by: Trinca Diploma
In 2015, news went around that Dennis Doyle quit his job as a lawyer in New York. As he was a fan of the New York Knicks, he decided to withdraw $26,000 from his savings and followed their games across the country all year.[1]Quite a fanatic, eh?
How did Dennis Doyle become that much of a fan? Does one know why or how they become a fan?
In understanding a consumer as a fan, Vince Genaro[2] says that sports fans fall under three categories of connectors: 1) essential connectors; 2) communication connectors; and 3) search connectors.
Fans are attracted to a sports team, a sports league, or the sport itself through predominant star athletes such as Kobe Bryant for basketball, Cristiano Ronaldo for football, or Serena Williams for tennis (essential connectors).
For some, it could be a product of family or office tradition where games or events like the Superbowl are discussed over dinner (communication connectors).
For others, it could be a form of vicariously experiencing their youth, or perhaps even their dreams that didn’t come true, or they merely thrive in rooting for a team in a sports event because the outcome is uncertain (search connectors).
While one’s deep attachment to an athlete or team may display fan loyalty, there’s still a line that fans must not cross – especially if it’s the law.
A sports fan doesn’t have unimpeded freedom to behave however and say whatever they want. Let’s talk about the (legal) fouls that fans might commit.
Stalking and Invasion of Privacy
In 2020, former Queen Tamaraw and current Cignal HD Spiker Rachel Anne Daquis shared a harrowing experience with her stalker. The man sent her creepy messages on social media, enrolled in her gym, and even followed her all the way to Pampanga to ask around for her personal information. He also tried to bribe people around Rachel for more information![3] The most terrifying part is that he was even able to locate Rachel in her own subdivision while she was at a bakery with her family.
Under the Safe Spaces Act (SSA), stalking refers to “conduct directed at a person involving the repeated visual or physical proximity, non-consensual communication, or a combination thereof that cause or will likely cause a person to fear for one’s own safety or the safety of others, or to suffer emotional distress.” If prosecuted and found guilty of stalking, a fan who commits this offense may be punished by imprisonment or fine.[4]
If a fan repeatedly follows an athlete to where one trains, dines out, goes shopping, and/or sends him/her messages to the point that the athlete fears for his/her own safety or suffers emotional distress, the fan is most likely violating the SSA. (Jill discussed other punishable acts under the Safe Spaces Act here.)
So how did the stalker get Rachel’s address? If he had succeeded in bribing someone and had gotten it from someone in the sports club, or the volleyball league, (or anywhere for that matter as long as it involved the processing or collecting of Rachel’s personal data), the person who divulged such information is treading the lines of violating the Data Privacy Act. Unauthorized disclosure of an athlete’s personal information may be punished under this law.[5]
There is also Unjust Vexation under Art. 287 of the Revised Penal Code (RPC). It’s a form of light coercion which is broad enough to include any human conduct which, although may not produce some physical or material harm, would unjustly annoy or irritate an innocent person.[6] Thus, a fan could commit acts which may constitute unjust vexation if it satisfies the following elements:
- A human conduct which could unjustifiably annoy or vex an innocent person;
- Absence of some physical or material harm;
- Existence of malice;
- Offender’s act caused annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed.[7]
Bottomline: your obsession with your favorite athlete could land you in prison. Don’t be a saesang![8]
Trademark and Copyright
Fact: fans love to see their favorite athlete’s face in their notebooks, bags, clothes – everywhere. But no matter how much you love them, you must remember that you can’t profit from them just like that. Thinking of selling merchandise with your favorite athlete’s face? Hold that thought. Any person who uses an athlete’s name, face, or both, which is likely to cause confusion or misrepresent such athlete as to the sponsorship or approval of his or her goods, services, or commercial activities, may be punished under the Intellectual Property Code (IPC).[9] It doesn’t mean you can never do this, you just have to ask for the athlete’s consent first and have an agreement about it.[10]
Monikers are also included under this prohibition. Kiefer Ravena, Alyssa Valdez, and Marck Espejo are known to be “phenoms” in their respective playing fields. If the word “phenom” is already a registered trademark[11] in the Intellectual Property Office, you might want to rethink about selling goods or services with “phenom” on it.[12] Of course, this would always depend on how similar the goods and services would be.
Now, your favorite sports team has a live game and you want to host a livestream[13] to share it your co-fans. With the widespread use of Facebook, Discord, Twitch, Periscope, and other platforms, streaming has become commonly accessible.[14] But you might want to proceed with caution.
In NBA v. Motorola, Inc.,[15] the U.S. court held that as opposed to sporting events per se, the broadcasts thereof are copyrightable since they are “original and creative.” While our own IPC does not include sporting events under copyrightable works, Sec. 172 thereof includes “audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings as copyrightable objects.”[16]Under such premise, broadcasted live games could fall under copyrightable works. Since broadcasting organizations are given exclusive rights to carry out, authorize or prevent the rebroadcasting of their broadcast,[17] illegally streaming the live games may cause a possible infringement.[18]
Cyberlibel
Due to a fan’s extreme affection for an athlete, bashing other athletes on social media has become a common practice in the Philippines. Just look at an athlete’s Twitter replies or Instagram comments section and you ought to find at least one distasteful remark by a troll (or sometimes they don’t even hide their real identity!). So don’t leave those kinds of comments, lest you be punished under the Cybercrime Prevention Act of 2012.[19]
Libel is the “public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”[20] If done through a computer system or any other similar means, it constitutes cyberlibel.[21] The elements of the offense are:
- imputation of a discreditable act or condition to another;
- publication of the imputation;
- identity of the person defamed; and,
- existence of malice;[22] and
- committed through a computer system or any other similar means.
For the first element, an allegation is defamatory if it ascribes to a person the commission of a crime, the condition, status or circumstances which tends to dishonor or discredit or put him in contempt.[23] It is even sufficient if the remark “induces the hearers [or readers for this matter] to suppose and understand that the person or persons against whom they were uttered were guilty of certain offenses or are sufficient to impeach the honesty, virtue or reputation or to hold the person or persons up to public ridicule.”[24]
For the second element, there is publication if communication is made to a third person. In this case, posting on social media is a means of publication.
For the third element, it is pretty much self-explanatory. If you provide a name, you get the blame. Although it’s not always necessary to name the person. It’s also sufficient if there are matters of description or reference to facts and circumstances from which others reading the article may know the person alluded to.[25]
Fourth, the offender must be prompted by ill-will or malice. Generally, every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown.[26] But this does not apply to athletes who are public figures.[27] Thus, actual malice must be proven.
As for the last element, using your mobile phone, computer, laptop, or other similar means, when posting the malicious comment, constitutes cyberlibel.
If the athlete against whom the defamatory comments are made is able to prove all of these elements, be ready to face imprisonment for as much as six years. Of course, the courts will always have the discretion to only impose a fine. (Mickey gave an in-depth discussion of the elements of libel here.)
So, as a fan, make sure you always stay in your lane and don’t get a (legal) penalty!
Trinca was greatly reminded of her Ateneo Blue Eagle fanatic days while writing this article. Thankfully, she realized that she did not violate any laws while being their fan. Currently, she has moved on to being an ARMY – the fandom of the Grammy-nominated, Billboard-topping, IFPI Global Artist – BTS. (And swears she’ll never be a saesang).
[1] Matt Bonesteel, Meet The Guy Who Lost His Job But Then Spent $26,000 to Watch Every Terrible Knicks Game, Washington Post, April 15, 2015 available at https://www.washingtonpost.com/news/early-lead/wp/2015/04/15/meet-the-guy-who-lost-his-job-but-then-spent-26000-to-watch-every-terrible-knicks-game/ (last accessed February 13, 2021).
[2] Associate Dean and Clinical Professor at New York University, NY, USA and Head of Tisch Institute for Global Sport.
[3] Tiebreaker Times, Rachel Daquis Details Scary Encounter With Alleged Stalker, May 22, 2020 available athttps://tiebreakertimes.com.ph/tbt/rachel-daquis-details-scary-encounter-alleged-stalker/184674 (last accessed February 13, 2021).
[4] 1st offense: arresto menor (11 to 30 days) or a fine of thirty thousand pesos (P30,000.00), provided that it includes attendance in a Gender Sensitivity Seminar;
2nd offense: arresto mayor (1 month and 1 day) or a fine of fifty thousand pesos (P50,000.00);
3rd offense: arresto mayor in its maximum period or a fine of one hundred thousand pesos (P100,000.00).
[5] SEC. 32. Unauthorized Disclosure.
(a) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject, shall he subject to imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).
(b) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party sensitive personal information not covered by the immediately preceding section without the consent of the data subject, shall be subject to imprisonment ranging from three (3) years to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00).
[6] Any other coercions or unjust vexations shall be punished by arresto menor or a fine ranging from One thousand pesos (₱1,000) to not more than Forty thousand pesos (₱40,000), or both.
[7] Maderazo et al. v. People, G.R. No. 165065, September 26, 2006.
[8] Saesang is a negative term in South Korea that denotes “supporting” an idol or actor but is actually just an unhealthy obsession a.k.a a crazy fan. The term translates to “private life” which describes their practice of invading the privacy of their idols.
[9] Ignatius Michael D. Ingles, Laws for Sports and the Sporty: A Handbook on Philippine Sports Law, p. 122 (2019).
[10] Id. at 116.
[11] A trademark means any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods.
[12] You can check for previous and pending registrations online at https://www3.wipo.int/branddb/ph/en/.
[13] Live streaming involves any audio or video content delivered over a network based on Internet protocols.
[14] See Twitch Has Become a Haven for Live Sports Piracy, available at https://www.wired.com/story/twitch-sports-piracy-streaming/.
[15] 105 F.3d 841 (2d Cir. 1997).
[16] Intellectual Property Code, § 172.1 (l).
[17] Intellectual Property Code, § 211.1.
[18] Infringement is committed when there is piracy or substantial reproduction of a work. See Habana v. Robles, G.R. No. 131522, July 19, 1999.
[19] An Act Defining Cybercrime, Providing for the Prevention, Investigation, Suppression and the Imposition of Penalties Therefor and for Other Purposes, [Cybercrime Prevention Act of 2012], Republic Act No. 10175 (2012).
[20] Act No. 3518 or the Revised Penal Code of the Philippines (RPC), Article 353.
[21] Cybercrime Prevention Act of 2012, § 4(c)(4).
[22] Vicario v. People, G.R. No. 124491, 1 June 1999.
[23] Vasquez v. CA, G.R. No.118971, Sept. 15, 1999.
[24] Manila Bulletin Publishing Corporation v. Domingo, G.R. No. 170341, July 5, 2017.
[25] Id.
[26] RPC, Art. 354.
[27] Ignatius Michael D. Ingles, Benta Ka, Ref! Referees, Angry Fans, and Free Speech, available at https://batassportiva.com/2016/06/06/benta-ka-ref-referees-the-angry-fan-and-free-speech/#_ftn3
The OG of Philippine Sports Law 