Tuesday, July 12, 2011


Recently spreading the internet is this topic:

  

“Twitter and Facebook reminders banned from French airwaves Media regulator prohibits phrases such as 'Follow us on Twitter' in move against leading social networks”[1]


Is this reasonable?

Kim Willsher of guardian.co.uk cited in her above article this statement of Christine Kelly, spokeswoman for the Conseil Supérieur de l'Audiovisuel (CSA), the government broadcasting authority: "Why give preference to Facebook, which is worth billions of dollars, when there are other social networks that are struggling for recognition. This would be a distortion of competition. If we allow Facebook and Twitter to be cited on air, it's opening a Pandora's box. Other social networks will complain to us, saying 'Why not us?'"[2]
 
Given the convenience of being updated of the news and talks now due the famous Facebook, Twitter and other social networking sites, almost all of us have been used to saying to friends, families, colleagues and, even, acquaintances to just check us out or follow us on these social networking sites instead of emailing; the old way of calling up through phone; or the very primitive letter writing.
 
This online social networking has been a word of mouth of so many that even in delivering all forms of information, it is seen effective. Advertising, advisories and news reporting have found these sites a beneficial avenue for data conveyance.
 
However the numerous and various websites, only a few have been favorites; thus, getting a way bigger share of the avid populace. May be due to its various features, i.e. socials, games, learnings and etc., but most probably, on how this networks are effectively passed upon one another and best way to do it is to let it be disseminated via the mass media.
 
Now, the question is:
 
Is it proper for a television or radio network to advise and announce to the public to check out and follow them at their preferred social networking sites?
 
Proper, as used in here, is to be correct or appropriate. Further, two qualifications being proper is seen, one being legal and the other being ethical.
 
First, do our laws provide for prohibition or, even only, regulation of this somewhat monopolizing act by TV and radio networks over a few social networking sites?
 
Article III, Section 4 Our Bill of Rights stated in the 1987 Philippine Constitution says, No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. The freedom of expression, though zealously protected by our constitution, is permissibly restricted. Speeches which are lewd, obscene and, those which by their utterance inflict injury or tend to incite an immediate breach of the peace are prevented. (Chaplinsky v. New Hampshire, 315 US 568). Considering this, the announcement of a particular social networking site, so long that it is lewd, obscene or injurious cannot by this restriction be abridged.
 
However the explicit support that certain TV networks express towards these few social networking sites, though not directly injurious to other social networking sites but indirectly injures the same by the greater support given to few who enjoys the power of influence that some TV networks have over the public.  As such the question leads now to, “Is there unfair competition?”
 
Unfair competition as defined in the case of Alhambra Cigar vs. Mojica[3], unfair competition consists in passing off or attempting to pass off upon the public the goods or business of one person as and for the goods or business of another. It consists essentially in the conduct of a trade or business in such a manner that there is either an express or implied representation to that effect. It may be stated broadly that any conduct the end and probable effect of which is to deceive the public or pass off the goods or business of one person as and for that of another, constitutes actionable unfair competition. Unfair competition, as thus defined, is a legal wrong for which the courts afford a remedy. It is a tort and a fraud.
 
Unfair competition in a sense means that the competitors compete on unequal terms, because favorable or disadvantageous conditions are applied to some competitors but not to others; or that the actions of some competitors actively harm the position of others with respect to their ability to compete on equal and fair terms. It contrasts with fair competition, in which the same rules and conditions are applied to all participants, and the competitive action of some does not harm the ability of others to compete. Often, unfair competition means that the gains of some participants are conditional on the losses of others, when the gains are made in ways which are illegitimate or unjust.[4]
 
Section 168.2 of Republic Act 8293 otherwise known as the Intellectual Property Code of the Philippines provides that Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefor.
 
Unfair competition, in business, is a result of an intentionally deceptive or fraudulent act of a person against his competitor causing the former advantage over the latter’s disadvantage. This means that the injustice is primarily committed by the competitor himself and not his supporter or follower, unless the same may have manipulated by the said competitor.
 
Given that, the act of TV networks being a mere subscribers as anyone else of these few social networking sites cannot be accused as causing unfair competition as they are not individuals qualified to commit the same against other social networking site developers. Thus, it as if giving developers of these social networking sites a free roll of advertising time.
 
Republic Act 7394 otherwise known as the Consumer Act of the Philippines provides in Article 110 entitled False, Deceptive And Misleading Advertisement - it shall be unlawful for any false, deceptive or misleading advertisement by Philippine mail or in commerce by print, radio, television, outdoor advertisement or other medium for the purpose of inducing of which is likely to induce directly or indirectly the purchase of consumer products or services[5].

Advertisement shall be false, deceptive or misleading if it is not in conformity with the provisions of this Act [RA 7394] or if it is misleading in a material respect. In determining whether any advertisement is false, deceptive or misleading, there shall be taken into account, among other things, not only representation made or any combination thereof, but also the extent to which the advertisement fails to reveal material facts in the lights of such representations, or materials with the respect to consequences which may result from the use or application of consumer products or services to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary as usual.
 
However, this law provision again has not covered as misconduct the unregulated quoting of few social networking sites on mass media to the dismay of unfamiliar others. Our laws have delve more on regulating and preventing one to say false or menacing accusation against another and not to regulate or to prevent favoritism on few products or services to evolve in media.
 
Now we lead to the next question is the practice of some TV and radio networks ethical?
 
It seems not. I agree with the French revolution on this aspect, such culminates the essence of fair play and mass media should at all be part of it. Further the Philippine Government has to make a move regarding this, even though almost social networking site developments are not Philippine – based, we may better take a stand in preventing such mode of conduct that in essence evades our law against unfair competition.

By: Laura Jean Abando
 

DISCLAIMER
The writer is not a lawyer and this shall not have any legal effect whatsoever.
 

 
[1]http://www.guardian.co.uk/media/2011/jun/06/france-bans-twitter-facebook-news-announcements

 
 
[3]G.R. No. L-8937, March 21, 1914
 
[4]Wikipedia
 
[5] Article 4 of RA 7394 provides: q) "Consumer products and services" means goods, services and credits, debts or obligations which are primarily for personal, family, household or agricultural purposes, which shall include but not limited to, food, drugs, cosmetics and devices.
 

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