Crafting the fake-news law:
Fake news and disinformation
Crafting the fake-news law:
1. Where fake-news law could fail; vague points, tech obstacles
PACHICO A. SEARES
Published in “Media’s Public,” SunStar, Sept. 29, 2017. Adapted to CJJ April 3, 2025
LAST June 22, Sen. Joel Villanueva filed Senate Bill #1492 that seeks to punish “malicious distribution” of fake news and black propaganda.
As stated in his bill, the purpose is to help curb proliferation of fake news and black propaganda.
The Senate bill still has to undergo the process: committee action, possible public hearing, and, if the House also has a parallel bill, bicameral reconciliation of the two versions.
Areas of concern
From news reports on what SB #1492 provides, one can see the areas of concern whether the bill, in its present state, will work. Under Villanueva’s proposal.
[1] “Fake news” is inadequately defined; so is “black propaganda” that’s lumped with it.
[2] Nature of malice as an element of the crime is not specified. Is it presumed?
[3] “Aiding or encouraging” the criminal act is unclear. How does one become an accomplice?
[4] It doesn’t recognize the technological problem of identifying perpetrators and removing offensive material.
Crimes, punishment
The main crime under the bill is “maliciously” offering, publishing, exhibiting, circulating, or spreading false news or information in print, broadcast and online media.
The other crimes are:
— Aiding or encouraging publication and circulation of the fake news;
— Failure, neglect or refusal of a mass media enterprise or a social platform to remove fake news;
— Creating or spreading black propaganda to discredit a person’s reputation.
Penalties range from P100,000 to P200 million and up to 10 years jail term, depending upon offense or offender. Aiding or encouraging the offender draws less penalty than publishing or circulating. Not taking down the fake news carries heavier penalty than the other crimes. And public officials are meted twice the penalty for publishing or circulating.
Different meanings
As the term is used in the bill, the phrase may cover almost every journalistic sin, except typo and grammar error. U.S. President Trump takes it to the extreme: any story or feature he doesn’t like is fake news.
SB #1492 doesn’t tell or clarify what fake news or information is, except to say that it causes or tends to cause “panic, division, chaos, violence and hate.” The effect, actual or potential, is the crucial element.
Given the different meanings that people apply to “fake news,” the law has to specify what legislators mean. What will it cover? Only total concoctions? How about partially-true or wrongly-angled stories? Fictitious stories labeled as satire or coming from properly identified satire sites: are they penalized too?
Only the result
As the bill is now phrased, the only requirement for fakery or falsehood to be criminal is that it causes or tends to cause panic, division, chaos, etcetera. (“Division”? How is that gauged? Would clash of opinions indicate division?)
And if false information is published and circulated, is malice presumed? SB #1492 doesn’t say if the principles of libel law apply to “fake news” crime: whether privileged communication also benefits the peddler of bogus material. Mainstream media would like to know if it is worse off under the would-be law than under existing laws.
Vague points
If the crime is committed on the internet, problems of enforcing and interpreting the proposed law are likely to swamp police and the courts.
Such as:
— What constitutes “aiding” or “encouraging”: Would “liking,” re-tweeting or sending fake news to friends be criminal?
— How to go after offenders who use aliases, have no addresses, or hide behind layers of anonymity in the world of web and flee by shutting down their site;
— Removing “offensive” material won’t be easy and may not even be possible.
Tech obstacles
More formidable would be identifying authors of fake news if bogus names and addresses are filed with the social media platform. And the equally vexing problem: how to weed out the damaging material.
Lawmakers must accept the fact that moves being taken by social media platforms in unmasking offenders and taking down criminal material are not yet efficient enough to deter or catch lawbreakers. For one, unless account holders give true names and addresses, catching perpetrators would be tough. For another, how far could an order for removal of the damaging content go? Experts’ consensus is that “once something is on the internet, it’s nearly impossible to erase it.”
S.B. #1492 and the House equivalent measure must craft rules that could still be effective despite handicaps created by new technology.
Otherwise, we would only have the farce of a law. 
2. Section on black propaganda out of place. Effects of fake news are listed without defining explicitly what fake news is.
PACHICO A. SEARES
First published in “Media’s Public,” SunStar, Oct. 20, 2017. Adapted to CJJ April 3, 2025
IGNORED or put aside in the committee hearings on Senate Bill #1492 is the second kind of false information or fake news (hereinafter just called “fake news”). Or maybe, the news reports omitted the discussion on that part of the bill and focused on private bloggers hired by PCOO and were peddling fake news.
The main core of the prohibited acts under the bill that seeks to criminalize fake news is “maliciously” publishing or circulating the said news. The fake news must:
[1] “cause or tend to cause panic, division, chaos or violence”; or
[2] “exhibit or tend to exhibit a propaganda to blacken or discredit one’s reputation.”
Concern, defense
Our concern about result #1 is that it lists the effects of fake news without defining explicitly what fake news is.
How does fake news differ from news that carries mistakes in reporting or editing? Errors are regular staple even in traditional media despite the curators and editors who watch its gates. What consoles is that the news outlet generally strives to correct the mistake promptly..
A lawmaker I talked with said absence of malice or knowledge that it was fake or having no “reasonable ground to believe it was fake” would be a stout defense.
But on whom does the burden of proof fall? The law must be clear about that since in libel malice is presumed unless it is covered privilege communication. And providing a legal source or excuse to oppress or harass the press might make the proposed law a convenient weapon in reprisals against journalists. An addition to the arsenal of libel, contempt and inciting to sedition and similar existing penal curbs against the press.
More ominous
Result #2 sounds more ominous. Reporters and editors might be held responsible for the propaganda that each political camp would hurl against its rival. Journalists would need to verify the genuineness of data a politician would release against his opponent. Resources of local media might not be be enough to cope with that demand.
Besides, that portion of the fake news law is perhaps better relocated, and used as amendment, to the libel law. Make the penalty stiffer if the “black propaganda” comes in the form of fake news.
The main thrust of Sen. Joel Villanueva’s bill, as shown in its explanatory note. is more about keeping public order and less about protecting the reputation of public officials.
Related Media’s Public articles:
■ Mocha Uson’s fake news is also fake news (Sept. 30, 2017)
■ No fake news law yet (Sept. 8, 2017)
■ Shoot down a lie on sight (Aug. 26, 2017)
••
How ‘fake news’ label can distract conversation
A Media’s Public article, “Not being a journalist is no excuse for peddling fake news” (Oct. 6, 2017), said a U.S. blogger who was charged before a federal court judge for defamation drew a definition of “journalist” from the court. The blogger was not a journalist under his criteria.
The “MP” article led off with the comment that definitions of a “journalist” vary, even among judges. The judge’s seven requirements I didn’t even mention. I included though the line that other journalists “snorted,” meaning they disagreed with the judge’s definition.
But how did the blogger react? She said It was “fake news” because a higher court later overruled the judge.
The “MP” piece was not a news item. It wasn’t even a discourse on the definition of “journalist.” And it wasn’t about the blogger. The side comment about the judge’s definition merely supported my comment that definitions do vary, “even among judges.”
An issue may be distracted and confused by throwing the “fake news” label at any article or its part that one finds fault with.
3. Is fake news protected speech? Defining fake news is crucial.
PACHICO A. SEARES
First published in “Media’s Public,” SunStar, June 16, 2018. Adapted to CJJ, April 3, 2021.
“Is fake news, as defined by CCPC (Cebu Citizens-Press Council), unprotected speech? Can fake news be regulated by post-publication penalty?” – Wayne Agramon, University of Cebu law student, in an e-mail
WHEN Harry Roque, presidential spokesman, tangled with Sen. Grace Poe on Senate Bill #1680 proposing to punish the publication of false news by any official or employee of the government, he argued that it would constitute prior restraint and therefore unconstitutional.
First: whether fake news, as defined by CCPC (Cebu Citizens-Press Council), is protected speech. which UC law student Wayne Justine Agramon, working on his senior year thesis on fake news, wants to know.
Unfortunately, it is not what CCPC says or does that makes a form of speech protected or unprotected. It is state prohibition or regulation that makes it unprotected speech.
Already regulated
Fake news to a limited extent is already regulated. Art. 154 of the Revised Penal Code makes “false news” criminal but only if the news “may endanger the public order or may cause damage or credit of the state.”
Congress would like to be more specific and in a way to expand it. But Sen. Joel Villanueva’s SB #1492 does not define fake news while Camarines Sur Rep. Luis Raymond Villafuerte’s HB #6622 considers as fake news the errors in reporting and editing, even if done with no malice or without knowing they are false.
The legal definition is crucial. Most journalists advocate freedom of the press but also embrace accountability. They accept laws on libel, contempt and inciting to sedition, which are unprotected speech. But they also resist state intrusion that frustrates their work as journalists.
CCPC definition
The CCPC definition in effect tells legislators and the public (a) what fake news is and (b) when it violates journalistic norms.
CCPC’s work on defining fake news is no idle academic exercise. It hopes to give this insight to Congress: Lawmakers may rearrange the lines of “non-protection” on fake news but they shouldn’t make them more draconian than libel law and other existing laws regulating media.
The CCPC definition does not condone mistakes committed in heat of deadline. It considers those errors violations of journalism standards, which must be avoided as much as possible and corrected when they occur. But it disagrees that those violations, unless committed with malice, are lumped under “fake news” and made criminal.
What SC doesn’t protect
In the case of Francisco Chavez vs. Secretary Raul Gonzales and National Telecommunication Commission (GR #168338, Feb. 15, 2008), the Supreme Court lists the four kinds of unprotected speech, which are exceptions to the general rule of unabridged freedom of expression:
[1] pornography;
[2] false or misleading advertisement;
[3] advocacy of imminent lawless violence;
[4] danger to national security.
Fake or false news, under the existing law (Art. 154, RPC), may fall under #4 in the above SC list, if Congress or the SC considers “public order” a part of “national security.” But fake news is already regulated by law, thus taking it out of protection.
Confusing prior restraint
It doesn’t mean though that the doctrine of prior restraint does not apply to news on mere claim that it’s fake. Courts cannot stop publication on mere allegation that it is fake or false. Just as they cannot ban a news story because it is claimed to be libelous. But once the story is published, journalist and media outlet will answer to any complaint or lawsuit over the story.
That’s what Dutertes spokesman Harry Roque has apparently confused: exemption from prior restraint with exemption from punishment. He attacked Senator Poe’s proposal to amend Code of Conduct for Government Officials & Employees (R.A. #6713) by punishing a government worker who publicizes fake news. He argued that since fake news cannot be subject to prior restraint, the Poe bill violates the Constitution.
Not in Uson’s case
But Poe’s SB #1680 imposes no prior restraint. It does not say the likes of Mocha Uson cannot write their blog while in the payroll of PCOO, the government communications office. The proposed law only says that if she publishes false news, as a state employee she violates Code of Conduct.
The Poe bill apparently wants government workers not to use falsehood in administration propaganda. She knows lies hamper good governance; government decisions cannot be made on unverifiable fact or outright lie; and corruption and abuse by public officials can be covered up by “it’s-fake-news” blanket denials. Bad enough if private individuals peddle fake news; abominable if government workers do it.
Resisting legislation
Should media not oppose regulation of fake news? The press cannot profess to stand for truth and condemn “alternative facts” and “post-truth” claims and yet resist legislation that seeks to punish fabrication of information and manufacture of falsehoods.
But, and it’s a big “but,” regulating media n must not amount to fettering it in its work. Defining fake news as a crime is crucial to any such law that Congress will enact.
Some journalists, fearing that lawmakers might botch the job, would rather leave fake news alone.