During state of emergency, 'Bayanihan' Act allows imprisonment for 'false information'

Kristine Joy Patag - Philstar.com
During state of emergency, 'Bayanihan' Act allows imprisonment for 'false information'
Motorist crossing the border of Rosales and Balungao, Pangasinan gets disinfected in this photo taken March 24, 2020.
The STAR / Michael Varcas

MANILA, Philippines — As the government applies more stringent measures to address the spreading COVID-19 contagion in the country, the executive branch has been given new powers that are meant to help the country handle the pandemic.

Among the provisions in the law declaring a state of national emergency during the COVID-19 outbreak is one penalizing spreading "false information" on social media and other platforms, a proposal that had been in the legislative mill since before the novel coronavirus.

Section6(f) of Republic Act 11468, or the “Bayanihan to Heal as One Act”, signed Wednesday punishes the following:

  • 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
  • Those participating in cyber incidents that make use or take advantage of the current crisis situation to prey on public through scams, phishing, fraudulent emails or other similar acts

Those found violating this provision may face two months imprisonment or a fine of not less than P10,000. Courts may also impose a fine of up to P1 million.

Early in February, Justice Secretary Menardo Guevarra directed the National Bureau of Investigation to go after people who spread online posts that “[cause] undue panic and alarm” amid the spread of the novel coronavirus.

He added that those “undermining government efforts for a unified and coordinated approach to a common threat that affects us all” are covered by the investigation order.

"The nCoV threat is a very serious public concern and no distraction of government efforts to overcome it will be tolerated," Guevarra then said.

‘Provision is over-broad’

National Union of Peoples’ Lawyers president Edre Olalia told Philstar.com that the provision is “constitutionally challengeable as undermining or curtailing freedom of speech, expression.”

Olalia said that while he is “aghast” at the deliberate spread of false news, criminalizing it is not the solution. What may be done, he said, is “to populate the space with truth and place safeguards as well as to expose lack of integrity, reliability and accuracy of the source of fake news.”

He noted the crime ascribed in the law “is not sufficiently and clearly defined as to foreclose differing subjective interpretations and worse would be abused by prejudiced public officials.”

Human Rights Director Deputy Asia Director Phil Robertson also said the provision is “over-broad and can easily be misused by Philippine authorities to crack down on online criticism of government efforts.”

Robertson noted that the law can be used to “criminalize any online information the government dislikes.”

Robertson also stressed that the Philippines “has international obligations to protect the right of the freedom of expression, including the right to seek, receive and impart information of all kinds.”

“Governments are responsible for providing information necessary for protecting and promoting rights, including the right to health. Permissible restrictions on freedom of expression for reasons of public health may put in jeopardy the right itself,” he added.

Restraints on free speech

In the landmark decision Disini v. Secretary of Justice, the Supreme Court stressed that “restraints on free speech are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and present danger rule.”

This is a principle earlier held in Chavez v. Gonzales in 1992 where the SC said the rule on the evaluation of restraint on free speech “requires that the evil consequences sought to be prevented must be substantive ‘extremely serious and the degree of imminence extremely high.'”

In Disini v Secretary of Justice, the SC also struck down a provision of the Cybercrime Law that punishes “’aiding or abetting’ libel on the cyberspace” as null.

“The terms ‘aiding or abetting’ constitute a broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages,” the SC said in the 2014 landmark ruling.

The SC pointed out that while “aiding or abetting” has definitions in existing laws, there are many actors to consider in the online space such as the poster, service provider, commenters, or sharers of the link.

“Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their constitutionally-guaranteed right to freedom of expression,” it added.

In response to proposed legislation at the Senate to penalize "fake news", rights group Human Rights Watch warned that it "would open the door for the government to wantonly clamp down on critical opinions or information not only in the Philippines but around the globe." 

"The proposed ‘false content’ law poses real risks for activists, journalists, academics and ordinary people expressing their views on the internet. By proposing this heavy-handed regulation, the Philippine government threatens both internet freedom and the free exchange of ideas that lies at the heart of the democratic process," Linda Lakhdhir, Asia legal adviser at HRW, said in July of that year.

The year before that, Sen. Grace Poe, chair of the Senate committee on public information, held a hearing on "fake news." She later said that Congress "cannot legislate thought control."

Clarissa David, University of the Philippines College of Mass Communication professor,  said at the hearings that "focusing too much on penalizing content producers' must be stopped. 

"The long term solution is media literacy and teaching the people that verifying true information is important," she also said.

Double standards?

Olalia pointed out Wednesday that there is "obviously going to be double standard and hyprocrisy on its non-application" to government officials.

Interior and Local Government Undersecretary Martin Diño last weekend falsely claimed that the writ of habeas corpus is suspended and human rights are withdrawn in a state of emergency.

RELATED: CHR: Human rights, writ of habeas corpus remain during state of national emergency, calamity

Even before the law was signed, NBI and the Philippine National Police started their crackdown on peddlers of fake news.

RELATED: PNP, NBI target fake news peddlers

Police General Archie Gamboa, PNP chief, warned last week that the full force of the law would be meted on those found spreading fake news reports.

NBI Director Eric Distor meanwhile ordered its Cyber Crime Division to look into “those reports that sow chaos and will lead to unrest and anarchy in the country.”

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