Sick rumors from sick minds

Social media had a field day last week parrying the fake news spread by many die-hard Duterte supporters about the health of the president. I say die-hard because I do not want to assume these supporters are being paid for spreading fake news. So I must assume they are simply so die-hard that they have forgotten all etiquette and have become thoughtless, or even idiotic, in spreading what is obviously disinformation.

Philippine National Police chief Gen. Jose Melencio Nartatez Jr. warned that those who post or share such content would be held accountable as the PNP vows to help prosecutors build cases against alleged purveyors of fake news about the president’s health.

Footage and photos of President Marcos attending the Araw ng Kagitingan event showed nothing unusual about his condition. It is the height of callousness and bad taste to speculate about anyone’s health, even if he is a high public official, when nothing visible gives reason for suspicion. I do not even want to dignify what these people have been saying, as though they were wishing something bad on another human being. We may quarrel in politics, but we should never wish personal harm on anyone.

The question is, how can those who spread such disinformation be held accountable without stepping on the constitutional guarantee of freedom of speech and expression? Can they be prosecuted and, if so, for what offense?

I doubt they can be prosecuted under Article 154(1) of the Revised Penal Code. Article 154(1) is not a general “fake news” provision. By its text, it targets false news “of a kind that threatens public order or State interests/credit,” not every false or inaccurate post. In other words, prosecutors must be able to show that the fake news items reasonably tended to trigger panic, disorder, unrest, or disruption of public peace. As regards the “credit of the State,” this refers to the State’s ability to raise funds, borrow, maintain investor confidence, and preserve trust in official acts and institutions.

Prosecutors may argue that the posts were calculated “to undermine confidence in governmental continuity, legitimacy, institutional integrity.” However, meeting those thresholds remains a major challenge for prosecutors, considering that the fake news about the president’s health never really gained credible traction so as to cause disorder or undermine public confidence in government legitimacy.

A more plausible charge, at least in theory, is cyber libel. But because the subject is the sitting president, prosecutors would still have to reckon with the constitutional and jurisprudential protections surrounding speech about public officials, including the demanding standard of actual malice. There can be malice when the poster of fake news knew it was false or acted with reckless disregard of the truth, meaning he had serious doubts or was clearly aware that it was false yet he posted it anyway.

At any rate, I really want those who knowingly spread fake news to be held accountable, one way or another, but without infringing on free speech or creating a chilling effect on government critics. Perhaps an administrative route may be effective, especially against professionals who post or spread such fake news.

If the poster is a lawyer, for example, he may face administrative discipline under the Code of Professional Responsibility and Accountability (CPRA), which penalizes lawyers who knowingly or maliciously disseminate false or unverified statements or disinformation online. I have also observed that some of those who knowingly or recklessly spread fake news are professional teachers, whether under DepEd or not. Such conduct clearly constitutes “unprofessional or dishonorable conduct” under RA 7836, or the Philippine Teachers Professionalization Act, and violates the Code of Ethics for Professional Teachers.