SBC- HRA DEBATE CUP 2018

MOTION: Let it be resolved that the State is justified in

imposing a penalty against the publication of fake news.

NEGATIVE POSITION PAPER

Submitted by: 1-D

Debaters:

Garcia, May

Riñon, Jerome

Santos, Jamila Arianne

Surigao, Andre Jose

Head Researcher: Rubio, Viktor Kevin

Beadle: Quijano, Nathanael

March 30, 2018

San Beda College of Law

Mendiola, Manila
 BACKGROUND

“Whoever would overthrow the liberty of a nation must begin by subduing the freeness

of speech.”1

Liberty is a right that inheres every person living in a democratic state. Among these

liberties guaranteed by the Constitution, no less, is the freedom of speech, expression, and that

of the press.2 The unimpeded exercise of this right, free from arbitrary attempts at control by

those in power, is a necessary element of democracy. This distinct feature exists because

democratic institutions thrive in the openness of the market of ideas; where people can freely

discuss matters of public interest, express their assent, or voice their dissent.3 This particular

freedom is one so cherished and preferred that the Court, time and again, is quick to draw

defenses against any attempt at thwarting the same.4 Thus, in order to protect this freedom, it is

now well-settled that there is a guarantee against both prior restraint and subsequent

punishment.5 Any measure tending to impose either comes with a weighty presumption of

constitutional infirmity, and only by passing the most stringent of scrutiny will the burden be

removed6—otherwise, the powerful must fail before the supremacy of liberty.

Today, we are faced with another attempt at deriding the highly-revered freedom of

expression: The Anti-Fake News Bill. It is argued by the proponents thereof that it is a measure

1
Benjamin Franklin https://founders.archives.gov/documents/Franklin/01-01-02-0015
2
Sec 4 art 3 consti
3
Soriano v laguardia 164785
4
SWS v COMELEC
5
Cruz, constitutional law, paki check aling page, nasa freedom of exp to
6
SWS, id
necessitated by the rampancy of “fake news;” that the continued proliferation of such fake news

is inimical to public order and interest and must thus be dealt with by the State.

James Madison once said that “there are more instances of the abridgment of the

freedom of the people by gradual and silent encroachments of those in power than by violent

and sudden usurpations.” It is our stand that even granting the noble intent of the Bill

proponents, the same people failed to identify certain critical defects. Worse, these defects are

not the type that stand out in the open light—they are hidden under the wings of supposed

nobility, silently and inconspicuously gnawing on a paramount freedom.

It is our duty, therefore, being subservient to the mandates of the Constitution, to

uncover the guise of the Anti-Fake News bill and prove what it truly is—an unwitting accomplice

to the hand of tyranny.

I. NON-NECESSITY

The Anti-Fake News Bill seeks to punish, put succinctly, publishing information which is

false, knowing such to actually be false. As the title itself suggests, what is to be outlawed is the

peddling of fake news. Today, the term “fake news” has become a common household word—

an expression thrown about by the general populace whether in the Philippines or in other

countries. Superficially, the term is easy enough to comprehend. It used as an everyday parlance,

so much so that one may think he or she knows what fake news means: information which is

untrue. However, it has been posited that the term fake news has “become a catch-all term for
many kinds of objectionable content.”7 To attest to this, the current president has gone on record

to declare a certain news outlet as a “peddler of fake news.”8 On the other hand, certain

journalists have gone as far as to counter that the current administration itself is the main source

of fake news.9 Upon closer look, it appears however that both sides are actually arguing that the

information published by the other are deceptive. A deceptive speech is not necessarily fake. A

falsity may be borne out of something that is factual. Must we therefore punish people for fine-

tuning their words to suit their agenda? Even granting that there is such an epidemic as the

proliferation of fake news, and the same is inimical to public interests, should we now allow our

fundamental rights to be trampled on, just to defeat this supposed evil?

It bears stressing at this point that for all the clamor that the “fake news” issue has so far

gathered, it remains to be a phantom menace. To define it is to engage in a semantic, nay,

philosophical battle. A clear definition is elusive. Elsewise stated, the law is vague that men of

common intelligence must necessarily guess at its meaning and differ as to its application. Worse,

it is a penal law that punishes certain modes of expression. It strikes at the very heart of due

process by failing to apprise what conduct one must avoid.10 If one is to publish a statement

saying “the Philippines is at war with China,” it is easy enough to categorically and unequivocally

state that the same is false. Confusion grows if we are to move out of textbook examples. As

previously mentioned, a deceptive speech may be labeled as fake news, though it stems not from

a purely fabricated premise. Misrepresentation of an argument or a quote may also be labeled

7
Clarissa David https://www.rappler.com/technology/194594-fake-news-dilemma-steps-address-misinformation-
disinformation
8
http://news.abs-cbn.com/news/01/16/18/duterte-slams-rappler-anew-says-it-peddles-fake-news
9
https://www.rappler.com/nation/194838-duterte-top-source-fake-news-journalist-ellen-tordesillas
10
G.R. No. 178552
as fake news, but it is not entirely untrue either. Will the law punish publishers of information

which, though possessed of hints of truth, is stated in such a way that is not absolutely true?

What about portraying an event deliberately with inaccuracy to spark controversy? Of course

not—that would effectively criminalize having what is basically an opinion. So, should the law

punish only publishers of information which are absolutely and categorically false? Then the law

would be toothless and inutile; for the most perverse and divisive information published today

are, arguably, still possessed of some colorable truth.

As can be clearly observed, the term fake news is imprecisely grasped. It cannot, as it

stands, be a law. It may be argued that the courts can simply use statutory construction to save

it from invalidity. We hastily refute this; no amount of construction will take away the fact that

the term and the Bill are overall inarguably vague. To pass the burden of defining the same to

the judiciary is an impermissible violation of the separation of powers doctrine.11 A legislative

lacuna cannot be filled by judicial fiat.

While a simplistic definition and understanding of what fake news is may pass in

pedestrian conversation, the same simply cannot stand the test of constitutionality against the

abridgment of important freedoms. Inevitably, there would be a chilling effect where people

would just opt to stay silent for they speak under threat of penalty. The measure being espoused

is indubitably abhorrent to the constitutional guarantees of due process and freedom of

expression. Moreover, a law penalizing certain forms of expression consequently limits what the

people, as the audience, may possibly receive as information. To this end, the Inter-American

11
155344 canet v decena
Court of Human Rights had the following to say: “a system that controls the right of expression

in the name of a supposed guarantee of the correctness and truthfulness of the information that

society receives can be the source of great abuse and, ultimately, violates the right to information

that this same society has.”12 Thus, it is sufficient to say that even for the noblest intention, such

a measure cannot be allowed, lest we run afoul of the Constitution.

Another point that should be noted is that Philippine “fake news” is “almost completely

political.” It logically follows then that the target of any future, possible prosecution regarding

fake news will be for matters of public concern. Considering this premise, the inevitable

conclusion is that one may now be subject to penalty for discussing public matters. Needless to

say, such a proposition cannot be entertained without doing violence to the established doctrine

of privileged communications. The Court in the landmark case of U.S. v. Bustos13 described the

doctrine in this wise:

The interest of society and the maintenance of good government demand a full discussion

of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in

the case of free speech. The sharp incision of its probe relieves the abscesses of

officialdom. Men in public life may suffer under a hostile and an unjust accusation; the

wound can be assuaged with the balm of a clear conscience.

xxx

12
IACHR art 13.2b http://www.oas.org/en/iachr/expression/showarticle.asp?artID=154&lID=1
13
US v Bustos
 A privileged communication should not be subjected to microscopic examination to

discover grounds of malice or falsity. Such excessive scrutiny would defeat the protection

which the law throws over privileged communications.

Without even belaboring on what would truly constitute as “fake news,” it is consistent in our

case law that that discussion of public matters is a form of protected speech. While the privilege

is not absolute, it should not be the subject of a penal law which has an identity crisis. We strongly

opine that a preferred right, such as that of free expression, should not be held at gunpoint by a

penal law that does not even know what it wants to punish.

In addition to the freedom of the people at large to express themselves, the sword of

Damocles also hangs above the freedom of the press. In so considering this measure, the

government effectively poses a threat to the right of the free press to disseminate matters of

public concern. The press would have to entertain the fear of being hauled to court if and when

they report a falsity, whether maliciously or otherwise. The result then, clearly, is self-censorship,

which is inconsistent with the benevolent attitude of our laws and jurisprudence regarding the

media. To be sure, the Court in Borjal v. CA14 explained that the free press should be allowed

some breathing room if they are to be unimpeded in their rightful duty, thus:

Even assuming that the contents of the articles are false, mere error, inaccuracy or even

falsity alone does not prove actual malice. Errors or misstatements are inevitable in any

scheme of truly free expression and debate. Consistent with good faith and reasonable

care, the press should not be held to account, to a point of suppression, for honest

14
Borjal v ca
 mistakes or imperfections in the choice of language. There must be some room for

misstatement of fact as well as for misjudgment. Only by giving them much leeway and

tolerance can they courageously and effectively function as critical agencies in our

democracy.

We cannot, for mere want of informational veracity or accuracy, threaten the free press with

punishment should it err. Neither can we accept any argument to the effect that the law will only

punish malicious falsehoods. To ascertain such would require judicial determination. The threat

of punishment that exists prior thereto is already anathema to the idea of a free press—an idea

that the Constitution zealously protects.15

Even supposing that the Bill does not suffer the abovementioned infirmities, there is still

another hurdle it must pass: is there no other way of achieving the legislative intent? Being a

curtailment of the freedom of expression, such a measure comes to the Court with a weighty

presumption of invalidity and must pass the strict scrutiny test—the government must prove that

there is a compelling state interest and that there are no other means to effectuate such

interest.16 Granting without conceding the existence of such compelling state interest, is the

proposed measure the only way to curtail the evils of fake news? If the aim of the proposal is to

prevent hateful, divisive, chaos-inducing, and false information from being disseminated, must

the government jump the gun and directly threaten the people’s freedom of expression?

The government could campaign about information and media literacy. The local

government units may be called upon to facilitate literacy drives which could serve to alleviate

15
Sec 4 art iii consti
16
SWS v Comelec supra
misinformation and ignorance among the populace. Ubiquitous, nation-wide notices could be

put in place to instill in people responsible use of information-communication technologies.

Congress could create an independent body to which possible instances of fake news can be

reported; the same being able to certify the authenticity of a certain information, with the help

of another independent fact-checking organization such as The Vera Files. This would result in an

independent yet government-sponsored tool that could help the public in determining fake news

(without having the power to impose censorship or penalty).

The help of higher-learning institutions could also be sought to prevent misinformation.

Information and media literacy courses may be prescribed by law as mandatory. Cooperation of

state universities, or even private ones, may be procured to combat misinformation through

regular seminars or other activities. Our libraries and professional librarians could be utilized to

encourage responsible information retrieval and handling. Without dwelling into pure

speculation, we are certain that there are other feasible means that do not include interfering

with a fundamental freedom. Interference therewith will necessarily trigger strict scrutiny—and

on this score, the proposed bill fails once again.

Finally, it is sufficient to mention that we already have existing laws which punish creation

and publication of fake news. Article 154 of the Revised Penal Code17, for one, punishes the same,

to wit:

Art. 154 Unlawful use of means of publication and unlawful utterances

17
Art 154 rpc
 xxx

1. Any person who by means of printing, lithography, or any other means of publication shall

publish or cause to be published as news any false news which may endanger the public

order, or cause damage to the interest or credit of the State; (Emphasis supplied)

xxx

Since the law covers “any other means of publication,” there is no reason why this could not be

extended to contemporary means of publication, such as online social media. Any doubt could

otherwise be erased by simple amendment thereof.

There are also Articles 353-362 of the same code, punishing libel18. Suffice it to say that

this can also deal with “fake news” when, regarding private individuals, contains a public and

malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission,

condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a

natural or juridical person, or to blacken the memory of one who is dead. In connection

therewith, Sec. 4(c)(4) of RA 1017519, also known as the Anti-Cybercrime Act, punishes online

libel.

Finally, there are also recourses in civil law, specifically Articles 19 to 21 of the Civil Code

which makes persons civilly liable for abusing their rights and causing damage or injury to

another.20 There are also various provisions scattered in the Civil Code which could make a person

18
Articles re libel rpc
19
Cite the law
20
Arts 19-21 ncc
civilly liable for publishing falsities, such as Article 26 thereof. Said article imposes civil liability to

persons who meddle with or disturb the private life of another.21

With the premises above-stated, it is safe to assert that our current system of laws is

replete with measures to deal with this so-called epidemic of fake news; at most, minor

amendments could be arranged to amplify their effects. In any case, we reiterate at this point

that before a law could interfere with any of the fundamental and preferred freedoms heretofore

mentioned, the strict scrutiny test requires that, inter alia, there be an absence of alternative,

less-intrusive means to deal with whatever substantive evil the State seeks to curtail. In light of

the circumstances overall, we must declare that the Anti-Fake News Bill fails the test; and even

if it weren’t hagridden with constitutional infirmities, it is still plainly evident that there are

indeed alternative means to accomplish the Bill’s objective without tampering with protected

freedoms.

II. NON-BENEFICIALITY

As previously discussed, the ramifications of passing the Anti-Fake News Bill directly affects

not only certain demographics of Filipinos but the entire populace in general. Viewed

traditionally, such ramifications of a law punishing certain publications would primarily pertain

only to established print and broadcast outfits. However, since information-communication

technologies are nowadays ubiquitous, the implications are much more severe. As of 2018, a

little more than 63% of the total 105.7 million Filipinos are internet users, the former figure being

likewise active in social media.22 Approximately, this translates to 67 million Filipinos who are

21
Art 26 ncc
22
http://business.inquirer.net/246015/ph-world-leader-social-media-usage
engaged in online social media activities. The government, by enacting this Bill, would like to

place a 67-million-strong portion of the populace under threat of penalty should they express

views on public matters which might not be up to whatever standard said government would like

to impose. The implications and the severity thereof are clearly not being underplayed.

Seemingly unaware of the irony at hand, the government would like to protect public order and

interest by putting the public’s freedom on a leash. This type of expediency is one we cannot

assent to—not without the willful debasement of the Constitution.

III. IMPRACTICABILITY

We believe that the Anti-Fake News bill would be impracticable for the following reasons.

First, if the penal law is to be implemented in such a way that it would punish not only obvious

falsities (i.e. ones that are so obvious that they can be easily and categorically labeled as fake),

then it will necessarily have to deal with information or imputations which may appear as mere

commentaries but are actually malicious machinations. To begin with, this idea by itself is already

playing by the proverbial slippery slope. That there is a possibility that a mere opinion regarding

public matters could be punished under a law should already be a death knell to such a

proposition even at the conceptual stage. Stated otherwise, in the area of criminal law, the law

cannot take chances as in the area of free speech.23

Additionally, it being a fact that most fake news is political, therefore being public matter,

malice most likely cannot be presumed. Instead, actual malice has to be proved—that the

accused published information knowing it is false, or with reckless disregard of whether it was

23
Romualdez v sandiganbayan 152259
false or not.24 This being the most probable case, it is not a stretch of imagination to predict an

accused, even if he or she had actually acted maliciously, could easily evade punishment by

insisting that a) his or her speech is privileged because it is a discussion of public matters, and/or

b) he or she uttered falsities unwittingly. The result would be a toothless law that, because of a

congenital defect, cannot punish what it aims to punish, and at the same time unnecessarily

imposes a threat upon millions of innocent citizens exercising an inherent freedom.

Second, any existing proposals as regard the punishment of peddling fake news suffers the

vice of vagueness. There simply is no sufficient standard as to what will constitute fake news.

Consequently, either people will be left guessing as to what conduct should be avoided, or, in an

effort to define the undefined, the implementing government agency will have to act as a “roving

commission to inquire into evils and upon discovery correct them.”25 In either case, the public at

large, as well as the free press, stand to be victims of a vicissitude which never should have

existed in the first place.

Finally, enacting such a measure would realistically be an exercise in futility. In light of

prevailing information-communication technologies, we are now dealing with an information

ecosystem “that allows for faster spread of information and many barriers to any corrective

measures.” For one, information spreads virtually in warp-speed considering prevailing

technologies. Unfortunately, this includes information which are falsehoods in some extent or

another. Additionally, an MIT study shows that fake news or falsehoods spread 70% more likely

than true stories. The study furthers the grim tale by stating that fake political news “traveled

24
Borjal v ca supra
25
Southern hemisphere 178552
deeper and more broadly, reached more people, and was more viral than any other category” of

fake news.26 In a nutshell, fake news travels online faster and reaches more people than real

news does. If the objective of the law is to prevent public disorder and to protect public interest,

then subsequent punishment of fake news authors or disseminators is really just belated justice.

Punishment does not necessarily deter evil. Preemptive strategies, however, could prevent evils

before they even arise. This proposed law does not actually prevent nor deter such evils—it only

vindicates after the fact. The damage is already done; the law would just be offering a eulogy to

a death it should have and could have prevented instead.

In fine, we believe that a law that plays with fundamental freedoms cannot be allowed in

a democracy. Instead of forcing the iron hand of the law, a more positive approach could instead

be utilized. We believe that such a measure which would instill life-long values of information

and media literacy is the more appropriate task the government should involve itself with. It need

not brandish the majestic sword of law every time it encounters a dilemma. Especially not so

when the collateral damage could involve fundamental rights of the sovereign people.

26
http://www.niemanlab.org/2018/03/fear-surprise-and-disgust-why-fake-news-spreads-faster-than-real-news-
on-twitter/