Media can’t be held liable for releasing tapes

Americans’ Sense of Superiority Takes a Beating in Iraq: is my Arab News column for this week.

My PDI column for today is Diplomats under fire.

You may have noticed that Inq7.net’s providing the controversial tapes for listening has been suspended due to legal reasons, probably advice that providing them to the public may not be wise. Sassy Lawyer gives a hint of what the legal reasons may be:

So… going back to the first part of the quoted portion of Section 1 of RA 4200, how many persons have violated RA 4200 so far? We have the actual wire-tappers, unnamed at this point; the person(s) to whom the CDs were given; this lawyer without a license Allan Paguia who edited the CDs; the radio commentators and radio stations that aired the contents of the CD… Then, we have the Press Secretary Ignacio Bunye, live on TV, releasing what he claimed were the originals. Asked where he got them, he said, “We have our own sources.” Ping Lacson was right. For mere possession of those CDs, Bunye should already be prosecuted.

Which leads to a puzzling problem for me. Everyone assumes the tapes were recorded surreptitiously, and thus, illegally, without the knowledge of any of the parties concerned. That is the first assumption (if, for example, the tapes were made under instruction of the president, her husband, or the ones calling them, the crime gets more complicated and interesting). The second assumption is that releasing the tapes was a bungled opposition attempt which was alarming enough to panic the palace into releasing its own version.

Until the palace leaked its own version, it had the law on its side. When Secretary Bunye not only played the recordings, but made them freely available to the media, what, then, were the consequences?

It seems to me, what would have been a cut and dried case of violating the anti-wiretapping law became a freedom of information case. Basically, the question is, in cases where there is obviously something that exists that can shed light on the behavior of a president, what are the rights of the public to that thing? In this case, the tape is information arrived at in violation of every person’s right to privacy. The way Americans, for one, have handled the issue was discussed in Slate (including the Supreme Court’s decision on Nixon’s claim of executive privilege in FindLaw for Legal Professionals).

I suppose the lawyers will find the wiggle room for both media and the public highly restricted. I recall being told in an opinion by the Secretary of Justice, that there is a legal principle that there is a presumption of legality and validity to acts of Congress; is there such a presumption of legality and validity to actions by the executive branch? For if there is, then Sec. Bunye’s exposure of the recordings, would logically lead to the assumption by media that first, public playback and providing the means to listen to the tapes to the public was not only legal, but encouraged; and second, that considerations of privacy and the law aside, it was clearly in the public interest for media and the public to listen to them.

The third question, of course, boggles the mind. If it was always wrong, always illegal, to not only play the tapes in public, but to faciliate their availability to the public, then how high and to what extent does the responsibility extend? Should the Secretary of Justice file a case against Bunye (as he grumpily said he could), and if Bunye says the president ordered or authorized him to do it, would this constitute a wilful violation of the law, and possibly an impeachable offense?

There seem to concern even on the part of the administration that in latching on to an intrepid political move, it may have bungled its legal standing just as badly as the opposition bungled the handling of the tapes. As for media, what should its precedents be? In Silha Bulletin – Summer 2001 there is this:

In the most anticipated media law decision in nearly ten years, the Supreme Court ruled on May 21, 2001 that a news organization cannot be punished for disseminating the truthful contents of an illegally recorded telephone
conversation as long as the information is in the public interest and the news organization did not participate in the interception.

Which would mean, insofar as the Philippine courts still look to American jurisprudence, that Inq7.net, ABC5, and other media outlets, are in the clear. After all, the Press Secretary attested to the truthfulness of at least one recording, providing the doctored recording as evidence of the truthfulness of at least one… (Just for added info, here’s an article on Indian journalists pondering the question of privacy.)

Meanwhile, there seems nothing legally wrong with providing transcripts instead of actual recordings. INSIDE PCIJ: Stories behind our stories is making history by being at the forefront of this story. Traditional media, whether newspapers or TV, are unable to keep tabs on the developing story as quickly as bloggers or the online media (a pity Inq7.net is out of the running because of legal questions).