The upcoming 2022 national and local elections will be the first and hopefully the last to be held in the midst of a pandemic. By election day, the Philippines will have then surpassed the two-year mark of its COVID-19 anniversary, and health protocols and restrictions will surely impact the partisan political activities. When candidates begin campaigning, handshakes will be replaced with fist bumps and a spritz of alcohol. Traditional town hall debates may possibly be transformed to videoconference meetings where spectators can only give a virtual applause. For health and safety reasons, physical campaigning activities will be drastically reduced, and online political activities will grow.

Online presence has been further maximized this pandemic where people are forced to stay at home and let the innovations of technology bridge the gap of being physically absent at one place but virtually present, nonetheless. As of 2021, the Philippines has over 80 million social media users1, 80% of which are eligible to vote.2

A few months ago, a vlogger launched a special series where she featured different political figures before the start of the filing of certificates of candidacies. Social media pages and cascade groups have also been organized to gather people of the same political beliefs so they may champion their respective bets together. People can also easily like and share publicity materials such as photos and videos which, when done collectively, lead the trending news for the day. All these are geared towards a common goal – to promote a political bet.

Considering that social media and technology have broadened the reach of political candidates, the question is whether these activities should be regulated by the Commission on Elections (COMELEC).

However, the political activities prevalent today, while appearing to be partisan in nature, are not yet considered as campaigning because there is no candidate to speak of under the law. A person is deemed a candidate only upon the commencement of the campaign period. Thus, COMELEC regulations in this regard still do not apply.

Under the Omnibus Election Code, campaign refers to an act designed to promote the election or defeat of a particular candidate for public office. This includes, among others, directly or indirectly soliciting votes or support for or against any candidate and publishing or distributing campaign literature. The Omnibus Election Code also provides for the campaign period for national candidates which is ninety (90) days before the election day or from 8 February 2022 to 7 May 2022, and for local candidates which is forty-five (45) days from the election day or from 25 March 2002 to 7 May 2022.

In Penera v. COMELEC (2009), the Supreme Court ruled that there is no such thing as premature campaigning because a person who filed a certificate of candidacy becomes a candidate only upon the start of the campaign period. If there is yet no candidate whose interest is being promoted or defeated, there is no restriction to any election campaign or partisan political activity. Therefore, any activities aimed at promoting potential candidates before 8 February 2022 (for national candidates) or 25 March 2022 (for local candidates) have no restrictions. This now begs the question: During the election period, may the COMELEC regulate the online activities of the political candidates?

Under the Fair Election Act, the COMELEC shall supervise and regulate all election propaganda, whether it be on television, radio, or any other medium. The same law provides for the parameters and limitations imposed upon lawful election propaganda such as the maximum size of pamphlet and leaflets to be distributed, dimensions of the posters or tarpaulins to be posted, permissible areas of posting, and measurements of print advertisements on broadsheet. It also prescribed the allowable television and radio airtime for each candidate. Simply put, the Fair Election Act set the maximum values of allowable campaign materials for each candidate to ensure that they have equal access to media and be given equal opportunities under equal circumstances.

Congress has not enacted any law regulating the online platform insofar as partisan political activities are concerned. In this regard, however, the COMELEC issued Resolution No. 10488 which monitors online campaigning of candidates during the 2019 national and local elections, and social media is considered as a form of mass media regulated by the said Resolution. The Resolution also includes the creation of user groups or community pages on social media as a form of election campaign and included social media posts as a form of lawful election propaganda. However, no limit was imposed as to the number of posts allowed, permissible video airtime, photo dimensions, and the like. There is also no limit on the number of official blogs or social media pages for each candidate. The only requirement under said resolution is the registration of the candidates’ social media pages with the COMELEC.

Hence, it appears that candidates may have social media pages and unlimited posts without any repercussion. This may undermine the purpose of the Fair Election Act which is to grant all candidates equal opportunities to reach their constituents under equal circumstances.

However, while regulating online activities of candidates is ideal, this platform presents a number of setbacks that make it extremely difficult, if not impossible, to do the same. Should the COMELEC attempt to regulate these online activities, it will be reaching out to several social media platforms and deal with them separately to meet their respective concessions. It may also have little or no control over the people who are sharing or commenting on the posts. Should it attempt to tally the number of shares, it may not be able to reach the campaign posts shared privately. If a video posted exceeds a certain time, will the COMELEC have the means to put them down? The volume and extent of social media, being vast and limitless, make regulating the same an extreme challenge.

Finally, should online campaigning be regulated, the COMELEC must be able to guard against the danger of curtailing every person’s freedom of speech. In this day and age, social media has become a vital tool of expression for the netizens. Freedom of speech is a constitutionally enshrined liberty which allows people to discuss matters of public interest publicly and truthfully without censorship and punishment (Gonzales v. COMELEC [1967]). This liberty is so broad that it extends to protection to nearly all forms of communication (Chavez v. Gonzales [2008]), necessarily including virtual speech. With the prevalence of social media, Filipinos are making the most out of the ease and convenience of being able to air their opinions with just a few taps on their screens. After all, the Omnibus Election Code expressly noted that election campaign does not include public expression of opinions.

There is a fine line between purely political posts characterized as campaigning and posts which result from one’s exercise of freedom of speech. While there is a need for the COMELEC to regulate online activities of candidates, it must do so without curtailing Filipinos’ liberty of expression. As highlighted by the Supreme Court in Diocese of Bacolod v. COMELC (2015): “At the heart of democracy is every advocate’s right to make known what the people need to know, while the meaningful exercise of one’s right of suffrage includes the right of every voter to know what they need to know in order to make their choice…Speech with political consequences is at the core of the freedom of expression and must be protected by this court.”

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

Julienne Therese V. Salvacion is an Associate of the Litigation and Dispute Resolution Department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), located at Bonifacio Global City, Taguig City, Metro Manila, Philippines.

(632) 8830-8000
jvsalvacion@accralaw.com

1 See https://www.statista.com/statistics/489180/number-of-social-network-users-in-philippines/
2 See https://www.pna.gov.ph/articles/1119885