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The Philippines Report PHILIPPINES REPORT INDEX Introduction 01 Methodology 02 Legal Foundations and Fundamental Laws and Freedoms 03 Governance of Online and Networked Spaces 09 Sectoral Laws 15 Curtailment of Freedom of Expression 21 Future Violations Through 38 Draft Laws Summary and Conclusion 40 01 Introduction he Philippines spends more an unprecedented crackdown time in social media than any on their fundamental freedoms.”4 Tother country.1 In the early Commenting on attacks from online days of the coronavirus pandemic, it ‘trolls,’ a former Philippine senator even reported the greatest increase expressed that “we used to say the globally of users spending more internet was a marketplace of ideas, time in social media.2 This does not [but] now it’s a battlefield.”5 mean that the state of its freedom of In the Philippines, social media expression online is at its healthiest. is where freedom of expression is Various governmental restrictions, usually realized. It is also a crime limitations, attacks, and even abuses scene, scoured by law personnel of this freedom exist, keeping the for evidence of utterances which Philippines consistently near the they may find illegal, but may also top of “most dangerous countries be valid expressions of discontent for journalists” lists. (It’s the fifth and dissent. Considering the current worldwide.)3 The Philippines is only political climate—one dominated partly free on the 2019 Freedom on by a president often described as the Net Report and dropped three ‘authoritarian’ and ‘dictatorial’ and a notches from last year. police and military force that takes Globally, social media, which his word as law— the line blurs was once thought to level the and one is usually mistaken for the playing field on civil discussion, other. A pandemic of ‘fake news’—i.e., now “tilts dangerously toward disinformation, misinformation, and illiberalism, exposing citizens to false information—also muddle the 1 Buchols, K. (2020, 19 June). These are the countries that spend the most and least time on social media. World Economic Forum. https://www. weforum.org/agenda/2020/06/social-media-coutries-chart-online-digital-survey/ 2 Kemp, S. (2020, 23 April). Digital around the world in 2020. We Are Social. https://wearesocial.com/blog/2020/04/digital-around-the-world- in-april-2020 3 Salaverria, L. (2019, 31 October). PH is the fifth deadliest country for journalists. Inquirer.net. https://newsinfo.inquirer.net/1183887/ph-is- fifth-deadliest-country-for-journalists 4 Shahbaz, A. & Funk, A. (2020). Freedom on the Net 2019: The Crisis of Social Media. https://freedomhouse.org/report/freedom-net/2019/ crisis-social-media 5 Bueno, A. (2017, 4 October). ‘The internet was a marketplace of ideas, now it’s a battlefield’. CNN Philippines. https://cnnphilippines.com/life/ culture/politics/2017/04/26/bam-aquino-interview.html 02 waters by which Filipinos navigate We took a multi-level approach their sources of information. As of by first going through government date, Congress has found a way restrictions directly affecting and to criminalize “perpetration” and may result to violations of freedom “spreading” of fake news, which does of expression online and offline, not bode well for a citizenry that especially in light of a law that desperately needs digital literacy, in transformed all penal provisions light of a collective susceptibility to into cybercrimes. Second, the report believe, on face value, whatever they also noted government actions and see online. restrictions that, on their face, appear Freedom of expression thus unrelated to clampdowns on freedom grapples not only with restrictions or of expression, but nonetheless have limitations to speech; in the age of the effect of self-censorship and social media and increased internet chilling free speech and therefore access, it also forces us to rethink the may be cited again in the future as context and environment that enables an indirect intrusion to free speech. and assures its meaningful realization, In an environment overwhelmed day as will be discussed below. to day with attacks on freedom on expression, led by a president openly hostile to the press, the government seems determined to strategically bombard the public with attacks not Methodology just on the freedom of expression front—whether online or offline— riting this report initially but in all fronts where there is an entailed looking at the sources opportunity to diminish or render Wof law in this jurisdiction: inutile the capacity of individuals or the Constitution, international law, groups to even exercise their rights domestic law, legal decisions, and and freedoms in the first place. This other rules and issuances. Whenever makes it important that, third, the applicable, all provisions of law are report discusses related issues and supported by judicial interpretations their mutual impact, since these rights by the Supreme Court, especially when and responsibilities do not exist in a penalties or restrictions evincing the vacuum. harshness of the law are tempered or better clarified by court justices. 03 speech, of expression, or of the press, Legal Foundations or of the right of people peaceably to assemble and petition the government and Fundamental for the redress of grievances.” According to one of the Laws and Freedoms Constitution’s drafters, “speech, expression, and press include every form of expression, whether oral, Constitutional foundations written, tape or disc recorded,” as well as movies, symbolic speech (wearing t the outset, the Constitution6 of an armband as a symbol of protest) readily provides in its Art. II, and peaceful picketing.9 ASec. 24, that it “recognizes Article III, Sec. 4 is a provision the vital role of communication and copied almost word-for-word from information in nation-building.” Free the First Amendment of the U.S. Bill of speech, expression, and freedom of Rights.10 Its consequences are twofold: the press are among the fundamental first, it is a prohibition against prior rights included in the Bill of Rights restraint, or official governmental (the entirety of Art. III) of the 1987 restrictions in advance of publication Philippine Constitution, and are or dissemination. Second, it is also superior to property rights in the a prohibition against systems of hierarchy of civil liberties in this subsequent punishment that unduly jurisdiction,7 as these rights, among curtail expression. other rights (such as the right to The rule against prior restraint free assembly) are essential to the only admits exceptions in cases of preservation and validity of civil and utterances of sensitive information political institutions.8 while the nation is at war, obscene Art. III, Sec. 4 of the Constitution publications, incitements to violence, thus provides that “no law shall be and the overthrow by force of passed abridging the freedom of orderly governments.11 Any system 6 Philippine Constitution. https://www.officialgazette.gov.ph/constitutions/1987-constitution/ 7 Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 50 SCRA 189, 202-3 (1973). https://www.lawphil.net/ judjuris/juri1973/jun1973/gr_31195_1973.html 8 Ibid. 9 Bernas, SJ, J.G. (2010). Constitutional Rights and Social Demands: Notes and Cases (Part II) (p. 259). Rex Book Store. 10 Chavez v. Gonzales, 545 SCRA 441, 481 (2008). https://www.officialgazette.gov.ph/2008/02/15/chavez-v-gonzales-g-r-no-168338- february-15-2008. The U.S. provision goes: “Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 11 Near v. Minnesota, 238 US 697 (1931). https://supreme.justia.com/cases/federal/us/283/697/ 04 of prior restraint comes with a heavy justice in Gonzales v. Comelec— presumption against its constitutional subsequently cited in later cases— validity.12 Meanwhile, the rule against defined that the ‘clear and present subsequent punishment is subject danger’ rule required the government only to exceptions determined by to “defer application of restrictions courts in cases where the right to free until the apprehended danger was speech clashes with other government much more visible until its realization interests. In both prohibitions above, was imminent and nigh at hand”— courts may thus apply rules concerning which was more permissive of speech a ‘clear and present danger’13 or a than the ‘dangerous tendency’ rule, ‘dangerous tendency’14 justifying the which “permitted the application of free speech restriction, or may conduct restrictions once a rational connection a ‘balancing of interests’. 15 The courts between the speech restrained and the also utilize another test in determining danger apprehended—the ‘tendency’ of content-based from content-neutral one to create the other—was shown.”17 legislation: the O’Brien test. Meanwhile, the ‘balancing of interests’ It is helpful to clarify at this rule “requires a court to take conscious point, with regard to such exceptions and detailed consideration of the and tests determined by courts, that interplay of interests observable in a the Philippine Civil Code explicitly given situation or type of situation.”18 states that “judicial decisions applying The first two tests have been or interpreting the laws or the used in a spectrum of cases in the Constitution shall form part of the context of maintaining public order legal system of the Philippines.”16 Thus and security; meanwhile, the third test these tests, alongside Art. III, Sec. 4 is “premised on a judicial balancing of the Constitution itself, have been of conflicting social values and consistently cited in cases deciding the individual interests competing for constitutionality of legislation restricting ascendancy in legislation which free speech. restricts expression”—in one case, in A dissenting and concurring the context of the constitutionality 12 SWS v. Comelec, G.R. No. 14751 (2001). http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/52161 13 Gonzales v.
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