Ayer Productions vs Capulong

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 88373 May 18, 1990

JUAN PONCE ENRILE, Petitioner, vs. HON. IGNACIO CAPULONG and AYER PRODUCTIONS PTY. LTD., Respondents.

G.R. No. 82330 May 18, 1990

AYER PRODUCTIONS PTY. LTD and McELROY & McELROY FILM PRODUCTIONS, Petitioners, vs. HON. IGNACIO M. CAPULONG and JUAN

PONCE ENRILE, Respondents.

G.R. No. 82398 May 18, 1990

HAL McELROY, Petitioner, vs. HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134, and

JUAN PONCE ENRILE, Respondents.chanrobles virtual law library

SARMIENTO, J.:

The petitioner filed this Petition to stop the respondent court from acting on the private respondent's application for damages arising from the wrongful issuance of a writ of preliminary injunction by that court, later nullified by this Court in Ayer Productions Pty. Ltd. v. Capulong. 1 Ayer's findings are as follows:

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On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and Writ of Preliminary Injunction with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four Day Revolution". The complaint alleged that petitioners' production of the mini-series without private respondent's consent and over his objection, constitutes an obvious violation of his, right of privacy. On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the application for preliminary injunction. chanroblesvirtualawlibrary chanrobles virtual law library

On 9 March 1988, Hal McElroy filed a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the mini-

series film would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been completed. chanroblesvirtualawlibrary chanrobles virtual law library

In an Order dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the dispositive portion of which reads thus:

WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons and entities employed or under contract with them, including actors, actresses and members of the production staff and crew, as well as all persons and entities acting on defendants' behalf, to cease and desist from producing and filming the mini-series entitled "The Four Day Revolution" and from making any reference whatsoever to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears remote, substantial or marked resemblance or similarity to, or is otherwise identifiable with, plaintiff in the production and filming any similar film or photoplay, until further orders from this Court, upon plaintiffs filing of a bond in the amount of P2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if the Court should finally decide that plaintiff was not entitled thereto.

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(Emphasis supplied) chanrobles virtual law library

On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for Certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-82380. chanroblesvirtualawlibrary chanrobles virtual law library

A day later, or on 23 March 1988, petitioner Hal McElroy also filed a separate Petition for Certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.chanroblesvirtualawlibrary chanrobles virtual law library

By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a consolidated Answer. Further, in the same Resolution, the Court granted a limited Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to resume

producing and filming those portions of the projected miniseries which do not make any reference to private respondent or his family or to any fictitious character based on or bearing substantial resemblance or similarity to or identifiable as private respondent. chanroblesvirtualawlibrary chanrobles virtual law library

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy.2

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On April 29, 1988, this Court rendered its Decision, the dispositive portion of which reads as follows:

WHEREFORE, chanrobles virtual law library

a) The Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT, and chanrobles virtual law library

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions forCertiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1987 and any Preliminary Injunction that may have been issued by him.chanroblesvirtualawlibrary chanrobles virtual law library

No pronouncement as to costs. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED. 3 chanrobles virtual law library

On May 16, 1988, the petitioner filed a Motion for Reconsideration. 4 On June 9, 1988, this Court denied the Motion with finality.5 On June 20, 1988, our Decision was entered in the Book of Entries. 6 chanrobles virtual law library

On November 24, 1988, the private respondent filed a "Motion to Resolve" with the respondent court, in connection with its Motion to Dismiss filed on March 9, 1988. 7 chanrobles

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On January 19, 1989, the respondent court issued an Order, granting the Motion to Dismiss. 8 chanrobles virtual law library

On February 10, 1989, the private respondent filed a "Motion for Reconsideration and/or Application to Hold Plaintiff and the Surety Bond Company the First Integrated Bonding Insurance Company, Inc. Jointly and Severally Liable on the Bond." 9 The private respondent claimed that as a consequence allegedly of the Writ of Preliminary Injunction, it was forced to "[move] the filming of the picture to Sri

Lanka after an extensive locational survey," 10 that "[the] move caused over [sic] budget travelling costs of entire cast and crew from Manila to Sri Lanka and Australia; additional days of shooting in excess of original schedule; additional communications costs; costs for building additional sets and decorations in Australia and Sri Lanka; insurance costs; location survey costs, accommodations; and special unit shooting , cost," 11 and that "as a direct result of [the] preliminary injunction issued in this case, [it] suffered losses and damages totalling FOUR HUNDRED THIRTY-EIGHT THOUSAND SEVENTY-THREE AUSTRALIAN DOLLARS . . ." 12 It also sought to hold the petitioner (along with its surety, the First Integrated Bonding Insurance Company, Inc.) liable on his (the petitioner's) bond, FIBICI Board No. JCL-(8)00323, in the sum of P2,000,000.00, Philippine Currency. 13


Subsequently, on February 12, 1989, the private respondent filed a "Notice to Take Oral Deposition," in support of its claim for damages, of four witnesses, all residents of New South Wales, Australia, before Consul Petronila Carbonell of the Philippine Consulate General of Australia, Sydney,Australia. 14


On February 28, 1989, the petitioner filed a "Motion to Suppress Notice to Take Deposition and/or For Protective Order," on the ground, inter alia, that the private respondent's right to damages under the bond was not indubitable and prayed that pending the determination thereof, the deposition-taking be postponed. The private respondent opposed the Motion. chanroblesvirtualawlibrary chanrobles virtual law library

After a further exchange of pleadings, the respondent court, on May 2, 1989, issued an Order, the dispositive portion of which reads as follows:

WHEREFORE, plaintiff's motion to suppress notice to take deposition and/or for protective order be, as it is, hereby, DENIED. 15


According to the respondent court, the private respondent had the right to an award of damages, "resulting from [the Supreme Court's] ruling that [the petitioner] is not entitled to the writ [of preliminary injunction]." 16


On May 9, 1989, the petitioner was served a copy of another "Notice to Take Oral Deposition." 17 On May 15, 1989, he filed a "Motion to Suppress Notice to Take Oral Deposition." 18 On May 19, 1989, he filed a "Motion for Reconsideration (Re: Order dated 2 May 1989). 19 The private respondent opposed it. chanroblesvirtualawlibrary chanrobles virtual law library

On June 1, 1989, the respondent Court issued an Order, the dispositive portion of which reads as follows:

WHEREFORE, the motion for reconsideration filed by plaintiff, is hereby DENIED. 20


According to the respondent court:

. . . The Court finds and resolves that the application or claim for damages of the [private respondent] was filed within the reglementary

period of time, considering that the fifteen (15) day period should be counted from the receipt of the Order of this Court dismissing this case, dated January 19, 1989., and not from the receipt of [the private respondent] of the decision of the Supreme Court dated April 29, 1988 . . . and this Court in effect recognizes the right of [the private respondent] to file its application and claim for damages under the injunction bond filed by [the petitioner]. 21


On June 6, 1989, the petitioner filed the present Petition for Certiorari and prohibition with preliminary injunction and/or restraining order. The petitioner, as we indicated, asks this Court to stop the respondent court from conducting further proceedings below, specifically, to nullify its Order, dated May 2, 1989, and its Order, dated June 1, 1989. He submits that both Orders were issued with grave abuse of discretion, to wit:

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RESPONDENT JUDGE ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ADMITTING AYERS APPLICATION FOR DAMAGES, NOTWITHSTANDING THAT THIS HONORABLE COURTS DECISION IN G.R. NO. 82380, WHICH HAD LONG BECOME FINAL AND EXECUTORY, OPERATED TO DISMISS, OR RESULTED IN THE EFFECTIVE DISMISSAL OF, THE MAIN CASE.

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ASSUMING ARGUENDO THAT THIS HONORABLE COURTS DECISION IN G.R. NO. 82380 DID NOT OPERATE TO DISMISS, OR RESULT IN THE EFFECTIVE DISMISSAL OF, THE MAIN CASE, RESPONDENT JUDGE NEVERTHELESS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ADMITTING AYERS APPLICATION FOR DAMAGES CONSIDERING THAT AYER, IN VIOLATING THE PREVIOUS INJUNCTIVE ORDER OF RESPONDENT JUDGE, FORFEITED THE RIGHT TO CLAIM FOR DAMAGES AGAINST THE BOND FOR THE VERY INJUNCTION WHICH AYER DEFIED IN THE FIRST PLACE.

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ASSUMING ARGUENDO THAT AYER HAD NOT FORFEITED THE RIGHT TO CLAIM FOR DAMAGES AGAINST THE INJUNCTION BOND, RESPONDENT JUDGE NEVERTHELESS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ADMITTING AYER'S APPLICATION FOR DAMAGES CONSIDERING THAT, HYPOTHETICALLY ADMITTING THE ALLEGATIONS IN SAID APPLICATION, THE CLAIMED DAMAGES RESULTED NOT FROM COMPLIANCE WITH THE INJUNCTION BUT RATHER FROM AYER'S DEFIANCE THEREOF.

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RESPONDENT JUDGE ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN REFUSING TO SUPPRESS THE DEPOSITION PROCEEDING WHICH WAS PROPOSED IN CONNECTION WITH THE INADMISSIBLE APPLICATION FOR DAMAGES. 22


On June 13, 1989, this Court issued the following Resolution:

G.R. No. 88373 (Juan Ponce Enrile vs. Hon. Ignacio Capulong, et al.). - Acting on the special civil action for certiorariand prohibition with prayer for a writ of preliminary injunction and/or restraining order, the Court Resolved, without giving due course to the petition, to require the respondents to COMMENT thereon, within then (10) days from notice.chanroblesvirtualawlibrary chanrobles virtual law library

The Court further Resolved to ISSUE a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge from implementing the questioned Orders (dated May 2, 1989 and June 1, 1989) issued by him in Civil Case No. 88-151, entitled "Juan Ponce Enrile vs. Ayer Productions, Pty. Ltd.", from conducting further proceedings in Ayers application for damages against the injunction bond and from taking depositions or conducting other discovery proceedings, or any other proceedings. 23


On June 21, 1989, the private respondent filed its comment, holding that:

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RESPONDENT JUDGE ACTED CORRECTLY WHEN HE REFUSED TO ACCEPT PETITIONER'S GRATUITOUS CLAIM THAT THE DECISION OF THIS HONORABLE SUPREME COURT IN G.R. NO. 82380, "OPERATED TO DISMISS" CIVIL CASE NO. 88-151, AND THAT THE 15-DAY PERIOD FOR FINALITY OF THE DECISION SHOULD BE COUNTED FROM RECEIPT OF THIS HONORABLE COURTS DECISION. 24

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THE TRIAL COURT ACTED CORRECTLY WHEN IT ALLOWED [THE PRIVATE RESPONDENT] TO TAKE THE DEPOSITION BY ORAL INTERROGATORIES OF ITS WITNESSES TO PROVE THE DAMAGES IT SUSTAINED AS A RESULT OF THAT INJUNCTION. THE CLAIM THAT [THE PRIVATE RESPONDENT] VIOLATED THE INJUNCTION IS FALSE. 25

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THE RESPONDENT JUDGE ACTED CORRECTLY WHEN IT ALLOWED [THE PRIVATE RESPONDENT] TO EXERCISE ITS RIGHT TO TAKE ITS WITNESSES' DEPOSITION BY ORAL INTERROGATORIES SINCE

PETITIONERS GRATUITOUS SPECULATION THAT [THE PRIVATE RESPONDENT] "CAUSED ITS OWN DAMAGES" IS A FACTUAL ISSUE SUBJECT TO PROOF. 26

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THE TRIAL COURT ACTED PROPERLY IN ALLOWING THE DEPOSITION TAKING. 27


After exchanges of further pleadings, this Court issued a Resolution considering the private respondent's Comment as an Answer, giving due course to the petition, and correcting the parties to file their Memoranda. 28


A rule firmly settled in this jurisdiction is that a claim for damages arising from a wrongful injunction should be filed in the main case with notice to the surety. 29 If the lower court's decision, denying injunction, is however appealed to the Appellate Court, and the latter affirms the denial, the application may be commenced in the Appellate Court, which may either direct a remand of the case for reception of evidence or otherwise hear the claim itself. 30 So also, it must be commenced before judgment attains finality. 31 Otherwise, it is barred. Thus, it is provided under Section 9, Rule 58, of the Rules of Court, in relation to Section 20, Rule 57 thereof -

Sec. 9. Judgment to include damages against party and sureties. - Upon the trial the amount of damages to be awarded to the plaintiff, or to the defendant, as the case may be, upon the bond of the other party, shall be claimed, ascertained, and awarded under the same procedure as prescribed in section 20 of Rule 57.

It has been held that this procedure is mandatory, and the failure to observe it deprives the aggrieved party the right to proceed against the surety bond. 32


The Court finds that the single most important question that confronts it pertains to whether or not the claim for damages was filed before finality of judgment. Corollarily, whose "judgment" is to be considered, ours or the respondent court's? chanrobles virtual law library

The petitioner contends that the reckoning point should be prior to June 20, 1988, the date our Decision became final by virtue of the issuance of an Entry of Judgment. On the other hand, the private respondent insists that our Decision delved alone on the incidental issue of whether or not a writ of preliminary injunction was proper, and avoided the case on the merits, amongst others, as to damages. Hence, so it is submitted, the departure point should be January 19, 1989, the date the respondent Judge issued the Order dismissing the case. The issue then turns on whether or not our Decision was one on the merits of Civil Case No. 88-151, for if it was so, it is the Decision to be considered, and the point of reference should be prior to June 20, 1988, the date judgment was entered.

Ayer Productions Pty. Ltd. vs. Capulong, so we hold, is in the nature of disposition of Civil Case No. 88-151 before Judge Ignacio Capulong on its merits. Hence, when we held in that case that the petitioner was not entitled to injunctive relief, we spoke in

the clearest terms possible that the petitioner lacked any cause of action for injunction, whether preliminary or permanent. It is notable that, as Ayer decreed in part.

. . . The limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT . . . 33


If we made the Temporary Restraining Order (TRO) of March 24, 1988 permanent, it means that no injunctive writ may be issued in any manner whatsoever, because, as we said there: "The production and filming by petitioners of the projected motion picture "The Four Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion upon [the petitionersl "right of privacy,"" 34 and that injunction was a prior restraint to free speech and consequently, injunction was not permissible. Accordingly, there is no doubt that when we gave due course to the private respondent's Petition, and made the TRO permanent. we could not have been any more clear that we were disposing of Civil Case No. 88-151 on the merits. And when we granted the private' respondent's Petition, we also unavoidably dismissed Civil Case No. 88-151. chanroblesvirtualawlibrary chanrobles virtual law library

It is also to be noted that the petitioner's Complaint was in essence one for injunction, and corrollarily for the issuance of preliminary injunction pending further proceedings. The fact that it also prayed for damages, the question of which the private respondent alleges has been left untouched, is insignificant, because demands for damages customarily shadow actions for injunction. In the petitioner's Complaint, it was prayed thus:

WHEREFORE, plaintiff respectfully prays that: chanrobles virtual law library

1. Upon the filing of this Complaint, this Court issue a temporary restraining order enjoining defendants and all persons and entities employed or under contract with them, including actors, actresses and members of the production staff and crew, as well as all persons and entities acting on defendants' behalf, from producing, filming, distributing and exhibiting the aforesaid mini-series and from making any reference whatsoever to plaintiff or his family or creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bear remote, substantial or marked resemblance or similarity to, or is otherwise identifiable with, plaintiff, in the production, filming, distribution, promotion, airing or exhibition of any similar film or photoplay.chanroblesvirtualawlibrary chanrobles virtual law library

2. After notice and hearing, and the filing of such bond as may be required, this Court convert the foregoing temporary restraining order into a writ of preliminary injunction. chanroblesvirtualawlibrary chanrobles virtual law library

3. After trial of the issues, this Court convert the writ of preliminary injunction into a permanent injunction and, further, order defendants to pay plaintiff the following:

a) P1 Million by way of moral damages; chanrobles virtual law library

b) P1 Million by way of exemplary damages; and chanrobles virtual law library

c) P300,000.00 by way of attomey's fees and costs of litigation

Plaintiff prays for such further and other relief as may be deemed just or equitable. 35


Again, when this Court declared that the petitioner had no cause of action for injunction because, first, of an insufficient showing of invasion of his privacy, and second, because injunction operated as a prior restraint to the guaranty of free expression, we declared to all intents and purposes, that he, the petitioner, had no right of relief whatsoever, preliminary or permanent injunction or damages. And when we declared so, there was therefore absolutely nothing else for Judge Capulong to hear and decide. Certainly, His Honor could not have further acted on petitioner Enrile's right to stop the motion picture in question, when we had already spoken: petitioner Enrile had no right. chanroblesvirtualawlibrary chanrobles virtual law library

It is not indeed surprising that in its "Motion to Resolve" (the Motion to Dismiss) 36 the private respondent relied on our very Decision to portray the invalidity of the Complaint, thus: chanrobles virtual law library

ASSUMING THAT THE FILM THE FOUR-DAY REVOLUTION HAS BEEN COMPLETED, NEVERTHELESS THE COMPLAINT WOULD STATE NO CAUSE OF ACTION. 37


For if there was indeed something left for the court a quo to try, the private respondent should have asked for trial. Obviously, however, this would have been poor strategy because in that event, it would have been hard put to justify a request for trial after having moved for dismissal from the beginning. chanroblesvirtualawlibrary chanrobles virtual law library

The Court's ruling, therefore, is that the private respondent's claim for damages brought about by a wrongful function should have been commenced prior to June 20, 1988 (the date Ayer judgment was entered) either with this Court or with the court below. What is plain is that it had neglected to file its claim speedily and seasonably, and for what clearly emerges as an effort to revive a lost opportunity, it sought a court order to raise the case long decided by this Court as having had no leg on which to stand. chanroblesvirtualawlibrary chanrobles virtual law library

The private respondent can not deny the application of Rivera v. Talavera, 38 where we said that the request for damages arising from injunction may be ventilated in the Appellate Court, because although Talavera involved an appeal, whereas Ayer was one for certiorari (special civil action), the distinction is, for purposes hereof,

tenuous because, in both cases, there was a final resolution on the merits that left nothing for the trial court to adjudicate. chanroblesvirtualawlibrary chanrobles virtual law library

Because the case had achieved a character of finality, it follows that all proceedings below, including the request for deposition, after June 20, 1988, are void and of no effect. The challenged Orders, dated May 2,1989 and June 1, 1989, respectively, are equally null and inexistent. chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE the Petition is GRANTED. The Order, dated May 2, 1989, and the Order, dated June 1, 1989, are declared NULL AND VOID. chanroblesvirtualawlibrary chanrobles virtual law library

Costs against the private respondents. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Cortes, Griño-Aquino and Regalado, JJ., concur. chanroblesvirtualawlibrary chanrobles virtual law library

Medialdea, J., took no part. chanroblesvirtualawlibrary chanrobles virtual law library

Gancayco, J., is on leave.



Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 82380 April 29, 1988

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners, vs.HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.

G.R. No. 82398 April 29, 1988

HAL MCELROY petitioner, vs.HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134 and JUAN PONCE ENRILE, respondents.

FELICIANO, J.:

Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1 envisioned, sometime in 1987, the for commercial viewing and for Philippine and international release, the histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer Lope V. Juban who suggested th they consult with the appropriate government agencies and also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events proposed to be filmed.

The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and Classification Board as wel as the other government agencies consulted. General Fidel Ramos also signified his approval of the intended film production.

In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce Enrile about the projected motion picture enclosing a synopsis of it, the full text of which is set out below:

The Four Day Revolution is a six hour mini-series about People Power—a unique event in modern history that-made possible the Peaceful revolution in the Philippines in 1986.

Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history Prof Al McCoy have chosen a "docu-drama" style and created [four] fictitious characters to trace the revolution from the death of Senator Aquino, to the Feb revolution and the fleeing of Marcos from the country.

These character stories have been woven through the real events to help our huge international audience understand this ordinary period inFilipino history.

First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects the average American attitude to the Phihppinence —once a colony, now the home of crucially important military bases. Although Tony is aware of the corruption and of Marcos' megalomania, for him, there appears to be no alternative to Marcos except the Communists.

Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in the events as it becomes dear that the time has come for a change. Through Angle and her relationship with one of the Reform Army Movement Colonels (a fictitious character), we follow the developing discontent in the armed forces. Their dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately their defection from Marcos.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret member of the New People's Army, and Eva--a -P.R. girl, politically moderate and very much in love with Tony. Ultimately, she must choose between her love and the revolution.

Through the interviews and experiences of these central characters, we show the complex nature of Filipino society, and thintertwining series of events and characters that triggered these remarkable changes. Through them also, we meet all of the principal characters and experience directly dramatic recreation of the revolution. The story incorporates actual documentary footage filmed during the period which we hope will capture the unique atmosphere and forces that combined to overthrow President Marcos.

David Williamson is Australia's leading playwright with some 14 hugely successful plays to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of Living Dangerously,' Gallipoli,' 'Phar Lap').

Professor McCoy (University of New South Wales) is an American historian with a deep understanding of the Philippines, who has worked on the research for this project for some 18 months. Together with Davi Wilhamgon they have developed a script we believe accurately depicts the complex issues and events that occurred during th period .

The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the Australian Broadcast Corporation in Australia and Zenith Productions in the United Kingdom

The proposed motion picture would be essentially a re-enact. ment of the events that made possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style, creating four (4) fictional characters interwoven with real events, and utilizing actual documentary footage as background.

On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial exploitation" and further advised petitioners that 'in the production, airing, showing, distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should not be made to [him] or any member of his family, much less to any matter purely personal to them.

It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the movie script, and petitioners proceeded to film the projected motion picture.

On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four Day Revolution". The complaint alleged that petitioners' production of the mini-series without private respondent's consent and over his objection, constitutes an obvious violation of his right of privacy. On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the application for preliminary injunction.

On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the mini-series fim would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been completed.

In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the dispositive portion of which reads thus:

WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons and entities employed or under contract with them, including actors, actresses and members of the production staff and crew as well as all persons and entities acting on defendants' behalf, to cease and desist from producing and filming the mini-series entitled 'The Four Day Revolution" and from making any reference whatsoever to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears rent substantial or marked resemblance or similarity to, or is otherwise Identifiable with, plaintiff in the production and any similar film or photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the amount of P 2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if the Court should finally decide that plaintiff was not entitled thereto.

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(Emphasis supplied)

On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-82380.

A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.

By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a consolidated Answer. Further, in the same Resolution, the Court granted a Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to resume producing and filming those portions of the projected mini-series which do not make any reference to private respondent or his family or to any fictitious character based on or respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy.

I

The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in producing and "The Four Day Revolution," they are exercising their freedom of speech and of expression protected under our Constitution. Private respondent, upon the other hand, asserts a right of privacy and claims that the production and filming of the projected mini-series would constitute an unlawful intrusion into his privacy which he is entitled to enjoy.

Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures are a univesally utilized vehicle of communication and medium Of expression. Along with the press, radio and television, motion pictures constitute a principal medium of mass communication for information, education and entertainment. In Gonzales v. Katigbak,3 former Chief Justice Fernando, speaking for the Court, explained:

1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their effect on the perception by our people of issues and public officials or public figures as well as the pre cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [19421) is the Importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. ... 4

This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies. Furthermore the circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of expression. In our community as in many other countries, media facilities are owned either by the government or the private sector but the private sector-owned media facilities commonly require to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed, commercial media constitute the bulk of such facilities available in our country and hence to exclude commercially owned and operated media from the exerciseof constitutionally protected om of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country.

The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right of privacy. 5 It is left to case law, however, to mark out the precise scope and content of this right in differing types of particular situations. The right of privacy or "the right to be let alone," 6 like the right of free expression, is not an absolute right. A limited intrusion into a person's

privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of apublic character. 7Succinctly put, the right of privacy cannot be invoked resist publication and dissemination of matters of public interest. 8 The interest sought to be protected by the right of privacy is the right to be free from unwarrantedpublicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern. 9

Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy in a context which included a claim to freedom of speech and of expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and family of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros Occidental during the November 1951 elections and for whose murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men were tried and convicted. 11 In the judgment of the lower court enforcing the licensing agreement against the licensee who had produced the motion picture and exhibited it but refused to pay the stipulated royalties, the Court, through Justice Melencio-Herrera, said:

Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of, or for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of his mother and the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson to protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to preventa violation of their own rights in the character and memory of the deceased.'

Petitioners averment that private respondent did not have any property right over the life of Moises Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to a fictional or novelized representation of a person, no matter how public a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life Story Of Moises Padilla, petitioner admits that he included a little romance in the film because without it, it would be a drab story of torture and brutality. 12

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech and expression, a right to produce a motion picture biography at least partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties to the widow and family of Padilla. In rejecting the licensee's claim, the Court said:

Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on the constitutional right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla without prior restraint.The right freedom of expression, indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]:

xxx xxx xxx

The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and the press, which includes such vehicles of the mass media as radio, television and the movies, is the "balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to take conscious and detailed consideration of the interplay of interests observable in given situation or type of situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections, supra, p. 899).

In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of freedom of expression invoked by petitioner. taking into account the interplay of those interests, we hold that under the particular circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will have to be upheld particularly because the limits of freedom of expression are reached when expression touches upon matters of essentially private concern." 13

Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant Petitions, the Court believes that a different conclusion must here be reached: The production and filming by petitioners of the projected motion picture "The Four Day Revolution" does not, in the

circumstances of this case, constitute an unlawful intrusion upon private respondent's "right of privacy."

1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part of the respondent Judge upon the exercise of speech and of expression by petitioners. The respondent Judge has restrained petitioners from filming and producing the entire proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who in fact completed and exhibited the film biography of Moises Padilla. Because of the speech and of expression, a weighty presumption of invalidity vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent liability may lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy that private respondent could lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place at Epifanio de los Santos Avenue in February 1986, and the trian of events which led up to that denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it is, petitioners' argue, of international interest. The subject thus relates to a highly critical stage in the history of this countryand as such, must be regarded as having passed into the public domain and as an appropriate subject for speech and expression and coverage by any form of mass media. The subject mater, as set out in the synopsis provided by the petitioners and quoted above, does not relate to the individual life and certainly not to the private life of private respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his immediate family, what we have here is not a film biography, more or less fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the constituent events of the change of government in February 1986.

3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that intrusion,

as this Court understands the synopsis of the proposed film, may be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical account. Private respondent does not claim that petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private respondent or that of any member of his family.

4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were taking place, private respondent was what Profs. Prosser and Keeton have referred to as a "public figure:"

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainment. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person.

Such public figures were held to have lost, to some extent at least, their tight to privacy. Three reasons were given, more or less indiscrimately, in the decisions" that they had sought publicity and consented to it, and so could not complaint when they received it; that their personalities and their affairs has already public, and could no longer be regarded as their own private business; and that the press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was held that there was no liability when they were given additional publicity, as to matters legitimately within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was held to arise out of the desire and the right of the public to know what is going on in the world, and the freedom of the press and other agencies of information to tell it. "News" includes all events and items of information which are out of the ordinary hum-

drum routine, and which have 'that indefinable quality of information which arouses public attention.' To a very great extent the press, with its experience or instinct as to what its readers will want, has succeeded in making its own definination of news, as a glance at any morning newspaper will sufficiently indicate. It includes homicide and othe crimes, arrests and police raides, suicides, marriages and divorces, accidents, a death from the use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the reappearance of one supposed to have been murdered years ago, and undoubtedly many other similar matters of genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however, limited, to the dissemination of news in the scene of current events. It extended also to information or education, or even entertainment and amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of human activity in general, as well as the reproduction of the public scene in newsreels and travelogues. In determining where to draw the line, the courts were invited to exercise a species of censorship over what the public may be permitted to read; and they were understandably liberal in allowing the benefit of the doubt. 15

Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor in the culminating events of the change of government in February 1986. Because his participation therein was major in character, a film reenactment of the peaceful revolution that fails to make reference to the role played by private respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private respondent has not retired into the seclusion of simple private citizenship. he continues to be a "public figure." After a successful political campaign during which his participation in the EDSA Revolution was directly or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of the Philippines.

5. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of events. There must, in other words, be no knowing or reckless disregard of truth in depicting the participation of private respondent in the EDSA Revolution. 16 There must, further, be no presentation of the private life of the unwilling private respondent and certainly no revelation of intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern." 18 To the extent that "The Four Day Revolution" limits itself in portraying the participation of private respondent in the EDSA Revolution to those events which are directly and

reasonably related to the public facts of the EDSA Revolution, the intrusion into private respondent's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out even without a license from private respondent.

II

In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production" enjoining him and his production company from further filimg any scene of the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and paste" pleading, cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the attention of the Court the same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was substantially identical to that filed by private respondent herein and stating that in refusing to join Honasan in Civil Case No. 88-151, counsel for private respondent, with whom counsel for Gregorio Honasan are apparently associated, deliberately engaged in "forum shopping."

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private respondent's complaint and that on Honasan in the construction of their legal basis of the right to privacy as a component of the cause of action is understandable considering that court pleadings are public records; that private respondent's cause of action for invasion of privacy is separate and distinct from that of Honasan's although they arose from the same tortious act of petitioners' that the rule on permissive joinder of parties is not mandatory and that, the cited cases on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-413 are not identical.

For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to dispose to the complaint filed by former Colonel Honasan who, having refused to subject himself to the legal processes of the Republic and having become once again in fugitive from justice, must be deemed to have forfeited any right the might have had to protect his privacy through court processes.

WHEREFORE,

a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT, and

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any Preliminary Injunction that may have been issued by him.

No pronouncement as to costs.

SO ORDERED.

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Footnotes

1 On April 7, 1988, petitioners, in G.R. No. 82380 asked for deletion Production's as party petitioner qqqt company but merely a corporate tradename used by Ayer Productions. "McElroy and McElroy Film Production's" will therefore be disregarded in this Decision.

2 Annex "A" of the Petitions.

3 137 SCRA 717 (1985).

4 137 SCRA at 723.

5 The Constitutional Foundations of Privacy," in Cortes, Emerging Trends in Law, pp.1-70 (Univ. of the Philippines Press, 1983). This lecture was originally delivered in 1970.

6 See Cortes, supra, Note 5 at 12 et seq. where she traces the history of the development of privacy as a concept

7 Prosser and Keeton on Torts, 5th ed., pp. 854-863 (1984); and see, e.g., Strykers v. Republic Producers Corp., 238 P. 2d 670 (1952).

8 Nixon v. Administrator of General Services, 433 U.S. 425, 63 L Ed. 2d 867 (1977).

9 Smith v. National Broadcasting Co., 292 P 2d 600 (1956); underscoring supplied.

10 92 SCRA 476 (1979).

11 People v. Lacson, et al., 111 Phil. 1 (1961).

12 92 SCRA 486-487.

13 92 SCRA at 488-489; Emphasis supplied.

14 Mutuc v. Commission on Elections, 36 SCRA 228 (1970); New York Items Co. v. United States,403 U.S. 713, 29 L Ed, 2d 822 (1971); Times Film Corporation v. City of Chicago, 365 U.S. 43 5 L Ed. 2d 403 (1961); Near v. Minnesota, 283 U.S. 67 L Ed. 1357 (1931).

15 Prosper and Keeton on Torts, 5th ed. at 859-861 (1984); underscoring supplied

Ayer Productions vs Capulong

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