Navigating legal concerns in investigative journalism

BAGUIO CITY — Investigative journalists should be aware of their legal rights, says Free Legal Assistance Group (FLAG) chairperson Jose Manuel Diokno. Diokno gave a lecture on legal concerns in investigative journalism during a four-day training on investigative journalism conducted by the PCIJ to Luzon-based reporters and editors.

These include the following:

• Right to information on matters of public concern
• Right to be free from prior restraint
• Right to report on any legislative, judicial or other official proceedings and the statements made in those proceedings, or any other acts of public officers in the exercise of their functions
• Right to report on matters of public concern and the conduct of public officials and public figures
• Right to protect your sources

The first two rights are enshrined in the Constitution. The right to report on any legislative, judicial or other official proceedings is mandated by the Revised Penal Code. The right to report on matters of public concern has been upheld by jurisprudence, while the right to protect one’s sources is mandated by law.

View Diokno’s presentation.

The right to information is meant to enhance the widening role of the citizenry in governmental decision-making as well [as] checking abuse in government, according to the decision in the case Valmonte v. Belmonte.

Diokno says that the right to information is a right to access that covers official records and documents, and government research data used as basis for policy development, and other matters of public concern. This right however, is subject to limitation provided by the law, including national security matters and intelligence information, trade or industrial secrets, classified law enforcement matters, and other confidential or “classified” information which public officers and employees are prohibited from disclosing under R.A. 6713, or the Code of Conduct of Public Officers.

Journalists are also barred from access to closed-door Cabinet meetings, executive sessions of either House of Congress, and the internal deliberations of the Supreme Court (SC).

However, media personnel may access contracts that have not yet been finalized, such as the ZTE contract, as long as these contracts are matters of public concern.

Prior restraint means censorship, says Diokno.

“The rule is that a prior restraint cannot be imposed on speech unless there is a ‘clear and present danger’ that it will bring about the substantive evils Congress has a right to prevent.”

Yet Diokno points out that clear and present danger is not the only test that courts have used in deciding cases of prior restraint. The dangerous tendency test is also used, where words are actionable if they create a dangerous tendency which the state has a right to prevent. Another test is called the balancing of interests, where a court must take “conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation.”

The Internet has an important role in cases of prior restraint, says Diokno. For the government to succeed in a claim to stop printing an article, it must show irreparable harm. However, this can only occur if the matter is not published elsewhere. “And here is where the Internet comes in.” Once an article is published on the Internet, a government can no longer claim prior restraint.

When it comes to judicial, legislative or other official proceedings, defamatory imputations are not proved to be malicious if a fair and true report is made in good faith, without any comments or remarks, of the proceedings, of a report or speech delivered in the said proceedings, or of any other act performed by public officers in the exercise of their functions.

R.A. 53 as amended by R.A. 1477 prohibits disclosure of the source of any news report or information related in confidence unless the court or a House or committee of Congress finds that such disclosure is demanded by the security of the State.

Aside from their legal rights, media practitioners must also be aware of their role in media proceedings. As shown by the recently concluded Estrada plunder trial, television coverage of judicial proceedings is prohibited by a majority decision of the SC due to an inherent denial of the due process rights of a criminal defendant, which include the prejudicial effect of telecasting on witnesses and trial by publicity.

Diokno pointed out that the dissenting justice to this opinion was then Associate Justice Reynato Puno, who is now Chief Justice.

“On a case to case basis, televising criminal trials should be addressed to the sound discretion of the trial judge,” Puno said in his dissenting opinion. He added that it was up to the discretion of the judge whether or not to allow televised coverage of a criminal trial, and also listed guidelines on television coverage of trials.

One of the most-invoked legal phrases in connection with journalism is the sub judice rule. Sub judice is Latin for under the law, and limits comment and disclosure relating to judicial proceedings in order not to prejudge the issue, influence the court, or obstruct the administration of justice. Violation of the sub judice rule may result in contempt of court. Lawyers, litigants, witnesses and media practitioners are all covered by the rule, even those who have never stepped inside the courtroom. It applies both to pending cases and cases that have already become final.

Fair criticism is allowed, but there may be a contempt of court if publication tends to bring the court into disrespect or scandalize it, or if there is a clear and present danger that the administration of justice would be impeded.

Investigative journalists also have legal duties, which are the following:

• Respect the right of privacy
• Avoid speech that defames or injures the right to reputation
• Protect your sources
• Respect the courts and legal proceedings
• Report the news fairly, accurately, and in good faith
• Make fair comment
• Respect the rights of women and children

Investigative journalists and other media practitioners must guard against defamation, which is libel (written, published, or aired), and slander (oral defamation or by deed).

For defamation to be proven, the following elements must be established: defamatory imputation (harmful to reputation), malice in law or actual malice (knowing it was false but reporting it anyway), an identifiable victim, whether a person, group, or corporation, and publication that tends to cause dishonor of, discredit to or contempt of the victim.

Investigative journalists should also be familiar with the new writs: the writs of amparo and habeas data.

The writ of amparo is a pet project of Justice Adolf Azcuna. It is a constitutional remedy to enforce constitutional rights, and introduces more pro-active measures like the protection of witnesses and a court order for investigation into human rights violations. It places the burden on respondents such as the military to file a verified return stating the action it has taken, efforts at verifying the identity of the missing person, recovering and presenting evidence, identifying witnesses, and identifying and apprehending those involved. Under the writ of habeas corpus, the military could simply deny that it had custody of a missing person.

Unlike the writ of amparo, the writ of habeas data has yet to be released, but according to Diokno, its release is set for next week. This writ allows for access to intelligence information in order to correct erroneous or misleading entries. “Without this writ, it is practically impossible to access this information,” says Diokno. He expects that the military will put up a fight against the writ of habeas data.

Armed with knowledge of one’s legal rights, role, duties and the new writs, the investigative journalist has even more potent tools to aid their search.