UP College of Law - Legal Bibliography Cavestany, Lester G.

October 19, 2012

Class I-E Atty. Maria Theresa G. Libunao

PART III. MEMORANDUM OF LAW (50 pts.) Research Topic: ARTICLE XVI, SECTION 11 of the 1987 Constitution, provides that The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. Research Question: Are online publications published and uploaded from within the Philippines considered mass media and within the constitutional prohibition against foreign ownership? Why or why not? In answering the question of whether online publications published and uploaded from within the Philippines are considered mass media and therefore within the constitutional prohibition against foreign ownership, this paper aims to confine the problem solely on whether the term mass media in Section 11(1), Article XVI of the Constitution can be extended to also refer to the new media called the Internet? Section 11, Article XVI (General Provisions) of the 1987 Constitution mandates the state regulation of different types of mass media, to wit: Section 11. (1) The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. Except for the second sentence, the above provision reiterates Section 7(1), Article XV of the 1973 Constitution, thus:

Section 7. (1) The ownership and management of mass media shall be limited to citizens of the Philippines or corporations or associations wholly owned and managed by such citizens. Hector de Leon explains that the constitutional provision against foreign ownership of mass media is based on public interest. Mass media are clothed with public interest. They play a vital role in the national life, directly influencing the way people think and act. The Constitution seeks to ensure that these institutions are free from foreign influence. Press freedom would indeed be meaningless to Filipinos if those who exercise it are aliens, owing loyalty to a foreign government.1 One of the leading members of the 1986 Constitutional Commission, Father Joaquin G. Bernas, S.J., explains that provisions on mass media were formulated at a time in the countrys history when it had just gone through a phase when media had been manipulated against the best interest of the general public. 2 Thus, the full Filipinization of mass media was seen as an important safeguard to public welfare. It is also worth noting the observation of Diane A. Desierto3 that the foreign ownership restriction on mass media had been placed in the Article for General Provisions and not in the the corpus of foreign ownership prohibitions contained in Article XII, the Article on National Economy and Patrimony. Perhaps its because mass media belongs more to the sphere of socio-politics. As Shiela Coronel explains, Philippine media are not only free, they are also extremely powerful. Media exposs can abort political careers or catalyze policy reforms, and journalistic inquiry often makes politicians quake.

The issue The bone of contention in our present problem is the definition of the term mass media. Does the term mass media include online publications published and uploaded from within the Philippines and therefore, within the constitutional prohibition against foreign ownership?

DE LEON, HECTOR, PHILIPPINE CONSTITUTIONAL LAW (PRINCIPLES AND CASES), 1991 Ed. p. 788. 2 BERNAS, JOAQUIN, FOREIGN RELATIONS IN CONSTITUTIONAL LAW, 1995, P.97 3 Desierto, Diane, Restriction And Rhetoric: A Critique Of The Constitutional Prohibition Against Foreign Ownership In Philippine Mass Media, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1485587 (last visited October 18, 2012)

Internet Service Provider vs. Internet Content Provider In answering our problem, it is necessary to differentiate between an Internet Service Provider (ISP) and an Internet Content Provider (ICP). An ISP is defined as a company that provides third parties access to the Internet. Many ISP s also offer other related services such as Web site design and virtual hosting. An ISP has the equipment and the telecommunication line access required to have a point-of-presence on the Internet for the geographic area served. An ISP acts as an intermediary between its client's computer system and the Internet. ISPs take several forms and offer a wide variety of services. They generally charge their customers for Internet access depending on their usage needs and the level of service provided.4 An ISP is engaged in the business of providing access to the Internet through telecommunications technologies. It is this kind of Internet business that was referred to in the Department of Justice Opinion No. 040, Series of 1998, which said that the Internet business does not constitute mass media. Accordingly, it cannot fall within the coverage of the constitutional mandate limiting ownership and management of mass media to citizens of the Philippines or wholly-owned and managed Philippine corporations.5 On the other hand, an Internet Content Provider (ICP) shall mean any legal entity or natural person, or any group thereof, which/who render(s) any form of information (textual, numerical, visual, audio, multimedia) accessible, either continuously or limited to certain periods of time, to all or some Internet users, in a manner that allows the unambiguous identification of such legal entity or natural person by the users during the process of accessing the information. Internet content provision shall mean the supply of information via technologies including, but not restricted to, the World Wide Web, mobile and broadband networks and e-mail.6 The usage of the term, Internet Content Provider is not often heard and used in the Philippines, where Internet content is not strongly regulated by the government. However, this term is duly recognized in countries such as China, where the regulation and censorship of Internet content is strictly observed and before anyone can publish and upload anything online, a license must be secured from the government. Clearly, the scope and ambit of our present problem is whether Internet Content Providers who publish and upload from within the
4 5

www.UsLegal.com DOJ OPINION NO. 040, SERIES of 1998 (Whether the Internet constitutes "Mass Media ) 6 HUNGARIAN ASSOCIATION OF CONTENT PROVIDERS CODE OF CONDUCT, May 2002, at http://aceproject.org/ero-en/topics/media-andelections/Hungarian%20Association%20of%20Content%20Providers.pdf (last visited October 18, 2012)

Philippines should be considered mass media and thus, prohibited from foreign ownership. Once again, we need to delve into the meaning of mass media. Redefining mass media In Francisco vs. House of Representatives7, the Supreme Court made reference to the use of well-settled principles of constitutional construction, namely: verba legis; ratio legis et anima; and ut magis valeat quam pereat. In applying the plain meaning rule, Bernas reminds us that mass media in the Constitution include radio, television, and the printed media.8 And in the ordinary meaning, mass media excludes Internet content simply because the Internet was not yet available when the Constitution was drafted and ratified by the Filipino people. It wasnt until the mid1990s when the Internet became available to the public. However, if we were to interpret the meaning of mass media according to its spirit, it could include other forms. The DOJ Opinion9 cited earlier gives us a much broader definition of mass media in the Philippines: The term mass media in the Constitution refers to any medium of communication, a newspaper, radio, motion pictures, television, designed to reach the masses and that tends to set standards, ideals and aims of the masses (Op. No. 163, s. 1973) . The distinctive features of any mass media undertaking is the dissemination of information and ideas to the public, or a portion thereof (Op. No. 120, s. 1982) (reiterated in Op. No. 10, s. 1996). An almost identical definition of mass media is found in the R ules and Regulations for Mass Media in the Philippines adopted by the Media Advisory Council and approved by the President of the Philippines (See De Leon, Textbook on the Philippine Constitution, 1994 ed., p. 579) . According to said RR, the term mass media embraces means of communication that reach and influence large numbers of people including print media (especially newspapers, periodicals and popular magazines) radio, television, and movies, and involved the gathering, transmission and distribution of news, information, messages, signals and all
7 8

G.R. No. 160261, November 10, 2003 BERNAS, JOAQUIN, FOREIGN RELATIONS IN CONSTITUTIONAL LAW, 1995, p.97 9 DOJ OPINION NO. 040, SERIES of 1998 (Whether the Internet constitutes "Mass Media )

forms of written, oral and visual communications (see also, DOJ Opinion No. 163, s. 1973) It can be argued that the Internet, which is becoming more and more accessible to the masses especially through the proliferation of mobile devices, has become a powerful medium to disseminate information and ideas to the public. In fact, even the government expects the public to follow weather advisories via Twitter, a social networking site.10 The Internet is mass media Given the foregoing reasons, it is my contention that online publications published and uploaded from with the Philippines can be considered part of mass media provided that the online publications are uploaded onto a website that contains news, information, messages or other forms of written, oral and visual communications designed to reach the masses so as to provide information and ideas to a large number of people, and the public in general.

10

Stranded? Get Twitter Account, Says Lacierda Philippine Daily Inquirer. July 31, 2012 - Statement of Presidential spokesperson, Edwin Lacierda, that it was the publics duty to follow weather information, including through Twitter, from the weather bureau and disaster-response agencies.