Social media regulation not covered by terror law – Palace

MANILA, Philippines — Malacañang yesterday countered the proposal of newly installed Armed Forces of the Philippines chief Lt. Gen. Gilbert Gapay to use the Anti-Terrorism Act of 2020 and its implementing rules and regulations (IRR) to regulate social media.

Presidential spokesman Harry Roque Jr. said provisions of the anti-terror law do not cover postings on social media.

“First of all, that is the opinion of General Gapay. I read the anti-terror law, there is no provision that says it can be used on social media. What we have for that is the cybercrime law, where there is a provision (about social media), but that would be subject to the authority granted by the courts,” Roque said.

At a virtual press briefing upon officially assuming his post last Monday, Gapay expressed belief that regulating social media would curb radicalism and the radicalization of the youth.

Gapay said he would propose provisions in the new law’s IRR that would regulate the use of social media as he believes that it is the platform being used by terrorists to radicalize and even plan terroristic acts.

‘Illegal, unconstitutional’

Senate Minority Leader Franklin Drilon said Gapay’s suggestion is “illegal and unconstitutional.”

“That will go beyond the real intent of the law and, therefore, it is illegal and unconstitutional. Freedom of speech is a sacred and inviolable right of every human being. The Constitution guarantees freedom of speech,” Drilon said.

The senator stressed that the IRR could not be contrary to the text of the law itself, saying Supreme Court (SC) cases have held that administrative or executive acts are invalid if they contravene the laws or the Constitution.

“No law can be amended by a mere administrative rule issued for its implementation,” he said.

“There is nothing in the law (that) would allow enforcers to regulate or control social media. A proper governmental purpose may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms,” he added.

An act of the government that chills expression is subject to nullification or injunction from the courts, as it violates Article III, Section 3 of the Constitution, according to Drilon.

“The threat of restraint, as opposed to actual restraint itself, may deter the exercise of the right to free expression almost as potently as the actual application of sanctions,” he said.

“If the intention is to clamp down on terrorist propaganda posted on social media, there are existing models on how that can be done without the need to regulate social media in general – YouTube videos and soundbites posted by terrorist groups communicating to a wider audience are clearly identifiable and may be taken down,” he added.

If Gapay is after personal communications between terrorists to pre-empt terrorist attacks, Drilon said Gapay would do well to acquaint himself with Section 16 the anti-terror law, which requires a law enforcement agent or military personnel to file an application with the Court of Appeals before surveillance activities may be conducted.

The specific provision applies to private communications, data, information, messages between members of judicially outlawed terrorist organizations, members of a designated person or a person charged with or suspected of committing terrorism.

“Social media is an effective platform for our people to voice out their criticisms against the government. If we insist on implementing the law this way, which is clearly contrary to legislative intent, then we justify the fears aired by the people against the passage of the law,” Drilon said.

“Let us not be so imprudent as to prove to the people that they are right in their distrust of the law’s implementers,” he added.

22nd petition

Meanwhile, House Deputy Speaker Mujiv Hataman, AMIN party-list Rep. Amihilda Sangcopan and six other Muslims have filed a petition asking the SC to stop the enforcement of the anti-terror law.

The petitioners filed a certiorari and prohibition under Rule 65 of the Rules of Court and Article VIII, Section 16 of the 1987 Constitution with application for temporary restraining order (TRO) and/or writ of injunction.

The 93-page petition was filed against the officials and members of the Anti-Terrorism Council (ATC) headed by Executive Secretary Salvador Medialdea, the National Intelligence Coordinating Agency (NICA), the Senate represented by Senate President Vicente Sotto III and the House of Representatives headed by Speaker Alan Peter Cayetano.

It is the 22nd petition filed against the law or Republic Act (RA) 11479.

The petitioners asked the SC to issue a TRO to restrain the ATC and its officials and members, NICA as well as other law enforcement officers, including the military, to cease and desist from implementing the law.

They expressed hope that the high court will rule in their favor and declare the law null and void in its entirety for being unconstitutional.

The petitioners argued that the law is unconstitutional because the House of Representatives gravely abused its discretion or exceeded its jurisdiction when it enacted the law despite the lack of a quorum, which is in violation of Article VI, Section 16 of the 1987 Constitution.

It also infringes on the petitioners’ right to the free exercise of their religion and of free expression.

“RA 11479 clearly constitutes a prior restraint on free expression because it compels Muslim preachers and fathers from freely and publicly discussing their religious beliefs. The discussion or mere mention of jihad can be now considered by law enforcers as acts of conspiracy to commit terrorism or proposal to commit terrorism,” the petitioners said. – Cecille Suerte Felipe, Evelyn Macairan, Rhodina Villanueva