Effects of Information Technology on the Regulation of the Contents of Movies and Television in the Philippines

By Atty. Dennis G. Manicad

I. INTRODUCTION

Presidential Decree No. 1986 created the Movies and Television Review and Classification Board (MTRCB). This law took effect on 1985. This law regulates the contents (what can be shown) of movies and television programs, as well as the publicity materials therefor (e.g. posters, billboards etc.).

When I passed the bar last 1992, the very first law I studied was P.D. 1986. I was then appointed as MTRCB Board Member by then President Fidel V. Ramos. Since the term of a board member expires yearly (Sec. 2, P.D. 1986), I was re-appointed 3 times in the board until I decided to transfer to another office. Several years thereafter on 2002, I again joined the board under President Gloria Macapagal-Arroyo. After two re-appointments as board member, President Arroyo then gave me the privilege to head the board as Officer-in-Charge in 2003.

I narrated the foregoing to establish my experience and affinity with the board. This paper is an attempt to trace the problems of MTRCB in regulating the television and movie industries in the Philippines amidst the growing complexities brought about by the information technology (IT) revolution. I will not dwell on the other state regulations pertaining to the National Telecommunications Commission (NTC) since this paper is about the content regulation, which is MTRCB’s turf.


Under the law, the materials for television and movie are generally submitted to the MTRCB for approval before broadcast. The board consists of thirty board members, one chairman and one vice chairman. (Ibid.) A committee of three or five sits as reviewers of the materials. During my first term, there were only around seven television stations. Then cable TV (CTV) entered the picture. At its inception, CTV programs were already impossible to pre-review -- one, because the volume of the materials was already too overwhelming and, two, most of the materials were provided by direct satellite feed. The cable industry had also grown by leaps and bounds -- and is still growing.

The law creating the Optical Media Board (OMB) transferred the review of DVD, VHS and other optical media also to MTRCB. This created another avalanche of workload for the MTRCB whose Board Members report on a part-time basis (with part-time pay). Other technologies are pouring in. How do the laws respond to this?

How has congress reacted to address these concerns? Is MTRCB equipped through its rule-making powers to address these changes? How about the Office of the President -- under which the MTRCB is attached to -- how has it acted on the matter? How about the judicial department, are there judicial decisions that have helped shape the state policy of content regulation of the movie and television industries?

These are some of the questions that this paper seeks to answer. Thus, the statement of the problem –

What is the effect of the developments in the information technology on the state regulation on the content of television and movie industries?

II. JUDICIAL INTERVENTION

Censorship is a controversial term in any part of the world. The Philippines is not an exemption. This is because we cherish the right to freedom of the press and of expression under the Constitution.

Censorship is so controversial so much so that to describe the term, euphemisms are resorted to. Thus, we have terms like “classification”, “review” and “self-regulation”. No matter what name or term we use to call it, the bottom line is that the rights to expression and speech are subject to regulation. I often encounter respected movie industry people who argued for classification of TV and movie materials according to age suitability. This is fine but this is still censorship or prior restraint because a particular class of people in an age bracket is precluded or regulated in having access to some materials. In the US for instance, the creation of a “red district” where adult or x-rated material may be shown was held unconstitutional. By way of parallelism, tax on the sales of newspaper based on a volume bracket was also stricken down as violative of freedom of speech clause in the constitution.

The bottom line is that there should be reasonable regulation. Sic utere tuot ut alianum non laedas -- use your own so as not to injure others. Suum jus, summa injuria – the abuse of right is the greatest possible wrong. Also, there is no dispute that the State acts as parens patria especially for the minors.

Our judiciary has upheld the powers of the MTRCB in three significant cases. The first is the case of Gonzales v. Katigbak, 137 SCRA 717. The ratio decidendi in this case argues for the striking down of PD 1986 as unconstitutional censorship. Unfortunately, for those advocating for abolition of MTRCB, the Gonzales case, with the brilliant discourse of constitutionalist Justice Fernando, is a mere obiter dictum with no power of precedence. One, the case was rendered moot and academic because the subject film in the case was eventually approved by the predecessor office, the defunct Board of Review of Motion Pictures and Television (BRMPT), of MTRCB. Second, the required two-thirds (2/3) vote to strike down a law as unconstitutional under the 1973 Constitution was not met.

The second case is the case of Iglesia Ni Cristo v. Court of Appeals, 259 SCRA 529 (1996). This case started prior to my being a member of the Board. I was in the Board when the matter was again taken up and I was the lone dissenter who argued for the withdrawal of the rating against the religious programs. I was worried that with the Gonzales case, supra, the Supreme Court might finally decide to strike down P.D. 1986 as unconstitutional. Fortunately, in this case the law was held constitutional and it was only the MTRCB action disallowing the Iglesia ni Kristo program that was stricken down as made with grave abuse of discretion. The power and the duty to pre-review was held to be constitutional.

The third case is Movie and Television Review and Classification Board v. ABS-CBN Broadcasting Corporation and Loren Legarda, G.R. 155282, 17 January 2005. This is “The Inside Story” case. I was the ponente in the MTRCB committee, together with the late Justice Jose Ma. Chanco and Dr. Samonte of UP, who heard and decided the case. We fined ABS-CBN and The Inside Story P20,000.00 for disparaging the students of Philippine Women’s University. Sadly, in the interregnum, while the case was pending with the Court or Appeals and the Supreme Court, the Department of Justice released an opinion which in effect took out the powers of MTRCB to impose fines. This created not only lost of much needed revenue for the office but more importantly it took a very effective and acceptable means of disciplining the industry. Fortunately again, the Supreme Court came out with a decision sustaining the MTRCB in this case and with the added bonus of restoring the power to fine of MTRCB.

The attempts to strike down before our courts the pre-review power of MTRCB had not been successful. Thus, it seems like MTRCB is here to stay insofar at the judiciary is concerned. Further, there seems to be no attempt by the judiciary department to curb the powers of MTRCB amidst the influx of new technologies which expanded the subjects of MTRCB, e.g. cable, internet and even cellular phone technologies.

III. CONGRESSIONAL ATTEMPTS

Congressional attempts to alter the regulation landscape of the TV and movie industries had also been unsuccessful. And worse, from the looks of it, the direction of the legislature seems to lead nowhere. As mentioned earlier, the only successful amendment to the law is the added work of review of optical media sans the concomitant logistics needed for implementation of the law.

An apparently almost successful attempt to amend the law is the bill filed by the daughter of the author of the P.D. 1986. Congresswoman Imee Marcos filed a bill abolishing the present MTRCB and replacing it with a new MTRCB. The difference? In the proposed bill, the board is broken down to two-tiered boards -- one doing all the reviews and the other making all the policies. To me this has neither rhyme nor reason. The bill seeks to compound the bureaucracy. The other change is the eventual self-regulation of the industry. How will this be done? Through a congressional oversight committee that will have tutelage over the board until the industry is ready to self-regulate. How will this self-regulation come about? The law is silent. I even have reservation on the congressional oversight which seems to be endemic nowadays (for instance the OMB has also a congressional oversight which was instrumental to the crafting of the OMB’s internal rules). This smacks of violation of separation of powers under the constitution.

I believe in self-regulation. This is implied in the PD (in the whereas clauses) and this had been successful in the advertising industry (their procedure for review is thorough and effective). The problem with the Marcos bill is that it did not provide a mechanism for the transition. (I raised my position on this matter before the Committee on Information then headed by Congressman Gilbert Remulla, the then chairman of the Committee on Information until the Garci hearing came about.) I submit that self-regulation is possible if the industry would take the initiative. For instance, in the US, the Movie Producers Association of America (MPAA), a private organization, came about to preempt government intervention on the problems of pornography and audience suitability. The industry banded together to stop possible intrusion by the US government on the regulation of the movie industry. Their battle cry was: “we will do it ourselves, stay away!” Thus, self-regulation was created and given life. In the US, a movie that does not pass through the MPAA will not get to be shown in the good theathers with wide audiences.

The congress also affected the MTRCB via the power of the purse. At one time, the board under Chairman Henrietta Mendez was given a one-peso budget for a year. The board then subsisted on the grant by the Office of the President through its social fund.

I attended various hearings in the Senate and the House since 1992 up to 2004. The only law passed directly affecting MTRCB was the OMB law that gave MTRCB the mandate to review the optical media as well.

IV. PRESIDENTIAL INITIATIVES

The MTRCB is an office directly under the Office of the President (OP). In fact, decisions of the MTRCB are appealable to the OP. Some Presidents created a permanent ex officio, i.e., members were designated beforehand, appeals committee. Others created a mere ad hoc committee, i.e., a committee was constituted whenever an appeal was made. The current administration created an ex officio committee that has not, to this date, convened for a particular case.

The OP has direct control and supervision of the MTRCB. For one, the members of the MTRCB serve at the pleasure of the President. Also, terms of the board members expires yearly.

As already mentioned, the OP had in so many occasions come to the rescue of MTRCB. An example is the above-mentioned case of the MTRCB under Chairman Mendez which was given one peso budget by the congress. The OP provided the funds for the subsistence of the board for the whole year.

A controversy dragged the OP in an MTRCB brouhaha involving a Stephen Spielberg film “Schindler’s List”. I was (unfortunately) part of the committee that screened the film. The other members were Ricky Lee, the famous scriptwriter and Mrs. Ophelia Bakker, another respected board member known to be ultra conservative. I remember the review was made at around 9 p.m. that day. After, viewing the film, Ricky told me that only the love scene of the main character seemed to be objectionable. (By the way, earlier on Ricky already told me that it would be interesting how the board would rate the famous film considering the violence and nudity therein.) We summoned the representative of the film who readily agreed to the rating “R-18 with cuts”. The cuts being -- the shortening of the love scene. The rest of the nude and violent scenes were allowed to stay. The Board was then worried that other film makers would make similarly explicit sex scenes and therefore that would open a can of worms. If the film representative asked for reconsideration, I would have considered it, but he did not.

The controversy erupted when Spielberg announced that nobody could touch his film. He declared that either the Philippines approve the film in its entirety or he pulls out the film from the Philippines. The OP entered the picture and approved the film in its entirety. Chairman Mendez, another ultra conservative, refused to sign the permit for the films. She was subsequently replaced. By then and even prior to the eruption of the controversy, I had already resigned to join the Philippine Charity Sweepstakes Office.

Although, I was no longer in the board, I had been invited to the Senate in an investigation on the matter. On my own initiative I joined the meeting with President Ramos regarding the OP decision on the matter. There I argued against then Secretary Teofisto Guingona’s Undersecretary who issued an opinion saying that the MTRCB had no power to cut, citing the Gonzales case, supra. I argued that the holding in the case was a mere obiter dictum and therefore not binding. Later on, I was vindicated by the Iglesia no Kristo case and the Inside Story case, supra.

By the way or by way of obiter, the meeting with President Ramos was at 11 a.m. in the palace. The President was late with a very valid and politely given excuse. When he entered the hall everybody stopped talking and one could hear the drop of a pin. A mere whisper sounded like a loud shout. I knew then that he would not side with us considering the decision on the appeal and the memorandum from the office of Secretary Guingona. The President then started talking about “Hollywood 2000” which was an offshoot of his battle cry “Philippine 2000”. I jokingly whispered to my seatmate: “let’s go home.” Unfortunately, the whispered joke (which was louder that a pin drop) was heard across the hall. The President either did not hear it or he merely ignored it because he did not react to it. He merely dismissed my tussle with the Palace lawyer as a never-ending debate among lawyers.

V. BOARD ACTIONS

From the foregoing, it is apparent, that the three branches of government had not contributed so much to the imperative adaptation of MTRCB to the ever-changing times brought about by technological developments.

The MTRCB had not, however, been powerless to address this issue. MTRCB addressed this issue through its administrative rule-making power.

The Mendez board, where I was a member, adopted with slight modifications, the implementing rules and regulations (IRR) of Manuel L. Morato’s board. Full and strict regulations were imposed. This was then possible because CTV was still at its inception stage. I was the author of the amendments to the IRR, and the debate then was how far should the IRR go in giving guidelines for regulations? Should the reviewing board members retain wide latitude of discretion in judging a material? Or should the IRR specify specific rules for specific situations? For instance, should it be stated in the IRR that there should be no kissing scenes for GP rated materials? Both side of the debate had good points and bad points. Giving wide latitude of discretion would be all right if the board member is prudent. Making the rules so specific would be too inflexible considering the materials cannot be judged with mathematical formula. Surely, some room for discretion cannot be avoided.

Since, I was the author of the amendments, I argued for giving more discretion for the board members. Later on, however, I proposed a compromise. I proposed that the guidelines be made in a separate document from the IRR. This way, the guidelines, would be easy to change as needed by the changing times. Take note that amending the IRR was not as easy as it looks. Remember that the board is composed of thirty-two men and women with different backgrounds, persuasions and ideologies. Moreover, an amendment would require publication that is very expensive for a small agency with a limited budget like the MTRCB.

Further, the guidelines would at least leave some discretion for the board members. The guidelines would therefore remain as guidelines and not as rules. I prevailed.

The board that succeeded the Mendez board changed this policy on giving specific rules. Chairman Jesus Sison headed the board. The change was precipitated by the controversy generated by the movie “Bridges of Madison County” where Meryl Streep examined herself totally naked before a mirror. There was no malice nor was there any appeal to prurient interest (at least, to my opinion). The Sison board, however, revamped the IRR and gave specific rules on showing pubic hair (etc.) for materials.

When Chairman Armida Siguion Reyna took over the reigns of MTRCB, the old Sison board’s IRR was thrashed and replaced with a totally new set of rules. Guidelines were broader and much more liberal. The Chairman was given a power so overwhelming that can scare the wit of any industry player. The board was then dominated by people from the TV and movie industry.

(Under section 2 of PD 1986, “at least fifteen (15) members of the board may come from the movie and television industry”. In one senate hearing, Atty. Espiridion Laxa said that, as one of those who crafted the law, the real intent of the law was to make it mandatory. In the same senate hearing, I reacted by asking, that if the intent was to make it mandatory, why did the law use the word “may” instead of “shall”? I think that when then President Marcos decreed the law, he was played politics by giving apparent concessions to the industry that wanted deregulation. The PD contained a policy on self-regulation in the “whereas” clause, but the law imposed full regulation. The name of the office also included the word “classification” which a discussed, supra, is a euphemism for censorship. Surely, a dictator – a very smart one at that – would not just abdicate a very potent power to regulate a potent industry.)

Siguion Reyna board gave the chairman the power to suspend for a period of twenty days any industry player found to be violating the P.D. and the IRR. This power was carried over during the reigns of Chairman Roces up to the current board of Chairman Consoliza Laguardia. During my short stint as OIC, I often invoked this power whenever I summoned an erring industry player. Sure enough, the summoned player, showed up in a very short notice, e.g. 24 hours.

I submit that this provision in the IRR is the most potent regulatory power of the MTRCB. Ironically, though it may or may have been done intentionally, this was made by the liberal board (although very strict in enforcement) of Chairman Siguion Reyna. During the time of Chairman Laguardia, I was one of the lawyers who helped the board when a temporary restraining (TRO) was imposed on her exercise of such power. The board then, to avert any constitutional challenge on the said power, entered into compromise with an erring movie producer. The power is really very overwhelming. This was even used against religious program. Brother Ely Soriano’s religious TV program was suspended, for alleged use of expletive language, initially for twenty days before an indefinite suspension was imposed.

This board power suffers from a constitutional infirmity. It has no legislative basis in the P.D. It is ultra vires and it violates the non-delegation of power rules under the constitution (potesta delagata non delegari potest). In the hands of an abusing and unreasonable chair, the power if not judicially restrained could cause so much harm. During my time for instance, I received several complaints regarding variety show “ASAP” in channel 2. If channel ignored my orders at that time could I, as OIC, suspend the whole station for twenty days? The power given did not specify which industry player may be sanctioned with such power.

During my short stint, the board amended the IRR by adding a new classification for movies – R-13 rating. I had to recourse to piece meal amendment of the Siguion -Reyna IRR because a complete revamp would entail so much time and debate. R-13 was urgently needed at that time. During Chairman Laguardia’s time, the new and current IRR was enacted. Again, I argued against specific rules on specific situations. The compromise was that the IRR would integrate the guideless. I was against this but I was overruled. I merely tried my best to insert ejusdem generis provisions (e.g. “such as but not limited to”, “and the like” etc.) so as not to unduly restrict the board members in reviewing a material.

During the Mendez and Morato boards, there were certain exemptions granted to deserving programs. These were done by producers applying for exemptions. Three sample episodes shall be submitted for review before the board can decide on the exemptions. Thus, programs like “Batibot” and Sesame Street” were granted exceptions.

“Newsreels” are also exempted by express provision of PD 1986 (section 7). The problem here is the definition of newsreels. With the network wars of the TV stations, news had been packaged for ratings. This was pioneered by the news program “TV Patrol” of Channel 2. There were some problems encountered in the news. For instance, there was decapitating of human being shown in the news a few years ago. Of course, there were the omnipresent sensationalized crimes shown in the news.

Industry players have argued that public affairs programs like “Imbestigador” and “Magandang Gabi Bayan” should likewise be exempted because they were newsreels. This was already overruled in the case of Movie and Television Review and Classification Board v. ABS-CBN Broadcasting Corporation and Loren Legarda, supra. In this case the court sided with MTRCB when it imposed a fine on the program “The Inside Story”.

Advertising for products or the “commercials” is exempted by acquiescence of the MTRCB. Under the P.D., commercials should be under the regulation of the MTRCB. There is, however, a MOA between MTRCB and the Ad Board (a private entity) that the latter shall regulate their own ranks. This brand of self-regulation, in my opinion, works. The procedure for review in the Ad Board is so meticulous and wherever there are problems MTRCB can also call the attention of the Ad Board on the matter. For instance, there was the controversy over the “kinse anyos” ad of a brandy that was pulled out because of clamor from MTRCB and the public. The legislative basis for the grant of these exemptions is the “self-regulation” provision in the “whereas” clause of the P.D.

Religious programs also enjoy more freedom because of the freedom of religion clause in the constitution. However, the power of the board to regulate these programs had been sustained by the Supreme Court in Iglesia Ni Cristo v. Court of Appeals, supra.

Live TV shows are subject to post review. Live shows automatically gets a PG rating as warning that the show was not pre-reviewed. I am against this because the liberally use of PG rating jades its effectivity. At any rate, erring live shows may be suspended or its license to show as live may be revoked compelling it to submit pre-taped programs before it can be shown.

Cable TV is also subject to post review. Most of CTV are shown by direct satellite feed so much so that pre-review is impossible. For some time CTV had been a regulatory problem for the board. An ocular inspection of a CTV revealed that some are not really shown by direct satellite feed and therefore easily controlled by the provider. These are the taped programs. For those under direct satellite feed, the CTV provider has the burden of making sure that no objectionable scenes shall be shown. For instance, a cable provider was compelled to black out scenes of a Japanese channel that showed explicit sex scenes during nighttime. Recently, HBO also blacks off the show “Entourage” in their current programs. For a while, CTV had been complaining that they could not do this but after being penalized for some time, they started to comply. They really do not need to watch all the cable channels. They need to monitor those known to show objectionable scenes.

The Siguion Reyna board had another innovation that is still being implemented up to the present. This is the “Pay Before Broadcast” (PBB) scheme. Under this scheme, an entire season of a TV program need not be pre-approved by the board. Only three sample episodes shall be submitted and the rest shall be subjected to post-review. When I was reappointed to the board during the Roces board, I thought of having this scheme repealed. I decided against it because of the workload maybe too tremendous for the board. I merely suggested some amendments that were adopted. Thus, while only three sample episodes are submitted, the reviewers may rule for pre-submission of all the episodes if the episodes have adult themes. This is very true for the popular telenovelas. Further, at any time the board may compel the submission of the entire season should the post review determines that such is needed.

There so many things subject to MTRCB jurisdiction that remain unregulated to this date. For instance, along EDSA alone, there are so many publicity materials for TV that did not pass through the board. MTRCB should assert it jurisdiction on this. Not only is this a legal imperative but also it deprives the government of much needed regulatory revenues. As already stated, the publicity materials for TV and movies are subject to the regulatory powers of the board. Then there are the TV monitors outside the movie houses where the previews are shown. This is again a publicity material that should be regulated. There are also the large screen billboards (like the one in mega mall) where advertisements are being shown. This are also publicity materials under the law.

As mentioned, DVD and VHS are now subject to board approval (transferred from the defunct Videogram regulatory Board). How about those which can be played in pocket play stations (PSP), personal digital assistant (PDA) and cell phones? Again these should also be regulated.

Then, how about the other digitized materials in the internet and in discs? These are also subject to the MTRCB law. They are considered as television broadcasts under section 10 of PD 1986 –

Television Broadcast – Public showing by transmitting sound or images by television or similar equipment, including cable television and other limited audience distribution. (Underscoring mine.)

VI. CONCLUSION

Developments in information technology had altered the landscape for regulation of the television and movie industry. Since the promulgation of P.D. 1986 in 1987, the movie and television industry has grown by leaps and bounds. The industry is still growing with different forms of media (which were unknown at the time of the law’s promulgation) starting to spout like mushrooms.

The judiciary seems to be not ready to release the industry from the realm of state regulation. This is very clear in the case of public affairs programs (Movie and Television Review and Classification Board v. ABS-CBN Broadcasting Corporation and Loren Legarda) and religious programs (Iglesia Ni Cristo v. Court of Appeals). Even more so in other programs which do involve constitutional rights to religion and freedom of the press.

The executive department, to which the MTRCB belongs, had been effective but it can only do so much. So far, MTRCB had been able to adapt to the changing times through its rule-making powers. MTRCB, however, has two major problems. First, the workload had been incessantly increasing because of the influx of technology. The workload alone would need additional manpower. A thirty-two-member board with less than a hundred workforce is not enough for the whole country. In the provinces, there is an influx of local CTV and free TV. At present, MTRCB relies on volunteers (The volunteer gets an MTRCB deputy card that entitles him and a companion to enter any movie house in the country for free. Under the law, this is a governmental function and not just a freebee.) for its monitoring work. Second, MTRCB needs to be abreast with ever-changing technologies; thus, people with technical background are needed to be at par with the highly paid counterparts employed by the industry players.

By far, the only significant legislation affecting MTRCB is the transfer of the review and classification of the defunct Videogram Regulatory Board (VRB). The successor of the VRB, the Optical Media Board (OMB), retained only the anti-piracy enforcement function. This should be fine if the concomitant budget and logistics were also provided by legislation. For a while, the regulation of the videograms was held in suspended animation because of lack of proper transition in the transfer of functions.

In various congressional hearings in congress, I advocated for the increase in the number of board members and the enhancement of the quasi-judicial functions of the MTRCB. I suggested the express grant of powers to subpoena, impose contempt sanctions and fines. Congress, through the Marcos bill (which is already for third reading) however, proposed a complete revamp of the board by adding another board. This, to my mind, would merely compound and complicate the bureaucracy. Further, like the present law, the Marcos bill envisions a regime of self-regulation. Unfortunately, this would not happen because the proposed mechanism therefor is defective. It merely proposed a congressional oversight to see to it the regime of self-regulation would be achieved. The congressional oversight violates the constitutional principle of separation of powers. Also, there is nothing in the proposed law that will make self-regulation a reality. I believe that for this to happen, the initiative should come from the industry just like what happened in the US. This had been achieved also in the advertising sector though the Ad Board and in a limited extent also by the Kapisanan ng Mga Brodkaster ng Pilipinas (KBP).

So for now, the MTRCB can only rely on its administrative rule-making power. Hopefully, in the not so distant future, proper legislation will be passed.