TWO PROPOSED laws critical to news-media practice are up for consideration in the Senate: one advances the practice by decriminalizing libel, the other suppresses it by abridging the very freedom on which it is founded—an abridgment the Constitution itself disallows, yet Congress insists on.
For all its patent unconstitutionality, the first one is more likely to pass than the second, for the simple, selfish reason that it stands to benefit the very people passing it—people in power and influence. It’s not unlike the proposed Freedom of Information Act, which punishes any keepers of public information who suppress any of it, thus making it only deservedly easier for journalists to uncover and make a case of official wrongdoing.
If libel is decriminalized, a prospect helped by an inexorable trend in modern civilization, one still can bet that, in compensation for the elimination of the prison provision, the fines will be increased, thus all the same making life harder for journalists in other ways.
As I’ve said here last week, it’s all a game of power vs freedom, a game I have myself decided to stop playing by declining invitations to the hearings. At any rate, I’m reproducing here for what they’re worth excerpts (with, in some cases, second-thoughts additions or changes, signaled by brackets) from my discussions at forums I have attended as a resource person on the issues.
Responsibility is the opposite face to freedom, power, and rights on the same democracy coin—the counterweight intended to keep them in check, lest they run away. It comprises laws, codes, principles, philosophies, and traditions of civilized behavior. It is such things as propriety, ethics, morality (or, if you like, conscience), and, particularly for journalists, libel.
To determine its true quality, freedom should be measured against the risks one takes in exercising it. [The massacre of 58 people, 32 of them journalists, in Ampatuan town, Maguindanao province, on November 23, 2009, ago stands as the most chilling Philippine standard.]
Decriminalization of libel
Making libel a merely civil offense—that is, punishable with fines but not imprisonment—should be a critically deserved help to the news media. [Indeed, it would have been a huge help in the relationship to the previous government—one led by a president who evidently made it her administration’s policy to conceal or reveal information only to its exclusive advantage, with no regard at all for public accountability, and whose own husband, and natural partner in power, used libel as a weapon of intimidation].
Right of reply, from entitlement to imposition
Converting the right of reply from mere entitlement or privilege to inescapable imposition—such as proposed, with provisions for not only fines but also imprisonment—is an abridgment of the freedom of the press, indeed a perversion of the democratic sense of equity. The press cannot be compelled to publish, and the broadcast media to air, anything, not even a reply to something—a news report or a piece of criticism—that it has itself published.
Denied his right of reply, anyone who feels victimized by the press is never lacking in alternate means of seeking redress. He can go, for instance, to any of the other, necessarily competing, news organizations; or he can plant himself on a street corner with a protest placard or seize some public stage to deliver his piece; or he can distribute protest leaflets. Thus, he is able to bring his case to the market [the public] whose [judgment] the press is ultimately subject to. He can also go the press’s self-policing councils and appeal to its institutional sense of fairness. If still he gets no satisfaction he can of course go to court.
If he happens to be a power figure—as such, a naturally regular character in the news—he can call a press conference and expect not to be ignored; if a public official, he can use the government’s media network; and if a member of Congress, he can always take the floor of the Senate or House of Representatives and discourse to his heart’s content.
In fact, the bill making the right of reply an imposition on the press tips the balance in the most critical relationship in a democracy: against the press as watchdog for the ordinary citizens and in favor of the people it precisely has to watch, lest they misuse the power they hold by virtue of public office, wealth, class, and arms.