Chilling effect

OMBUDSMAN Samuel Martires has a gripe against Malou Mangahas, a veteran journalist affiliated with GMA-7 and the Philippine Center for Investigative Journalism (PCIJ). The main beef of Martires is that according to him, Mangahas recorded their conversation without his knowledge, and she then caused its publication in her investigative report, recounting what Martires said on the issue of the statement of assets, liabilities and net worth (SALN) of President Duterte. Mangahas has been trying to obtain a copy of the President’s SALN, and as she revealed, the Office of the Ombudsman has been delaying the release. What particularly irritated Martires was Mangahas quoting him as saying that he was not sure whether he had the authority to release the President’s SALN and that she should just ask for a copy from the Office of the President and the Office of the Executive Secretary.
It should be noted that Martires has not denied that he indeed said the things Mangahas attributed to him. What he is accusing Mangahas of is unethical conduct, and he even suggested that she violated Republic Act (RA) 4200, or the “Anti-Wiretapping Law.” These allegations are serious because Mangahas is a journalist, and this will have far-reaching implications because it dwells on the issue of press freedom and the limits of the rights of media.
Section 1 of RA 4200 states, “It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or walkie-talkie or tape recorder, or however otherwise described.”

A direct and simple reading of the provision reveals two key elements for the crime to attach to any person. First, the recorded conversation must be a private one. And second, such should have been secretly recorded by the accused party. While it will be for a competent court of law to decide, it appears that the allegations of Martires and others may not hold water.
First of all, the conversation was not private. Mangahas introduced herself as a journalist. And Martires is a public official, and the subject of the conversation was on a public matter involving the President’s SALN, which as a matter of law can be made public upon legitimate request, and as a matter of policy the disclosure of which is covered by Executive Order 2 issued by the President himself in 2016 to ensure freedom of information. Second, Mangahas was openly holding a device to record the conversation; she did not surreptitiously have her body wired with secret recording devices, like some undercover agent.
It has already been well settled by the Supreme Court, in GR 168338 promulgated in 2008, in Chavez v. Gonzales and the National Telecommunications Commission, that a free press and free speech are preferred rights, even in the face of possible violations of a law. In the said case, the issue was also about an alleged violation of RA 4200 and where government threatened media against publishing the contents of an alleged wiretapped conversation between then-President Gloria Macapagal Arroyo and Commissioner Virgilio Garcillano of the Commission on Elections (Comelec), popularly known as the Garci tapes. To quote the court:
“We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press.”
Since Mangahas already published her conversation with Martires, the arguments on prior restraint, which was clearly elucidated in GR 168338 may not directly apply. Nevertheless, the optics created by an Ombudsman accusing a journalist of violating a law for publishing an interview about a legitimate public matter creates a chilling effect. In GR 168338, the court ruled that government doesn’t have to issue formal circulars to censor free speech. A mere utterance of a public official like the Ombudsman accusing a journalist of violating a law would be enough to create a chilling effect.
Beyond the legalities, however, lies the commonsensical. A public official, who is approached by a journalist who openly identifies herself as such and begins asking questions, that doesn’t want to be quoted, has two options. Either he replies with a terse “no comment” or just walks away and ignores media; or he can ask that the conversation be off the record. Martires did not do any of these.
The ethical obligation of media people requires that they are duty bound to clearly identify themselves as such. In fact, they often carry press identification cards with them. Mangahas announced her identity as a journalist. Martires’ staff knew that she wanted to interview Martires, who is not an anonymous whistleblower or news source whose identity and revelations Mangahas is duty bound to protect. He is the Ombudsman and Mangahas is just doing her job. To accuse Mangahas not only of being unethical but also of violating RA 4200 would just be silly, except that it has a chilling effect.