By: Gabrielle B. Allabo
On the 15th of September 2020, The Municipal Trial Court, Branch 03, Cebu City dismissed the complaint against Cebu artist Bambi Beltran where she was accused of false information after posting a status on her Facebook account stating: “9,000+ new cases (all from Zapatera) of COVID-19 in Cebu City in one day. We are now the epicenter in the whole solar system.”[1] The Municipal Trial Court ruled that the post did not constitute fake news contemplated under the Republic Act No. 11469 or the 2020 Bayanihan Law but was instead considered satirical in nature as seen in the phrase “epicenter of the whole solar system.”[2] The trial court reiterated and emphasized that satirical post is protected speech under the 1987 Constitution.[3]
The case of Beltran is an addition to the numerous instances where the clash between State power and the constitutional right to Freedom of Speech is made manifest. Just recently, Senator Christopher “Bong” Go requested the National Bureau of Investigation to probe social media posts by a student against him back in July 2020.[4] In May 2020, Ronnel Mas, a teacher, was arrested and accused of inciting sedition after posting on social media a fifty-million peso reward to anyone willing to kill President Rodrigo Duterte.[5]
Although the 1987 Constitution and jurisprudence have established the metes and bounds of State Power and people’s right to Freedom of Expression, it seems like this legal task of defining limitations remain incessant, especially as the State evolves through time. The advancements in technology contributed to the various complexities in communication. Regarding Freedom of Expression, such advancements result to new ways of expressing thought and opinion particularly through new forms of political satires. There is thus a need to re-examine certain legal parameters concerning the relationship between State Power and the Right to Freedom of Expression.
One of the three inherent powers of the State is Police Power. It is the power to enact legislation regulating the use of liberty and property in order to promote public welfare.[6] Among the three inherent powers, this power has been considered the most pervasive as it regulates practically everything that concerns the liberty and property of all inhabitants of the State.[7] However, it is important to note that this extreme power of subordination from the State is not absolute. It is required that such power be exercised only if the activity or property sought to be regulated concerns the public welfare.
The Right to Freedom of expression is one of the guarantees provided by the 1987 Constitution to the Filipino people. Sec. 4, Art. III of the 1987 Constitution provides that no law shall be enacted abridging the freedom of speech, of expression, or of the press, or the right of the people peaceable to assemble and petition the Government for redress of grievances from laws tending to abridge these rights.[8] The scope contemplated under this right reaches far and wide. Still, in a nutshell, this right essentially encourages the concept of marketplace of ideas where free exchange of competitive ideas are allowed in order for “truth” to emerge.[9] As stated in Justice Brandeis’ concurring decision in the United States case of Whitney v. California, this concept allows the remedy of applying more speech and not enforced silence in case this free exchange produces bad ideas or falsehoods.[10]
One of the forms of protected speech under the abovementioned constitutional guaranty is Political Satire, a concept extensively explained in the case of The Diocese of Bacolod v. COMELEC. According to this case, satire is a literary form of employing devices such as sarcasm, irony, and ridicule to pinpoint prevailing vices in society and is targeted to any group or individual, either from the private or government sphere.[11] The Supreme Court emphasized that for a speech to be considered as satirical, the elements of exaggeration, analogy, and other rhetorical devices must be existent.[12] In particular, Canadian literary critic and theorist Northrop Frye claimed that there are two defining features in identifying satire: (1) the wit or humor founded on fantasy or a sense of the grotesque and absurd and (2) an object of attack.[13]
The concept of political satire dates back to antiquity in the form of Greek satyr plays, Roman festivals, and formal verse of the Renaissance.[14] In the age of the internet and social media, digital satire through memes, satirical blogs, and satirical websites are the current manifestations of political satire.[15] In a recent study, it was found that digital satire through political memes are an effective source of political criticism as its satirical nature provides an entry point to the complex realm of politics which results to a more democratic, accessible, and inclusive discussion in society.[16]
The use of political satire on social media is a familiar tool used in the Philippines to voice out opinions and criticisms towards various subjects including, but not limited to, government affairs. However, there are certain instances where members of the government would respond assertively against such criticisms. In the past, members of the government have threatened, if not initiated, Cyberlibel charges against certain satirical content.[17]In this regard, it is important to revisit what the law entails when it speaks of Cyberlibel.
The Revised Penal Code contemplates four particular elements for the crime of Libel to arise: (a) the existence of an imputation or allegation of a crime, or vice or defect, whether real or imaginary, or any act or omission, condition, status or circumstance which tend to dishonor or discredit a natural or juridical person; (b) publication of the said defamatory statement or article; (c) identity of the person defamed is established; and (4) the existence of malice.[18] In connection with libelous content online, the Cybercrime Law Act of 2012 provides a straightforward definition of Cyberlibel which is considered as the unlawful or prohibited acts of Libel as defined in Article 355 of the Revised Penal Code committed through a computer system or any other similar means which may be devised in the future.[19]
It is important to note that the abovementioned response by the State against satirical content posted online is not absolutely groundless and arbitrary. In Oliver et al. v. La Vanguardia, Inc., the Supreme Court held that the intent of the writer to treat the published content as humorous is of no moment if the language used has passed the bounds of playful jest and intensive criticism into the region of scurrilous calumniation and intemperate personalities.[20] Moreover in US v. Sotto, the Court ruled that determining whether a content is libelous rests on the effect of the publication held upon the minds of the readers.[21] In other words, representatives of the State are not expected to sit and do nothing on statements published to impute and discredit their reputation and honor. In the exercise of their Police Power, the State is by law protected from defamatory imputations. However, it is crucial to remember that this protection under the law is not absolute and is subject to limitations.
Art 354 of the Revised Penal Code provides two privileged communications exempt from presumption of malice in law: (1) Absolute Privileged Communication and (2) Qualified or Conditional Privileged Communication.[22] The latter exception provides that communications, although containing defamatory imputations, would not be actionable unless made with malice or bad faith.[23] In other words, the defamatory remarks and comments published must pertain to the discharge of official duties and not to the private character of the public officer for said comments not to be considered as libelous.[24]
This protection under Article 354 applies to political satire as a form of commentary. As explained by Leslie Kim Treiger in her article, Satire is technically false as it works through distortion.[25] While satire presents itself as a falsehood, it is not meant to be taken in its literal sense but rather understanding the critical message lying underneath it.[26] In connection with Article 354 of the Revised Penal Code, the test of determining whether a satirical content is libelous lies not on its face but the message found underneath its surface. Thus, Satire is part of privileged communication contemplated under Qualified or Conditional Privileged Communication.
In the context of balancing State Power and the Right to Freedom of Expression, it is equally important to understand that Libel is not an all-around forcefield for the State to use in thwarting valid criticisms from the public. This is not the intention of the law. The fact that the Revised Penal Code provides protection in the form of Qualified Privileged Communication strengthens the notion that political satire is part of protected speech. On the other hand, it is also apparent from the wording of Article 354 of the Revised Penal Code and jurisprudence that the freedom to use political satire in expressing one’s opinions and comments is not definite as it may still become a ground for Libel if underneath its humorous façade lies an imputation that could not only defame a public officer but also affect the very credibility of the government it represents to the eye of the public.
The concept of political satire as a form of commentary on governmental affairs is not novel. Its existence throughout political history does not indicate a constant ill-will on the part of constituents against public servants but instead provides a salient fact: the conduct of public officers concerning the discharge of their duties are matters of public interest. When an individual voluntarily enters into public service, he must assume the inevitable risk of being criticized.[27] It would be futile to argue that satirical content criticizing actions made by the government should be eradicated as there are already existing forms of regulation towards this type of content under the law. To say otherwise would be tantamount to an indirect act causing a chilling effect on freedom of expression. The recent case of Beltran is a reminder of how political satire is viewed as a form of imputation without considering the context and message behind its humorous surface.
The Bill of Rights of the 1987 Constitution guarantees Filipinos the right to freely express opinion and engage in discussions to encourage a free exchange of competitive ideas. Certainly, political satire is equally protected as it provides an accessible avenue for people to understand the complex realm of politics and governance.
To reiterate the words of Justice Brandeis’ concurring Decision in Whitney v. California: “freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth” and that “if there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”[28]
[1] Ryan Macasero, ‘Satire is protected speech,’ says Cebu judge in dismissed case of Bambi Beltran, Rappler (September 24, 2020, 2:53 PM), https://www.rappler.com/newsbreak/iq/highlights-cebu-judge-decision-dismissing-charges-vs-bambi-beltran
[2] Id.
[3] Id.
[4] Lian Buan, Bong Go asked NBI to probe social media posts against him, Rappler (July 16, 2020, 11:05 PM), https://www.rappler.com/nation/bong-go-asked-nbi-probe-social-media-posts-against-him?utm_campaign=Echobox&utm_medium=Social&utm_source=Facebook&fbclid=IwAR1TMB-rc15E5dDCCeevUyhcBAZ5CZ3KsO_gzD0acIgas-SB0jRz7fp0ArE#Echobox=1594950982
[5] Tetch Torres-Typas, Court releases teacher who offered reward to kill Duterte after posting bail, Inquirer (May 19, 2020, 7:22 PM), https://newsinfo.inquirer.net/1277675/court-releases-teacher-who-offered-reward-to-kill-duterte-after-posting-bail
[6] Cruz, Constitutional Law, (2015)
[7] Id.
[8] Section 4, Art. III of the 1987 Constitution
[9] Blocher, J. (2008). Institutions in the Marketplace of Ideas. Duke Law Journal. Retrieved from https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1346&context=dlj
[10] Id.
[11] The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, 21 January 2015
[12] Id.
[13] Id.
[14] Plevriti, V. (2014). Satirical User-Generated Memes as an Effective Source of Political Criticism, Extending Debate and Enhancing Civic Engagement. The University of Warwick. Retrieved from https://warwick.ac.uk/fac/arts/scapvc/ccmps/research/publications/madiss/ccps_13-14_vasiliki_plevriti.pdf
[15] Id.
[16] Id.
[17] Cabico, G., ‘Malicious use of my image’: Panelo cries foul over a meme, Philippine Star (May 10, 2019, 10:23 PM),https://www.philstar.com/headlines/2019/05/10/1916692/malicious-use-my-image-panelo-cries-foul-over-meme; Cf n.a., MMDA spokesperson not letting Facebook joke page pass, files Cyberlibel suit, Philippine Star (October 9, 2019, 3:14 PM), https://www.philstar.com/headlines/2019/10/09/1958793/mmda-spokesperson-not-letting-facebook-joke-page-pass-files-cyberlibel-suit; See also CDe Jesus, J., ‘Spreading foul election memes could lead to online libel raps’, Inquirer (January 08, 2016, 2:41 PM), https://technology.inquirer.net/46159/spreading-foul-election-memes-lead-online-libel-raps
[18] Art. 353, Book II of the Revised Penal Code
[19] Sec. 4 (c) (4), Chapter II of The Cybercrime Law Act of 2012.
[20] Oliver v. La Vanguardia, Inc., G.R. No. L-23063, 10 December 1925
[21] US v. Sotto, 36 Phil 666
[22] Reyes, The Revised Penal Code Book II, (2012).
[23] Ornafel v. People, L-26877, 26 December 1969
[24] People v. Del Fierro and Padilla, G.R. No. 3599-R, 27 July 1950
[25] Treiger, L.K. (1989) Protecting Satire Against Libel Claims: A New Reading of the First Amendment’s Opinion Privilege. The Yale Law Journal. Retrieved from https://digitalcommons.law.yale.edu/ylj/vol98/iss6/7/
[26] Id.
[27] Gertz. V. Robert Welch, Inc. 418 US 323 (1974)
[28] Whitney v. California, 274 US 357 (1927)
Cover Photo: The front page of the Lipang Kalabaw courtesy of Unang Labas.
Background on Cover Photo:
Lipang Kalabaw “alleged” is the first and only Philippine satirical journal in history. The first issue is entitled “Progresista Voters,” which depict how the Progresista Party (formerly Federalista Party that advocated for Philippine statehood under the U.S.) changed stance when rural voters (seen in the back row) tipped the vote for the party to support eventual Philippine independence.
Source: Indohistorian.
