There is no democracy without public discourse and no public discourse without freedom of speech, freedom of the media, and freedom of information.[1]

Freedom of  expression comes with duties and responsibilities owed  to truth, to independence, to impartiality, to objectivity, to democracy, and to individual privacy, among others.

Fidelity to truth comes with what Strasbourg calls “the duty  to impart information and ideas on matters of public concern.”[2]  Media should be impartial. In order for them to  generate a democratic culture,  they   should  be neutral observers, “unengaged with events but faithfully recording them.”[3]

The duty to be objective calls on media to express value-judgments- even polemical ones-  standing on facts.[4]  They are   responsible in ensuring  veracity of stories, although “exaggeration or even a degree of provocation is protected.[5] In Bladet Tromso v. Norway,[6]  Strasbourg ruled that it is sufficient  that journalists  “rely on the contents of official reports without having to undertake independent research.”  The minority  however propounded  that to enjoy protection under Article 10 of the European Convention on Human Rights, they  must investigate. In  one case, Strasbourg said that media must ensure  accuracy of historical facts since unlike temporal news, there is no urgency in publishing them, [7] in effect elevating  the standard  for responsibility  to scrutinize veracity compared to the standard when they report news, a “perishable commodity.[8]  In another,[9]  it  implied that media have the duty for balanced reportage and to  respect the other side’s  right-of-reply.

Fidelity to democracy demands public watchdogs[10]  to propagate information on matters of public interest or concern[11]  and stimulate  public discussion or spur public debate.[12]  The configuration of people’s political consciousness depends on data received. Democracy is not  just a government where people elect their leaders. It is one where people have adequate information upon which to anchor their political decisions including who to vote for. Knowledge is power. Thus, the  Camden  Principles  declare that  “when people are denied public participation and voice, their issues, experiences and concerns are rendered invisible, and they become more vulnerable to bigotry, prejudice and marginalization.[13]

 Media play a crucial role not only as purveyors of raw facts  but also of informed opinions as suggested in Lingens.[14] By  crystallizing  issues in sound value-judgments, they  aid  the  public to  adopt positions on social issues, enabling them to be part of public discourse, inspiring  dissent to unbridled use of State power, effectively enhancing democracy. Thus, media should create   forums for  public debate.[15]                                                                                                                                                                                          
The minority in Bladet Tromso asserted a negative media responsibility: they should not sacrifice facts “for the commercial gratification of an immediate scoop.” It said that newspapers have the “ordinary obligation to verify factual statements that were defamatory of private individuals,” implying the duty to protect individual privacy.  But the majority judgment, while prizing respect for the rights and reputation of others and  protection of confidential information, stressed that media’s duty “is nevertheless to impart- in a manner consistent with its obligations and responsibilities- information and ideas on all matters of public interest” because “the public also has a  right to receive them.”[16] This suggests that privacy yields to public interest and it is media’s duty to promote it.

Strasbourg stressed that press freedom “affords the public one of the best means of discovering and forming an opinion of ideas and political leaders.”[17]  But “the safeguard…to journalists in relation to reporting on issues of general interest is  subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.”[18]

Media must ensure no  confidential  information  leak[19] or  confidential source  disclosures. Source protection  is a  free press premise. Absent such, sources may withhold information germane to public interest for fear of persecution, essentially impeding the public’s right to information.  Thus,  to compel journalists to reveal sources infringed their  right.[20] Essentially, this was reiterated in Sanoma Uitgevers BV v The Netherlands[21] but  Strasbourg modified the duty  when it  held that  forcing journalists who exposed illegal car races and edited photographs for source  anonymity to produce the CD-ROM  storing the original photographs was above-board because it was intended to identify a vehicle used in a grave felony irrelevant to the illegal race. It said that States may balance conflicting interests served by crime prosecution against protection of sources.

As a consciousness purveyor, media have pervasive public influence. Thus it is incumbent upon them not to use freedom of expression without self-restraint to advocate racism,[22]  violence,[23] totalitarianism[24]  or  corruption of the young’s morals.[25]

Indubitably, freedom of expression is not a license. It is a right that comes with a twin: responsibility.

[1] Dieter Grimm, “Freedom of Speech in a Globalized World”  in EXTREME SPEECH AND DEMOCRACY, (Ivan Hare and James Weinstein, eds.,  2009).
[2]Observer   v. the United Kingdom, 26 November 1991, § 59, Series A no. 216, and  Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239); Castels v Spain, 4 EHRR 445 (1992);  Lingens v. Austria,  8  EHRR 407 (1988).
[3] Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).
[4] Oberschlick v. Austria, 19 EHHR 839 (No. 2), 1997; De Haes v. Belgium,  25 EHRR 11 (1997).
[5] Prager v. Austria (26 April  1995).
[6] Application No. 21980/93 (20 May 1999).
[7] Times Newspapers  (Nos. 1 and 2) v UK , Application No. 3002/03 and 23676/03, (10 March 2009).
[8] Id.
[9]  Tidende v. Norway, 2000 EHRR  305 (2 May 2000).  
[10] Traditionally, mass media were regarded as the public watchdogs. But contemporary Strasbourg jurisprudence says that even organizations outside of the mainstream media, like civil society organizations and non-government organizations are also public watchdogs. See  Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).
[11] Goodwin v. United Kingdom, Application No.  16/1994/463/544 (27 March 1996).
[12] Steel and Morris v UK , Application No. 68416/01 (15 February 2005).
[13] Introductory Statement, The Camden Principles on Freedom of Expression and Equality.
[14] Lingens v. Austria,  8  EHRR 407 (1988).
[15] Szabadsagjogokert v. Hungary, Application no. 37374/05 (14 April 2009).
[16] Id.
[17] Lingens v. Austria,   8  EHRR 407 (1988).
[18] Bergens Tidende et alis v  Norway,  2000 EHRR  305 (2 May 2000) ;  Stoll v. Switzerland (2007) ECHR 69698/01;  Fressoz and Roire v. France (GC), Application No. 29183/95 (21 January 1999).
[18] Jersild v. Denmark, Application No. 15890/88, ECHR, Ser. A, No. 298  (1995).
[19] See Article 10, European Convention on Human Rights. 
[20] Goodwin v. UK, Application No.  16/1994/463/544 (27 March 1996); reiterated in Szabadsagjogokert v. Hungary,  Application no. 37374/05 (14 April 2009).
[21] Application No. 38224/03  (31 March 2009)
[22] Jersild v. Denmark, Application No. 15890/88, ECHR, Ser. A, No. 298  (1995). In this case, however, the court found a violation in the imposition of penalties for the broadcast of racist views because the broadcast was only for  exposition, and not given as views of the journalist or broadcaster.
[23] Leroy v. France, Application No. 36109/03 (2 October 2008)
[24] B.H., M.W., H.P. and G.K. v Austria, Application No. 12774/87 (12 October 1989)
[25] Handyside v.   UK, Application No. 5493/72  (7 December 1976).



In the  jurisprudence of the European Court of Human Rights (ECHR), freedom of expression[i]  is highly apprized. Thus it entrenched a principle of liberal interpretation in favor of rights holders when there is a clash between the right and government interests in every case. This liberal interpretation is complemented by the principle of narrow interpretation of exceptions to its free exercise.[ii] Where there is interference, the necessity therefor must be convincingly established.[iii]

However, Strasbourg jurisprudence is also very zealous against the use of expression for ends incompatible with democratic principles. Where expression is employed as license to justify acts challenging the democratic paradigm contemplated under the ECHR[iv], Strasbourg frowns. Procurement to public disorder and violence against an individual or a class of the population is considered repugnant to democratic principles and hardly inspires Strasbourg’s sympathy.

One principle prominent in Strasbourg jurisprudence   on matters involving free expression stands out.  Contracting States “enjoy a certain margin of appreciation in assessing whether and to what extent an interference is necessary"[v]  and this margin is wider in cases of incitement to violence, public disorder and hatred.[vi]

But  “the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician.”[vii] Holding that contracting States, “in their capacity as guarantors of public order,”  are free to adopt  measures to restrict freedom of expression,[viii] their actions are, in  a democratic system, subject to close scrutiny of authorities and the public, and, as the dominant force, must “display restraint in resorting to criminal proceedings.”[ix]  Underlying this is the  principle of narrow interpretation against States even in public disorder cases.

Public order is envisaged to refer not only to public order or ordre public but also embraces order “that must prevail within the confines of a specific social group.”[x] Thus Strasbourg held that restriction of  expression that tended to create disorder in the armed forces, a specific group, was proper considering that disorder in that group can have repercussions on societal order. [xi]

The test on incitement takes the speech in its entirety and concerns itself with determining whether it  encourages violence,  public disorder, armed resistance and insurrection.[xii]  There must be    sufficient nexus between expression and the real possibility of resulting violence for  interference to be justified. Although Strasbourg adheres to a principle of  tolerance and broadmindedness, consistent to which it protects information and ideas that shock, offend and disturb,[xiii] imminence of violence  is way above the threshold of real possibility.

In drawing the demarcation line between permissible and impermissible expression, Strasbourg evaluates intent,  content and context. Thus, although communism is regarded reprehensible to democracy, sheer membership in a communist organization not legally banned is insufficient basis to penalize an individual especially where the latter has not advocated violence and this intent to promote disorder cannot be presumed.[xiv]  Mere use of aggressive language does not legitimize  interference. The use of an equivocal symbol associated both  with communism and  proletariat struggle for better labor conditions was held not to promote  totalitarian propaganda.[xv] Where a cartoon condoning  11 September 2001 terrorist attack was published soon after in an area with separatist elements, Strasbourg held that the expression glorified violence.[xvi] When journals questioning military discipline were distributed among soldiers under a charged atmosphere of military discontent, it was held that there was incitement to public disorder.[xvii]

 Strasbourg jurisprudence considers  medium of expression and  audience size. In one case,  explosive poems  which literally might be  procurement to violence was upheld  as legitimate expression. Ruling against the State, Strasbourg said that it must  “be borne in mind that the medium used by the applicant was poetry, a form of artistic expression that appeals to only a minority of readers.”[xviii] This implies that if the  medium had mass appeal, the judgment would have been different. The audience size was a consideration  when leaflets assailing a military decision was distributed during a military parade witnessed by 50,000 people.[xix]

Strasbourg  employs the  fair balance test in determining if a positive obligation exists even in cases related to public disorder or violence. It said that  regard must be had to the fair balance to be struck between the community’s general interest  and the individual rights.[xx]

Historical matters figure in the equation of appraising  whether expression promotes public disorder or violence or tenets antithetical to democracy. Thus, Strasbourg is emphatic that  National Socialism principles  are  beyond  the ambit of protection ‘out of respect for the historical past forming the background to the Convention” declaring that  National Socialism is a totalitarian doctrine incompatible with democracy and human rights.”[xxi]

[i] This is protected under Article 10 of the European Convention on Human Rights.
[ii] Vajnai v. Hungary, Application No. 33629/06.
[iii] Autronic AG v. Switzerland, judgment of 22 May 1990; Worm v. Austria, judgment of 29 August 1997; Vajnai, id.
[iv] European Convention on Human Rights
[v] Chorherr v. Austria, Application No.  13308/87; 25 August 1993.
[vi] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV.
[vii] Id.
[viii] Incal v. Turkey, 9 June 1998
[ix] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV
[x] B.H., M.W., H.P. and G.K. v Austria, Application No. 12774/87, 12 October 1989.
[xi] Id.
[xii] Han v Turkey, Judgment of 13 September 2005.
[xiii] Müslüm Gündüz v. Turkey, Application no. 35071/97 of 4 December 2003; Karatas v Turkey (GC), 23168/94, ECHR 1999-IV; Vogt v. Germany, Application No.  7/1994/454/535, 2 September 1995.
[xiv] Vogt v. Germany, id.
[xv] Vajnai v. Hungary, Application No. 33629/06
[xvi] Leroy v. France, Application No. 36109/03
[xvii] Engel, et alis v. The Netherlands, Application No. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72
[xviii] Karatas v Turkey [GC], 23168/94, ECHR 1999-IV.
[xix] Chorherr v. Austria, Application No.  13308/87; 25 August 1993.
[xx] Ozgur Gundem v. Turkey, Application No. 00023144/93; 16/03/2000
[xxi] B.H., M.W., H.P. and G.K. v AustriaApplication No. 12774/87, 12 October 1989.


                                                  By:  CHERYL L. DAYTEC-YANGOT

(This was a message I wrote on the occasion of the 73rd birthday of Atty. Romy T. Capulong in 2008. Today is the 3rd death anniversary of Ka Romy, first President and founding member of the National Union of Peoples' Lawyers.)  

This is not intended to be a eulogy but it probably sounds like one  that will be delivered at Atty. Romeo Capulong’s burial fifty years from now. It is our belief that it is better that it is articulated  while he is alive to appreciate it today on his 73rd birthday. 

A life consecrated to the defense of the oppressed, to challenging the status quo when it is antithetical  to the interest of the masses,  is a life that will never end.  As Andres Bonifacio breathes  out the inspiration we keep drawing from for his great example of dedication to the cause of revolutionary struggle,   so will Atty. Romeo Capulong remain alive long after he gives up the ghost.

Romeo Capulong spent his years on earth in selfless service to the people. In the best of times, in the worst of times, and in the times in between, he has been a standard bearer for the rights of the oppressed, the marginalized, the downtrodden, the rejected. In being so, he has been compromising his and his family’s  well-being and even his very  life, a risk well within his grasp.  But to him, to choose a life of comfort without regard for the welfare of the masses is wrong, if not outright disgraceful. And so overriding his own fears, he kept marching and still marches  with the enlightened masses to confront with unwavering courage  the goblins and evil forces that  shrive human life of essence and meaning.

Atty. Capulong’s record  is a torch that shatters the deepest darkness. It is a torch that brightens the path of us who, inspired by exemplars of greatness and heroism,  have chosen to tread his trajectory, the trajectory less traveled but the right one nevertheless. We realize that in the context of things in the here-and-now, the only noble life  is one of consequence to the liberation of the masses from the dungeon of poverty and tyranny. The only noble life is one that bears close semblance to Atty. Capulong’s.

Since Martial Law, never has our country been as shrouded in  darkness  as it is now. We live under a reign of terror, a reign that nurtures no reverence for human life.  Freedom itself languishes inside walls, liberties are obstructed  by fences and barbed wires, the forces of greed are at their strongest, guns are pointed to heads that entertain thoughts of dissent,  our mouths are clamped to deter us from speaking the truth. Our days are as dimmed as our nights. Silence and  sleeping are very safe, very convenient. Sadly, many have embraced convenience as the hands of tyranny operate  under the cover of darkness to push the nation to the pit of wretchedness. But hope does not die when there are people, like   Romeo Capulong, who elect  to stay awake, struggling  in the dark  to impede the slaughter of the essence of life: freedom – from hunger, from oppression, from bondage, from terror, from anything that diminishes humanity. That there are persons of courage  like him at such a time as now is itself a miracle, like a determined bud shooting from the bone dry, barren  earth. It is a miracle worthy of celebration.

What we do for ourselves die with us, but what we do for others will endure even after our death.  In a country plunged in obscurities, this much is certain: Atty. Capulong will live beyond his years on earth.

We in the Cordillera are one with the Filipino masses in wishing this great champion of the oppressed a very happy birthday and many more to come.

[1] Read by Atty. Mary Ann M. Bayang  during the 2008 birthday of Atty. RC Capulong




All over the world, the traditional family is regarded as the most rudimentary social institution and is the bedrock of society.  It is also regarded as the place of shelter to which its members run when they need to withdraw from the pressures of the public world. Traditionally, it has been regarded as a private space, cloistered from State interference or intrusion.

Unfortunately, vesting the family with a private character and taking it out of the realm of the private sphere has perpetuated male dominance and  the subjugation of women.

As it has been socially constructed, the family has become a woman’s prison. Her space for action, for making choices, even for thought has been limited.  While she has set foot on the public realm and is struggling to have her sameness with men recognized, within the roofs of the home, she bears the greater burden of raising the family. Her multiple burden puts her on unequal footing with her partner. 

Privacy and the Family

MacKinnon labels the proposition that the family is a private institution “as a right of men to be left alone to oppress women one at a time.”[1] Indeed, the veil of privacy shrouds what happens inside the home from the public and erects a border that shields it from state interference.  But the evil of privacy is that it supplies the lifeblood on which domestic abuse thrives: the culture of silence. Victims of domestic violence rarely complain to the authorities, and  when they do, the police are reluctant to intervene in “private matters.”

Prof. Osiatynski posits that the moment a woman enters the institution of marriage, she surrenders the rights she holds against strangers. The family is a  kingdom of love and compassion.[2] The long arm of the State should invade the bedroom as well, but not to violate the exercise of a woman’s autonomy. As MacKinnon argued, “when the law of privacy restricts intrusions into intimacy, it bars changes in control over that intimacy” further entrenching the distribution of power and resources skewed towards the subjugation of women.”[3]  In arguing for legislations protecting women, Osiatynski justifies himself by saying that  women should have a fallback when the love and compassion at home vanish.

Balistreri v. Pacifica Police Department,[4]  a United Staes Federal Circuit Court case,   illustrates the evils of the legal construction of the family as a private institution. A battered wife obtained a restraining order against her husband who still beat and harassed her as the police folded its arms. The court said there was no special relationship between her and the police, which thus had no duty to protect her.

          Consider likewise  the very sad case decided by the US Supreme Court: DeShaney v. Winnebago County [5] involving a four-year old  child serially battered by his father in whom the court awarded custody after divorce. While the state intervened during some of the acts of violence, it did not remove the child from his father. The child was eventually abused  to a state of comatose. According to the Court, the Constitution does not impose a special duty on the State to provide services to the public for protection against private actors if the State did not create those harms.

          These two cases illustrate how the issues of women, and by extension, children are reduced into non-public concerns because of the public/private dichotomy. Thus, while women will argue that marital rape is rampant, in most societies it does not exist as a crime because it is not punished. The principle nullum poena sine lege[6] operates in favor of male dominance. In the Philippines, for instance, it was only in 1997 that marital rape was penalized after years of intense lobbying by the women’s movement. But to date no one has yet been prosecuted for marital rape. The  ideology of  privacy and its complementary  silence remain formidable in  shutting the mouth of women.

Boyd laments that equally in the international arena, women’s issues  “are overlooked as a result of the mandate of international law to deal only with 'external' or public' matters of the state.”[7]

The Family as a Social Institution

          Through legislations,  a State defines marriage, its nature, incidents and consequences. Through judicial acts, it has the final word on whether it is legitimate or void.   By such acts, the State  ultimately makes decisions in the marriage as though it were  a third party to it. Thus it cannot be said that the family belongs to the private sphere.  As the Family Code of the Philippines puts  it,

Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation xxx.[8]

If marriage is “the foundation of the family and society without which there can be neither  civilization nor progress”[9]    then the state cannot leave the family in the private realm.  The family has always been subjected to state regulation, at times eroding women’s equality.[10] Why can’t it be subjected to state regulation to enhance its role in society as a basic institution?

The Constraints in Women’s Opportunities and Freedoms

The inequality that women suffer from is a consequence of the treatment of the family as a private kingdom with walls so high  beyond the reach of the long arm of the law. The State with the use of its coercive power has reinforced male dominance and pushed women further back to the seclusion of the domestic sphere. This appears to be a compelling reason why the State should break into the barriers of privacy of the family. It has the power to rectify the wrongs it helped perpetuate. The law, with its coercive nature,  can create new attitudes and new opportunities for women.

The patriarchal-virilocal complex that  legal systems have reinforced ties women to the demands of domesticity and fosters economic dependence on the men. In industrial societies, there is ample demonstration of how women’s role in parenting has restricted the pursuit of their careers or shortened their career paths. This has resulted in perpetuating women’s dependence on their male partners, subjecting  them to the  risk of poverty when the marriage is dissolved. This is especially tragic and is aggravated if they will have primary custody of the children[11]  and are thus saddled with the primary burden of supporting the  latter.

In poor societies where women are totally relegated to domestic concerns and their male partners are the sole breadwinners, this dependence has even more horrifying impact. As a lawyer, I handled two cases of minor children raped by their own  fathers. While the cases were in progress, the mothers decided to withdraw the complaints. With their husbands in jail, their families were going hungry.

 Indeed economic power is political power. While women are  dependent on their male partners, they are prone to physical, sexual or psychological abuse by the latter.[12] This dependence ties them to the marriage or partnership, and deprives them of any bargaining leverage, while their partners wield more power and dominion.[13] The State should step in to eliminate this dependence or share in the burden of dependency[14]  so that women can make decisions for themselves including the decision to leave an abusive relationship.

A Woman’s Privacy Right in The Family as a Public Institution

In arguing that the family is a public institution,  I do not  take the position that there are no privacy rights in the family. Allen argues against the position that “privacy imposes an inherent threat to women[15]”  and defends that it advances women’s concerns,  opposing MacKinnon’s privacy critique.  I see the merit in Allen’s argument and reject MacKinnon’s critique. However, I categorically assert that this privacy which must be defended should be the privacy of the woman, not the family. She must be regarded as separate and distinct from the family. After all, she does not lose her identity the moment she becomes a wife or mother and should be left alone to exercise her autonomy.

The woman should be left alone to  decide to have a child, to use or not to use contraceptives,  or to refuse to engage in copulation or to have an abortion within that period when it is safe for her to have one and the fetus in her womb is not yet viable. Any law that intrudes into the exercise of this autonomy violates her dignity. It assumes that she is irresponsible,  a reflection of the patriarchal view of women being in possession of  fundamental irrationality and moral  weakness thus in need of “outside control”  and protection.[16]


          In this short paper, I echoed the view of MacKinnon that the family should be regarded a public institution and bailed out from the shadows that cast it in the private realm. This is because its nature, incidents and consequences are defined by law anyway. Moreover, the privacy accorded to families has perpetuated the oppression of women  by patriarchy. I also stated that considering that States through their legal systems have put women in positions of subordination, States should take responsibility for rescuing women from the abyss of  oppression and abuse to rectify the wrongs done upon them.

          While taking the position that the family is not part of the public realm, I however argue that as part of the family, a woman retains the right to privacy in the exercise of her autonomy.  These rights are not family rights, but her rights as an individual separate and distinct from the family.  She can be a wife and mother, but  still be herself. cldy/18may2010

[1]Catherine MacKinnon, “ Roe v Wade: A Study in Male Ideology”  in ABORTION: MORAL AND LEGAL PERSPECTIVES (Jay L. Garfield and Patricia Hennesey, eds, 1984).
[2] Lecture delivered by Prof. Wiktor Osiatynski in his class on Individual and Human Rights, Central European University, 5 November 2009.
[3] Supra n. 1, at 193.
[5] 489 U.S. 189 (1989).
[6] Literally, it means there is no penalty for an act if there is no law punishing it.
[8] Article 1, Family Code of the Philippines.
[9] Maynard v Hill, 125 US 190.
[11] Under the Family Code of the Philippines, the custody of a child who is under 7 is automatically awarded to the mother, unless there is a compelling interest not to. At such age, a child needs more care and as the main  provider of that care, the woman’s freedom is indubitably restricted.
[13] Amartya Sen,  “Gender and Cooperative Conflict” in PERSISTENT INEQUALITIES (Irene Tinker, ed., 1989).
[14] Martha Albertson Fineman, What Place for Family Privacy, GEO. WASH. L. REV. (June-August 1999).
[15] Id., at 7.
[16] Joan C. Williams, “Deconstructing Gender”  in FEMINIST LEGAL THEORY (K.T. Bartlett and Roseanne Kennedy, eds, 1991).