[OPINION] Freedom of expression and online trolls

This is the full text of the speech delivered by retired senior associate justice Antonio T. Carpio at the commencement exercises of the University of the Philippines College of Law Class of 2021 on July 31.

University of the Philippines Board of Regents Chair J Prospero E. de Vera III, President Danilo L. Concepcion, members of the Board of Regents, Dean Edgardo Carlo L. Vistan II of the UP College of Law, university officials, members of the law faculty, the Graduating Class of 2021, fellow students of the law, ladies and gentlemen, a pleasant day to everyone.

I wish to thank the Graduating Class of 2021 for inviting me to address you today. My heartfelt congratulations to all of you for earning the accolade UP Law Graduate – one who has learned law in the grand manner and one who has the legal Aguhon to navigate through the turbulent seas of a lawyer’s life. Special mention to the honor graduates for your extraordinary achievement.

We live in what I call the Age of Instant Communication, when what you type on your computer or smartphone can instantly travel around the world reaching tens of millions of people, for their information or disinformation. We have experienced that the internet has amplified the power of freedom of expression a million-fold. What we are realizing just now, is that along with this amplified power to instantly broadcast worldwide our ideas, there is also an amplified responsibility not to libel others and not to spread disinformation that misleads others.

Freedom of expression is the freedom without which all other freedoms cannot exist. Freedom of expression is the bedrock of a free society. Freedom of expression, however, is not absolute. There is no freedom of expression to incite imminent lawless action. There is no freedom of expression to disclose state secrets. There is also no freedom of expression to libel others.

However, libelous comments are what pollute our online platforms today, together with tons of disinformation, libelous or not, directed to mislead the people to act against their own interest. Libelous comments and disinformation posted by fake or fictious users on online platforms are the tools of those who hide the truth and sow confusion in the public mind.

Libelous comments and disinformation are possible because online platforms allow their users to post comments using fake or fictitious names. A person hiding behind a fake or fictious name will say anything he wants, libelous or not, disseminating information, whether true or false. A person hiding behind a fake or fictious name feels no responsibility to speak the truth. A person hiding behind a fake or fictious name has no fear of being penalized for ascribing falsehoods against anyone or for spreading disinformation. The use of fake or fictitious names is the perfect tool to libel anyone, or to spread disinformation, without being held to account.

Online platforms willingly allow users to use fake or fictious names because it allows anyone to open multiple accounts under different names, ostensibly showing more users of the platform, generating higher internet traffic, all of which translate into higher viewership and therefore higher advertisement rates. It is all about income. The online platforms have a financial incentive not to require commentators to use their real names or to disclose their addresses.

Thus, we find a fake or fictitious name such as “felipenis chimpgago,” who is obviously not a Filipino but someone from China because he posts comments supporting China’s claim to the West Philippine Sea and denigrating the Arbitral Award in favor of the Philippines. “Felipenis chimpgago” has supporters with names like “Junior Tulo,” “BoyBukol,” and “Kolokoyboy” and similar outlandish names. Nobody knows who these people are, not even the online platforms that have allowed them to post comments. These commentators viciously attack the political opposition and obsequiously praise the Duterte administration. They consistently support China’s encroachment of Philippine exclusive economic zone in the West Philippine Sea. They obviously belong to troll farms financed by China.

Facebook has shut down troll farms based in Fujian Province in China that have been supporting President Rodrigo Duterte. The Philippine Daily Inquirer reported on September 23, 2020 and I quote:

Social media giant Facebook has shut down several fake Facebook accounts and pages, the contents of which were supportive of President Rodrigo Duterte and the possible 2022 presidential bid of his daughter, Davao City Mayor Sara Duterte-Carpio.

The fake accounts were traced to individuals from China’s Fujian province, Nathaniel Gleicher, head of Facebook security policy, said on Tuesday night.

According to Gleicher, the pages and accounts engaged in “coordinated inauthentic behavior” with their postings about global news and matters relating to the West Philippine Sea and operations of the United States Navy in three languages – Chinese, English, and Filipino.

Twelve senators recently field a resolution to open an investigation into troll farms ostensibly funded by a government agency under the Duterte administration. Let me quote the July 23, 2021 report of ABS-CBN News:

Twelve senators have called for an investigation into reports that public funds were allegedly being spent on troll farms to spread misinformation and "fake news" online.

Senate Resolution 768 states, “Filipinos should know why government spends public funds on troll farm operators disguised as 'public relations practitioners' and 'social media consultants' who sow fake news rather than on COVID-19 assistance, health care, food security, job protection, education, among others.”

These troll farms will surely be active in our May 2022 national elections, as they have been active in our 2016 and 2019 elections. These troll farms can destroy any candidate by relentlessly spreading disinformation about the candidate in social media. Some of those thinking of running for president or vice president in 2022 are delaying their announcements for fear of being attacked by these troll farms. The intimidating presence of these troll farms in our national politics is real and extremely disturbing.

Online platforms are publishers. However, in the United States, online platforms like Facebook and Twitter are not liable for the libelous comments of their users under the safe harbor clause in Section 320 of the Communications Decency Act of 1996 of the United States. In the Philippines, online platforms can be held liable for libelous comments of their users just like any print, TV or radio media. However, there is still no Philippine jurisprudence holding online platforms, foreign or domestic, liable for libelous comments of fake or fictious users of their platforms. Online platforms have allowed fake or fictious persons to post clearly libelous comments and disinformation on their platforms to generate interest and traffic to their platforms.

In the Philippines, public officials or public figures libeled online by fake or fictitious persons can of course sue the online platform as publisher. However, these public officials or public figures do not usually file libel cases because they have to overcome the presumption of good faith. The burden of proving malice is on the libeled public officials or public figures. The law must be amended that malice is presumed on the part of the publisher if the libelous comment is made by a fake or fictitious person who has been allowed by the online platform to make the libelous comment without verifying his identity. But until the law is amended, online platforms in the Philippines are not bothered by libel suits for comments posted by their fake or fictious users. This has led to the proliferation of all kinds of disinformation, malicious or not, in online platforms.

There is a gap between the existing libel law and what should be the ideal justice in case of online libel. The use of fake or fictitious names in online platforms to libel a person is per se proof of malice and this should be written in the law. The use of fake and fictitious names also encourages the spread of disinformation in social media. We are all for freedom of expression, but we are also for the truth and for a level playing field. Anyone who imputes in social media a crime or derogatory act on another person must disclose his real identity to allow the libeled person a legal remedy against his or her defamer. The defamer must not be allowed to hide behind a fake or fictitious name. The burden must be placed on the online platform publishers to require those who post comments on their platforms to disclose their real identities, country of residence, and addresses. The addresses can be given to the libeled person upon request to allow him or her exercise his or her legal remedy. If the online platform allows a user to use a fake or fictitious name, or refuses to secure the addresses of users, who post libelous comments against public officials or public figures, then malice should be presumed, and the online platform should be liable for triple damages.

I am a firm believer in freedom of expression. I am not in favor of banning foreigners in foreign lands to post comments on online platforms in the Philippines, no matter how offensive their comments may be. But these foreigners must disclose their real identities, addresses and country of residence in the same way that we Filipinos, when we write columns or letters to the editor, disclose our real identities and addresses. I only want a level playing field for Filipinos.

This existing gap between law and justice on online libel can only be closed by amendatory legislation. However, we do not expect that the present Congress, where the Duterte administration has an overwhelming majority in both chambers, will enact an amendatory legislation before the May 2022 elections. Thus, during the campaign period for the May 2022 elections, the troll farms will proliferate and will be very active in spreading libelous comments and disinformation against targeted candidates. The operation of troll farms is very expensive, and only the most monied candidates can afford the services of troll farms.

We are thus faced with a situation where the existing gap between the law and justice on online libel will continue, and can heavily influence the results of the 2022 national elections. How do we solve a problem of this magnitude that can gravely endanger our democratic way of life? The interim solution, before an amendatory legislation is possible to close the gap between law and justice, is to appeal to the sense of civic duty of media – both the journalists and the online platform publishers.

Fortunately, last July 17, 2021 the Philippine media on their own have voluntarily come together and issued a statement called “The Election 2022 Pledge for Journalists and Media Organizations.” The Pledge was signed by over 300 journalists and over 40 news outlets, including the leading print and broadcast networks, local and regional news organizations and associations in the country. The journalists and the news outlets undertook, among others, to “challenge and correct statements and claims that have no basis in fact, and avoid highlighting or amplifying falsehoods, hate speech and incitements to violence.”

Unfortunately, this Pledge of the journalists and news outlets, while indeed laudable and helpful, will not stop the trolls from spreading libelous comments, hate speech and disinformation in the run up to the May 2022 elections. Online platforms will still allow trolls to use fake or fictitious names – which is the heart of the problem. I therefore appeal to our journalists, new outlets and all online platforms operating in the Philippines, to go one step further – to require all those who post comments on their platforms to reveal their real names and country of residence, and to maintain in their files the addresses of these users so that any person who may have been libeled by such comments can exercise his or her legal remedy against such users. In this way we can bring back civility and rationality to the political discourse in our nation.

You, the Graduates of UP Law 2021, having been taught law in the grand manner, must likewise practice law in the grand manner. Practicing law in the grand manner means closing the gaps between law and justice, and thus contributing to the progress and development of the law. The gaps arise because of new circumstances, new technologies, or new ideas. The gaps may be closed by amendatory or new legislation.

But these gaps may not be closed immediately as they arise. These gaps may temporarily be closed by implementing rules or by jurisprudence. In the case of online libel by trolls, the gap may be closed by jurisprudence but that will take time, beyond the May 2022 elections. We are thus left to appealing to the sense of civic duty of the men and women in our media, the journalists, and those who run news outlets and online platforms in the Philippines. Let us all ensure that trolls, fake news, and disinformation will not dictate the results of a vital exercise of our democratic project – the national elections in May 2022.

Once again, congratulations and Padayon! to UP Law Class of 2021. Thank you, and a pleasant day to everyone. – Rappler.com