Seares: Capitol ban on fake news is limited, possibly flawed. But it’s for a crisis.

“Prohibited Acts. The following acts shall be unlawful and violators shall be held criminally liable, to wit: ... 3. Spreading of false news and information in relation to 2019-nCoV-ARD in social media.” —From the Cebu Provincial Board ordinance

THE ordinance the Cebu Provincial Board (PB)passed Monday (Feb. 10) on its express lane—the three readings done in one setting—was not solely about false news and information.

Outlawing fake media content was only one of five acts that support the main purpose of the ordinance, which was to adopt and strengthen the initiative pushed by Gov. Gwen Garcia’s executive order (5-A) to combat the threat of coronavirus from Wuhan, China.

Yet, it is severely limited and apparently flawed.

Explicit limits

One sees the explicit limits the governor and the PB set in criminalizing false news and information. These are:

[1] The fake news and information shall relate only to the Wuhan coronavirus. Meaning, it penalizes that kind of falsehood peddled about this kind of virus.

[2] The ban is confined to social media. Meaning, the circulation of the bogus content is only in social media, such as Facebook, Twitter or Instagram.

The ban is limited in coverage and period. Not even close to the scope and time span of Senate Bill 1492, filed by Sen. Joel Villanueva in 2017, which seeks to penalize distribution of all kinds of false news in all media platforms and for all time.

The limits in the Cebu PB’s ordinance obviously are dictated by the legislature’s jurisdiction, only Cebu, and immediate concern, the Wuhan virus.

Unequal treatment

Confining the ban to social media users may flirt with “unequal protection of the law.” But they have basis for the inequality. It is mostly on social media where concocted stories and features have appeared. Technology and structure of social media enable the spread of material with ease and speed, with no editor or “gatekeeper” watching out for falsehood or error.

How about content from traditional platform, which also lands on social media? The ban is based on nature of material and site of publication, not source or origin. Thus, news and information from newspapers and broadcast stations are also covered by the ban. The qualifier: it must appear on social media.

A penal law, which is what the PB ordinance is, must be strictly interpreted in favor of the offender.

Gray, disputable areas

Two areas where the Capitol ordinance may cause a quarrel in bar room debate or court litigation:

[1] The ordinance says “spreading” of false news or information, without specifying the persons who “spread” or the acts of “spreading.” The term is thus inclusive and, as it appears in the PB ordinance, must include those who aid or abet the falsehood by “sharing,” re-tweeting, “liking” or commenting.

The Supreme Court, in its 2014 landmark decision upholding the constitutionality of most provisions of the Anti-Cybercrime Law (Republic Act 10175), limited sanction for online libel and child pornography to the original authors. The SC cited “complexities” of social media which make enforcement tough. Did the PB ordinance, even in a much smaller scale, consider that factor?

[2] The ordinance doesn’t define “false news or information;” neither does it carry the qualifier “malicious,” which the Villanueva Senate bill provides as essential. How about cluelessness or ignorance of the social media user or error or lapse of writer or editor of traditional-media material posted on social media? The ordinance does not say.

What’s going for PB

The PB probably thinks the “flaws” will be a matter of defense for the offender. The ordinance has a “separability clause,” standard escape hatch of legislators. And, yes, public officials enjoy presumption of regularity; unfairly or not, it is up to the accused to beat off the charges.

Despite the limits and apparent inadequacies of the ordinance, the Cebu Provincial Board responded quickly to a “clear and present danger” to public health.

Capitol lawmakers pass the shaky ground that both chambers of Congress have feared, or taken their sweet time, to tread. The fake-news bills are still stalled indefinitely in the House and the Senate.


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