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 Powera 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.
xxx xxx xxx
(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 miniseries 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 inBurstyn 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. 7 Succinctly 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 unwarranted publicity, 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 MelencioHerrera, 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 preagreed 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 Grio-Aquino, JJ., concur.