Caption from the Inquirer: “A Youtube video uploaded by user glamchiq00 shows actor Raymart Santiago and several others ganging up on Inquirer columnist Mon Tulfo at the NAIA Terminal 3. The brawl ensued after Tulfo took photos of Santiago’s wife, actress Claudine Barretto, berating a ground stewardess of a budget airline.”

Blog admin’s note: The voting below is not a scientific survey/poll although it reflects actual voting in the blog and is an added feature for viewers’ participation.

According to reports, the woman in hot-pink shirt in the video is movie star Claudine Barreto, the man in grey shirt is movie star Raymart Santiago, the man in hot-pink shirt is a friend of the couple, and the man in a light-brown khaki vest (sprawled on the floor) is Inquirer columnist Ramon Tulfo.

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Blog admin’s notes: (only because it involves news media issues and media law issues)

News media principles. Issues. On authentication and editorial judgment: This video has not been authenticated by any of the media organizations that used it (in the sense that the source is pseudonymous and not verified) but the fact that none of the parties alleged to be in the video denied it, or refuted it, and on the contrary went to great lengths explaining the context of the video, and the fact that the NAIA (airport management) and Cebu Pacific also did not challenge it, and finally, the fact the general content of, the appearance of the place, and the situation depicted in the video, all coincide with verified reports, may be used to indirectly authenticate the video.

This means that as long as editors and news directors make an intelligent examination of the materials in the social media, and establish its context, they can use these as secondary sources (the primary sources being persons actually present in the incident).

(This is an entire course; at least three courses. There are at least three to five courses in the department on this, undergrad and graduate, on substance (verification and authentication of online materials, examination of primary and secondary sources, etc.) and not just form. Enrol now! (er, este, next sem na. plugging.) Although we’re oversubscribed .

News media values. Issues. There are probably more newsworthy events that day such as the Iligan bombings and the murder of star witnesses against a carnapping syndicate, but the brawl, involving as it did famous movies stars and a well-known columnist, caught on video, posted on YouTube, and becoming viral, made it more sensational than the rest of the news stories that day. The internet is a very visual medium and viewers are more emotionally affected by moving images than by words in a straight news report. (this is not to say that you should always publish sensational stories — but that’s a whole lot of discussion that blog admin has a mouthful for. Editors/ news directors publish/ air what they think would be of interest to readers/ viewers; hopefully balancing it with stories that are of consequence to their lives.)

Media Law issues. When a famous movie star (Claudine Barreto) is arguing loudly (allegedly cursing and berating), a ground flight attendant, in a very public place (the airport counter) in front of very many people, for their misplaced luggage, can this be documented and reported on by a reporter (Inquirer columnist Ramon Tulfo) who happened to be in the same place? Or is there an invasion of privacy with such documenting (photographing and/ or videoing) with intent of reporting?

Are the movie actors justified in allegedly physically forcing the reporter to surrender the digicam/ video cam? Is the reporter justified in allegedly pushing away (or allegedly kicking) the movie actors? Is roughing up the reporter justifiable for being an annoyance?

Right to privacy vs. the “Public Figure Doctrine”

While the phrase “right to privacy” is not exactly so worded in the Bill of Rights, it is definitely and unmistakably found in the right to be secure in one’s person, houses, papers, and effects (against unreasonable searches and seizures by government or its agents) and the inviolability of privacy of communication and correspondence (again, against unreasonable searches and seizures by government or its agents).

This means that as against the awesome powers of government, your dwelling, personal belongings, documents, even your own physical body (the Constitution is being literal here), is protected against being searched and seized unreasonably by agents of the state, without probable cause (see exceptions: valid warrantless searches). Your letters, conversations, and other forms of communication cannot be intercepted, recorded, etc, without a court order.

Our Civil Code also contains provisions that protect the right to privacy, such as:

“Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, shall produce a cause of action for damages, prevention and other relief:

1) Prying into the privacy of another’s residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.”

This means that you can sue, for damages, individuals or persons who: 1. are peeping and looking into your house; 2.interfering with how you relate to your family; 3.gossiping about you (intriguing); 4.irritating/ annoying/ shaming you because of your religion, social status (impoverishedness, etc.), place of birth, physical appearance or “defect”, etc.

For letters:

“Art. 723. Letters and other private communications in writing are owned by the person to whom they are addressed and delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However, the court may authorize their publication or dissemination if the public good or the interest of justice so requires.”

This means that your letters and other private communication cannot be published without your permission unless there is a court order.

As to your lifestory and public activities: See Lagunsad vs. Sotto, Vda de Gonzales. Your lifestory (which includes your family relations, romantic relations, etc.) cannot be depicted in a movie without your express permission. As to your public acitivities, see Ayer Productions vs. (RTC Judge) Capulong and Enrile, on a movie about the 1986 EDSA Uprising. Your public activities as a public official and public figure, constituting public interest, can be depicted in a movie without your permission.

There is however a sub-set of rights in American jurisprudence that has not been applied by our courts, that is, the right of an individual to control the commercial (i.e., in advertisements, consumer products, but not as news reports that involve newsworthy events) 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.

This means that under this “sub-set” of rights, you have the right to stop another entity from using your face, name, identity, or an image in your likeness, for their own profit — unless you had agreed because, maybe, they would pay you. For example, your face/ name/ identity etc. cannot be used in T-shirts, posters, websites, mugs, billboards, etc for the purpose of profit (their profit) without your permission.

Coming now to the airport brawl: Unfortunately, or fortunately, when a movie star engages in public behavior that attracts attention, in a very public place, maybe because of its loudness or the conflict it creates; and the concern involves public utilities such as airline service (a matter of public consequence), then it is not a private matter; it involves a conflict that is important to public welfare: These are: airline service, airport security, passenger welfare, public behavior of movie stars, etc., and therefore can be documented and reported on by reporters.

(See principles of the “Public Figure Doctrine”; that is, a public figure, in order to maintain a libel suit or slander case, must show that the report arose from “actual malice”, subdivided into: 1.“reckless disregard for the truth”, or the report is an outright lie and was not based on any sources/ verified matter; 2.knowledge of falsity, or the report is a lie and the reporter knew it to be false; and 3.the reporter had motive for revenge based on personal history with the news subject.)

The brawl incidents themselves, however, depending on the extent of injuries, involve provisions of the Revised Penal Code: slander by deed if the physical handling does not amount to an injury that incapacitates. Slight, to less slight, to serious physical injuries if they result to an incapacity to perform the person’s usual work; etc.)

Parenthetically and personally however i would draw a line when it comes to “paparazzism”, even as to public figures — or stalking — or photographing or writing about non–public activities, or activities that do not involve public consequence, such as (examples of private activities even if in a semi-public place): quietly having a cozy dinner with a friend, or quietly working out in the gym, or quietly watching a movie, or quietly looking at shoes and bags in a store, etc. Everyone has the right not to be bothered or gossiped about or photographed or written about when engaged in non-public activities or those that do not involve public consequence. Up to now, there has been no law passed against stalking and other forms of harassment and interference, such that we have to rely on the general provisions of the Civil Code, RPC, etc. (There are bloggers, too, who are mindless enough to write about the non-public activities of private persons, or upload photos/ videos of non-public activities of private persons without their permission. And of course, no matter how straightforward, fair, and professional you are, there will always be degenerates who will spread lies about you.)

But as to this case, my advice is: Take on the big fish: That is, Cebu Pacific and NAIA management and security— (not anymore a media law issue).

“Offloading for safety” is a pretext for a mistake, because it is dependent on a foreseeable event. The length of the runway is known. The maximum weight that would allow take-off on that short runway is known. The combined weight of all the passengers’ luggage had been determined. The risk is foreseeable and offloading could have been avoided by… informing the passengers beforehand, decreasing the allowed weight of check-in for everyone and not loading any more than what the length of the runway would allow for takeoff. Or maybe… the luggage actually ended up in Guangzhou, and back, where the airline has a promo for P1,008.

On the other hand, airport management and security are non-existent. There wasn’t even a CCTV. According to airport management, there was a camera at the counter. It wasn’t working. It had not been working for sometime. (It was there for aesthetic purposes. As part of the interior decor.)

Take on the big fish.

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!)

Tag: right to privacy

“The Buzz” (of Boy Abunda), ABS-CBN Ch.2 takes on the paparazzi and “wardrobe malfunction” (final edit)