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Presence of Malice
POSTED BY || 23 February 2009

Statement of the Center for Media Freedom and Responsibility
on the Right of Reply Bills

SENATOR Aquilino Pimentel Jr.’s sponsorship of the Senate version of the Right of Reply bill has moved some media colleagues to assume absence of malice in its intentions, although they don’t seem to have given Rep. Monico Puentevella, the main  sponsor of the House version, the same credit. CMFR will not comment on the intent of either of the two bills, their consequences being far more crucial than their aims, whether these are the stated or the real ones. The road to hell is indeed paved with good intentions, and purity of purpose does not excuse the dire consequences of uninformed legislation.

Whether we’re talking about the Senate’s version or that of the House, by compelling editors to print what they may very well not want to, the right of reply bill will undermine the editorial prerogative of deciding what to air or print that’s at the core of the exercise of press freedom in the newsroom.  And yet neither bill even requires proof of the need for a reply in terms of unfair or unbalanced press treatment. It is enough that an accusation or an innuendo has been made—whether by a source or by a journalist is not even specified—for the group or individual that was the subject of a story or comment to demand time or space within 24 hours in the case of the House bill, or within three days in the case of the Senate version. It doesn’t matter how much care editors have taken to be fair by printing or airing the other side according to the professional and ethical standards of good journalism.  No proof to the contrary is required, and the medium concerned must publish or air, at the risk of fines, and/or imprisonment and the cancellation of franchises, the so-called reply within the time specified by the bills.

Consider the consequences of this repugnant imposition. Once it becomes evident to various interests that they only need to claim that they have been accused of something or the other, or that an innuendo has been made about anything with which they’re associated, print, broadcast and online media will be flooded by demands to air or print replies, the consequence of refusal being fines that can reach as high as P200,000, and even prison terms and cancellations of franchises.  No newspaper,  broadcast station or online news site would risk incurring these penalties. And yet the cost of compliance would be a flood of  so-called “replies” among which one can expect more than a fair amount of efforts at free and biased publicity, and at the cost of reporting on other issues of public interest, which limited air time and space will prevent airing or printing. CMFR not only predicts that if a right of reply bill is passed,  2010, an election year, will be especially problematic for the media in terms of dealing with demands for replies.  It will also demean reporting on such crucial questions as candidates’ qualifications, platforms and programs of action by limiting the time and space that can be devoted to them. The media would be in a no-win situation either way. What’s worse is that so would the public.

It can be argued that the final version of the bill can require proof of the need for a reply, to which our own reply is that we won’t believe it even when we see it, the standards to which politicians will hold the press not being likely to be based on those professional and ethical values with which best practice is familiar. Any attempt to legislate best practice is indeed likely to go this route, the temptations of compelling the press to conform to standards other than its own being especially strong when coercion rather than self regulation decides the canons to which a press freedom regime must comply.

Consider finally the consequences to press development and freedom in our communities. The shoe string operations that characterize much of the media in the communities will either fall in line to conform with the demands of every group or individual likely to demand space or air time for replies, or else cease operations altogether in the face of the psychic and material costs of steering clear of fines and/or prison terms by reorienting their reporting and comment, and in the process surrendering their autonomy.

Right of reply bills have been correctly struck down as unconstitutional in the United States.  They are no less unconstitutional in the Philippine setting, given not only Article III Section 4 of the 1987 Constitution but also in the light of that document’s clear recognition of the value of a free press in a society where the need for information is crucial to its well- being, future, and development.

Center for Media Freedom & Responsibility