trial is not incompatible with
a free press. To be sure, responsible reporting enhances an
accused’s right to a fair trial for “a responsible press has
always been regarded as the handmaiden of effective judicial
administration, especially in the criminal field.”
➢ The mere fact that the trial was given day-to-day,
gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and
impaired his impartiality. It is impossible to seal the minds of
members of the bench from pre-trial and other off-court
publicity of sensational criminal cases. The state of the art
communication system now brings news as they happen
straight to our breakfast tables and right to our bedrooms.
Norms for the Proper Exercise of Press Freedom (In re
Emil Jurado, 243 SCRA 99) (n.b. Mr. Jurado was both
journalist and lawyer)

• The constitutional guarantee of free speech must be


balanced against equally important public interests
such as the maintenance of the integrity and orderly
functioning of the administration of justice.
• Everyone practicing freedom of expression and of the press is
obliged to act with justice, give everyone his due, and observe
honesty and good faith. (Article 19, NCC) No to broadcasting
“lies or half-truths.”
• For journalists, they must observe The Philippine Journalists
Code of Ethics – which includes the undertaking to
“scrupulously report and interpret the news, taking care not
to suppress essential facts nor to distort the truth by
improper omission or emphasis” and “the duty to air the
other side and the duty to correct substantive errors
promptly.”
• The one acting must recognize that “(m)embers of the
Judiciary cannot be regarded as having forfeited their right to
private honor and reputation.”
✔ These norms do not require that a journalist or anyone
making the statement guarantee the truth of what he says or
publishes. But they do prohibit the reckless disregard of private
reputation by publishing and circulating defamatory statements
without any bona fide effort to ascertain their truth. (In re Emil
Jurado)
Imperative: Lawyers must have a Media Policy
Consider the following points:

• Who may speak with the media on the firm’s behalf


and when?
• What are the procedures that members of your firm
must follow when the media calls?
• Devise record-keeping procedures for media calls
and interviews?
Having a Media Policy for Lawyers (cf. Rubel, G., The
Legal Intelligence Blog, 08 February 2008,
www.theintelligencer.com)

• How will you handle calls about specific firm


clients and/or cases?
• How will you handle calls for third-party
commentary on specific cases or legal issues?
• What are your crisis communication
procedures?
Thank You

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