Malacañang on Wednesday said any law penalizing fake news on social media would be unconstitutional, as this would curtail freedom of speech.

Presidential spokesperson Harry Roque said legislating against fake news was “content-based restriction” and tantamount to censorship.

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“First of all, what will the Senate do? Will they pass a law to punish fake news? The problem there is who will determine what is true and what is fake,” Roque said in an interview with Radyo Inquirer.

“That is prior restraint. That is content-based restriction, which means that is presumed unconstitutional because freedom of speech is very important,” he said.

“We say that all laws that suppress or prohibit speech violate our Constitution,” he added.

Senate hearing

Roque made the remarks a day after the Senate committee on public information held another hearing on fake news in which the committee chair, Sen. Grace Poe, expressed concern over the taking down of certain Facebook posts about a proposed agreement between the Duterte administration and the family of the late dictator Ferdinand Marcos on the disposition of their alleged ill-gotten wealth.

Poe said she wanted to know what guidelines had been set by the various social media platforms to ensure their users’ freedom of speech and expression were not violated or abused.

She gave assurance that the Senate would not pass any law to curtail freedom of speech and expression.

“While I am concerned about the pernicious effects of the proliferation of fake news that can destroy not just a person’s reputation but institutions as well, I am in no way in favor of any measure that aims to suppress our freedom of speech or expression,” she said.

‘Patriotic trolling’

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At the same hearing, Maria Ressa, chief executive of news website Rappler, said state-sponsored “patriotic trolling” had used cheap social media armies to spread fake news and hate campaigns to quell dissent, and to control and manipulate public opinion.

President Rodrigo Duterte called Rappler a “fake news outfit” for reporting on his chief aide Christopher “Bong” Go’s alleged involvement in the acquisition of a combat management system for new Navy frigates.

Rappler is seeking to nullify a Securities and Exchange Commission decision to shut it down for alleged violation of the constitutional ban on foreign control of mass media in the Philippines.

Better journalism

In the radio interview, Roque clarified that the government was not encouraging fake news.

“The solution is never censorship but better journalism,” he said.

“What I said earlier that without fake news we would not know what is true news should not be taken as governmental encouragement of fake news. Far from it,” he added.

Roque said even American journalism had “a sordid history in the so-called penny press of promoting quackery and all sorts of things that today would not be considered respectable journalism.”

“Yet US jurisprudence on free speech developed a conviction that the solution is never governmental censorship, but better journalism,” Roque said.

The US Supreme Court in 1964 ruled that mistakes in reportage on public figures were excusable, “otherwise the free and unimpeded discussion of public issues would be hindered,” he said.

US jurisprudence

“Free and open debate about the conduct of public officials, the court reasoned, was more important than occasional, honest factual errors that might hurt or damage officials’ reputations,” Roque said.

“Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error,’” he said, quoting the US Supreme Court.

Roque said American jurisprudence rested on the belief that the fear of punishment would never be a stable basis for good government.

“Reasoned public deliberation is the better recourse, despite the attendant risks posed by falsehood and misinformation,” Roque said.

“For sure and to be clear, fake news as is known today should find no place as a matter of governmental policy.

Enlightened citizens should be able to pick out chaff from grain and appreciate what good journalism is about,” he added.

Roque also defended Presidential Communications Operations Office Assistant Secretary Mocha Uson, who has been accused of spreading fake news especially about opponents of the President, against calls to close down her blog.

“I don’t understand what’s the conflict of interest there. So, if you join government, you lose your right to free speech? What do you want to happen? For government people to shut up?” he said.

Uson has denied spreading fake news, adding that she posted only opinion pieces.

“And I am not [a member of the] media. My blog contains opinions. You may not agree with them but they are not news,” she said.

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