[OPINION] Fake news from an international perspective
The Senate committee on public information and mass media recently conducted its second inquiry into the issue of fake news. Among those invited were government officials from the Presidential Communications Operations Office (PCOO), journalists, and bloggers.
Ideally, the inquiry might have been a venue for serious academic debate on the breadth and scope of free speech, the wisdom of imposing intermediary liability on social media, and the consequences of any alleged use by the government of fake news to pursue its agenda.
Quite disappointingly, though, it served as a ground for the grandstanding of legislators who finally found the opportunity to confront bloggers and writers who had written something displeasing about them in the past.
The inquiry also showcased the limited understanding by Malacañang's own communications officials of free expression, as they constantly blurred the line between political opinion and fake news, deliberately or negligently.
If anything, the inquiry exhibited a disdainfully unsophisticated understanding of fake news in the Philippines.
For one, the focus of the inquiry was misplaced, leaving no proper and thorough discussion of the more relevant issues. The Revised Penal Code already punishes the spread of false news in Article 154, par. 1, which provides:
Article 154. Unlawful use of means of publication and unlawful utterances. – The penalty of arresto mayor and a fine ranging from P200 to P1,000 pesos shall be imposed upon:
1. Any person who by means of printing, lithography, or any other means of publication shall publish or cause to be published as news any false news which may endanger the public order, or cause damage to the interest or credit of the State
Thus, any discussion concerning the regulation of fake news must necessarily first deliberate the propriety of amending, repealing, or retaining this penal provision.
Second, there was no firm commitment on the part of the committee to formulate a definition of fake news and distinguish it from other forms of speech (e.g. political dissent and satire).
Communications Secretary Martin Andanar even boldly claimed that "hate posts" are considered fake news, and had to be lectured on the difference between political opinion and fake news by lawyers present in the inquiry. (READ: Test for Andanar: Can he stop fake news, hate speech from pro-Duterte accounts?)
Under the present circumstances, there may be a need to look at the international standards on freedom of expression and the experiences of other countries which may provide guidance and shed light on the issue of fake news.
First and foremost, the Philippines is a party to the International Covenant on Civil and Political Rights (ICCPR). By virtue of the incorporation clause in Article II, Section 2 of the 1987 Constitution, the provisions of the ICCPR form part of the laws of the land. Article 19, par. 2 of the ICCPR provides:
"2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."
In this connection, any restriction on the right to freedom of expression must comply with the 3-part test in Article 19, par. 3 of the ICCPR – it must be provided by law, it must pursue a legitimate State aim, and it must be necessary in a democratic society.
Second, the special rapporteurs on freedom of expression of 4 international organizations, including the United Nations, issued a Joint Declaration on Freedom of Expression and "Fake News," Disinformation and Propaganda. Special Rapporteurs have the mandate to investigate States and ensure States' compliance with their international human rights obligations. Among the key principles declared are the following:
a. General prohibitions on the dissemination of information based on vague and ambiguous ideas, including "false news" or "non-objective information," are incompatible with international standards for restrictions on freedom of expression.
b. Criminal defamation laws are unduly restrictive and should be abolished. Civil law rules on opportunity and fail to prove the truth of those statements and also benefit from other defences, such as fair comment.
c. State actors should not make, sponsor, encourage or further disseminate statements which they know or reasonably should know to be false (disinformation) or which demonstrate a reckless disregard for verifiable information (propaganda).
d. State actors should, in accordance with their domestic and international legal obligations and their public duties, take care to ensure that they disseminate reliable and trustworthy information, including about matters of public interest, such as the economy, public health, security and the environment.
Third, the phenomenon of fake news is not unique to the Philippines. Other countries that are also parties to the ICCPR have had cases on fake news filed and litigated in their courts.
In the 2004 Ugandan case of Obbo and Another v. Attorney General, two journalists were charged with publishing false news when they reported that the commander of the Uganda Revenue's Anti-Smuggling Unit played a key role in the transfer of gold consignment from the Democratic Republic of Congo to Uganda.
The Ugandan Constitutional Court ruled in favor of the journalists and decided to apply the constitutional right to free speech in the case. In its decision, the Court stated that "applying the constitutional protection to false expressions is not to 'uphold falsity' as implied in the majority judgment. The purpose is to avoid the greater danger of 'smothering alternative views' of fact or opinion."
In the 2014 Zambian case of Chipenzi v. People, the journalists published a news story that the Zambian secret police had recruited a number of foreign militia into the main stream police force. They were arrested for violating a criminal law punishing the dissemination of false information.
The High Court of Zambia ruled that the said criminal law was unconstitutional for being overbroad as it not only prohibited false news but also punished those with honest beliefs that their statements were true. The law was held to be unconstitutional also because the accused had to prove that he lacked knowledge of the falsity of the information before he published it in order for the courts to acquit him.
This violated the presumption of innocence of the accused as he now has the burden of proving his innocence instead of the State having to prove his guilt.
Finally, in Grech and Montanaro v. Malta, a commercial libel case decided by the European Court of Human Rights (ECHR) in 1997, the accused were editors of a newspaper that published a letter from an anonymous reader accusing a company of selling tuna fish as sardines.
The Maltese domestic Press Act imposes monetary sanctions and payment of damages against those that publish statements which they knew, or ought to have known, to be false, and which causes damage to any business concern.
The accused editors were ordered to pay a certain sum to the maligned company. During trial, they did not dispute that the information in the letter they published were false. The damages caused the company were also firmly established. Hence, the ECHR found that the imposition of monetary sanctions and damages was not a violation of the editors' right to freedom of expression.
Lessons can be learned from the international community in order to properly address the issue of fake news in the Philippines.
At the outset, the difference in treatment between fake news propagated by ordinary citizens and fake news peddled by the government should be recognized.
We must all be reminded that the Bill of Rights in the Constitution contains safeguards for citizens against the government, and that the government cannot invoke the same rights to the prejudice of ordinary people.
The right to freedom of expression dictates that no criminal penalty should be imposed for fake news driven by ordinary citizens, and that the corresponding penalty under the civil laws should suffice. There is greater good in protecting the right to freedom of expression, especially of those who dissent and disagree, than there is to penalize those who spread false information.
However, there is a need for heavier sanctions to be imposed upon public officials who spread fake news, most especially against members of the free society, including the press and the advocates of civil liberties.
Government officials should be made to bear higher standards in disseminating information considering that they have all the resources necessary to verify the truthfulness of their statements. They are in a position of power and influence, and spreading fake news is nothing but an abuse of such power.
Any regulation on fake news affects all sides of the political spectrum. More than fake news and false information, however, the greater debate should focus on ideas and opinion. I do not believe that the free marketplace of ideas should be a venue that tolerates misinformation. Instead, it should be a place where people can freely express their opinions and ideas on subjects that matter to the lives of the Filipino.
I believe that the best way to combat fake news is through the truth. Ultimately, Filipinos will know the truth, our truth. However, we will never get there if those who are brave enough to speak are silenced on the pretense that they spread fake or false information. – Rappler.com
Gil Anthony E. Aquino is a lawyer from the Center for International Law (Centerlaw). He is also affiliated with the Advocates for Freedom of Expression Coalition in South East Asia (AFEC-SEA). Research materials were provided by law students Hussein Balt and Christopher Alcantara.