Can President Duterte be jailed for fake news after he signed Republic Act No. 10951 last Aug. 29? But fighting fake news with the wrong methods is a cure worse than the disease.

RA 10951 made numerous amendments to our circa-1930 Revised Penal Code. To cite one, Art. 154 punishes publishing “as news any false news which may endanger the public order, or cause damage to the interest or credit of the State.”

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Rep. Edcel Lagman challenged Mr. Duterte’s May 23 martial law declaration before the Supreme Court, assailing its inaccurate facts.

Mr. Duterte, for example, claimed the Maute group took over Marawi City’s Amai Pakpak Hospital, ransacked its Land Bank branch, and burned down the Senator Ninoy Aquino College Foundation and Marawi Central Elementary Pilot School. But various officials denied each of these in news articles. Lagman particularly cited Philippine Star reporter Janvic Mateo’s comprehensive fact check.

The Lagman decision rejected this. The Constitution allows the Supreme Court to review the “sufficiency” of martial law’s factual basis. This means, the Supreme Court ruled, enough facts to support action, not complete accuracy. A president takes immediate action based on intelligence on hundreds of armed men in Marawi, even if some individual facts later turn out inaccurate.

Analogously, a judge accepts eyewitness testimony as reliable despite some errors and inconsistencies.

But can Lagman take Art. 154 and charge Mr. Duterte’s officials with publishing “false news which may endanger the public order”?

This is absurd, of course. They were hurriedly compiling incomplete and confused information as Mr. Duterte rushed back from Russia.

But, first, if even Mr. Duterte could be plausibly accused of fake news under Art. 154, this law’s wording is far too vague. It gives a prosecutor far too much leeway in deciding who to charge.

The media and the public will surely make the same mistakes with facts that Team Duterte understandably made in the first hours of martial law. Indeed, free speech protects mistakes when discussing matters of public interest, except those made with malice, a.k.a. libel.

Even if judges jail only those who show malice, the hassle of a trial will still encourage people to self-censor. The likes of Art. 154, thus, violate free speech law’s greatest taboos.

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Second, much commentary on RA 10951 were themselves fake news. RA 10951’s actual name is: “An Act Adjusting… the Fines Imposed under the Revised Penal Code…” For example, Art. 154 now prescribes a fine of P40,000-200,000 for fake news, up from the circa-1930 P200-1,000.

The crime of fake news itself has been there for decades, along with other archaic crimes such as “offending the religious feelings.” Headlines such as the Star’s “Spreading fake news now a crime” are thus 87 years late.

Imagine being jailed for fake news about a fake news law!

The lesson here is that one cannot fight fake news simply by criminalizing it, using wording as vague as Art. 154. People must be allowed to make and correct mistakes in free speech—and one might not know which the mistakes are until much later. Tactics such as the Catholic Bishops’ Conference of the Philippines’ list of fake news sites are unfortunately too simplistic.

The most effective solutions have nothing to do with the actual content of speech. Rather, they attack the infrastructure that makes fake news more insidious than simple mistakes inherent in free debate, such as cutting off Google ad revenue for fake news sites and curbing the armies of bots and fake accounts supporting such sites.

And ultimately, there is no shortcut to educating a less gullible public and more critical media — including free speech advocates alarmed by the “new” fake news law!

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Thank you to my readers, the Inquirer family, and my family, friends and mentee writers for your support in “Ten Outstanding Young Persons of the World”! Indeed, attempting to discuss legal principles in the Philippines is the epitome of pointless labor. Read: https://www.jci.cc/en/news/31748.

React: [email protected], Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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