Media legislation

Philippines has been described as a "flawed democracy" with a "partly free" media system (The Economist, 2018, cited by ABS CBN News, 2018). This observation is congruent with the reality that while Philippine journalism generally adopted a watchdog orientation, it is hounded by a string of limitations. Some of these limitations are created by media legislation.

Freedom of speech and access to information are guaranteed by the Philippine Constitution, the highest law of the land. Article III Section 4 states that "No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." Section 7, meanwhile, states that "access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen." However, despite these constitutional guarantees, the practice of journalism remains stunted by threats to freedom such as harassment and even killings. In fact, the Philippines has been labeled as the "deadliest peacetime country for journalists in Southeast Asia", with 185 journalists killed since 1986, and only 17 of which were partly resolved (International Federation of Journalists, 2018).

Apart from the constitutional guarantee that mandates access to information, Philippines has the Freedom of Information (FOI) Executive Order, signed by the president in 2016, which provides policy guidelines for the release of information from public offices. The Executive Order, however, is not a law, as the Philippine Congress failed to pass the actual bill. It has been more than 30 years since the first FOI bill was filed in Congress. Although some groups laud the signing of the FOI order, several groups criticize it for having a long list of exceptions and conditions (166 exceptions, to be specific), which defeats the purpose.

Moreover, although the free speech clause is in place, other laws have been used to restrain free speech or as a form of political vendetta, such as the criminal libel law and the Cybercrime Law. The first penalises libel under the Philippine Revised Penal Code (RPC), which states that the act is punishable by imprisonment from six months to six years. The law penalises the "defamatory imputation" that is "presumed to be malicious, even if it be true." In other words, whether or not the statement is true does not matter; what is being punished is the intent to "discredit" or "to cause dishonor." Different provisions apply for public figures.

Journalist groups have long called for the decriminalisation of libel in the Philippines (Patag, 2018). A criminal libel law, as opposed to civil libel laws in other countries, is disproportionate as it mobilises the resources of the state in arresting and prosecuting the “offending” journalist (Noorlander, 2013). The journalist might be imprisoned and the criminal record can affect his work and travel in the future.

For the state functionaries such as incumbent Presidential Spokesperson Salvador Panelo, libel laws are in place as a check on possible abuse of freedom of speech (Patag, 2019). However, for the National Union of Journalists of the Philippines, a journalist trade union, the "antediluvian libel law and its threat of jail time is one of the weapons of choice of corrupt officialdom against those who dare scrutinize and call out their venality and abuse" (Patag, 2019). In 2007, for example, then presidential spouse Mike Arroyo, filed 10 libel cases against 46 media workers who wrote on corruption allegations hurled against him (the libel cases were eventually dropped). Perhaps a more recent example that begs to be discussed is that of Rappler executive Maria Ressa, who was arrested for cyber-libel as defined under the Philippine Cybercrime Law.

In essence, the definition of libel in the Revised Penal Code is carried over to the Cybercrime Law, albeit appropriated to the online platform (this therefore considers the "sharing" and "re-posting" of content deemed libelous). Enacted in 2012, the law was opposed by various human rights and journalist groups because it may enable the state to clamp down on groups and individuals sharing progressive content. Moreover, the Cybercrime Law triples the penalty time for libel from 50 months to a maximum of 12 years in jail.

In the case of Ressa and Rappler, a certain Wilfredo Keng filed a libel complaint in 2017 over a Rappler story published in 2012, months before the Cybercrime Law was enacted. According to Rappler, the Philippine National Bureau of Investigation (NBI) initially dismissed the complaint because the one-year prescriptive period for libel had lapsed with the complaint filed five years after the publication of the story" (Patag, 2019). However, the NBI revived the complaint in 2018 and recommended the indictment of libel charges versus Rappler, which has long been publishing articles critical of the current administration. According to Manuel Eduarte, NBI Cybercrime Division head agent, the article is covered by the Cybercrime Law because it can still be seen or read at the time of the effectivity of the law (Patag, 2018).

Proposed amendments to other existing laws may threaten the function of free media in Philippine society, as in the case of proposed changes to the Human Security Act (HSA), according to the International Federation of Journalists (2019, p 43). The HSA or the Anti-Terror Law could penalise content published by groups or persons by labeling them as "incitement" or "glorification" (p 43). A proposed amendment to the Constitution, meanwhile, includes the addition of the modifier "responsible" to the free speech clause: "No law shall be passed abridging the responsible exercise of the freedom of speech, of expression, or of the press.” However, the crucial question is who or what will define "incitement" or "responsible."