The essence of the current complaint of Rep. Tobias “Toby” Tiangco, secretary general of the United Nationalist Alliance (UNA), against Social Weather Stations, which he brought to the attention of the Commission on Elections, has boiled down to the proper interpretation of the words “paid for.”
Mr. Tiangco claims that subscribers to SWS “paid for” a survey, and thus their identities should be disclosed. SWS maintains that the subscribers did not pay for SWS to do a survey (in which case SWS would readily identify them) but only paid for information from a survey that SWS did on its own account (in which case their privacy as clients should be respected).
The portion of the Fair Election Act (RA 9006) that puts disclosure requirements on election surveys is Section 5.2, which starts as follows:
“5.2 During the election period, any person, natural as well as juridical, candidate or organization who publishes a survey must likewise publish the following information:
a. The name of the person, candidate, party or organization who commissioned or paid for the survey; …”
[Section 5.2 also requires disclosure of: (b) the person or institution who conducted the survey; (c) the survey period, methodology, number of respondents, areas sampled, and questions asked; (d) the error margin for the entire survey; (e) the error margin for any question with a greater margin than that in (d); and (f) the mailing address and telephone number for contacting the sponsor to obtain a written report of the survey. The correspondence from Mr. Tiangco of 2/28/2013 and 3/8/2013, and from SWS of 3/4/2013 and 3/15/2013, is in the SWS website.]
In the first place, the law pertains to published election surveys only. If a survey is privately commissioned or sponsored, the law does not require that its findings be published, and it does not require sponsors to be identified. Since sponsors have full control, including publication-control, over their items, it makes sense to disclose the identities of sponsors, if any, when something is published. (Though there are exceptional sponsors who formally grant advance permission to publish the survey findings and to be identified.)
Whenever sponsors exercise the option to publish their findings, SWS publicly identifies them and confirms the findings. Per contract, whatever they choose not to publish is embargoed, the raw data are archived, and all are open to public research after three years.
If a pollster conducts an election survey on its own account, there is no law about what material it may publish or when it may do so. Opinion polls are forms of expression that are guaranteed freedom under the Constitution. RA 9006 comes into play only when some survey material is published, in which case the pollster complies by citing itself as the sponsor of the survey question/s leading to the published material.
For a review of SWS compliance with RA 9006, see the SWS website for “Media releases on SWS election surveys with commissioners disclosed, if any, 1998-2013,” (4/18/2013) by SWS Librarian Jeanette Ureta, listing 29 media releases, including 18 commissioned cases with the sponsors identified, and 11 cases done on SWS’ own account. SWS was identifying its sponsors long before it became required by law in 2001.
Not all questions in an SWS election survey are commissioned ones. In particular, SWS does not allow the questions on preference for senatorial and party-list candidates to be commissioned or in any way sponsored or “paid for” by anyone, precisely in order to maintain the unrestricted right to publish its election race findings as part of its public service mission. SWS’ print-partner BusinessWorld is not a commissioner (the August 2012 survey was an exception), but only has the right of first-printing to the national election race standings.
What’s in it for subscribers, if they have no private items of their own, and if the election race standings are printed in BusinessWorld? What subscribers pay for is access to nonpublished materials stemming from SWS’ own-account items. In particular, SWS does not immediately publish the demographic breakdowns of the election race standings, i.e., the vote-percentages of a candidate according to voters’ geographic area, socioeconomic class, urban and rural locale, gender, age, schooling, or religious affiliation. Such information has potential market value, which any financially prudent survey institution has the right to exploit.
To repeat, no one paid SWS to ask respondents who they plan to vote for, or paid it to record their locale, gender, age, schooling, religion, or even frequency of attending church, or paid it to analyze all these together. Such data items, and their analysis, are all nonsponsored; they are SWS’ intellectual property, no one else’s.
Those who subscribe to access SWS’ own-account data are not responsible for the survey, any more than those who subscribe to a newspaper are responsible for its news reports. One may even subscribe even after a survey is completed, which further goes to show that subscribers do not pay to have a survey done.
* * *
For the jurisprudence declaring opinion polls as constitutionally protected forms of expression, see former Chief Justice Artemio V. Panganiban’s chapters “ABS-CBN v. Comelec—A New Paradigm of Free Expression,” in his book “Transparency, Unanimity and Diversity” (Supreme Court Press, 2000) and “Social Weather Stations v. Comelec: May Election Surveys Be Banned?” in his book “A Centenary of Justice” (Supreme Court Press, 2001).
* * *
Contact SWS: or mahar.mangahas@sws.org.ph.