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Is ‘anonymous speech’ guaranteed under the Charter?

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COMMENTARY

Is ‘anonymous speech’ guaranteed under the Charter?

05:04 AM September 27, 2017

If Jose Rizal were alive, he’d lament that Republic Act No. 10951 — notwithstanding its lofty objective of updating the Penal Code — fails to unfetter us from Spanish colonialism.

The law retains the punishment of anyone “who shall print, publish, or distribute or cause to be printed, published, or distributed books, pamphlets, periodicals, or leaflets which do not bear the real printer’s name, or which are classified as anonymous.” This reads like a relic of Spanish colonialist laws — a searchlight to be cast by a repressive regime on secretive subversives.

Curiously, the amendment did not evolve the subject medium of communication to the digital format, presently the leading forum for fake news, trolling, cyberbullying, and clandestine Pastor meetings.

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While the provision has yet to be weaponized by this administration, constitutional law clothes anyone with standing to question laws that sweep unnecessarily into free speech. But lest we suffer imprisonment and fine, must we drop our nom de plume and attach a genuine name tag to our ideas before selling these in the marketplace? Or can we claim a constitutional mantle of anonymity?

The Bill of Rights provides basis for a right to anonymous speech. Section 4 reads: No law shall be passed abridging freedom of speech. Textually, the provision refers to “speech” and not “speakers,” implying that the same level of protection is accorded irrespective of who is doing the speaking. Hence, under the present Charter, the works in La Solidaridad will be protected whether published under Laong Laan or Jose Rizal.

Anonymous speech contributes to a robust exchange of ideas — a tenet of democracy. But the penal provision erects an entry barrier, discouraging nameless speakers from sharing unattributed ideas. The publisher might never share such ideas at all or will do so under pain of stiff penalties. The harm lies not in that the anonymous publisher potentially faces sanctions, but in society’s being deprived of the opportunity to appreciate valuable anonymous ideas.

While the state must curtail misconduct — like damaging one’s reputation, fomenting social discord, spreading false news — perpetrated under the hood of anonymity, society provides responses to such evils that fall short of outlawing anonymity. The Civil Code allows indemnification for damage to reputation, alongside the penal provisions on libel; journalists could provide training for spotting and addressing false news; one foreign newspaperman once proposed the creation of a government agency that will vet information and produce real-time analytics on their credibility. But the penal provision punishing anonymity is too big a boot for stamping out ants.

Moreover, the provision poses difficulty for effective law enforcement. For how does one subpoena a nameless printer? Against whom or whose place will a search warrant be directed?

Foremost among the justifications for constitutional protection, anonymity emboldens individuals to write critical and unpopular ideas. The name Eric Arthur Blair may not register, but he is the author behind “1984” and “Animal Farm” — George Orwell; during martial law, the light of critical journalism would have been snuffed out if not for guerrilla publishers who used pseudonyms; the propaganda movement might have failed if not for the works of Laong Laan, Plaridel, Jomapa, and other nameless publishers.

Anonymous publishers often release disruptive ideas. Perhaps out of fear of reprisal or disenfranchisement, nameless publishers launch their ideological attack from the shadows. They threaten ruling ideologies, whose hegemonic grip on people’s minds may be displaced by alternative ideas, and who will not hesitate to utilize the legal apparatus to silence dissent. For the foregoing reasons, even in this age — with RA 10951 punishing anonymity — Rizal will most probably still be a prisoner.

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Jose Maria Marella is a technical assistant in the Philippine Competition Commission. A summa cum laude graduate of the UP School of Economics, he is in his fourth year in the UP College of Law.

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TAGS: anonymous speech, bill of rights, Constitution, cyberbullying, fake news, freedom of the press, Inquirer Commentary, Josse Maria Marella, trolling
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