FIRST things first. In last week’s piece, I cited Presidential Decree 90 among the laws that address “fake” or “false” news.
It turned out that PD 90 was repealed by former President Cory Aquino. In its place, we have Republic Act 10175 (Cybercrime Prevention Act of 2012) and RA 10951, which took effect in 2019. Both have provisions that deal with “fake news” and related issues. But this will be the subject of another piece.
For now, let us focus on prior restraint.
If ever Congress decides to write a law to regulate social media to curb the spread of false and malicious information, it has to be guided, at least, by two things.
First, Section 4 of the Bill of Rights of the 1987 Constitution states: “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.”
Second, by Supreme Court rulings on freedom of expression and prior restraint.
Why? Because any law, any rule, any government pronouncement that has the effect of policy—which involves freedom of speech—must hurdle the test of constitutionality as they relate to the Bill of Rights.
The preeminent issue that members of Congress need to consider is whether or not the law that they pass will constitute prior restraint.
As worded, the provision is meant to be proactive—or preventive. It prohibits the government from making a law that will “abridge freedom of speech, of expression, or the press.”
Hence, the concept of prior restraint—meaning the government cannot resort to any act that will restrain or prevent the publication, broadcast, telecast, or, in this age of social media, posting of news, opinion, commentary, photograph, video, and other forms of expression except under certain circumstances.
This brings us to the Supreme Court ruling on the Garci-tape scandal that hounded the presidency of Gloria Arroyo.
Recall that in June 2005, before the rise of Facebook and other social-media platforms, the country was rocked by the existence of a supposed tape of a wire-tapped conversation between Arroyo and Comelec Commissioner Virgilio Garcillano.
To preempt it from being blown out of proportion in media, then Press Secretary Ignacio Bunye bared in a press conference two compact discs (CDs) containing the recorded conversation—one he said was genuine, the other altered.
Two days after, the former legal counsel of ex-President Josep Estrada made public an alleged “authentic” version that included conversations with former First Gentleman Mike Arroyo.
It became a question of which recording was genuine and which was altered—in today’s language, which was “real news” and which was “fake news.”
The Department of Justice warned media against airing or publishing the contents of the CDs or face charges of violating the Anti-Wiretapping Act.
The National Telecommunications Commission (NTC) also issued a press release warning all radio and TV stations against broadcasting the CD’s contents or face revocation of their licenses.
Still, people distributed CDs or emailed their contents. The Philippine Daily Inquirer and GMA7 disseminated the contents through their, at the time, joint website. This prompted the DOJ to direct the National Bureau of Investigation to investigate the two media establishments. (Just imagine if this had happened today.)
Surprisingly, not a single media organization questioned the government’s acts. It was lawyer Frank Chavez, a former solicitor general, who asked the SC to nullify all the acts and issuances of the DOJ and the NTC for constituting prior restraint and violating freedom of expression and freedom of information.
In an en banc decision penned by then Chief Justice Reynato Puno, the SC sided with Chavez and struck down all acts and issuances of the DOJ and NTC for being unconstitutional.
Puno noted that while the constitutional imperative for the SC “to strike down unconstitutional acts should always be exercised with care … for there are no hard-and-fast rules … and issues must be decided on a case-to-case basis … where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.”
More of the decision in our next piece.
