Free Speech vs Fake News

Kris Sarah M. Jeruta

Article III, Section 4 of the Constitution provides that “no law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.” Thus, the right to freely express one’s thoughts is not without basis.

In fact, the freedoms of expression and speech rank high in the scheme of constitutional values, as stated by the Court in Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, Jan. 21, 2015. However, in Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008, the Supreme Court explained that freedom of expression is not an absolute nor an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. As such, certain types of speech such as slander or libel, lewd or obscene speech, and “fighting words” are subject to regulation, which is justified under the police power of the State.

The COVID-19 pandemic has become a matter of public concern. Information about the disease and its effect on society have been made conveniently available over the internet. Who would have thought a simple touch of the screen would be a gateway to an abundance of information? Now more than ever, the reliance of the people on the internet for information has increased.

While an abundance of information is encouraged under the concept of the marketplace of ideas, the exercise of the right to free speech and expression must be exercised responsibly, more especially in the time of a public health emergency. Unverified information about the pandemic can bring about dangers that may prove to be injurious more than it is helpful.

Justified by the police power of the State, the government has laid down policies to curb the proliferation of “fake news.”

Under Article 154 of the Revised Penal Code (RPC), as amended Republic Act No. 10951, 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 shall be imposed with the penalty of arresto mayor and a fine ranging from P40,000 to P200,000.

Circulating fake news through the internet is dealt with more heavily. Under Republic Act No. 10175 or the “Cybercrime Prevention Act of 2012,” a penalty one degree higher than that provided by the RPC shall be imposed whenever the crimes defined and penalized by the RPC are committed by, through, and with the use of information and communications technologies.

For the purpose of promoting and protecting the collective interests of all Filipinos in the time of the COVID-19 pandemic, Congress passed the Republic Act No. 11469 or the “Bayanihan to Heal as One Act,” which punishes 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.

These laws tending to regulate freedom of speech and of expression are now being put to the test. The National Bureau of Investigation (NBI) became the subject of headlines when news circulated regarding an individual against whom a subpoena was issued for alleged violation of Article 154 of the RPC in connection with a publicly posted article on alleged misuse of government funds.

NBI’s power to investigate and to issue subpoena is not without basis. Under Republic Act No. 10867 or the “National Bureau of Investigation Reorganization and Modernization Act,” the President or the Secretary of Justice is authorized to direct the NBI to undertake the investigation of any crime when public interest so requires. The NBI has, beyond question, the power to investigate the circulation of fake news, more so when it concerns COVID-19 and its incidents, which could possibly be a matter of life or death.

However, neither the RPC nor the Bayanihan Law provides a definition of what constitutes “fake news.” This determination is thus left to the authorities, without a set of clear guidelines. In Disini v. Secretary of Justice, G.R. No. 203335, Feb. 18, 2014, the Supreme Court enlightens on the effect imposed by vague or overbroad laws on free speech: “a person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence.”

The freedom of expression and of speech must be treated with the highest regard. This preference is justified by the fact that the preservation of all other rights depends upon its free exercise. However, this should not be taken as a license to its arbitrary practice, because the possession of rights carries with it an obligation to its responsible exercise. As with all other rights, one must properly exercise the right to free speech and expression so as not to cause injury to others having equal rights.

This article is for informational and educational purposes only. It is not offered and does not constitute legal advice or legal opinion.

Kris Sarah M. Jeruta is an Associate of the Litigation and Dispute Resolution Department (LDRD) of the Angara Abello Concepcion Regala & Cruz Law Offices or ACCRALAW.
(632) 8830-8000
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