[ANALYSIS] What would a law on disinformation look like?

As early as the 1930’s, rumor-mongering or tsismis was recognized as a social evil, a crime. In the Revised Penal Code, there is a separate chapter on incriminatory machinations that punishes incriminating an innocent person or incriminating honor. There is the well-known provision on libel that traces its history way back to the Middle Ages.

Fast toward to the present, libel over the internet is the fastest rising crime incident that increasingly makes up most of the case dockets. In terms of legislation, the Philippines and most of the countries globally have passed cybercrime laws to regulate abuses in cyberspace and the tandem legislation on data privacy to protect personal information. Some jurisdictions also have cybersecurity laws.

The next stage of rule-making is a law dealing with misinformation and disinformation. This writer previously laid out the specific steps that can be done in the age of information. Simply, misinformation is incorrect or information while disinformation is deliberately meant to deceive. Only a well-crafted law can address the problem of fake news.

Misinformation, when fact-checked or called out, can be summarily corrected. It presupposes that the one who posted or shared is a real person. In disinformation, the account invariably is a fake one. The source cannot be pinpointed and the responsibility attributed. Absent an internet policing framework similar to those in authoritarian states, it is a most difficult challenge for law enforcement authorities to track and trace the criminal.

We see the prevalence of hate crime videos, from warnings on violence about to be perpetrated, to the uploading of actual killing shots. These quickly go viral and continue to be searchable on the internet regardless of attempts to take them down. Such is the nature of things today – instantaneous, harmful, and permanent.

How might a law against disinformation look like?

The first order is to define the terms which are used in the real world but are without precise legal meaning. There is a prior provision in Section 6(f) of the Bayanihan to Heal as One Act that penalizes “individuals or groups creating, perpetrating, 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; and those participating in cyber incidents that make use or take advantage of the current crisis situation to prey on the public through scams, phishing, fraudulent emails, or other similar acts.”

Note that the phraseology includes and confuses cybercrime in the last paragraph. There is also no differentiation as to the kind or nature of fake news. Intent is not explicitly stated but inferred from the word “clearly geared to.” Legal clarity and certainty is essential when regulating communication that goes outside the protected freedom of expression. The chilling effect of badly written laws is real. 

Only statements of fact or representations of fact are covered. Opinions, criticisms, and similar class of speech are not covered. The perpetrator knows or ought to know that the statement is false or incorrect and that such posting or sharing causes harm to public order, safety, or health among such criteria. Note too that at the initial phase of the legislation, the falsehood’s effect operates against the general public or a class of persons, i.e. minorities or vulnerable groups. 

Like any other social construct, laws do not and cannot solve all issues at one go. It is a fallacy for policymakers and legislators to think or do so otherwise. Disinformation targeted against specific individuals will require a stage two legislative development.

Open platforms like Facebook, Instagram, or Tiktok as well as closed platforms like private group chats fall within the scope. It should be immaterial whether the perpetrator is within or outside the country. Then the penalty is graver for the person who uses a fake account or a bot to perpetrate falsehood.

There will be a safe harbor provision for intermediaries and providers and a chapter on the procedure on enforcement. Many a times a law falls short when it does not outline the necessary powers to effectively carry out its intent and purpose. These will include restriction orders or correction notices directed at the proper parties. There is also the right of appeal.

Disinformation cases can be exclusively handled by cybercrime courts. These are courts that are manned by specially trained judges on cybercrime and its variants. The overall societal good is to hold criminals responsible for foisting harm on innocents. In other words, the priority is to target disinformation by providing the framework for interdicting or controlling this modern form of mass intriguing. It is to the best interest of government and its citizens that such a discussion (and a draft of the disinformation bill) be started in the soonest possible time. – Rappler.com

Geronimo L. Sy is a former Assistant Secretary of the Department of Justice. He set up the Office of Cybercrime and the Office for Competition.