Standing up to lawfare

Last Saturday, I attended a forum-workshop hosted by the National Union of Journalists of the Philippines (NUJP) through its Project Lawfare. The event was organized in collaboration with the Integrated Bar of the Philippines (IBP), Internews, and USAID.

In the morning, we heard an insightful talk by Atty. Gilbert Andres, a legal expert from the Center for International Law, who is also known for representing the families of victims in the Maguindanao massacre. The key discussions revolved around the legal safety conditions of Filipino journalists. A recent study by the NUJP outlined at least 14 categories of legal threats faced by journalists --ranging from defamation suits and charges of sedition and libel, to the exploitation of national security laws, public security, and laws pertaining to fake news and disinformation.

In a democratic society, where the state is committed to safeguarding public welfare and national security, journalists often serve as a check on the overwhelming power of the state over its citizens. But in more recent times, there's been a worrying trend of using the law to restrict press freedom in the country. The NUJP study, referencing a paper by Holmes (2022) published in the Southeast Asia Globe, suggests that this “weaponization of legal systems illustrates the ongoing shift towards an aggressive and invasive authority with little regard for rule of law.”

This leads to important questions: How can journalists protect themselves from this misuse of the law. More importantly, how can they fight back?

Atty. Andres brought up the notable 2006 case involving then first gentleman Jose Miguel Arroyo, who filed 10 libel complaints against 43 journalists. Arroyo's lawyers claimed that since he was "not a public figure," he should not be fair game for “unfair criticisms” by the media. However, this flurry of lawsuits might have incorrectly suggested to public officials that they, too, have the right to retaliate when they perceive the media as overstepping their boundaries.

In that 2006 case, the journalists fought back using Article 32 of the Civil Code. This provision protects personal liberties, including the right to freedom of speech. It states that if a journalist's right to free speech and expression is curtailed unlawfully, he can seek redress for damages. I have yet to hear of any ruling related to said case.

I wonder if the same legal provision could be extended to situations where a public official, instead of merely addressing criticisms about their administration, resorts to bullying and shaming specific journalists or media outlets during press conferences or through taxpayer-funded public relations efforts. This kind of bullying can indeed produce a chilling effect, potentially even more intimidating than a libel suit.

Some public officials have this wrong notion that only laws or written directives infringing upon free speech are banned by the Constitution. They wrongly assume that their verbal declarations, which similarly curtail free speech or create a chilling effect, are not prohibited. Even more concerning, these officials perceive themselves as on par with ordinary citizens and the media, failing to recognize the substantial impact of the authority and power they wield.

The 2008 Supreme Court decision in Chavez vs. Gonzales is instructive. The discussion involves whether press statements from the Secretary of Justice and the National Telecommunications Commission violate the Constitution by limiting free speech. According the court, formal orders aren't necessary for these statements to be seen as restrictions. Any official acts or statements can potentially violate free speech. Hence, these press statements are deemed as infringements on the freedom of speech and press. “There is enough evidence of chilling effect of the complained acts on record,” says the court.