Essential and non-negotiable

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IN a meeting with representatives of some member organizations of the Right to Know Right Now coalition campaigning for a Freedom of Information (FOI) Act, Nueva Ecija Congressman Rodolfo Antonino refused to remove the Right of Reply (ROR) rider in a bill on FOI he has introduced in the 15th Congress.

His fellow representatives, said Antonino, want that rider in any FOI act that’s passed to guarantee that if the media were to report anything about them that puts them in a bad light, they would be able to present their side, or to correct an error in reporting. When told that fairness by presenting both sides of a controversy or issue, and in accusations of wrong doing, the alleged wrongdoer’s denial and explanation, is an ethical principle in journalism practice, Antonino flung at the journalists present the charge that media self-regulation doesn’t work, thus the need to compel media fairness through law.

Wrong. It isn’t that the self-regulatory regime in the media doesn’t work; it’s that it doesn’t always work, meaning it works some of the time while failing in others. The ethical principle of justice, which in practice requires journalists to be fair, is among those principles that’s practically second nature among journalists except the sleaziest and most incompetent. In reporting an accusation of wrong-doing, for example, it is common for journalists to also get the side of the accused. They may not be driven every time by a sense of fairness but by the instincts of news gathering. Nevertheless, the other side does get space in print, or time in broadcast.

The officials of this government, whether in Congress, Malacanang or the rest of the bureaucracy, also need to be informed that self-regulation in the media actually works much better than the laws they’ve passed, approved, or tried to implement, among them the laws against torture, murder, kidnapping and other crimes—crimes with an impact not only on individual lives, but on the life of society as well, and far removed from the consequences of such media offenses as the failure to report a politician’s denial of a rival’s claim that, say, the former’s a liar and a thief.

But would a law requiring the media to publish replies to a news report, editorial, commentary, feature story, or analysis guarantee fairness all the time? It probably would—and more. Once a right of reply law, whether standing alone or as a rider in an FOI act, is in place, there is nothing to stop anyone who claims his side has not been presented, or even given adequate time and space, to demand publication or airing of his reply, no matter how much space or time it would require to print or air.

The temptation to have almost exclusive access to print space or broadcast time—even to online space and time—would be too great for the publicity hungry politico to resist, resulting in the edging out of other reports, comments, etc. from the news pages and/or programs to give way to their replies. Any politician eager to silence a hated newspaper, radio or TV station, by overwhelming the object of his hatred with material it would be compelled to air or print, would have a legally mandated means to do so.

This would be in addition to a right of reply law’s undermining the fundamental editorial right to decide what and when to publish or air that’s part of the exercise of press freedom. As media advocacy and journalists’ groups have been arguing since the Arroyo regime, when administration congressmen began filing ROR bills, an ROR law, whether standing alone or as a rider in another bill, would infringe on the guarantee of press freedom in Article III Section 4 of the Constitution.

Once passed, an ROR law would therefore be the subject of the same petitions questioning its constitutionality that have been filed against RA 10175 (the Cyber Crime Prevention Act of 2012).

The penalties prescribed for violating an ROR law, among which fines humungous enough to cripple media organizations especially the small newspapers that are the backbone of the community press have been proposed, would also be grounds enough, as in the case of the libel provision in RA 10175 in which imprisonment of six to 12 years is mandated, to similarly challenge it as excessive. (One version of a right of reply bill, for example, mandates fines of as much as P200,000, plus 30 days’ imprisonment and the cancellation of the radio or TV station’s franchise.)

Could the congressmen and senators (some have also filed similar bills) who want an ROR law or rider be convinced to lower the penalties of fines and imprisonment they have proposed over the last few years for violations of such a law? Not likely. Lowering the penalties would take the teeth out of any such law, thus undermining the malicious purpose of it, which is to make the penalty so huge fear of it would compel news media organizations to meekly allow even the longest and most imbecilic “replies” in their pages or programs.

In the communities, where a battle between local centers of power (governors, mayors, congressmen, their military, police, and paramilitary goons, as well as illegal logging and other interests) and community newspapers and radio is raging, an ROR would overwhelm small newspapers that are usually published only weekly with enough material to silence them. Imagine a situation in which every single politician or petty tyrant demands each time he or she lands in the news the right to reply. There wouldn’t be enough space in a community newspaper to print replies that could run into dozens of pages.

Violating the law, on the other hand, would cripple and effectively silence the newspaper, given the huge penalties in fines, imprisonment, etc. that have been proposed. A right of reply law would be exactly what every interest wants, either to silence reporting and criticism by the news media or to have unlimited media access—resulting not only in the diminution of press freedom, but also the erosion of freedom of expression via the media, despite Article III Section 4.

That provision is in the Constitution for a purpose. Otherwise known as the People Power Constitution, the 1987 Charter enshrines some of the bitter lessons the country learned from its experience with dictatorship. One of those lessons straight out of martial law days is that free expression and press freedom are essential to democratic discourse, and for that reason non-negotiable.

Although the protection of press freedom and freedom of assembly has been in earlier Philippine Constitutions, the protection of free expression was included in Article III Section 4 to emphasize the value of freedom of expression, of which press freedom is a vital part, in the discussion and debate over public issues. An ROR would infringe not only on press freedom but would constitute a continuing breach of freedom of expression.

Thus the need in the news media for self-, rather than external regulation. An ROR would not only be a form of external regulation; it would be the closest to a guarantee, not of fairness, but of de facto control and the silencing not only of the most vulnerable sectors of the mass media, but eventually, even of the biggest broadsheets and networks in the media system.

But does the fact that self-regulation doesn’t always work justify external regulation through, among others, an ROR law, and, for that matter, the Cyber Crime Prevention Act? The erosion and eventual destruction of free expression and press freedom is too high a price to pay merely to assure politicians—the citizenry’s servants and not its masters to whose sensibilities it has to defer—space and time in the news media from which citizens get much of the information and analysis they need to make sense of what government is doing, and to hold its officials accountable.

(BusinessWorld)

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