Senate president Vicente Sotto III talks to the media in this May 2018 photo. Sotto, a staunch supporter of President Rodrigo Duterte, filed the bill against "false news" on July 1, 2019. 

© 2018 AP Photo/Bullit Marquez
(New York) The Philippines proposed law on “false content” is sweepingly broad and threatens to stifle discussion on websites worldwide, Human Rights Watch said today. The government should withdraw the Anti-False Content bill, popularly described as a bill on “fake news,” introduced in the Senate on July 1, 2019.

“The Philippines ‘false content’ bill, if passed, would make a government department the arbiter of permissible online material,” said Linda Lakhdhir, Asia legal advisor at Human Rights Watch. “A ‘fake news’ law would open the door for the government to wantonly clamp down on critical opinions or information not only in the Philippines, but around the globe. The bill should immediately be withdrawn and revised to meet international free expression standards.”

The proposed law would authorize the Cybercrime Office in the Justice Department to direct individuals, owners, or operators of online platforms, and internet intermediaries – no matter where they are based  – to “correct,” take down, or block access to any content that the office determines is false or “would tend to mislead the public.” The law does not specify who in the Cybercrime Office is authorized to make that determination, how they are to determine whether a statement is true or false, or what standards are to be used in doing so.

Instead, the Cybercrime Office is authorized to act whenever it finds that a complaint filed by an aggrieved party is “valid and has sufficient basis.” The office may issue the orders even in the absence of a complaint in matters “affecting the public interest.” The public interest is broadly defined as national security, public health, public safety, public order, public confidence in the government, and the Philippines’ international relations.

The law does not provide for judicial review of correction, takedown, or blocking orders. Instead, the only remedy available would be to petition the Office of the Secretary of the Justice Department – the very department that issued the order. Failure to comply with a Cybercrime Office order would be a criminal offense punishable by up to 20 years in prison and a fine of up to one million pesos (US$20,000).

The law would also make it a criminal offense to post on one’s personal account, or on a “fictitious” or anonymous website, content “knowing or having a reasonable belief that it contains information that is false or that would tend to mislead the public.” It would also be a crime to offer or provide services to help create or publish such content, or to finance the creation of such content.

Penalties under the laws would be severe, with heavy fines and sentences of up to six years in prison for the publication of “false” or misleading content, and up to 20 years in prison for financing the creation of such content. In doing so, the law runs counter to recommendations by United Nations human rights experts that government regulation of online content should “not impose disproportionate sanctions, whether heavy fines or imprisonment… given their significant chilling effect on freedom of expression.”

These penalties may be imposed on individuals and owners or operators of online platforms, as well as intermediaries who facilitate the communication of such statements, including social networking services, search engine services, internet-based messaging services, and video-sharing services. The law specifically provides that regional trial courts have jurisdiction over Philippine nationals who commit an offense under the law, whether or not they were in the Philippines when the offense was committed.

While the law requires proof that the individual posting or hosting content knew or had “a reasonable belief” that it was false or misleading, it does not specify how such “reasonable belief” can be proven, whether the “false” information needs to be material, or how a court is to determine that content “could mislead” the public.

Under the International Covenant on Civil and Political Rights, which the Philippines ratified in 1986, governments may only impose restrictions on freedom of speech if those restrictions are provided by law and necessary for the protection of national security, public order, public health or morals, or the rights of others. Any such restrictions must also be written sufficiently clearly that those subject to the law can understand what is prohibited.

The “false content” bill, as drafted, falls far short of these standards. Not only does the proposed law fail to require that the “misleading” information be material and cause real harm to a legitimate interest, it also does not clearly define what kind of content is prohibited. The resulting lack of clarity would chill the discussion of controversial subjects out of fear of prosecution, Human Rights Watch said.

“The proposed ‘false content’ law poses real risks for activists, journalists, academics, and ordinary people expressing their views on the internet,” Lakhdhir said. “By proposing this heavy-handed regulation, the Philippine government threatens both internet freedom and the free exchange of ideas that lies at the heart of the democratic process.”