Philip C. Lizarda
Philip graduated from Ateneo de Manila University with a bachelor’s degree in Legal Management. He is currently a 3rd year student of the University of the Philippines College of Law.
Countries all over the world were caught off-guard by the gravity of the COVID-19 pandemic. Even the most developed countries were ill-prepared for its scale (Kiersz, 2020), with the number of people infected by the disease breaching 1 million and continuing to rise every day. Because of this, nations all over the world promulgated various measures to “flatten the curve” of the spread of the disease (Specktor, 2020). To do so, these governments needed to curtail certain rights of their constituents.
In the Philippines, the government promulgated several orders to halt the spread of COVID-19, primarily with the declaration of an enhanced community quarantine, resulting in the control of the distribution of goods and necessities, and limitations on the right to travel, (i.e. suspension of public mass transportation, CNN Philippines, 2020)[i], among others.
However, due to these extraordinary measures, Filipinos have become restless and frustrated. More and more people have aired their grievances on social media to criticize local and national government leaders for their ineffective action, especially regarding the distribution of goods and necessities. Some have also criticized the national government for the delayed response to control the spread of the disease.
This led the government, specifically the National Bureau of Investigation (NBI), to crack down on alleged “fake news”. The NBI has issued several subpoenas against ordinary citizens on the basis of their social media posts. Furthermore, with the implementation of Republic Act 11469, or Bayanihan to Heal as One Act (Bayanihan Act), there is now another law which doubles down on the offensive against “fake news” (Lardizabal-Dado, 2020).
Not a Curtailment of Free Speech and Expression
Article III Section 4 of the 1987 Constitution guarantees one’s right to free speech and expression, which necessarily includes one’s opinions on social media.
The NBI has however clarified that they are not suppressing the people’s freedom of expression, but are only after those spreading false news and are thus, punishable by Article 154 of the Revised Penal Code punishing unlawful use of means of publication and unlawful utterances (ABS-CBN, 2020).
Nevertheless, human rights lawyer Chel Diokno has stated that the subpoenas issued did not specify which posts violated the law (GMA, 2020). Diokno has agreed to defend those accused by the NBI, insisting that his clients are not purveyors of fake news, but are merely criticizing the actions of the government. These, to him, are merely an exercise of their right to freedom of opinion and expression.
A new point of contention is the provision in the Bayanihan Act which penalizes “fake news”. Its Section 6(6) punishes “individuals or groups creating, perpetuating, or spreading false information regarding the covid-19 crisis on social media and other platforms, such information having no valid or beneficial effect on the population, and are clearly geared to promote chaos, panic, anarchy, fear, or confusion.”
Although it has yet to be used against any person, various digital rights advocates and legal practitioners have contested its inclusion (Lardizabal-Dado, 2020).
These subpoenas, Atty. Diokno fears, would lead to a “chilling effect” on the people’s exercise of their right to free expression (ABS-CBN, 2020).
Being summoned by the NBI, without providing the concrete basis as to the alleged unlawful act they have committed, is alarming, especially during a pandemic where transportation and access to basic needs are restricted. Such a threat becomes an inhibition or discouragement of the people’s legitimate right to free speech and expression.
The fake news provision of the Bayanihan Act also poses various problems in the exercise of free expression. A principle of Criminal Lawstates that there must be no crime or punishment when there is no law that defines it. There is no law in the Philippines that defines false information; not even the Bayanihan Act. This gives the law enforcers unbridled discretion as to what encompasses false information. How then will facts be delineated from opinions?
Furthermore, the provision punishes those “creating, perpetuating, or spreading” such false information; implying that those who “share”, “like”, or possibly even “comment” on the supposed false information could be held liable. This then broadens the chilling effect on the Filipino citizens’ right to free speech, beyond persons who made the original posts.
Previously, a similar provision of the Cybercrime Law (2012) punishing “aiding and abetting” cyber libel has been deemed unconstitutional by the Supreme Court for being overbroad and for creating a chilling effect.
Many of these problems could be resolved by identifying and determining with specificity the various acts imputed or to be imputed to erring Filipino citizens. If the government is to respect the citizens’ right to free speech and expression, it has to ensure that these punishable acts are properly defined, and that those subpoenaed are appraised of such acts violative of the law.
While the NBI has the duty to undertake investigation of crimes and offenses under Philippine laws, it has the duty to appraise the accused of such unlawful acts before they could be properly investigated. Otherwise, the subpoena would not serve its purpose but would merely instill fear on the people. Hence, the NBI has to ensure that they are only after those in violation of the law – and that the people’s right to free speech and expression are respected –by appraising them of the basis such investigation.
The Bayanihan Act provision on false information also needs to be revisited, and amendments have to be made with regard to the crime’s definition and scope, and if it possible to implement at all.
17 subpoenas issued by NBI over fake news issues amid COVID-19 crisis: official. (2020, April 2). ABS-CBN News. Retrieved April 8, 2020, from: https://news.abs-cbn.com/news/04/02/20/17-subpoenas-issued-by-nbi-over-fake-news-issues-amid-covid-19-crisis-official
Chilling effect: NBI going after netizens for social media posts on COVID response – Diokno. (2020, April 2). ABS-CBN News. Retrieved April 8, 2020, from: https://news.abs-cbn.com/news/04/02/20/chilling-effect-nbi-going-after-netizens-for-social-media-posts-on-covid-response-diokno
Disini vs. Secretary of Justice. (2014, February 11). G.R. No. 203335. Supreme Court En Banc.
Kiersz, A. (2020, March 11). The 20 countries in the world best prepared for an epidemic like coronavirus still aren’t really all that ready. Business Insider. Retrieved April 8, 2020, from: https://www.businessinsider.com/best-prepared-countries-for-a-pandemic-still-not-that-prepared-2020-3
Lagrimas, N. (2020, April 2). NBI sends out more than 12 subpoenas over fake news probe. GMA News. Retrieved April 8, 2020, from: https://www.gmanetwork.com/news/news/nation/732340/nbi-sends-out-more-than-12-subpoenas-over-fake-news-probe/story/
Lardizabal-Dado, N. (2020, April 5). The fake news provision in the Bayanihan Act. The Manila Times. Retrieved April 8, 2020, from: https://www.manilatimes.net/2020/04/05/business/sunday-business-i-t/the-fake-news-provision-in-the-bayanihan-act/709855/
Public mass transportation suspended amid Luzon quarantine. (2020, March 17). CNN Philippines. Retrieved April 8, 2020, from: https://cnnphilippines.com/news/2020/3/17/MRT-LRT-PNR-suspended-coronavirus.html?fbclid=IwAR02WQDnhQcn_aFbaU5IiSgxWxhg6yeaFRN6WzB388n9oYSRLzaZ8ob5zps
Republic Act No. 11469 – An Act Declaring the Existence of a National Emergency Arising from the Coronavirus Disease 2019 (Covid-19) Situation and a National Policy in Connection Therewith, and Authorizing the President of the Republic of the Philippines for a Limited Period and Subject to Resctrictions, to Exercise Powers Necessary and Proper to Carry Out the Declared National Policy and for Other Purposes”. Official Gazette of the Philippines. Retrieved 8 April 2020.
Specktor, B. (2020, March 17). Coronavirus: What is ‘flattening the curve,’ and will it work?. Live Science. Retrieved April 8, 2020, from: https://www.livescience.com/coronavirus-flatten-the-curve.html