
“There is growing evidence that disinformation tends to thrive where human rights are constrained, where the public information regime is not robust and where media quality, diversity and independence is weak. Conversely, where freedom of opinion and expression is protected, civil society, journalists and others are able to challenge falsehoods and present alternative viewpoints.”
This is a key passage in the 2021 report of the United Nations (UN) Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression which examined the “threats posed by disinformation to human rights, democratic institutions and development processes”.
Disinformation can easily wreak havoc to a population where the constitutional prescription of free speech and expression is poorly understood. In our case, close to 80% of our people have very little knowledge of the 1987 Constitution. This can explain why purveyors of disinformation have so much power in our public space, both real and virtual.
Pertinently, the UN Special Rapporteur’s report states that a robust free speech regime can empower civil society to effectively counter disinformation. This just makes sense because a nation that puts a high premium on preserving the safety and vibrancy of the public space, would also be relentless in protecting it against existential threats.
A strong free speech framework conventionally means citizens having the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. It is worth noting that our constitution specifically prescribes that free speech and expression, and a free media as well, include the right to “petition the government for redress of grievances”.
The constitutional protection extends to nearly all forms of communication and encompasses a wide spectrum of matters of public interest. But the primordial importance of freedom of speech, and of the press as well, is that it is not simply a means to approve existing political beliefs or social conventions.
According to the landmark case of Chavez vs. Gonzales (G.R. No. 168338, February 15, 2008):
“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.” To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us.”
It is crucial to mention at this point that freedom of expression is not an absolute right. Indeed, some types of speech may be subjected to state regulation. For example, in our jurisdiction, slander, libel and obscene speech are not entitled to constitutional protection and may be punished.
Misleading commercial advertising is an offense. Comelec regulations penalize the publication of false information in the campaign. In some localities, gossiping is prohibited by ordinance. Clearly, disinformation has no innate value at all. It is destructive by its very nature. It can undermine social cohesion. It can weaken trust in democratic institutions.
Therefore, combating the spread of disinformation should be a national priority. Correspondingly, civil society must take the UN Special Rapporteur’s report to heart and start developing a healthier appreciation for free speech and media independence. We must all jealously preserve the public sphere to continually function as a marketplace of information, ideas, and insights.
It should be evident now that social media platforms cannot be relied upon to protect the public against disinformation. Profit will always be their primary consideration. Correspondingly, they will always prioritize cutting cost whenever possible and maximizing revenue streams regardless of social costs. They pretend to care about free speech, but they are really all about filling the corporate coffers.
Hence, we must now pressure our lawmakers to enact a comprehensive anti-disinformation statute. The purveying of disinformation online must be clearly and coherently defined as a crime. It is imperative to establish a legal framework to combat disinformation so that the state can properly respond to this existential threat. Needless to say, this regulatory authority over cyberspace must align with the constitutional prescriptions of free speech and media freedom.
(MindaViews is the opinion section of MindaNews. Michael Henry Yusingco, LL.M is a law lecturer, policy analyst and constitutionalist.)