Monday, September 20, 2021

Seares: Is fake news protected speech? Law defining fake news is crucial

“Is fake news, as defined by CCPC (Cebu Citizens-Press Council), unprotected speech? Can fake news be regulated by post-publication penalty?”

-- Wayne Agramon, University of Cebu law student, in an e-mail

WHEN Harry Roque, presidential spokesman, tangled with Sen. Grace Poe on Senate Bill #1680 proposing to punish the publication of false news by any official or employee of the government, he argued that it would constitute prior restraint and therefore unconstitutional.

First: whether fake news, as defined by CCPC (Cebu Citizens-Press Council), is protected speech. which UC law student Wayne Justine Agramon, working on his senior year thesis on fake news, wants to know.

Unfortunately, it is not what CCPC says or does that makes a form of speech protected or unprotected. It is state prohibition or regulation that makes it unprotected speech.

Already regulated

Fake news to a limited extent is already regulated. Art. 154 of the Revised Penal Code makes “false news” criminal but only if the news “may endanger the public order or may cause damage or credit of the state.”

Congress would like to be more specific and in a way to expand it. But Sen. Joel Villanueva’s SB #1492 does not define fake news while Camarines Sur Rep. Luis Raymond Villafuerte’s HB #6622 considers as fake news the errors in reporting and editing, even if done with no malice or without knowing they are false.

The legal definition is crucial. Most journalists advocate freedom of the press but also embrace accountability. They accept laws on libel, contempt and inciting to sedition, which are unprotected speech. But they also resist state intrusion that frustrates their work as journalists.

CCPC definition

The CCPC definition in effect tells legislators and the public (a) what fake news is and (b) when it violates journalistic norms.

CCPC’s work on defining fake news is no idle academic exercise. It hopes to give this insight to Congress: Lawmakers may rearrange the lines of “non-protection” on fake news but they shouldn’t make them more draconian than libel law and other existing laws regulating media.

The CCPC definition does not condone mistakes committed in heat of deadline. It considers those errors violations of journalism standards, which must be avoided as much as possible and corrected when they occur. But it disagrees that those violations, unless committed with malice, are lumped under “fake news” and made criminal.

What SC doesn’t protect

In the case of Francisco Chavez vs. Secretary Raul Gonzales and National Telecommunication Commission (GR #168338, Feb. 15, 2008), the Supreme Courts lists the four kinds of unprotected speech, which are exceptions to the general rule of unabridged freedom of expression:

[1] pornography;

[2] false or misleading advertisement;

[3] advocacy of imminent lawless violence;

[4] danger to national security.

Fake or false news, under the existing law (Art. 154, RPC), may fall under #4 in the above SC list, if Congress or the SC considers “public order” a part of “national security.” But fake news is already regulated by law, thus taking it out of protection.

Confusing prior restraint

It doesn’t mean though that the doctrine of prior restraint does not apply to news on mere claim that it’s fake. Courts cannot stop publication on mere allegation that it is fake or false. Just as they cannot ban a news story because it is claimed to be libelous. But once the story is published, journalist and media outlet will answer to any complaint or lawsuit over the story.

That’s what Dutertes spokesman Harry Roque has apparently confused: exemption from prior restraint with exemption from punishment. He attacked Senator Poe’s proposal to amend Code of Conduct for Government Officials & Employees (R.A. #6713) by punishing a government worker who publicizes fake news. He argued that since fake news cannot be subject to prior restraint, the Poe bill violates the Constitution.

Not in Uson’s case

But Poe’s SB #1680 imposes no prior restraint. It does not say the likes of Mocha Uson cannot write their blog while in the payroll of PCOO, the government communications office. The proposed law only says that if she publishes false news, as a state employee she violates Code of Conduct.

The Poe bill apparently wants government workers not to use falsehood in administration propaganda. She knows lies hamper good governance; government decisions cannot be made on unverifiable fact or outright lie; and corruption and abuse by public officials can be covered up by “it’s-fake-news” blanket denials. Bad enough if private individuals peddle fake news; abominable if government workers do it.

Resisting legislation

Should media not oppose regulation of fake news? The press cannot profess to stand for truth and condemn “alternative facts” and “post-truth” claims and yet resist legislation that seeks to punish fabrication of information and manufacture of falsehoods.

But, and it’s a big “but,” regulating media n must not amount to fettering it in its work. Defining fake news as a crime is crucial to any such law that Congress will enact.

Some journalists, fearing that lawmakers might botch the job, would rather leave fake news alone.


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