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 (Balod and Hameleers, 2019), this strong tradition is restrained by a string of systemic conditions. These include the culture of impunity that allows journalist killings and harassment as well as stifling legislation, if not legislation that lacks teeth. Under the pretext of addressing the pandemic crisis, the Duterte regime has also enacted new laws that critics have described as assaults to free speech and media freedom.

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 penalizes libel under the Philippine Revised Penal Code (RPC), which states that the act is punishable by imprisonment from six months to six years. Journalist groups have long called for the ‘decriminalization’ of libel in the Philippines (Patag, 2018). A criminal libel law, as opposed to civil libel laws in other countries, is ‘disproportionate’ as it mobilizes the resources of the state in arresting and prosecuting the journalist (Noorlander, 2013). The journalist might be imprisoned and the criminal record can affect his work and travel in the future. The law penalizes 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’.

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 recently convicted for cyberlibel as defined under the Philippine Cybercrime Law.

In essence, the definition of libel in theRPC 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 story was published five years before the complaint was filed, way beyond the one-year prescriptive period for libel (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).

According to its 37-page decision, the court found the Rappler story ‘defamatory’ primarily because Keng’s side was not published nor was it verified (Mendoza, 2020). Although the one-year prescription for libel has clearly lapsed, the Department of Justice, the principal law agency of the government, cited a ‘lesser known’ law that states a 12-year prescription period for libel (Mendoza, 2020). The use of this law to justify the verdict, however, remains contested even in the legal sphere because the law cited was enacted when the Philippines was still a colony of U.S. and should have been superseded by more recent laws, one of which states the one-year prescription period for libel (Robles, 2019b).

Many believe that the filing of charges is ‘politically motivated’ and discriminatory against Rappler (Robles, 2019a). Rappler, currently facing seven other charges, has long been publishing stories critical of the Duterte administration. Robles (2019a) wrote that Keng’s lawyer himself said that Rappler did get in touch with Keng to confirm the license plate number and ownership of the car mentioned in the article in question. Moreover, the lawyer reportedly said that he did not know why Keng did not file a case against, which also published some of the allegations in 2002 (Robles, 2019a) but took down the article only last year (CNN Philippines Staff, 2019).

As the number of CoViD cases continue to climb and the economic losses pile up, the Duterte administration has enacted a law supposedly to address the crisis: the Bayanihan Heal as One Act of 2020 (BAHO law), which also granted the president temporary emergency powers, such as the power to re-align the government budget. The BAHO law punishes individuals spreading ‘fake news’, which, according to lawyer Josalee Deinla, is vaguely worded and very broad and can therefore be used to target critics (Clarin, 2020). The law defines those spreading fake news as ‘individuals or groups creating, perpetrating, or spreading false information regarding COVID-19 crisis on social media and other platforms, such information having no valid or beneficial effect on the population, and are clearly geared to promote chaos, panic, anarchy, fear, or confusion.’ However, Deinla asked, ‘Who is to say the information is not valid? Who is to say that the information has no beneficial value?’ (Clarin, 2020). The National Bureau of Investigation in the Philippines has already issued 17 subpoenas to individuals that it found to be spreading ‘fake news’ (Clarin, 2020). Although the BAHO law is only effective until June 5, senators already filed a bill that seeks to enhance the BAHO law by granting the president ‘additional special powers’ (Rey, 2020).

Perhaps worse than the ‘fake news’ provision of the BAHO law is the recently enacted Anti-Terrorism Act of 2020, signed by the president early July. The Anti-Terror Law lengthens the period for warrantless arrest, expands surveillance on suspected terrorists, and removes the penalty for wrongful detention or baseless accusation. It also provides a sweeping definition of terrorism: the incitement of terrorism ‘by means of speeches, proclamations, writings, emblems, banners or other representations’ even without taking any direct part in the commission of terrorism. Therefore, the law leaves a thin line between legitimate expression of dissent or critique and acts of terrorism. An Anti-Terrorism Council, appointed by the president, has the power to interpret this broad definition and determine who is a terrorist. Not surprisingly, there is widespread opposition against the law, which human rights groups described as a form of legalized suppression and as a ‘stealth martial law declaration’ (Gavilan, 2020a). As Sobel (2020) said, the law is just ‘the latest in a series of power grabs passed under the guise of national security amid the coronavirus pandemic, presenting a serious threat to Filipino democracy.’

Others see the enactment as a way to preserve the political status quo as more and more Filipinos feel that their quality of life has gotten worse during the pandemic crisis. According to a mobile survey conducted in May (in the middle of the longest lockdown in the world), the net optimism of Filipinos plummeted to record-breaking negative levels (Tuquero, 2020). For Prof. Aries Uruguay, a political analyst, the record-high level of pessimism means that political favor for the Duterte administration may ‘run out’ as the majority buckle under the weight of the recession (Tuquero, 2020).

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, again, is who or what will define ‘incitement’ or ‘responsible’.

3.2 Accountability systems

With the presence of well-entrenched laws described as restraints in the exercise of free speech, accountability systems for Philippine media are not as robust as campaigns for media freedom. ‘Accountability systems’ in this setting, for the most part, take the form of legal measures or prohibitions (e.g. libel laws and other laws within the Revised Penal Code of the Philippines). For this reason, the media has been wary of political imperatives masking under the guise of ‘checking media responsibility’, as they believe that such initiatives can, as proven by a history of martial rule, be used to silence the press.

Some media networks and newspapers, such as ABS-CBN, have their internal ombudsman who deals with journalism ethics complaints, especially those which gained traction from the audience (e.g. viral in social media).

Definitely more active and visible than the in-house ombudsmen are the organisations that lean more to a monitorial role, such as the Center for Media Freedom and Responsibility (CMFR) and ‘Kapisanan ng Mga Brodkaster ng Pilipinas’ or KBP (Association of Philippine Broadcasters). The CMFR evaluates media coverage and even calls out cases of media corruption or unethical practice. In many instances, a CMFR representative was invited in television news programmes to speak on issues of media freedom and responsibility.

The KBP, meanwhile, ‘established its own system of self-regulation and standards for radio and television stations in the country’, which binds – but only to some extent – its 121 member networks or corporations. However, the CMFR has expressed doubts on the future of self-regulation in Philippine media, citing the feeble penalties imposed by the KBP on its erring members (CMFR, 2011).

The Philippine Press Institute (PPI), as well as the KBP, developed a code of ethics: the ‘Philippine Journalist’s Code of Ethics’ that has been used and studied in journalism schools. However, in actual practice, the interpretation of these codes leaves gray areas as the media landscape – and the working conditions of journalists – is far from ideal.