COVID-19 Op-ed

Face Covered, Mouth Shut: Unmasking Free Speech During the Philippine COVID-19 Crisis

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Philip C. LizardaPhilip
graduated from Ateneo de Manila University with a bachelor’s degree in Legal
Management. He is currently a 3rd year student of the
University of the Philippines College of Law.

Countries all over the world were caught off-guard by the
gravity of the COVID-19 pandemic. Even the most developed countries were
ill-prepared for its scale (Kiersz, 2020), with the number of people infected
by the disease breaching 1 million and continuing to rise every day. Because
of this, nations all over the world promulgated various measures to “flatten
the curve” of the spread of the disease (Specktor, 2020). To do so, these
governments needed to curtail certain rights of their constituents.People’s
Unrest
In the Philippines, the government
promulgated several orders to halt the spread of COVID-19, primarily with the
declaration of an enhanced community quarantine, resulting in  the
control of the distribution of goods and necessities, and limitations on the
right to travel, (i.e. suspension of public mass transportation, CNN
Philippines, 2020), among others.However, due to these
extraordinary measures, Filipinos have become restless and frustrated. More and
more people have aired their grievances on social media to criticize local
and national government leaders for their ineffective action, especially
regarding the distribution of goods and necessities. Some have also
criticized the national government for the delayed response to control the
spread of the disease.This led the government, specifically the National
Bureau of Investigation (NBI), to crack down on alleged “fake news”. The NBI
has issued several subpoenas against ordinary citizens on the basis of their
social media posts. Furthermore, with the implementation of Republic Act
11469, or Bayanihan to Heal as One Act (Bayanihan Act), there is now another
law which doubles down on the offensive against “fake news” (Lardizabal-Dado,
2020).Not a
Curtailment of Free Speech and Expression
Article
III Section 4 of the 1987 Constitution guarantees one’s right to free speech
and expression, which necessarily includes one’s opinions on social media.The
NBI has however clarified that they are not suppressing the people’s freedom
of expression, but are only after those spreading false news and are thus,
punishable by Article 154 of the Revised Penal Code punishing unlawful use of
means of publication and unlawful utterances (ABS-CBN, 2020).Nevertheless,
human rights lawyer Chel Diokno has stated that the subpoenas issued did not
specify which posts violated the law (GMA, 2020). Diokno has agreed to defend
those accused by the NBI, insisting that his clients are not purveyors of
fake news, but are merely criticizing the actions of the government. These,
to him, are merely an exercise of their right to freedom of opinion and
expression.A new point of contention is the provision in the Bayanihan Act
which penalizes “fake news”. Its Section 6(6) punishes “individuals or
groups creating, perpetuating, or spreading false information regarding the
covid-19 crisis on social media and other platforms, such information having
no valid or beneficial effect on the population, and are clearly geared to
promote chaos, panic, anarchy, fear, or confusion.”Although it has yet
to be used against any person, various digital rights advocates and legal
practitioners have contested its inclusion (Lardizabal-Dado, 2020).Chilling
Effect
These subpoenas, Atty. Diokno fears, would
lead to a “chilling effect” on the people’s exercise of their right to free
expression (ABS-CBN, 2020).Being summoned by the NBI, without providing the
concrete basis as to the alleged unlawful act they have committed, is
alarming, especially during a pandemic where transportation and access to
basic needs are restricted. Such a threat becomes an inhibition or
discouragement of the people’s legitimate right to free speech and
expression.The fake news provision of the Bayanihan Act also poses various
problems in the exercise of free expression. A principle of Criminal
Lawstates that there must be no crime or punishment when there is no law that
defines it. There is no law in the Philippines that defines false
information; not even the Bayanihan Act. This gives the law enforcers
unbridled discretion as to what encompasses false information. How then will
facts be delineated from opinions?Furthermore, the provision punishes those
“creating, perpetuating, or spreading” such false information; implying that
those who “share”, “like”, or possibly even “comment” on the supposed false
information could be held liable. This then broadens the chilling effect on
the Filipino citizens’ right to free speech, beyond persons who made the
original posts.Previously, a similar provision of the Cybercrime Law (2012)
punishing “aiding and abetting” cyber libel has been deemed unconstitutional
by the Supreme Court for being overbroad and for creating a chilling
effect.Specificity
Needed
Many of these problems could be resolved by
identifying and determining with specificity the various acts imputed or to
be imputed to erring Filipino citizens. If the government is to respect the
citizens’ right to free speech and expression, it has to ensure that these
punishable acts are properly defined, and that those subpoenaed are appraised
of such acts violative of the law.While the NBI has the duty to undertake
investigation of crimes and offenses under Philippine laws, it has the duty
to appraise the accused of such unlawful acts before they could be properly
investigated. Otherwise, the subpoena would not serve its purpose but would
merely instill fear on the people. Hence, the NBI has to ensure that they are
only after those in violation of the law – and that the people’s right to
free speech and expression are respected –by appraising them of the basis
such investigation.The Bayanihan Act provision on false information also
needs to be revisited, and amendments have to be made with regard to the
crime’s definition and scope, and if it possible to implement at all.References:17
subpoenas issued by NBI over fake news issues amid COVID-19 crisis: official.
(2020, April 2). ABS-CBN News. Retrieved April 8, 2020, from: https://news.abs-cbn.com/news/04/02/20/17-subpoenas-issued-by-nbi-over-fake-news-issues-amid-covid-19-crisis-officialChilling
effect: NBI going after netizens for social media posts on COVID response –
Diokno. (2020, April 2). ABS-CBN News. Retrieved April 8, 2020, from: https://news.abs-cbn.com/news/04/02/20/chilling-effect-nbi-going-after-netizens-for-social-media-posts-on-covid-response-dioknoDisini
vs. Secretary of Justice. (2014, February 11). G.R. No. 203335. Supreme Court
En Banc.Kiersz, A. (2020, March 11). The 20 countries in the world best
prepared for an epidemic like coronavirus still aren’t really all that ready.
Business Insider. Retrieved April 8, 2020, from: https://www.businessinsider.com/best-prepared-countries-for-a-pandemic-still-not-that-prepared-2020-3Lagrimas,
N. (2020, April 2). NBI sends out more than 12 subpoenas over fake news
probe. GMA News. Retrieved April 8, 2020, from: https://www.gmanetwork.com/news/news/nation/732340/nbi-sends-out-more-than-12-subpoenas-over-fake-news-probe/story/Lardizabal-Dado,
N. (2020, April 5). The fake news provision in the Bayanihan Act. The Manila
Times. Retrieved April 8, 2020, from: https://www.manilatimes.net/2020/04/05/business/sunday-business-i-t/the-fake-news-provision-in-the-bayanihan-act/709855/Public
mass transportation suspended amid Luzon quarantine. (2020, March 17). CNN
Philippines. Retrieved April 8, 2020, from: https://cnnphilippines.com/news/2020/3/17/MRT-LRT-PNR-suspended-coronavirus.html?fbclid=IwAR02WQDnhQcn_aFbaU5IiSgxWxhg6yeaFRN6WzB388n9oYSRLzaZ8ob5zpsRepublic
Act No. 11469 – An Act Declaring the Existence of a National Emergency
Arising from the Coronavirus Disease 2019 (Covid-19) Situation and a National
Policy in Connection Therewith, and Authorizing the President of the Republic
of the Philippines for a Limited Period and Subject to Resctrictions, to
Exercise Powers Necessary and Proper to Carry Out the Declared National
Policy and for Other Purposes”
. Official Gazette of the
Philippines. Retrieved 8 April 2020.Specktor, B. (2020, March 17).
Coronavirus: What is ‘flattening the curve,’ and will it work?. Live Science.
Retrieved April 8, 2020, from: https://www.livescience.com/coronavirus-flatten-the-curve.html

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