The Devil in IGFE: In the Guise of Free Expression

By Mark Anthony N. Manuel

Unless we want to kill the goose that lays the golden eggs, we should not permit or encourage the commission of unfair promotion of brands in the guise of freedom of expression.

I.  Introduction

II. Legal Standards: The Regulation of Posting of Stuffs Bearing Tradenames of Non-sponsor Companies During Government-facilitated Events is Constitutional

A. It enjoys greater interest

B. It passes the O’Brien Test

i. It is wihin the constitutional power of the state

ii. It furthers a valid government interest

iii. The government interest is unrelated to the suppression of freedom of expression

iv. The incidental restriction on the freedom of expression is no greater than what is essential to the furthereance of the interest

C.  The Regulation is Content-Neutral

III. Moral Standards: Moral Standards Disallow Taking Undue Advantage of Other’s Money and efforts

IV. Conclusion

INTRODUCTION 

In a big sponsored event facilitated by the government to raise funds for public purpose, should we allow scrupulous non-sponsors and spectators to interfere with the event through unauthorized display of trademarks?

The case before us leads us to a crossroad. It asks us to choose between an abusive behavior of sabotaging government-sponsored activities and of supporting the cause of the government to provide funds for needed social services.

The author has chosen the latter as it has a more noble and reasonable purpose.

LEGAL STANDARDS 

The author submits that the regulation of advertisements by disallowing promotions of trademarks during government-sponsored events is constitutional for three reasons: first, the public interest involved enjoys greater interest; second, the regulation passes the strict requirements of the O’Brien Test that was used by the Supreme Court in deciding cases involving freedom of expression; and third, the regulation of personal advertisements during government-facilitated events is a content-neutral regulation that is well-supported by a substantial government interest.

1. The interest of the public regarding the regulation of unpaid advertisements during government-sponsored events enjoys greater interest

The High Court in Adiong vs. COMELEC ruled that governmental regulation will be permitted if there is a public interest substantial enough to warrant the kind of restriction involved in the case. [1] The author submits that there is a substantial public interest in the case at hand to warrant a restriction on the use of trademarks and similar marks of companies that do not contribute to the realization of the events.

The events are primarily carried out to obtain income for the government. The money realized from these activities will be used for the welfare of the people. The more money these events will make, the more roads, hospitals, classrooms, bridges and social services. Indeed, the activities are primary undertakings in order to provide sufficient funds with which the economy may be sustained.

The ultimate beneficiaries in the process are the people. The government obtains funds for the support of government, for the administration of laws, and for the continued operation of the various legitimate functions of the government. Permitting the unauthorized promotion is tantamount to robbery of government money that can be used for public welfare.

2. The regulation of unpaid advertisements during government-sponsored events passes the strict requirements of the  O’Brien Test

In question regarding regulations affecting freedom of speech, the Supreme Court has used the O’Brien Test. The said case is derived from the case of US vs. O’Brien[2]. The Supreme Court applied the O’Brien Test in at least two cases, Adiong vs. COMELEC (207 SCRA 712)[3], Osmena vs. COMELEC (288 SCRA 447).

Under the O’Brien Test, regulation of freedom of expression is permitted if the following requisites concur: first, if the regulation is within the constitutional power of the government; second, if it furthers a substantial government interest; third, If the government interest is unrelated to the suppression of free expression and; fourth, if the incidental restriction on the freedom of exppression is no greater than is essential to the furtherance of that interest.

The author asserts that the case at hand satisfies all these requirements.

A. The regulation is within the constitutional power of the government.

The freedom of expression is not absolute. It is subject to the police power of the State, for the protection of public peace, morals, order, safety and general welfare. [4] Like any other rights, it should be exercised with responsibility.

The money derived from the events facilitated by the government will be utilzed for the benefit of the people. Thus, the case at hand involves the protection of the general welfare. This is a valid public purpose.

The means of achieving this purpose is also legal as there is no arbitrariness or capriciousness involved in its implementation. People can still wear any clothes they want to wear. They are not also forbidden to enter the events. The only thing requested from them is not to flaunt tradenames of companies which did not contribute to the event.

Given the fact that there is a valid purpose and a valid means, it is submitted the regulation is within the constitutional power of the government.

B. The regulation furthers a substantial governmental interest.

As mentioned above, the restriction in the case hand is anchored on a substantial governmental interest, that is to prevent the failure of activities aimed at collecting necessary funds for social services. This noble intention must be protected against those whose only intention is to further a personal selfish purpose.

Being official sponsor requires a huge amount of financial resource. Thus, their financial investment must be protected by the government because they are its partners in making these events possible. The government should shun any efforts to sabotage the success of these endeavors that contribute to government funds.

C. The government interest is unrelated to the suppression of free expression.

The government interest in the present case is absolutely unrelated to the suppression of free speech. The interest here is to create funds for social services. The government  regulates the posting of tradenames of non-sponsored companies so that the latter may not unfairly take advantage of the efforts, money and time invested by the sponsors.

In fact, the rights of the non-sponsored companies over their trademarks are not violated in the present case. The rights over intellectual property is a negative right. This means that the government in granting intellectual property merely gives the trademark owners the right to prevent others from using their marks. There is no violation here because they are merely asked not to use the marks during a specific time and place.

Meanwhile, there is no violation as well on the part of the spectators. They do not have the right to use the tradenames of the non-sponsor companies. The tradenames that they use in posting in social networks are owned by the persons who registered the same. Then the restriction of the government on the use of such tradenames that they do not know is valid and reasonable.

D. The incidental restriction on the freedom of expression is no greater than is essential to the furtherance of that interest.

The restriction by the government is fair and equitable. There is no other means with which the government may further its intention and protect its interest and the interest of the people as a whole.

Moreover, in Zaldivar vs. SB,[5] the Supreme Court held that when confronted with issues involving conflicting interest, the balancing of interest test must be used. The principle of the balancing of interest on the freedom of exression requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or types of situations. It is here where the court has to weigh the individual rights as against the interest of the public and more often than not, has to uphold the interest of the public.[6]

Further, if on balance it appears that the public interest served by restrictive government legislation is of such character that it outweighs the abridgment of freedom, the the Court will find the legislation valid.[7]

To borrow the words of Professor Kaufer,

The balance-of-interest theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the First Amendment (freedom of speech and expression), and that they may be abridged to some extent to serve appropriate and important public service.”[8]

Given the special circumstances in the case at hand, the weight of interest must necessary tilt in favor of public interest.

3. The regulation of unpaid advertisements during government-sponsored events is a content-neutral restriction that is well-supported by a substantial government interest.

The Supreme Court explained in Adiong that if a case passes the O’Brien Test, it necessary follows that the restriction is merely content-neutral. The case at hand is a form of content-neutral restriction because unlike a content-based restriction, is not concerned with the content of the restriction. The curtailment is for a definite and valid public purpose and not to restrict the content of the speech on the basis of its content.

What is regulated in the case at hand is not the content of the speech. It is not the brands that is being displayed. It is not the brand tags of shirts of someone who posted a ‘selfie’ picture in Facebook. It is the time, place and manner that is regulated. The time, place and manner of the expression is being regulated to allow the government to pursue activities for the benefit of the public. If such are not regulated, the purpose for the activity (to obtain funds for public service) will be prejudiced.

The clear-and-present danger rule is often used in determining whether a restriction violates the right of the people to free speech. Under the rule, there must be a immediate danger which the government has the duty to prevent.

However, the clear-and-present danger rule is inappropriate in the present case. What should be applied here is the balancing of interest test because the case is neutral-based restriction.

The case of Osmena explained that the clear-and-present danger test is inappropriate as a test for determining the validity of laws, which are concerned only with their incidents.

It is submitted that the opinion in Osmena[9] is well in point. To apply the clear-and-present danger test to such regulatory measures, like the case at hand, would be like using a sledge hammer to drive a nail when a regular hammer is all that is needed.

As explained above, using the balancing of interests test will lead us to the conclusion that a substantive public service is greater than the interest of an individual whose sole purpose is to sabotage the good intention of the government.

 

MORAL STANDARDS

Our moral standards call us not to take advantage of others’ efforts and property.

The acts of the non-sponsor and their connivers cannot also pass our moral and ethical standards.

Philippine moral standards disallow taking unfair advantage of the efforts and money by another person. The case at hand falls under this prohibition because the unauthorized promotion intrudes to the proprietary rights of the government and of the government sponsors.

These moral standards are encapsulated in Article 21 of the New Civil Code. It says,

“Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.”

This is supported by Article 19 of the same Code, which provides,

“Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.”

The use of the government event to pursue a personal interest is prohibited by these moral standards. The spectators and non-sponsor companies should not be allowed to take advantage of the event funded by others. Allowing such malicous efforst is tantamount to allowing njust enrichment.

Senator Tolentino in his Commentary of the Civil Code of the Philippines said that unjust enrichment consists in every patrimonial, physical, or moral adavantage, so long as it is appreciable in money. [10] The present case involved monetary issues as the sponsors and the government are spending good amount during the event, starting from planning, marketing and execution of the event.

Moreover, Senator Tolentino added that unjust enrichment may also take the form of the avoidance of expenses and other indispensable reductions in the patrimony of the defendant.[11]The purpose of the non-sponsor and their connivers perfectly falls with this classification. They avoid spending for their marketing efforts that is why they opt to take advanatage of the events sponsored by other companies. This actions must be frown upon.

CONCLUSION

Funds derived from government-facilitated events offer a promise of better tomorrow.   These win-win events create a sound environment where sponsor companies can invest to support the government efforts to create streams of funds for social services. However, this noble intention is in danger. In the guise of freedom of speech, non-sponsors and their connivers use the events to further their commercial intentions to the disadvantage of the government and the sponsors. It is submitted that the state should take the necessary steps to prevent the malicious and unfair purpose of those who want to unfairly enrich themselves without spending a single penny.

It is the duty of the State to find sources of funds for social services. It is the duty of the State to protect its interest and the interest of those who support its endeavor. It is the duty of the State to encourage its citizens to exercise their rights over reasonable limits. It is the duty of the State to shun the devil of IGFE: those unfair promotions in the guise of free expression.

(Disclaimer: This article is written for academic purposes only. The views expressed by the author are that of a non-lawyer. They should not be treated as legal advise or legal opinion.)


[1] Adiong vs. COMELEC (207 SCRA 712)

[2] 391 US 367

[3] Adiong, id.

[4] Newsweek vs. IAC, GR No. 6359, May 30, 1987

[5] GR 79690-707

[6] Zaldivar, id.

[7] Id.

[8] Kaufer, Samuel, Freedom of Expression in America, NYU Press, 1999

[9] Osmena vs. COMELEC (288 SCRA 447)

[10] Tolentino, Arturo, Civil Code of the Phillippines, Comments and Jurisprudence, Volume 1

[11] Tolentino, id.

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