You are on page 1of 10

STATE IS JUSTIFIED IN IMPOSING A PENALTY AGAINST PUBLICATION OF FAKE NEWS (NON-

NECESSITY)

Arguments

I. Penalties against publication of fake news are unconstitutional. It violates freedom of expression.

(Fake news is within the ambit of protected speech)

Freedom of speech and of the press means something more than the right to approve existing political
beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate
of opinion on any matter of public consequence. 36 When atrophied, the right becomes meaningless. 37 The right
belongs as well — if not more — to those who question, who do not conform, who differ. 38 The ideas that may be
expressed under this freedom are confined not only to those that are conventional or acceptable to the majority.
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." 39 To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the
thought that agrees with us. 40||| (Chavez v. Gonzales, G.R. No. 168338, [February 15, 2008], 569 PHIL 155-
297)

Second, free speech should be encouraged under the concept of a market place of ideas. This theory was
articulated by Justice Holmes in that "the ultimate good desired is better reached by [the] free trade in ideas:" 165
When men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that the
ultimate good desired is better reached by free trade in ideas — that the best test of truth
is the power of the thought to get itself accepted in the competition of the market, and that
truth is the only ground upon which their wishes safely can be carried out. 166
The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their own
conclusions." 167 A free, open, and dynamic market place of ideas is constantly shaping new ones. This
promotes both stability and change where recurring points may crystallize and weak ones may develop. Of
course, free speech is more than the right to approve existing political beliefs and economic arrangements as it
includes, "[t]o paraphrase Justice Holmes, [the] freedom for the thought that we hate, no less than for the thought
that agrees with us." 168 In fact, free speech may "best serve its high purpose when it induces a condition
of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 169 It is in
this context that we should guard against any curtailment of the people's right to participate in the free
trade of ideas. (The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, [January 21, 2015])

The scope of freedom of expression is so broad that it extends protection to nearly all forms of
communication. It protects speech, print and assembly regarding secular as well as political causes, and is not
confined to any particular field of human interest. The protection covers myriad matters of public interest or
concern embracing all issues, about which information is needed or appropriate, so as to enable members of
society to cope with the exigencies of their period. The constitutional protection assures the broadest
possible exercise of free speech and free press for religious, political, economic, scientific, news, or
informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not
confined to the expression of ideas that are conventional or shared by a majority.||| (Chavez v. Gonzales,
G.R. No. 168338, [February 15, 2008], 569 PHIL 155-297)

Remarks of Mr. Bernas on the proposed Section 21 on the Articles of Declaration of Principles, which
reads: THE STATE HAS THE DUTY AND MEDIA THE SOCIAL RESPONSIBILITY TO RESPECT THE
RIGHT OF THE PEOPLE TO ACCURATE AND TRUTHFUL INFORMATION.||| (Journal No. 090, [September
23, 1986])
Mr. Bernas pointed out, however, that there are only two kinds of unprotected speech, namely,
libel and obscenity, and everything, including untruthful information, is protected by the freedom of
the press.
Mr. Bernas explained that the reason is precisely to allow a clash of ideas so that truth will come out.
He stated that for any statement of untruth, the remedy is not prohibition but exposure or, if there is
any error, an unlimited debate. He noted that the proposed amendment dangerously trenches on the
freedom of debate. He stated that it is not for the Body to tell the press to exercise social responsibility
because it is not in a position to say what social responsibility is. He stressed that the very essence of
democracy is that the people are able to express themselves on matters that are debatable and it is not for the
Constitution to limit this liberty.||| (Journal No. 090, [September 23, 1986])
 The provision was not approved and was deleted

(Importance of freedom of press)


Much has been written on the philosophical basis of press freedom as part of the larger right of
free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief
source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of
opinion on public questions. It is the instrument by which citizens keep their government informed of their
needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government
responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected
and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos: 52
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 unjust accusation; the wound can be assuaged with the
balm of clear conscience.
Its contribution to the public weal makes freedom of the press deserving of extra protection.
Indeed, the press benefits from certain ancillary rights. The productions of writers are classified as
intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to
maintain a periodical publication are liable for damages, be they private individuals or public officials.
(Chavez v. Gonzales, G.R. No. 168338, [February 15, 2008], 569 PHIL 155-297)

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. A public officer must not be too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorized
defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the
common good. Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to
the Judiciary — to any or all the agencies of Government — public opinion should be the constant source of
liberty and democracy.||| (U.S. v. Bustos, G.R. No. L-12592, [March 8, 1918], 37 PHIL 731-746)
The primacy, the high estate accorded freedom of expression is a fundamental postulate of our
constitutional system. No law shall be passed abridging the freedom of speech or of the press. What does it
embrace? At the very least, free speech and free press may be identified with the liberty to discuss
publicly and truthfully any matter of public interest without censorship or punishment. There is to be
then no previous restrain on the communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and
present danger of substantive evil that Congress has a right to prevent. The vital need in a constitutional
democracy for freedom of expression is undeniable whether as a means of assuring individual self-fulfillment, of
attaining the truth, of securing participation by the people in social including political decision-making, and of
maintaining the balance between stability and change. The trend as reflected in Philippine and American
decisions is to recognize the broadest scope and assure the widest latitude to this constitutional guaranty. It
represents a profound commitment to the principle that debate of public issue should be uninhibited, robust,
wide-open. It is not going too far, according to another American decision, to view the function of free
speech as inviting dispute. Freedom of speech and of the press thus means something more than the right to
approve existing political beliefs or economic arrangements, to lend support to official measures, to take refuge
in the existing climate of opinion on any matter of public consequence. So atrophied, the right becomes
meaningless. The right belongs as well, if not more, for those who question, who do not conform, who
differ. To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the
thought that agrees with us.||| (In re: Gonzales v. Commission on Elections, G.R. No. L-27833, [April 18,
1969], 137 PHIL 471-573)

II. it is a content based regulation or censorship – the regulation of which cannot be passed on to
judiciary or the legislative as there can be no definition in the law punishing fake news that is too
constrictive as it would again, be violative of freedom of expression.

(Fake news legislation is a content-based regulation and needs a clear and present danger to overthrow
the assumption of validity)

Presidential Spokesperson Harry Roque states that legislation against fake news is a content-based based
regulation and is tantamount to censorship.

“That is prior restraint. That is content-based restriction, which means that is presumed unconstitutional because
freedom of speech is very important,” he said.

Tubeza, P. C. (2018, February 01). Malacañang: Penalizing fake news unconstitutional. Inquirer.net.
Retrieved March 28, 2018, from http://newsinfo.inquirer.net/965234/malacanang-penalizing-fake-news-
unconstitutional

Content-based restraint or censorship refers to restrictions "based on the subject matter of the utterance or
speech." ||| (The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, [January 21, 2015])

(Hypothetical fears are not valid grounds for restraint on speech)

Senate hearing on fake news legislation, October 4, 2017


Senator Grace Poe, chairperson of the Senate Committee on Public Information and Mass media says that:

“If fake news is not challenged, it will create lynch-mobs out of certain people turning them into an army
of character-assassins, who can be unleashed with just one meme to destroy an idea, a person or an
institution. At merong panganib din na ang maling online behavior ay s’yang maging asta natin sa
totoong buhay. Kung hahayaan natin ‘yan ay baka lumaki ang mga bata ngayon na intolerant sa pananaw ng
iba at madaling maniwala sa haka-haka. We need to expose them to a kind of conversation that educates and
enlightens, that relies on the truth and not the kind that disrespects facts. We need to teach them that they can
disagree without being disrageeable, that when arguing, they should focus on substance and never on slurs. (lol
dapat mabuting asal ituro no need for legislation point is, hypothetical fears lang nacite ni Senator)

Video source: https://www.youtube.com/watch?v=7vWNipFC-RE&t=3246s

The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is
completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible
attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about
especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious
speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent
evil which has taken the life of a reality already on ground.||| (Iglesia ni Cristo v. Court of Appeals, G.R. No.
119673, [July 26, 1996], 328 PHIL 893-978)

With respect to content-based restrictions, the government must also show the type of harm the speech
sought to be restrained would bring about — especially the gravity and the imminence of the threatened harm —
otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by
hypothetical fears, "but only by showing a substantive and imminent evil that has taken the life of a reality already
on ground." 67 As formulated, "the question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.|||
(Chavez v. Gonzales, G.R. No. 168338, [February 15, 2008], 569 PHIL 155-297)

Prior restraint refers to official governmental restrictions on the press or other forms of expression
in advance of actual publication or dissemination. 56 Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded
by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that
required approval of a proposal to publish; licensing or permits as prerequisites to publication including the
payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of
the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and
publication, are deemed as previous restraint or censorship. 57 Any law or official that requires some form of
permission to be had before publication can be made, commits an infringement of the constitutional right,
and remedy can be had at the courts. ||| (Chavez v. Gonzales, G.R. No. 168338, [February 15, 2008], 569 PHIL
155-297)

Concept of Clear and Present Danger


Justice Brandeis. Concurring Opinion
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared
witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To
justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if
free speech is practiced. There must be reasonable ground to believe that the danger apprehended is
imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.
Every denunciation of existing law tends in some measure to increase the probability that there will be violation
of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability.
Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking
heightens it still further. But even advocacy of violation, however reprehensible morally, is not a
justification for denying free speech where the advocacy falls short of incitement and there is nothing to
indicate that the advocacy would be immediately acted on. The wide difference between advocacy and
incitement, between preparation and attempt, between assembling and conspiracy, must be borne in
mind. In order to support a finding of clear and present danger, it must be shown either that immediate
serious violence was to be expected or was advocated, or that the past conduct furnished reason to
believe that such advocacy was then contemplated. (Whitney v. California, [May, 16, 1927], 274 U.S. 357)

(Cases where content-based regulations were declared null and void for violating freedom of expression
and in the absence of clear present danger)

It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar
because the issue involves the content of speech and not the time, place or manner of speech. Allegedly,
unless the speech is first allowed, its impact cannot be measured, and the causal connection between the speech
and the evil apprehended cannot be established. The contention overlooks the fact that the case at bar involves
videotape that are pre-taped and hence, their speech content is known and not an X quantity. Given the specific
content of the speech, it is not unreasonable to assume that the respondent Board, with its expertise, can
determine whether its sulphur will bring about the substantive evil feared by the law.||| (Iglesia ni Cristo v. Court of
Appeals, G.R. No. 119673, [July 26, 1996], 328 PHIL 893-978)

NON-EXISTENCE IN CASE AT BAR A CLEAR AND PRESENT DANGER TO JUSTIFY A DENIAL OF


A PERMIT. — While the general rule is that a permit should recognize the right of the applicants to hold their
assembly at a public place of their choice, another place may be designated by the licensing authority if it be
shown that there is a clear and present danger of a substantive evil if no such change were made. In the
Navarro and the Pagkakaisa decisions, G.R. No. L-31687, February 26, 1970 and G.R. No. 60294, April 30,
1982, this Court was persuaded that the clear and present danger test was satisfied. The present situation is
quite different. Hence the decision reached by the Court. The mere assertion that subversives may infiltrate
the ranks of the demonstrators does not suffice.
REFUSAL OR MODIFICATION OF APPLICATION FOR PERMIT SUBJECT TO CLEAR AND
PRESENT DANGER TEST. — The applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take place. If it were a private place, only
the consent of the owner or the one entitled to its legal possession is required. Such application should be
filed well ahead in time to enable the public official concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition
to such refusal or modification that the clear and present danger test be the standard for the decision reached.
If he is of the view that there is such an imminent sad grave danger of a substantive evil, the applicants must
be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at
the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. || (Reyes v.
Bagatsing, G.R. No. L-65366, [November 9, 1983], 210 PHIL 457-482)

Even with the clear and present danger test, respondents failed to justify the regulation. There
is no compelling and substantial state interest endangered by the posting of the tarpaulin as to justify
curtailment of the right of freedom of expression. There is no reason for the state to minimize the right of non-
candidate petitioners to post the tarpaulin in their private property. The size of the tarpaulin does not affect
anyone else's constitutional rights.||| (The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728,
[January 21, 2015])

III. RPC and special laws punishes and provides penalties or imprisonment against unlawful means of
publication art. 154, libel, slander and even RA 10951 increasing the fines. There are already penalties that
punish dishonest and malicious publications. imposition of further penalties are no longer needed.

Vergel Santos, Chairperson of the Center for Media Freedom and Responsibility says in his interview in the
ANC’s Talkback on June 26, 2017 about the fake news legislation.

"It becomes a matter of motive now. There is false information unwittingly spread and there is false information
that is maliciously spread. It's in the law. If you look at law of libel and slander, it will give you an idea of
these sort of things. That's it. That's why I can't quite understand how any practical legislation could
somehow resolve the problem.”

Santos, V. (2018, June 26). No need for special law against fake news-CMFR [Interview]. Retrieved March
28, 2018, from https://www.youtube.com/watch?v=tneUpZgsp8Y

ARTICLE 353. Definition of Libel. — A libel is 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.||| (Revised Penal Code, Act No. 3815, [December 8, 1930])
ARTICLE 354. Requirement for Publicity. — Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the
following cases:
1. A private communication made by any person to another in the performance of any legal,
moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any other act performed
by public officers in the exercise of their functions.
ARTICLE 355. Libel by Means Writings or Similar Means. — A libel committed by means of writing,
printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition,
or any similar means, shall be punished by prisión correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended
party.
ARTICLE 356. Threatening to Publish and Offer to Prevent Such Publication for a Compensation. —
The penalty of arresto mayor or a fine of from 200 to 2,000 pesos, or both, shall be imposed upon any person
who threatens another to publish a libel concerning him or the parents, spouse, child, or other members of the
family of the latter, or upon anyone who shall offer to prevent the publication of such libel for a compensation
or money consideration.
ARTICLE 357. Prohibited Publication of Acts Referred to in the Course of Official Proceedings. — The
penalty of arresto mayor or a fine of from 200 to 2,000 pesos, or both, shall be imposed upon any reporter,
editor or manager of a newspaper, daily or magazine, who shall publish facts connected with the private life of
another and offensive to the honor, virtue and reputation of said person, even though said publication be
made in connection with or under the pretext that it is necessary in the narration of any judicial or
administrative proceedings wherein such facts have been mentioned.
ARTICLE 358. Slander. — Oral defamation shall be punished by arresto mayor in its maximum period
to prisión correccional in its minimum period if it is of a serious and insulting nature; otherwise the penalty shall
be arresto menor or a fine not exceeding 200 pesos.
ARTICLE 359. Slander by Deed. — The penalty of arresto mayor in its maximum period to prisión
correccional in its minimum period or a fine ranging from 200 to 1,000 pesos shall be imposed upon any
person who shall perform any act not included and punished in this title, which shall cast dishonor, discredit or
contempt upon another person. If said act is not of a serious nature, the penalty shall be arresto menor or a
fine not exceeding 200 pesos.
||| (Revised Penal Code, Act No. 3815, [December 8, 1930])

Amended Penalties
SECTION 91. Article 355 of the same Act is hereby amended to read as follows:
"ART. 355. Libel by means of writings or similar means. — A libel committed by means
of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means, shall be punished by prisión correccional in
its minimum and medium periods or a fine ranging from Forty thousand pesos (P40,000) to One
million two hundred thousand pesos (P1,200,000), or both, in addition to the civil action which
may be brought by the offended party."
SECTION 92. Article 356 of the same Act is hereby amended to read as follows:
"ART. 356. Threatening to publish and offer to prevent such publication for a
compensation. — The penalty of arresto mayor or a fine from Forty thousand pesos (P40,000)
to Four hundred thousand pesos (P400,000), or both, shall be imposed upon any person who
threatens another to publish a libel concerning him or the parents, spouse, child, or other
member of the family of the latter, or upon anyone who shall offer to prevent the publication of
such libel for a compensation or money consideration."
SECTION 93. Article 357 of the same Act is hereby amended to read as follows:
"ART. 357. Prohibited publication of acts referred to in the course of official
proceedings. — The penalty of arresto mayor or a fine of Forty thousand pesos (P40,000) to
Two hundred thousand pesos (P200,000), or both, shall be imposed upon any reporter, editor
or manager of a newspaper, daily or magazine, who shall publish facts connected with the
private life of another and offensive to the honor, virtue and reputation of said person, even
though said publication be made in connection with or under the pretext that it is necessary in
the narration of any judicial or administrative proceedings wherein such facts have been
mentioned."
SECTION 94. Article 358 of the same Act is hereby amended to read as follows:
"ART. 358. Slander. — Oral defamation shall be punished by arresto mayor in its
maximum period to prisión correccional in its minimum period if it is of a serious and insulting
nature; otherwise the penalty shall be arresto menor or a fine not exceeding Twenty thousand
pesos (P20,000)."
SECTION 95. Article 359 of the same Act is hereby amended to read as follows:
"ART. 359. Slander by deed. — The penalty of arresto mayor in its maximum period to
prisión correccional in its minimum period or a fine ranging from Twenty thousand pesos
(P20,000) to One hundred thousand pesos (P100,000) shall be imposed upon any person who
shall perform any act not included and punished in this title, which shall cast dishonor, discredit
or contempt upon another person. If said act is not of a serious nature, the penalty shall be
arresto menor or a fine not exceeding Twenty thousand pesos (P20,000)."
||| (An Act Adjusting the Amount or the Value of Property and Damage on Which a Penalty is Based, and the
Fines Imposed under the Revised Penal Code, Republic Act No. 10951, [August 29, 2017])

Cybercrime Prevention Act (RA 10175)

RA 10175 punishes libelous statement done in the cyberspace:

SECTION 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under
this Act:|||
Xxxxxx
(c) Content-related Offenses:|||
Xxxxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as
amended, committed through a computer system or any other similar means which may be devised in the future|||
(Cybercrime Prevention Act of 2012, Republic Act No. 10175, [September 12, 2012])

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and
that the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is
actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In
effect, Section 4 (c) (4) above merely affirms that online defamation constitutes "similar means" for committing
libel.

But the Court's acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous
statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel
were enacted. The culture associated with internet media is distinct from that of print. (Disini, Jr. v. Secretary of
Justice, G.R. Nos. 203335, 203299, 203306, 203359, 203378, 203391, 203407, 203440, 203453, 203454,
203469, 203501, 203509, 203515, 203518, [February 18, 2014], 727 PHIL 28-430)

1. Section 4 (c) (4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original author
of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post and react to
it; and||| (Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, 203299, 203306, 203359, 203378, 203391,
203407, 203440, 203453, 203454, 203469, 203501, 203509, 203515, 203518, [February 18, 2014], 727 PHIL 28-
430)

SECTION 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if
committed by, through and with the use of information and communications technologies shall be covered by the
relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than
that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.||| (Cybercrime
Prevention Act of 2012, Republic Act No. 10175, [September 12, 2012])

Section 6 merely makes commission of existing crimes through the Internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction between crimes
committed through the use of information and communications technology and similar crimes committed using
other means. In using the technology in question, the offender often evades identification and is able to reach far
more victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.||| (Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, 203299, 203306, 203359, 203378, 203391,
203407, 203440, 203453, 203454, 203469, 203501, 203509, 203515, 203518, [February 18, 2014], 727 PHIL 28-
430)
- It was held valid and constitutional in the case.
(Online Bloggers are within the ambit of the libel law. They may be punished)

Vergel Santos, CMFR chair says in an interview in ANC’s Top Story, when ask about PCOO
undersecretary Mocha Uson’s statement “I’m a blogger, not a journalist”.

“I didn’t know that fairness only applies to journalists. I thought fairness, in fact, applies to everybody, whether you
are a journalist, a blogger, a government official, whatever you are. I thought it was a basic virtue that everyone
should aspire to; but apparently Mocha Uson is not interested in aspiring to it because she says she is a blogger,
and therefore there’s no need for fairness. In facts [she thinks] she’s not covered by that sense of ethics. I don’t
understand that.

Ubi lex non distinguit nec nos distinguire debemus. When the law does not distinguish, we must not distinguish.
Laws on libel and slander does not differentiate journalists or bloggers or government officials or private persons.

Santos, V. (2018, October 05). Libel, fraud laws also cover bloggers, CMFR chair says [Interview].
Retrieved March 28, 2018, from https://www.youtube.com/watch?v=364R5BCGkZ0

IV. Opinion may be punished as well if fake news are not well-defined. This would then produce a nation
of mutes when it comes to matters of public and even private concerns. In relation to argument I and II.

(Fake news is not well-defined. May constitute prior restraint to protected speech).

(Opinion)
One question under Senate Bill No. 1492 is under what standards should fake news be defined. While some fake
news may readily be apparent if the falsity is clear, there may be gray areas where facts may be true but
the presentation or reporting may be grossly slanted, biased, or at the very least, unverified (i.e. the killing
of a minor purportedly linked to Tokhang). It may also be in the form of satirical presentation of news
which may seem real to the reader. False news may also be interspersed or combined with real facts.

Lim, F. (2018, January 04). Combating fake news. Inquirer.net. Retrieved March 28, 2018, from
http://business.inquirer.net/243489/combating-fake-news#ixzz5AuK3Jg7c

Vergel Santos, Chairperson of the Center for Media Freedom and Responsibility says in his interview in the
ANC’s Talkback on June 26, 2017 says when ask what is fake news:

“It contradicts itself, the phrase [fake news]. Because news is something that is supposed to have happened
and what fake news is, I suppose, is an occurrence that did not occur. I would probably prefer to use false
information. Now, I don’t know what it is, really, I don’t know what it is, because false information is
something that you establish to be false after, in many cases, some rigorous inquiry. And false information
may be harmless or harmful or not too harmful..You’ll have to define not only fake news but you will have to
determine the measures of the fake news of the news.”

Santos, V. (2018, June 26). No need for special law against fake news-CMFR [Interview]. Retrieved March
28, 2018, from https://www.youtube.com/watch?v=tneUpZgsp8Y

University of the Philippines Journalism Associate Professor Danilo Arao on Senate Bill 1492 or the Anti-Fake
News Bill says that:

“I don't think that the anti-fake news law will be able to curb fake the way it wants to in the sense that it
only sends as chilling effect. It’s like burning down the house to kill a cockroach. It’s a very very extreme
measure and we don’t want censorship in the media to be the solution to curbing false information. So, it
all boils down to self-regulation, media literacy and media education”.
Arao, Danilo. (2018, June 26). No need for special law against fake news-CMFR [Interview]. Retrieved
March 28, 2018, from https://www.youtube.com/watch?v=tneUpZgsp8Y

MORE JURISPRUDENCE

The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of
the press, or the right of the people peaceably to assemble and petition the Government for
redress of grievances." 10 Free speech, like free press, may be identified with the liberty to
discuss publicly and truthfully any matter of public concern without censorship or punishment. 11
There is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt
proceedings 15 unless there be a "clear and present danger of a substantive evil that [the State]
has a right to prevent." 16 (Reyes v. Bagatsing, G.R. No. L-65366, [November 9, 1983], 210
|||

PHIL 457-482)

We are vigilantly alive to the necessity of maintaining and protecting the constitutional guaranty
of freedom of speech and of the press, no less than the right of assembly and petition which,
according to Stimson (The American Constitution As It Protects Private Rights, 152), is its origin
rather than its derivation. We do not forget that when repression of political and religious
discussion became intense — when censorship of the press was resorted to most vigorously by
the Long Parliament in England — John Milton, that great historiographer of Cromwell, in his
Areopagitica, denounced the suppression of truth and appealed for "the liberty to know, to utter,
and to argue freely according to conscience, above all liberties" ("Areopagitica", 73, 74, Ambler's
Reprint). And this court has had occasion to vindicate this right, and it is now a settled doctrine
that the official conduct and the policies of public officials can be criticized (U. S. vs. Bustos, 37
Phil., 731), and that criticism of the constitution and legislation, of government measures or
policies cannot be suppressed or prevented ( U. S. vs. Perfecto, 43 Phil., 225), unless the
intention be to incite rebellion and civil war (Cooley, Constitutional Limitations, 614) (Planas v.
|||

Gil, G.R. No. 46440, [January 18, 1939], 67 PHIL 62-82)

Nonetheless, the U.S. Supreme Court squarely assessed the import of the First Amendment
freedoms in the prosecution of criminal libel. Famously, the precedent was established that a
public official may not successfully sue for libel unless the official can prove actual malice, which
was defined as "with knowledge that the statement was false or with reckless disregard as to
whether or not it was true." 49 By this standard, it was concluded that factual errors aside, actual
malice was not proven to sustain the convictions for libel. Moreover, leeway was allowed even if
the challenged statements were factually erroneous if honestly made. 50 (Guingguing v. Court of
|||

Appeals, G.R. No. 128959, [September 30, 2005], 508 PHIL 193-223)
The U.S. Supreme Court held: "A rule compelling the critic of official conduct to guarantee the truth of all
his factual assertions-and to do so on pain of libel judgments virtually unlimited in amount-leads to a
comparable 'self-censorship.' Allowance of the defense of truth, with the burden of proving it on the
defendant, does not mean that only false speech will be deterred." New York Times v. Sullivan, supra
note 45 at 279. Moreover, cited by way of footnote reference is the statement of John Stuart Mill that
"Even a false statement maybe deemed to make a valuable contribution to the public debate, since it
brings about the clearer perception and livelier impression of truth, produced by its collision with
error." (Guingguing v. Court of Appeals, G.R. No. 128959, [September 30, 2005], 508 PHIL 193-
|||

223)