Watch tomorrow’s edition of “The Buzz!” 4pm to 6pm, Sunday, ABS-CBN Channel 2 (free tv) as the show takes on the paparazzi and “wardrobe malfunction”.
(As part of our public duties as members of the academic community, we grant interviews on matters that are covered by our fields of study and research, in this case, “Law on Mass Media”; and so, it is always a privilege and an honor…)
Here it is, tabloid journalism and “wardrobe malfunction”. “Wardrobe malfunction”, as everyone knows, is the accidental on-cam (on camera) public exposure of the breast/s (for females here) and/ or other private parts of a person (male or female). (Well, the definition may include off-cam, but it is the on-cam exposure public exposure that counts, especially of celebrities. )
Of late, tabloids have made a killing in sales by exploiting the “wardrobe malfunction”, now termed “nip-slip” of movie stars (Anne Curtis and Karylle), splashing them on the cover, and making piles of money from it.
here’s the legal opinion…..Wait…. Watch the show! Tomorrow. “The Buzz!” Sunday 4pm-6pm, Channel 2, ABS-CBN. It’s better watched and heard.
Well….. okay, just a teeny-weeny bit, just to give you an idea of how groundbreaking any case on this would be here in the Philippines.
(this legal opinion was given in the national language, in conversational fashion, therefore, you should watch the show because it is more comprehensive and comprehensible there.)
snippet. Right-to-privacy jurisprudence is more developed in the U.S. than in the Philippines; but since our constitutional law is American in origin, constitutional case law in the U.S. (the body of cases, or the jurisprudence in constitutional law in the U.S.) has persuasive effect on the courts in our country. The right to privacy is part of the bill of rights, elaborated on in certain provisions in civil law, criminal law and procedure, and therefore, right- 
to-privacy jurisprudence in the U.S. has persuasive effect on our courts. (i told you, you should just watch the show, it’s better seen and heard than read here).
The right to privacy includes, as a “subset”, especially for public figures, what U.S. courts call “right of publicity”, or the right of an individual to control the commercial exploitation of his/her face, body, or images arising from photos or videos of one’s face or body, and one’s name, identity, and likeness. In other words, under U.S. jurisprudence (which has persuasive effect in the Philippines), a person, whether a private person or a public figure, has the right to prevent, or control, the commercial appropriation of his/her face, body, images of his/her face, body, his/her name, likeness, identity. If a person posed in public or performed in public or agreed to have his/her photo taken and agreed that it will be used by a newspaper/ product for promotion, that is permission; but if her breast is accidentally exposed in public, there is no permission to commercially exploit the accidental exposure of such private part. The talent can collect damages [for the profits the tabloid made, for future income and opportunities lost, for damage to the reputation (the shows were “taped as live” and ABS-CBN and never showed the splice where the accidental breast exposure occurred), and for other damages] under the general provisions of the civil code (Art. 2176) and use the right-to-privacy “subset” right of publicity.
Newspapers and media organizations can use a public figure’s face, body, name, likeness, or identity as part of the news story, or the reporting or a newsworthy event, or, for film, as part of the narrative of a historical event (in Ayer Productions vs. Judge Capulong and Sen. Enrile, a case about a film on the EDSA uprising).
But this does not include commercial appropriation of a person’s face or body or images therefrom, without permission; such as: When the sales of the product is based on putting a famous person’s face, body or body part, or name, on the product without permission from the person or: When the tabloid is selling only because it has on its cover the person’s accidental breast exposure without permission from the person (e.g., the talent is not distributing the photo for, say, promotional purposes; it’s another matter if the talent posed for it; then, you’ll just have to contend with obscenity laws if the exposure is offensive to the public).
The tabloid can argue that, well, it is part of our news story, therefore, constitutionally protected; but if you can see from the product itself that it is being sold solely because of the commercial appropriation of the person’s private body part without permission from the person, then, the “news story” is just an excuse.
Interesting? You bet; it would be a test-case (other lawyers might use the obscenity laws but you’ll have to show that the exposure is offensive to the public).
The tabloid might also argue, well, the person danced publicly in that manner, therefore, she intended to be photographed publicly in that manner — matters of defense; the tabloid can raise it as a matter of defense in court; and later, it would be a matter of evidence or proof whether the talent had intended to be photographed in that manner and intended to have it distributed.
Also, under the copyright law, ABS-CBN owns the copyright to any dance, dramatization, or scene or scenario that it has staged; therefore, it owns all images arising from such dances, dramatization, scene or scenario. Snippets can be used by newspapers and other media organizations only for purposes of review or as part of a news story, of a newsworthy event, but not to sell the entire tabloid or, not for commercial exploitation. The owner of the copyright can prevent any infringement by injunction, or can collect damages, or both.
While the right of newspapers to publish stories of newsworthy events is guaranteed under the Constitution, it does not cover the commercial exploitation of a person’s face, body, likeness, and identity without permission from the person; and it also does not cover copyright infringement. (this is better watched and heard in “The Buzz!”, than read here, i’m telling you. Abangan!!! Watch the show!)
