Category: media law

Criminal law, media law, Rules of Court

Legal opinion on obstruction of justice & the media

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 Jean-Baptiste-Camille Corot. Man in Armor or Seated Man at Arms. c. 1868-1870. 73 x 59 cm. Musée d’Orsay, Paris, France. Right-clicked from http://www.abcgallery.com

     

          The camera equipment and tapes of some media outfits were confiscated during the apprehending of media persons at the November 29 Manila Pen stand-off.

          Tapes and films are not contraband, i.e., not illegal per se, neither are they weapons used in the commission of the crime; they cannot be summarily confiscated without a court order.          

        Are media organizations legally required to surrender to the Philippine National Police or the CIDG their tapes of interviews and activities of their news subjects based on a request or “subpoena” of the PNP (without a court order)? Would failure to do so constitute “obstruction of justice”?        

          The pertinent provision of the “obstruction for justice” law (Presidential Decree 1829) is as follows:         

        quote “Sec. 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:   xxxx  (b) altering, destroying, suppressing or concealing any paper, record, document, or object, WITH INTENT TO IMPAIR ITS VERITY, AUTHENTICITY, LEGIBILITY, AVAILABILITY, OR ADMISSIBILITY as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;” closed-quote (capitalization supplied).   xxxx         

         The essence of this provision is punishing any person who destroys evidence or hides evidence in order that those pieces of evidence could not be used in criminal investigations or official proceedings. Intent is determined from over acts. In other words, if the person destroys the evidence knowing it would be used in a criminal investigation or denies (hides) the existence of such objects altogether knowing they would be used in an investigation, then the law enforcement authorities can file a complaint for obstruction of justice. What is punished is the destruction of evidence or being involved  in cover-up.          Footage, tapes, and photographs that were produced or filmed or shot by the media outfit are properties of that company. Also, as recorded images of events, they fall in the category of documentary materials or documents, or “papers and effects”. Whenever the State or government or law enforcement agencies seek to examine the contents of such films and tapes, the search requires the consent of the owners. In other words, films and tapes are covered by the right to be secure in one’s person, houses, papers and effects against unreasonable searches; and a court order (or, otherwise,  consent from the owners) is required for the seizure or examination thereof. Without consent from the owners, law enforcement agencies need a court order to compel the owners to surrender the records.          But the owners of the tapes and films here are not just ordinary private owners, they are also media organizations; and as such they are bound by certain laws and a code of ethics.     

               One would be the Shield Law which states that reporters cannot be compelled to reveal the source of any news report or information relayed to them in confidence (the law says reporters of newspapers, magazines, or periodicals of general circulation; but in a digital multi-media world, I think this should be construed by our courts to refer to reporters in the news media, not just print). If the films and footage show images that would reveal sources which the reporters have been sworn not to divulge, then those films and footage, for containing the photographs and images of sources, are covered by the Shield Law.         

          Media organizations are also bound by their own code of professional ethics, among which are: not taking sides in the prosecution or defense of parties in criminal cases or armed hostilities, etc. Being forced to cooperate with the police in the capture of its enemies, absent a court order, may run into some obligations that journalists have been sworn to uphold under their code of ethics.        

           For all these reasons, a court order is required before a media organization can be compelled to surrender its tapes and films. Of course, the media company can always be consensual about it and surrender all its footage; but it must be sure it is not running into any of its obligations under the code of ethics, such as a breach of sources’ confidences.       

         I once asked a fiscal friend, “Bakit, wala naman kayong contempt powers, ah, bakit mo tinatawag na subpoena yan?” (“Why, you don’t have contempt powers; why do you call that a subpoena?”). And he got to thinking, and said, “well, yeah, we don’t have contempt powers, but it just means that if you don’t give us evidence in your favor, we will resolve the preliminary investigation based only on the evidence of the prosecution.”      

            I guess that warning applies when one is a suspect or a respondent in an investigation.      

        (when a third party or an innocent witness or a reporter becomes a suspect or respondent as a result of not surrendering their tapes without a court order, and without any other facts, it’s probably because he/ she had incurred the ire of the police and not because of any probable cause.)

Criminal law, media law, Rules of Court, The News Media

plunder and justice

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“Cherubini” by Raphael right-clicked from www.ac.cc.md.us

Sandiganbayan Presiding Justice Teresita de Castro said during the congressional budget hearing today that the Sandiganbayan was considering passing rules to regulate the conduct of surveys of high-profile cases because such constitute “prejudicial publicity” (Nadia Trinidad’s report at ANC).Shesaid that they have not come up with specific rules, but they were just studying the matter. She also said that the promulgation would be this September 13.

The exchange in the congressional hearing came in the heels of the recent media blitz of the Erap PR people, which, judging from the dates of the “events” covered in the succeeding news stories, is probably part of a media plan (campaign strat, in advertising lingo). A media plan that they are able to implement because editors allow it.

You might run into free-speech issues if the rules that would be passed are not based on some established guidelines or policies.

Since Justice de Castro used the phrase “prejudicial publicity” i’ll try to use it here the way it’s used in jurisprudence (because she didn’t say “impeding the administration of justice”, which is the contempt provision in the Rules of Court.) Prof. Perfecto Fernandez in his book “Mass Media Law” compiled pertinent jurisprudence on the matter, and referredto them as“four principal types of prejudicial publicity which interfere with the right of the accused to a fair trial”;they’re in four categories: “1) sensationalized reporting; (2)vigilantism by the press; (3) excessive publicity; and (4) prejudicial material.” He said rights of the accused.

But what if the “prejudicial publicity” were favorable to the accused and fostered sympathy for the accused? Would those policies still be applicable? Such that, you can use them for your proposed rules? Since those concepts are based on the right of the accused to a fair trial, would you also apply them if the publicity were favorable to the accused, therefore, not prejudicial to him/ her, therefore, not in interference with the accused’s right to a fair trial?

Does the State enjoy the same kind of rights that the accused enjoy?

The State, as represented by the entire prosecutorial machinery of government, cannot be said to have the same rights as the accused. (of course, you hear of complainants in criminal cases cry: “but what about the rights of victims?”)

“Victims”, or the complainants in criminal cases, well,not them but their interests, and the interests of the entire community, are, when a prima facie case is established, represented by the entire legal armada of the State, which includes investigative agencies, the police, the prosecutors — all those stand behind and in front of you when you are “victimized” and there is prima facie evidence for a criminal case. The accusedon the other hand is just represented by his/her legal team.But there’s this small phrase, this teeny-weeny thing that keeps any accused from being unjustly punished. The small phrase “presumption of innocence”.That saves your life.(that’s how it’s supposed to work anyway). When there is a prima facie case, the entire legal machinery is brought to bear upon an accused, but that small phrase saves the accused.

(When “victims” complain: “but what about the rights of victims”, they feel aggrieved; but maybe because in that instance, the system might have already been despoiled by either neglect from the executive branch or because its members are not professional or because it had been corrupted. It’s not because you need to insert an amendment in the Bill of Rights for rights of “victims”; it’s not because there’s something wrong with the rights of the accused as guaranteed in the Constitution or in the Rules of Court; it’s not because the Constitution is skewed in favor of criminals; but it’s because your investigators, prosecutors, judges, did not do their job… But that’s just my opinion.)

So, does the State enjoy the same kind of rights? Can the Courts come in with rules that say: the accused or his friends or sympathizers,pending trial and decision,cannot sponsor certain surveys, hire PR people, interact with reporters and editors, etc.? Can you do that using categories and policies meant to protect the rights of the accused?

Gee, I don’t know… I’m just checking out the cases on it. (i’m not sure you can legislate media ethics or pass judicial circulars on it; you just do your darndest to remind friends.)

(Atsaka, September 13, Thursday , Triskaidekaphobia. Didn’t the clerk of court notice it; maybe they wanted to set it in the most tailend midweek; tailend and midweek don’t go together; but you know what i mean; the last midweek day.).