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TABLE OF CONTENTS1 FOI: The journey to freedom

3 carlos celdran in art dubai

5 should copyright laws change?

8 the liabilities of libel

10 foreigners’ freedom of speech in the

ph

11 film ratings across the globe

Ask the Lawyer!atty. jerwin lim

contributorsNoriza AtienzaPatricia BengzonHorace CimafrancaIris LeeLayout and Cover by Horace Cimafranca

In the dutiful interest of the press to uphold the truth and let the public

know, the universal right to information on government documents is an integral factor.

This is the essence of the House Bill 3732 or An Act implementing the Right of Access to Information on Matters of Public Concern Guaranteed under Section seven, Article III of the 1987 Constitution and for Other Purposes, principally sponsored by Quezon Rep. Lorenzo R. Tañada III of the fourth Diestrict of Quezon and Manila Rep. Bienvenido M. Abante, Jr.

HB 3732, more commonly referred to as the Freedom of Information (FOI) Bill of 2008, had already

been filed during the 14th Congress. The bill had reached the Senate for a Conference Committee Report in February 2010.

Right to Information, Duty to Disclose

The proposed FOI Bill is anchored on Section 7 of the Bill of Rights in the Constitution which guarantees the public’s right to information and access to government documents. Furthermore, the FOI Bill is justified by the government’s duty to disclose as provided by Article II, Section 28. (See sidebar)

The clamor for a simple and efficient process for accessing public documents as well as the

public’s general interest for accountability and transparency in the government gave the FOI Bill the momentum it needed since its predecessors were first conceived (but had not been passed into laws) decades ago.

Some of salient features of HB 3732 include “an expansive scope” of the agencies and information covered, a clear and universal procedure for accessing the information with limited and justifiable cost, “a mandate to promote a culture of openness within government,” among others.

Furthermore, the Bill puts the burden of proof on the government which means that it is the duty of

Section 7 of the Bill of Rights states that:

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, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to limitations as may be provided by law.

The FOI Bill:

The Journey to Freedom

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the involved official or the agency to establish that the information desired or requested must not be divulged.

Hope for 2012?Last February 3, President

Benigno Aquino III announced a proposed Freedom of Information Bill. According to an article Rio Rose Ribaya on the Manila Bulletin, Aquino said, “We formally submitted to our coalition partners in the House of Representatives a substitute Freedom of Information Bill, which we believe addresses

stakeholders’ desires to have more transparency and more access to information in government.”

Former Senator Rene Saguisag, in an interview for GMA News, said that there really shouldn’t have been a need for a bill such as the FOI only if the government and its officials and agencies have been true to the provisions of the Constitution. “They should set the example… Accountability, transparency, right to know—these are the values involved,” Saguisag explained.

Article II (Declaration of Principles and State Policies), Section 28 states that:

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

The Journey to Freedom

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BY NORIZA ATIENZA

The Middle East may not be known as a bastion of freedom of

speech but it is doing what it can to change that image and the world’s perceptions.

The recently concluded Art Dubai, the largest art fair in the region, gathered 75 galleries from 32 countries in addition to commissioned tours, workshops and performances.

The Philippines’ own Carlos Celdran was invited to the event to present his “Livin La Vida Imelda”, the story of the rise and fall of former First Lady Imelda Marcos, as told with his signature flair and theatricality.

Celdran, a tour guide, activist, and critic of the Catholic Church, had previously gotten into trouble with Philippine authorities because of his views.

His “Damaso” protest in 2010 earned him the ire of the Church as he disrupted

a service ongoing at the Manila Cathedral .

At Art Dubai, he again ran into controversy over the contents of his Imelda performance.

On March 24th, Celdran was taken for questioning by “men in robes” and asked about the contents of the show.

“They really were making sure that I wasn’t talking about Arab nations, that all the issues I talked about were about the Philippines,” Celdran said in an interview with GMA News.

The contentious issue was an imaginary conversation with Imelda telling former Libyan dictator Moammar Gaddafi, “Islam is all about peace, and if you are funding a war in my country that is pitting Filipino against Filipino, you are also pitting Muslim against Muslim. How are you following Mohammed?”

Celdran was asked to tone down the political and

religious content of the show, which he refused to do.

“That’s 60 percent of my show. So I decided to cancel it,” he said.

Celdran said he was scarred by the incident but unsure whether it was really censorship.

“I was not censored it seems. It was suggested that I censor - ‘tone down’ being a specific term I heard. In effect, it’s not censorship. Or is it?” he wrote on his Facebook page.

The American Civil Liberties Union defines censorship as the “suppression of words, images, or ideas that are ‘offensive,’ happens whenever some people succeed in imposing their personal political or moral values on others.”

While there is still uncertainty on the incident, there are lessons learned with regard to the issue of freedom of speech in the

Carlos Celdran

in Art Dubai

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BY PATRICIA BENGZON

Middle East.“Freedom of speech is your

remedy [to censorship],” said lawyer Jerwin James Lim, when asked about Celdran’s options.

The incident prompted Celdran to tweet, “Freedom of speech. It’s more fun in the Philippines.”

Attorney Lim agreed, but only to a certain extent.

“If you look at the development of the 1935 to the 1973 to the 1986 Constitutions, each has enshrined freedom of speech,” he said.

When compared to the

Marcos era, which was characterized by the violation of human rights, Lim said the current situation is obviously better.

He however believes that since then there has been no major change in the development of freedom of speech in the country.

“There are more forums now by which you can express your freedom. There is more freedom of speech per se, but the right remains at status quo,” he said.

The Middle East does not enjoy the same freedom

of expression as the Philippines does but their decision to open up to the world is a sign of their willingness to change.

“I truly think the intentions of organizers or Art Dubai are pure. A world with Art Dubai is better than a world without it. Frankly, I am grateful for the experience,” Celdran said.

“The big picture still holds true. Art Dubai and Dubai itself are trying to push forward as a society and for that I commend them and support them,” he said.

a. What are the legal remedies to censorship?b. How long would it take and how much would it cost?c. Are there any trends emerging? Is there more freedom of speech now?

Answer: The legal remedy for censorship is your freedom of speech. It depends on who censored what. The problem with the question is that it assumes that censorship is bad, and censorship per se is not “bad”. Rights like freedom of speech will always be a matter of degree. Obviously you can’t say what you want to say all the time. This question automatically assumes that censorship is wrong. You can’t answer the question in a vacuum; there has to be a context.

Now say for example that if the context is a legitimate intelligent criticism against government, you should not be censored. Your legal remedy against that is you file a case against the body that censored you. Go through the tests that determine when it is a valid exercise of freedom of speech and when it isn’t. Not all types of speech is protected by law, because there are certain things that you say that amount to crime (seditious speech, etc).ii. Now, all your rights, like the freedom of speech, are answerable to the government only. If I own a private newspaper company and I don’t print your article about the president of the Philippines, I have the right to do so. You can’t sue me for that.iii. You’re asking about the trend. Social media is the trend. There is this whole new uncontrollable and unregulated world where freedom of speech gets to stretch its muscles.

Ask the Lawyer!

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Photo from Carlos Celdran

Should copyright laws change in the digital age?

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BY IRIS LEE

With all intellectual property laws—c o p y r i g h t s ,

trademarks and patents—the fundamental idea is that it’s a balancing act between two seemingly conflicting goals. On the one hand, you want to protect the rights of creators. You want to make it profitable for them in order to inspire creativity and productivity. When they produce something, they should have a claim over it. You want to incentivize them to create. But on the other hand, you also don’t want the system to be so strict that it truncates creative development. Think of an idea as a building block that is the foundation for all other ideas. If, say, an idea is copyrighted, nobody would be able to develop that idea anymore. Moreover, nobody would create if they wouldn’t benefit from their work either financially or symbolically. These two aspects—the rights of the creators and the rights of the people to access and use certain ideas and information for the larger benefit of society—should be balanced. We could say that this is the paradox of all intellectual property laws.

Some schools of thought lean toward one extreme and some toward the other. There is a strong case for opposing intellectual property—some believe that it retards innovation and benefits only those in power—but I do not think that it is possible to completely abolish intellectual property laws in a capitalist world. However, I also do not think that the

current laws on intellectual property and their application are well-suited for society today. I will focus on copyright, since it is the most relevant in the digital age. Copyright covers the expression of ideas such as in writing, music, pictures, and other works of art.

Copyright laws were conceived in an era when copying information was expensive. This was for the purpose of allowing the purchaser to use the content at any time and place without further interaction with the seller or creator of the original, indefinitely. But making multiple copies of information have been made easier by technological developments such as home printing, photocopying, photography, sound recording, computers, CDs, and the big bad world of the internet. Copying is an essential part of digital use. Protection of intellectual property is being chipped away at by technological innovation, which the government and the big copyright holders counteract by a stronger push for the wider scope of copyright laws.

As I’ve mentioned, the original rationale for copyrights was to encourage artistic and creative work by granting short-term monopoly over certain uses of the work. Copyright is made to create a balance, but in practice, copyright law is being abused to make ridiculous amounts of money for companies that own most of the distinguished creative works in the world. The

biggest holders of copyright have managed to expand it beyond reasonable justification, especially in the digital age. In the same line of thought, the loss of balance fosters a “chilling effect” where less creative works are being made and fewer products are being developed not because of the lack of available information but because of the fear of being sued for infringement brought about by the tighter and broader copyright law enforcement today.

But as pointed out, copyright laws cannot be completely abolished because of the fundamental principles of capitalism. While copyright legislation moves at a very slow pace, copyright enforcement is the name of the game, gradually evolving through years and years of nasty court battles. The government, recognizing this, is enforcing more aggressive enforcement policies at the expense of fairness and due process. I believe that instead of going against an undefeatable opponent, copyright laws should be modified to suit the current situation of limitless copying and sharing of information. Ride the wave and don’t go against it, in other words.

I do believe that creators—and in extension, the companies that buy their copyrights—deserve the financial value of their creative works. But what would the purpose of technological innovation be if not for easier access to information and all the

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other benefits it brings to society at large? We need to accept this simple fact as it rubs itself in our faces. Companies need to let go of their insatiable greed and free up a whole new world of possibilities to society. To be completely honest, I don’t know how this balance could be achieved. All I know is there has to be some major alteration on copyright laws and intellectual property laws in general. Until copyright law is modified to address the fast growth and evolution of the internet, copyright holders and users will have to continue battling through inefficient lawsuits.

Do you think copyright laws need to be updated to suit the current trends in the digital age? Do we need to enforce stricter copyright laws or do we need an upheaval of the very definition of copyright law?

Answer:I don’t think that the current copyright laws should be changed either way. I believe that the development of the internet should not be hampered. It is supposed to be as disorderly as it is. The very purpose of the internet is its ability to make available to everyone who has access information that wasn’t available before. I’m against enforcing stricter laws or creating new laws on copyright that could hamper this growth, but I’m also against freeing it up more. I believe that the copyright laws right now are sufficient—there is the fair use doctrine that attempts to balance everything. Maybe there’s something wrong with the way the implementation of the copyright laws, and the way copyright is currently used, but there is nothing wrong with the laws themselves.

I also believe that there is a slight misconception about the users of information themselves. The problem copyright holders have with the internet is the sharing of songs, movies and other copyrighted works. There was an instance—sort of like a social experiment—where the band Radiohead posted their entire album on the internet to be downloaded by anyone for free. All they asked was for the fans to donate any amount, and only if they wished to do so (if they liked the album and if they thought it deserved a certain amount of money). In the end, the total amount donated by the users was equivalent to the amount of money they would have received if they had sold the album at market price. Point is, we underestimate the users’ sound judgment and honesty. I’m not saying that this holds any weight in determining whether copyright laws should be changed, but it’s a point worth making.

Where do you draw the line between the rights of the holders and the users? To enforce greater restrictions on users is wrong, but creators and copyright holders do have a right to the value of their work. Again, the balance has to be present. The only reason why the internet is so threatening to these copyright holders is its vastness and scope. They should protect their rights, but we also have to appreciate the value that the internet brings.

Ask the Lawyer!

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LIABILITIES

libel

the

of

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BY HORACE CIMAFRANCA

Libel is a very contentious issue in the country. Unlike

other nations, it is a punishable offense here in the Philippines. In the constitution, there is a provision that criminalizes libel. However, for it to be deemed sufficient by the court, there are certain prerequisites for an instance

to be considered as libel. Nevertheless, the

freedom of speech should take precedence over libel. The freedom of speech is considered as a fundamental right. Clearly, the provision on libel was written for the sole purpose of protecting individuals from mere mudslinging. Otherwise, the constitution

guarantees the right to be informed. Thus, the release of detrimental yet verified statements, whether privy to a certain party or not, is not a violation of the law as per the constitution. In fact, it is encouraged, in the so-called spirit of democracy, to incite discussion. The constitution is presumed to always assail the non-

journalists fight for

its decriminalization

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disclosure of information and being as such, only the instance of libel is considered an excuse for prosecution as a result of such disclosures.

There are current movements, mainly by journalists, that call for the decriminalization of libel. To them, the constitutional tolerance to the abridgement of information is an outright violation of the freedom of expression, a supposedly inviolable provision in the constitution. Journalists presented specific examples in which this right to redress has been effectively used to curtail the freedom of expression. The case

of Alexander Adonis, a Davao-based journalist, was specifically cited by the UNHRC (United Nations Human Rights Council) as one instance when a court ruling upholding a libel case against a journalist has effectively sent so-called chilling effects to the media industry. The international body is one of many groups advocating for the decriminalization of libel. Adonis was jailed for nearly two years after losing a libel case charged by former House Speaker Prospero Nograles. According to the Philippine Press Institute, such an incident is a perfect example of how politicians use libel to silence the

media. This group, along with the National Union of Journalists in the Philippines (NUJP) and the UP College of Law has begun an intensified campaign to urge the legislature to amend the constitutional provision on libel.

The UNHCR, acting upon a complaint filed by Adonis, declared that the criminal sanction in the Philippines for libel is excessive. Furthermore, the body says the country violates the agreements forged in the International Convention on Civil and Political Rights, in which the Philippines is a signatory.

With information obtained from the Philippine Star

Photo from Davao Today

Jailed journalist Alexander Adonis (right) prior to his release from a Davao City prison.

Filipinos are known to be highly patriotic and this is one attitude that

makes the country great.However, Filipinos also

respond negatively to criticism and when someone criticizes the country, it will not be taken well.

Just ask James “Jimmy” Sieczka, a Cebu-based American who has lived in the country for over three years, who learned this lesson the hard way.

His “20 Reasons I Dislike the Philippines” video went viral on March 14th and became one of the hottest issues in the local news.

In the video, he explored Cebu and showed just what he disliked about the country, including the incessant honking of public transport drivers, the invasive but useless security checks at malls, and garbage problems in the area.

Filipino netizens immediately reacted to the videos with some insulting Sieczka and calling him ignorant.

“Yung taong gumawa ng ‘20 reasons why I Dislike the Philippines’, panget mo kuya, mas madaming mggndang bgay sa Pilipinas. :P” wrote Twitter user TeamQuotess.

On the other hand, some also reacted by viewing it as constructive and posting

the reasons they loved the country.

“I just saw the ‘20 reasons why I dislike the Philippines’ It’s true and I’m embarrassed.” said JohnyFromDBlock on Twitter.

Sieczka issued an apology on March 20th, uploading a three minute statement on ChannelFix where the original video was posted.

“I’m deeply sorry that I’ve offended some of the people in the Philippines and the show was just made to point out obvious things that any other person probably would acknowledge and say to themselves and say to their friends, but obviously not take the steps that I took and put it in a video,” he said.

This came a day after Cebu councilor Sisinio Andales moved to declare him persona non grata (literally, an unwelcome person), a move that has since been recanted with the apology.

The Sieczka fiasco raised issues on an alleged double standard when it comes to criticizing the country.

Some Filipinos online believe that being a foreigner magnified the attention that Sieczka received for his comments.

“Why is it that when a white guy makes a video of 20 things I dislike about

the Philippines, some Pinoys react like, ‘I like this video, he’s witty and I agree with his complaints’? But if it was a Pinoy who made that same video they would react, ‘Yan ang crab mentality. Aktibista siguro yan!’?” wrote comedian Tim Tayag.

“The difference is that because he is a foreigner then maybe something will be done to improve the situation,” wrote one user on SunStar.ph

Indeed Filipinos may have trouble accepting harsh criticism and for a country that is labeled “partially free” by US NGO Freedom House, attitudes may have to change.

“Last time I checked, this was a free country and people were allowed to express their opinions -- James Sieczka included. If we were to persona-non-grata everyone who has something ill to say about the Philippines (and trust me, we each have at least one thing about this country that irks us to no end), no one would be left!” wrote Rain Tan on chuvaness.com.

News reports have alleged that Sieczka has left Cebu and is now lying low in Manila and does not have any plans of making more videos anytime soon.

Foreigners’ Freedom of Speech in THE PH

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BY PATRICIA BENGZON

Photo from Davao Today

Lembaga Penapisan Filem Malaysia or the Malaysian Film Filter Board was established “under the Film Censorship Act of 1952.” The Board screens film using “Panel Filters” which will provide either the result of “Passed Clean (without cuts),” “Passed with Cuts,” “Forbidden,” and “Rejected.” Once approved, a film may be classified into the following”

U (Umum, literally General Audiences) – For general audiences

P-13 – (Penjaga, lit. Guardian) - Viewers under 13 require guidance from a parent or guardia. Film may contain scenes that are inappropriate for younger children.

18 – This film is for aged 18 years and above only. No people under this age will be admitted.

Japan’s EIRIN short for Eiga Rinri Iinkai or the Film Classification and Rating Committee is “an independent, non-governmental organization, which has been responsible for the classification of motion pictures since 1956”

According to the website, “Films are classified according to the treatment and impact of the eight main classifiable elements of public concern, specifically theme, language, sex, nudity, violence & cruelty, horror & menace, drug use, and criminal behavior.” These classifications are:

G – General. Suitable for all ages

PG 12 – Parental guidance requested. Young people under 12 years must be accompanied by an adult.

R 15+ -- Strictly for persons aged 15 and above only. No one under 15 admitted.

R 18+ -- Strictly for persons aged 18 and above only. No one under 18 admitted.

Different countries have different cultures and therefore have different standards in classifying movies. Most of the time, the classifications of films depend on government-formed regulatory bodies which impose a rating system. Here are some of them:

FILM RATINGS ACROSS THE GLOBE

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BY NORIZA ATIENZA

The Australian Classification Board (ACB), under the Attorney-General’s Department, is a government-funded classification body formed in 1970. All computer games and motion pictures are rated by the Board before they become publicly available. Furthermore, “Some publications also need to be classified. There are limited exceptions to this rule. The Classification Board also decides what consumer advice should be provided with each classification.” The following is the ACB’s system of ratings:

G – General. “The content is very mild.”

PG – Parental Guidance. “The content is mild.”

M – Mature. “The content is moderate in impact.”

MA 15+ (Restricted) – “The content is strong.” Under 15s must be accompanied by a parent or adult guardian.

R18+ (Restricted) – “High level content.” Restricted to 18 and over.

X18+ (Restricted) – “Films that contain only sexually explicit content.”

France’s regulatory board is the Centre National du Cinéma et de L’image Animée (CNC). Established in October 25, 1946, the CNC is a “public administrative organization, set up as a separate and financially independent entity.” The ratings given by CNC are as follows:

U (Tous publics) -- Valid for all audiences

10 (Déconseillé aux moins de 10 ans) – Unsuitable for children younger than 10 (this rating is only used for TV); On cinema its “avertissement” (warning), it means that some scenes may disturb young children and sensitive people, and on DVDs its written “accord parental” (parental guidance).

12 (Interdit aux moins de 12 ans) – Unsuitable for children younger than 12 or forbidden in cinemas for under 12.

16 (Interdit aux moins de 16 ans) – Unsuitable for children younger than 16 or forbidden in cinemas for under 16.

18 (Interdit aux mineurs) – Unsuitable for children younger than 18 or forbidden in cinemas for under 18.

E – Exempt

FILM RATINGS ACROSS THE GLOBE

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