RA 4200 ANTI WIRE-TAPPING LAWAN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES

SECTION 1

It shall be unlawful for any person, not being authorized by all the parties to any privatecommunication or spoken word, to tap any wire or cable, or by using any other device orarrangement, to secretly overhear, intercept, or record such communication or spoken word by using adevice commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or taperecorder, or however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the

next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any othersuch record, or copies thereof, of any communication or spoken word secured either before or afterthe effective date of this Act in the manner prohibited by this law; or to replay the same for any otherperson or persons; or to communicate the contents thereof, either verbally or in writing, or to furnishtranscriptions thereof, whether complete or partial, to any other person: Provided, That the use of suchrecord or any copies thereof as evidence in any civil, criminal investigation or trial of offenses

mentioned in Sec. 3 hereof, shall not be covered by this prohibition.

ACTS PUNISHED

Wiretapping

to tap any wire or cable, or by using any other device or arrangement, without being authorized by all the parties toany private communication or spoken word, to secretly overhear, intercept, or record such communication or spokenword by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or taperecorder, or however otherwise described

except where the same is done pursuant to a court order and complies with all the conditions imposed by section 3 of R.A. 4200

Possessing any tape, wire, disc or other record, or copies, of an illegally obtained recording of a privatecommunication, knowing that it was illegally obtained

Replaying an illegally obtained recording for another person, or communicating its contents, or furnishingtranscripts of the communication, whether complete or partial

Acts of peace officers (law enforcement agents) in violation of section 3 of R.A. 4200 on the proper procedure forsecuring and implementing a court order authorizing the wiretapping of a private communication

The law also makes persons who "wilfully or knowingly aid, permit or cause to be done the acts described above,equally liable as direct participants to the illegal wiretap or secret recording.

QUESTION: DOES THE ANTI WIRE-TAPPING LAW PROHIBIT THE

RECORDING OF ALL COMMUNICATIONS?

No.

The law prohibits the recording and interception only of private communications. The law does

not prohibit the recording of public speeches by members of the audience, or other forms of

"public" communication such as press conferences, interviews, and board meetings that are

openly recorded. The law expressly punishes those who secretly record or intercept private

conversations and communications. By private conversations and communications, the law

simply refers to communication between persons privately made.

CASE:

NAVARRO V. COURT OF APPEALS, GR NO. 121087, AUGUST 26, 1999

distinguished between private and public communications.

Facts:

Two local media men, Stanley Jalbuena, Enrique Lingan, in Lucena City went to the police station to report alleged indecent show in one of the night establishment shows in the City.

At the station, a heated confrontation followed between victim Lingan and accused policeman Navarro who was then having drinks outside the headquarters, lead to fisticuffs. The victim was hit with the handle of the accused's gun below theleft eyebrow, followed by a fist blow, resulted the victim to fell and died under treatment.

The exchange of words was recorded on tape, specifically the frantic exclamations made by Navarro after the altercation that it was the victim who provoked the fight.

During the trial, Jalbuena, the other media man, testified. Presented in evidence to confirm his testimony was a voice recording he had made of the heated discussion at the police station between the accused police officer Navarro and the deceased, Lingan, which was taken without the knowledge of the two.

Both the RTC and CA ruled in favour of respondents. The case was elevated to the SC on certiorari.

Ruling:

The Court held that the conversation was not a private communication, and therefore was admissible in evidence in the homicide case filed against the policeman for the reporter's death, even if the policeman did not authorize the recording.

QUESTION: CAN A PARTY TO A PRIVATE CONVERSATION BE

HELD LIABLE FOR VIOLATING RA 4200?

If one party to the communication authorizes the recording, but the other party does not, the partywho recorded the conversation is liable for prosecution for violating R.A. 4200.

The law does not prohibit the recording of private communications that are authorized by ALLparties. These recordings are admissible in evidence and the person/s who made the recording arenot liable.

Thus, a person who attaches an answering machine to his telephone, and records a message inviting callersto leave a message after the tone, would not be covered by the Anti-Wiretapping Law.

The consent or authorization need not be express as long as it is evident from the circumstances. What isessential, however, is that ALL the parties to the private conversation expressly or impliedly consent to its beingrecorded.

CASE:

RAMIREZ VS CA, GR NO. 93833, SEPTEMBER 28, 1995

Facts:

Petitioner made a secret recording of the conversation that was part of a civil case filed in the Regional Trial Court ofQuezon City alleging that the private respondent, Ester S. Garcia, vexed, insulted and humiliated her in a hostile and furiousmood and in a manner offensive to petitioners dignity and personality, contrary to morals, good customs and publicpolicy..

Private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of RA 4200.

Petitioner filed a Motion to Quash the Information. The trial court granted the said motion. The private respondent filed aPetition for Review on Certiorari with SC, which referred the case to CA in a Resolution. CA promulgated its decisiondeclaring the trial courts order as null and void, after subsequently denied the motion for reconsideration by the petitioner.The case was elevated to SC on certiorari.

Ruling:

Section 1 of R.A. 4200 clearly and unequivocally makes it illegal for any person, not authorized by all the parties to anyprivate communication to secretly record such communication by means of a tape recorder.

The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than ordifferent from those involved in the private communication.

The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier"any." Consequently, even a (person) privy to a communication who records his private conversation with another withoutthe knowledge of the latter (will) qualify as a violator under this provision of R.A. 4200.

QUESTION: IS AN EXTENSION TELEPHONE COVERED BY ANY OTHER DEVICE OR ARRANGEMENT AS STATED IN SECTION 1?

No. An extension telephone cannot be placed in the same category as a dictaphone,

dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof

cannot be considered as "tapping" the wire or cable of a telephone line. The telephone

extension in this case was not installed for that purpose.

CASE:

GAANAN VS IAC, GR NO. L-69809, OCTOBER 16, 1986

Facts:

Atty. Tito Pintor and his client Manuel Montebon were discussing the terms for the withdrawal of the complaint fordirect assault filed with the Office of the City Fiscal of Cebu against Leonardo Laconico after demanding P 8,000.00from him.

This demand was heard by Atty. Gaanan through a telephone extension as requested by Laconico so as topersonally hear the proposed conditions for the settlement.

Atty. Pintor was subsequently arrested in an entrapment operation upon receipt of the money.

Since Atty. Gaanan listened to the telephone conversation without complainant's consent, complainant chargedGaanan and Laconico with violation of RA 4200

Both lower court and CA found Gaanan and Laconico guilty. Hence the case was elevated to SC on certiorari

CASE:

GAANAN VS IAC, GR NO. L-69809, OCTOBER 16, 1986

Ruling:

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of

secretly overhearing, intercepting, or recording the communication. There must be either a physical

interruption through a wiretap or the deliberate installation of a device or arrangement in order to

overhear, intercept, or record the spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the

other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as

"tapping" the wire or cable of a telephone line. The telephone extension in this case was not installed

for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory

construction that in order to determine the true intent of the legislature, the particular clauses and

phrases of the statute should not be taken as detached and isolated expressions, but the whole and

every part thereof must be considered in fixing the meaning of any of its parts.

CASE:

GAANAN VS IAC, GR NO. L-69809, OCTOBER 16, 1986

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to

that enumerated therein, should be construed to comprehend instruments of the same or similar

nature, that is, instruments the use of which would be tantamount to tapping the main line of a

telephone. It refers to instruments whose installation or presence cannot be presumed by the party or

parties being overheard because, by their very nature, they are not of common usage and their

purpose is precisely for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended

unit does not have to be connected by wire to the main telephone but can be moved from place to

place within a radius of a kilometer or more. A person should safely presume that the party he is

calling at the other end of the line probably has an extension telephone and he runs the risk of a

third party listening as in the case of a party line or a telephone unit which shares its line with another.

Penal statutes must be strictly construed in favour of the accused.

QUESTION: WHAT MUST BE PROVEN TO SUSTAIN A CHARGE OF WIRETAPPING OR USING ANY OTHER DEVICE OR ARRANGEMENT TO SECRETLY OVERHEAR, INTERCEPT OR RECORD

A PRIVATE COMMUNICATION?

The prosecution must prove that a wiretap or other device was actually used to secretly

overhear, intercept or record a private communication without a court order.

Elements

That there was a private communication

That offender used a wiretap or other device to secretly overhear, intercept or record it

That such was done without

A court order

Authorization from all parties to the private communication

QUESTION: WHAT MUST BE PROVEN TO SUSTAIN A CHARGE OF POSSESSING A TAPE, WIRE,DISC OR OTHER RECORD, OR COPIES OF AN ILLEGALLY OBTAINED RECORDING OF A

PRIVATE COMMUNICATION?

R.A. 4200 requires that the accused knowingly possesses the illegally obtained recording. The

Congressional Record indicates that the word knowingly refers to knowing that the recordingwas secured by illegal means

Elements

That an illegal wiretap took place

That the offender possesses a recording resulting or emanating from that illegal wiretap

That the offender had knowledge that such recording was obtained through an illegal wiretap

QUESTION: WHAT MUST BE PROVEN TO SUSTAIN A CHARGE OF REPLAYING AN ILLEGALLYOBTAINED RECORDING FOR ANOTHER PERSON, OR COMMUNICATING ITS CONTENTS, OR

FURNISHING TRANSCRIPTS OF THE COMMUNICATION, WHETHER COMPLETE OR PARTIAL?

No controlling case but if we were to consider that knowledge is required sustain a charge ofpossessing a tape, wire, disc or other record, or copies of an illegally obtained recording of a privatecommunication, then equal protection clause would necessitate that the crime of replaying orairing the recording should also bear the same requirements.

Elements

That an illegal wiretap took place

That the offender either

Replays

Communicates it contents

Furnish transcripts of the communication

Whether complete or partial

That such recording resulted or emanated from that illegal wiretap

That the offender had knowledge that such recording was obtained through an illegal wiretap

SECTION 2

Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of

the acts declared to be unlawful in the preceding Sec. or who violates the provisions of the

following Sec. or of any order issued thereunder, or aids, permits, or causes such violation shall,

upon conviction thereof, be punished by imprisonment for not less than six months or more

than six years and with the accessory penalty of perpetual absolute disqualification from

public office if the offender be a public official at the time of the commission of the offense,

and, if the offender is an alien he shall be subject to deportation proceedings.

SECTION 2

WHO ARE LIABLE

Direct Participants

Any person who wilfully or knowingly does any ofthe acts declared to be unlawful Section 1 or whoviolates the provisions of Section 3 or of any orderissued thereunder

Any person who shall aid, permit, cause to bedone or causes any such violation

PENALTIES

Imprisonment of not less than 6 months but notmore than 6 years

All violators

If offender is a public official at time of theoffense

Accessory penalty of perpetual absolutedisqualification from public office

If offender is an alien

Subject to deportation proceedings

SECTION 3

Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who isauthorized by a written order of the Court, to execute any of the acts declared to be unlawful in the twopreceding Sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case ofwar, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion,sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code,and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security:Provided, That such written order shall only be issued or granted upon written application and the examinationunder oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there arereasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is beingcommitted or is about to be committed: Provided, however, That in cases involving the offenses of rebellion,conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, andinciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as thecase may be, have actually been or are being committed; (2) that there are reasonable grounds to believe thatevidence will be obtained essential to the conviction of any person for, or to the solution of, or to the preventionof, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

SECTION 3

The order granted or issued shall specify: (1) the identity of the person or persons whose

communications, conversations, discussions, or spoken words are to be overheard,

intercepted, or recorded and, in the case of telegraphic or telephonic communications, the

telegraph line or the telephone number involved and its location; (2) the identity of the peace

officer authorized to overhear, intercept, or record the communications, conversations,

discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented;

and (4) the period of the authorization. The authorization shall be effective for the period

specified in the order which shall not exceed sixty (60) days from the date of issuance of the

order, unless extended or renewed by the court upon being satisfied that such extension or

renewal is in the public interest.

SECTION 3

All recordings made under court authorization shall, within forty-eight hours after the expirationof the period fixed in the order, be deposited with the court in a sealed envelope or sealedpackage, and shall be accompanied by an affidavit of the peace officer granted suchauthority stating the number of recordings made, the dates and times covered by eachrecording, the number of tapes, discs, or records included in the deposit, and certifying that noduplicates or copies of the whole or any part thereof have been made, or if made, that allsuch duplicates or copies are included in the envelope or package deposited with the court.The envelope or package so deposited shall not be opened, or the recordings replayed, orused in evidence, or their contents revealed, except upon order of the court, which shall notbe granted except upon motion, with due notice and opportunity to be heard to the personor persons whose conversation or communications have been recorded.

The court referred to in this Sec. shall be understood to mean the Court of First Instance withinwhose territorial jurisdiction the acts for which authority is applied for are to be executed

EXCEPTION: WHEN IS WIRE-TAPPING ALLOWED?

When a peace officer, who is authorized by a written order of the Court, may execute any of the acts declared to beunlawful in the two preceding sections in cases involving:

Treason

Espionage

Provoking war and disloyalty in case of war

Piracy

Mutiny on the high seas

Rebellion

Conspiracy to commit rebellion

Inciting to rebellion

Sedition

Inciting to sedition

Kidnapping

Violations of CA 616 (espionage and other offenses against national security)

REQUISITES FOR ISSUANCE OF WRITTEN COURT ORDER

There must be a written application

There must be an examination under oath or affirmation of the applicant and the witnesses he mayproduce

There must be a showing:

That there are reasonable grounds to believe that any of the crimes enumerated hereinabove has beencommitted or is being committed or is about to be committed.

in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition,conspiracy to commit sedition, and inciting to sedition:

such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are beingcommitted

that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of anyperson for, or to the solution of, or to the prevention of, any such crimes

that there are no other means readily available for obtaining such evidence

CONTENTS OF WRITTEN COURT ORDER

The identity of the persons in question

in the case of telegraphic or telephonic communications, the telegraph line or the telephone number

involved and its location

The identity of the officers authorized to conduct surveillance

The offense committed or about to be committed or sought to be prevented

The period of authorization

60 days

extendable or renewable by court if public interest is on the line

WHAT HAPPENS TO THE RECORDED MATTER?

Within 48 hours after the end of the period the recorded matter is to be delivered in a sealedpackage to the court that issued the order, together with an affidavit executed by the officer whodid the surveillance.

The affidavit should state:

number of recordings

the time each recording was made

the number of recorded material (tapes, disks, USBs, etc.)

and certify that no copies were made and if there are such copies, they're included in the package.

The envelope or package so deposited shall not be opened, or the recordings replayed, or used inevidence, or their contents revealed, except upon order of the court, which shall not be grantedexcept upon motion, with due notice and opportunity to be heard to the person or persons whoseconversation or communications have been recorded.

JURISDICTIONS

RTC (formerly Court of First Instance) where the court approved wire-tapping will take place

within its jurisdiction

SECTION 4

Any communication or spoken word, or the existence, contents, substance, purport, effect, or

meaning of the same or any part thereof, or any information therein contained obtained or

secured by any person in violation of the preceding Sections of this Act shall not be admissible

in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

INADMISSIBILITY OF WIRETAPPED EVIDENCE

Information gathered in violation of RA 4200 can't be admitted in evidence in any judicial,

quasi-judicial, legislative or administrative hearing or investigation.

CASE: CHAVEZ VS SECRETARY GONZALEZ, GR 168338, FEBRUARY 15, 2008

Facts:

As a consequence of the public release of copies of the Hello Garci compact discaudiotapes involving a wiretapped mobile phone conversation between then-President Gloria

Arroyo and Comelec Commissioner Virgilio Garcillano, respondent DOJ Secretary Gonzales

warned reporters that those who had copies of the CD and those broadcasting or publishing

its contents could be held liable under the Anti-Wiretapping Act.

He also stated that persons possessing or airing said tapes were committing a continuing

offense, subject to arrest by anybody.

Finally, he stated that he had ordered the National Bureau of Investigation to go after media

organizations found to have caused the spread, the playing and the printing of the contentsof a tape.

CASE: CHAVEZ VS SECRETARY GONZALEZ, GR 168338, FEBRUARY 15, 2008

Facts:

Meanwhile, respondent NTC warned in a press release all radio stations and TV network

owners/operators that the conditions of the authorization and permits issued to them by

government like the Provisional Authority and/or Certificate of Authority explicitly provides that

they shall not use their stations for the broadcasting or telecasting of false information or willful

misrepresentation.

The NTC stated that the continuous airing or broadcast of the Hello Garci tapedconversations by radio and TV stations is a continuing violation of the Anti-Wiretapping Law

and the conditions of the Provisional Authority and/or Certificate of Authority.

It warned that their broadcast/airing of such false information and/or willful misrepresentation

shall be a just cause for the suspension, revocation and/or cancellation of the licenses or

authorizations issued to the said media establishments.

CASE: CHAVEZ VS SECRETARY GONZALEZ, GR 168338, FEBRUARY 15, 2008

Facts:

Subsequently, a dialogue was held between the NTC and the Kapisanan ng mga Brodkaster

sa Pilipinas (KBP) which resulted in the issuance of a Joint Press Statement which stated, among

others, that the supposed wiretapped tapes should be treated with sensitivity and handled

responsibly.

Petitioner Chavez filed a petition under Rule 65 against respondents Secretary Gonzales and

the NTC directly with the Supreme Court.

CASE: CHAVEZ VS SECRETARY GONZALEZ, GR 168338, FEBRUARY 15, 2008

Issue:

Will a purported violation of law such as the Anti-Wiretapping Law justify straitjacketing the

exercise of freedom of speech and of the press?

CASE: CHAVEZ VS SECRETARY GONZALEZ, GR 168338, FEBRUARY 15, 2008

Ruling:

NO, a purported violation of law such as the Anti-Wiretapping Law will NOT justify straitjacketing the exercise offreedom of speech and of the press.

A governmental action that restricts freedom of speech or of the press based on content is given the strictestscrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clearand present danger rule. This rule applies equally to all kinds of media, including broadcast media.

Respondents, who have the burden to show that these acts do not abridge freedom of speech and of the press,failed to hurdle the clear and present danger test. The great evil which government wants to prevent is the airingof a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar however areconfused and confusing, and respondents evidence falls short of satisfying the clear and present danger test.Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording.Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public twoversions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence ofthe respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering thetapes different versions. The identity of the wire-tappers, the manner of its commission and other related andrelevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it iseven arguable whether its airing would violate the anti-wiretapping law.

CASE: CHAVEZ VS SECRETARY GONZALEZ, GR 168338, FEBRUARY 15, 2008

Ruling:

SC ruled that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of thepress. Our laws are of different kinds and doubtless, some of them provide norms of conduct which, even ifviolated, have only an adverse effect on a persons private comfort but does not endanger national security.There are laws of great significance but their violation, by itself and without more, cannot support suppression offree speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighedin adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of theviolation to private and public interest must be calibrated in light of the preferred status accorded by theConstitution and by related international covenants protecting freedom of speech and of the press. In calling fora careful and calibrated measurement of the circumference of all these factors to determine compliance withthe clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By allmeans, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence.But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press,a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof tosatisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech andfree press.

There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security ofthe State.