Se­nate’s fake news bill: ‘patay’ -- or maybe not

The pres­i­dent might veto Se­nate Bill #1492 if kept in its present form but it could be for the wrong rea­son. As in li­bel laws, con­sti­tu­tion­al­ity of the pro­posed leg­is­la­tion is not the core is­sue. Its ma­jor flaw is that it does not de­fine fake news ex­plici

Sun.Star Cebu - - OPINION - PACHICO A. SEARES pub­li­can­d­stan­dards@suns­tar.com.ph or paseares@gmail.com

“... I am sure they can­not pass a law on fake news.” -- Pres­i­dent Duterte, Oct. 4, 2017

This needs to be said again. Philip­pine me­dia has long ac­cepted that free speech or free press is not ab­so­lute. Laws on li­bel, slan­der, in­cit­ing to sedi­tion, na­tional se­cu­rity and con­tempt, among oth­ers, limit that free­dom and jour­nal­ists do their work fully rec­og­niz­ing it.

Me­dia gen­er­ally re­sists any form of ad­di­tional re­straint, es­pe­cially when it sus­pects reprisal or at­tempt to ha­rass or gag the press. Me­dia even wants ex­ist­ing tether re­moved: it hopes li­bel is de­crim­i­nal­ized and op­pres­sive rules lifted (such as the law that al­lows an ag­grieved pub­lic of­fi­cial to sue a jour­nal­ist thou­sands of kilo­me­ters away from the news­pa­per of­fice or broad­cast sta­tion).

Stiffer li­bel law?

No sur­prise that me­dia watch or­ga­ni­za­tions such as Cen­ter for Me­dia Free­dom & Re­spon­si­bil­ity (CMFR) and Na­tional Union of Jour­nal­ists of the Philip­pines (NUJP) have op­posed Se­nate Bill #1492, which seeks to crim­i­nal­ize fake news. A num­ber of law­mak­ers and some politi­cians have also crit­i­cized the bill, call­ing in­stead for stiffer penal­ties for li­bel and slan­der.

No­table among the crit­i­cal pub­lic of­fi­cials is Pres­i­dent Duterte who said the bill wouldn’t pass as it would vi­o­late the Con­sti­tu­tion. A good sign for SB #1492 op­posers as Congress, con­trolled by Duterte al­lies, takes the cue from him.

Ob­jec­tions to pro­posal

Un­til the Se­nate mod­i­fies or re­jects Se­nate Bill #1492 though, opin­ions on the bill must be heard and tested if they can stand scru­tiny.

Take a look at some rea­sons for the op­po­si­tion to the bill:

■ Be­ing un­con­sti­tu­tional. If li­bel, slan­der and other curbs on free press and free speech have passed the Con­sti­tu­tion’s stan­dard, a bill against fake news is most likely to hur­dle that bar. The cy­ber- crime law did.

Duterte’s ob­jec­tion, ob­vi­ously not re­searched by his le­gal coun­sel, was some­thing like this: You ex­press an opin­ion, you make an as­sump­tion, and so a stan­dard must be set. “’Patay,’” he said, “that’s cen­sor­ship.” Fake news is news, not opin­ion. Opin­ion runs afoul with the fake news law only if fake news is used in ar­gu­ing for one’s view or po­si­tion.

■ Be­ing a du­pli­ca­tion. The pres­i­dent and CMFR are among those who say the ex­ist­ing li­bel laws al­ready cover fake news. Not in many in­stances. If the fake news is not against a per­son or group of per­sons whose honor is de­famed by the pub­lished ma­te­rial, it’s not li­bel. In Sen. Joel Vil­lanueva’s def­i­ni­tion, fake news shall cause “panic, di­vi­sion, vi­o­lence and hate.” Li­bel in­volves wound­ing an in­di­vid­ual’s or group’s feel­ings when their rep­u­ta­tion or honor is smeared. Fake news doesn’t al­ways in­volve that.

■ Leg­is­lat­ing man­ners. One blog­ger op­poses the Vil­lanueva bill be­cause one can’t leg­is­late good man­ners, lack of which, he says, is the in­ter­net’s virtue. It’s not ci­vil­ity that’s be­ing leg­is­lated. What’s crim­i­nal­ized is the of­fense against pub­lic or­der when the false in­for­ma­tion causes “con­fu­sion, panic, chaos,” etc.

Same thing with li­bel. It’s not merely the im­pro­pri­ety. When one calls another a thug or a thief, or in­cites the pub­lic to storm City Hall, or dis­closes mil­i­tary se­crets, that goes be­yond ci­vil­ity or man­ners.

Def­i­ni­tion, mal­ice In­stead, the Cebu Ci­ti­zens-Press Coun­cil (CCPC) dwells on de­fects of SB #1492 that might make the re­sult­ing law an in­stru­ment for abuse and op­pres­sion and of­fen­sive to the Con­sti­tu­tion.

In a res­o­lu­tion ad­dressed to the Se­nate and the House, CCPC com­plains on the ab­sence of a def­i­ni­tion of fake news. The Vil­lanueva bill doesn’t de­fine what is fake news; it only tells what it causes. The term be­ing used loosely nowa­days, so that it ap­plies to all sorts of me­dia er­ror, a com­plainant may seize on any jour­nal­is­tic lapse to hale edi­tors and re­porters to court. A pe­nal law must be spe­cific and clear about what it pun­ishes. There must be some stan­dard, to use the pres­i­dent’s word.

Another con­cern of CCPC is the need for safe­guards for me­dia about mal­ice. Ac­tual mal­ice must be proved by the com­plainant es­pe­cially when the al­leged fake news refers to a pub­lic per­son or pub­lic fig­ure.

Other mea­sures

CCPC holds that un­less the de­fects are cor­rected, Congress may as well spend more time to study the bill fur­ther. Mean­while, CCPC sug­gests other mea­sures to fight fake news, which may in­clude me­dia lit­er­acy among con­sumers and prompt call- out on fake news and its fab­ri­ca­tors. And yes, gov­ern­ment blog­gers on gov­ern­ment pay­roll can help: by shun­ning fake news them­selves. [Seares is also ex­ec­u­tive di­rec­tor of Cebu Ci­ti­zens- Coun­cil (CCPC).]

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