By Michael Henry Yusingco, LL.M
“To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view ‘induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.'”
Such is the ethos that should underpin public discourse in the country as formulated by the Supreme Court in the case of Chavez v. Gonzales (G.R. No. 168338, February 15, 2008).
From just a plain reading of this brief judicial explanation, it would be so easy to conclude that the rambunctiousness of political discussions amongst Filipinos in Facebook is proof that free speech is alive and well in the social media sphere. But the intense level of connectivity and the amplification of communication necessitates a critical assessment of the scope and depth of free expression and press freedom in social media, as well as the roles and responsibilities of government and citizens in adhering to these constitutional rights.
Social media is now a site where Filipinos learn about public affairs and where they deliberate and mobilize political action. Thus, it is guaranteed that a social media-savvy electorate will be a huge factor in the 2022 elections. However, online disinformation in social media can make election discourse hostile and toxic. If not properly addressed, this can mean political campaigning will no longer be about an honest-to-goodness public accounting of problems and solutions, but will simply be for showcasing electoral warfare between political protagonists.
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For this election cycle, the online vitriol began in earnest right after the lapse of the deadline for the filing of certificates of candidacy. Social media is currently flooded with attack propaganda lodged by supporters of candidates against each other. This scenario has played out in other parts of the world before, but “weaponising social media“ in furtherance of electoral gain is currently unfolding in the Philippines. And worse, online disinformation insidiously threatens the full exercise of free speech, particularly in relation to political discourse
As the election fever heats up, the Commission on Elections (Comelec) last November 17, 2021, issued Resolution No. 10730 establishing the rules and regulations governing the 2022 elections. In the context of addressing election disinformation, this Comelec resolution must be viewed under the light of Article XVI, Section 10 of the 1987 Constitution which states:
“The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.”
The constitutional prescription here mandates that policy and regulatory measures concerning public communication must always be deferential and respectful to “freedom of speech and of the press”. Hence, it makes complete sense to employ existing election rules and regulations to protect free speech and press freedom in social media against election disinformation. Especially given the fact that this particular sector of cyberspace now also functions as a forum for electoral engagement for many Filipinos.
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Disinformation imperils democracy because information plays such a huge part in democratic consolidation, particularly in ensuring free and fair elections. The spread of disinformation hinders reflective and balanced public discourse about pressing issues and the viable policies to address them. Therefore, in these dire times, the legal tools on hand must be used to prevent this scourge from wreaking havoc in 2022.
Pertinently, Section 7 of Comelec Resolution No. 10730 provides:
“The printing press, printer, or publisher who prints, reproduces or publishes said campaign materials, and the broadcaster, station manager, owner of the radio or television station, or content creator of a post, owner or administrator of any website who airs or shows the political advertisements, without the required data or having false information, in violation of these rules shall be criminally liable with the candidate under Sec. 264 of the Omnibus Election Code and, if applicable, further suffer the penalties of suspension or revocation of franchise or permit in accordance with law”.
This provision is a possible legal basis for an action against social media users who spread disinformation when campaigning for their candidates. Specifically, social media account owners who post political advertisements containing patently false information. Needless to say, securing the details of account owners in itself poses legal and practical challenges. But some purveyors of disinformation are not as technologically savvy as they purport to be. Penalizing these lowlifes can be a potent first step in the long fight against election disinformation.
The posting of political advertisements containing disinformation is clearly an election offense under Comelec Resolution No. 10730 and hence, any member of the public should be able to file a complaint with the Comelec against guilty social media users. Subject to due process considerations, the Comelec must then apply the full force of the law against these spreaders of online election disinformation.
Obviously, the remedial action suggested here is for the moment, theoretical. And even though the propagation of disinformation during elections is not new, the evident volume and speed of its dissemination in the internet era demands a bold and creative response from both the electorate and the Comelec. It would not be an exaggeration to say that the sanctity of the electoral process is at stake here.
It is therefore imperative that Comelec Resolution No. 10730 be fully utilized in combating online disinformation relating to the 2022 elections. As asserted in Chavez v. Gonzales, “For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.”
(The author is a policy analyst and constitutionalist, and a senior research fellow of the Ateneo Policy Center and the Institute for Autonomy and Governance.)
