Cancellation of the Rappler-Comelec fact check deal for violating freedom of expression

MANILA, Philippines — In another novel plea, Attorney General Jose Calida went before the Supreme Court on Monday, March 7, pleading to overturn Rappler’s fact-checking agreement with the Electoral Commission (Comelec), in which he said fact-checking violates freedom of expression.

“Such authority granted by Comelec in favor of Rappler clearly constitutes a prior restriction on freedom of speech and expression,” the Office of the Solicitor General (OSG) press release reads. Rappler did not receive a copy of the brief from the OSG.

“Rappler’s fact-checking under the Memorandum of Agreement also violates the constitutional prohibition on prior withholding… The issue of fact-checking has become very contentious as to what may result [in] Monopoly of truths,” Calida said in his letter to Comelec asking for an injunction against the deal.

Calida had previously written to Comelec that he would unilaterally terminate the agreement with Rappler by Friday March 4 or he would go to the Supreme Court by March 7. Calida kept his promise.

PREVIOUS RETENTION? Staff from the Attorney General’s office, instead of the Attorney General himself, appear before the Supreme Court on March 7 to ask the Supreme Court to overturn the MOA between the Comelec and Rappler for violating freedom of expression. Photo by Lian Buan

Calida’s plea makes novel use of the constitutional principle of prior restraint, which generally protects free speech from government restrictions.

For example, when the National Telecommunications Commission (NTC) issued a statement warning the media not to release the Hello Garci tapes during the Arroyo election scandal, the Supreme Court ruled that the warning constituted an unconstitutional prior restraint.

Pre-blocking generally means banning content before it is published or broadcast. Our laws and jurisprudence say that freedom of expression must be protected so tightly that the government can only regulate it when said content poses a clear and present danger — for example, saying at a rally that people set off a bomb should.

Here, Calida tells the Supreme Court that if Rappler or anyone else is fact-checking, they will ban the posting of fake content. It’s like saying: If Rappler fact-checks, the fake news peddler is deprived of the right to speak out. This is unconstitutional prior restraint and uncharted territory for Calida.

With massive disinformation networks threatening democracies around the world, the mechanism for fact-checking by the media or anyone else in constitutional court proceedings has not been fully exploited. Calida has found a way to turn the press’ favorite defense against itself.

Constitutional law professor Dan Gatmaytan told Rappler Monday, March 7, that the claim that the Comelec-Rappler MOA is unconstitutional because it is a form of “prior restraint” is confusing at best.

“According to the Supreme Court, “prior restraint” refers to regulatory restrictions on the press or other expression prior to actual publication or distribution. In general, this means freedom from state censorship of publications, regardless of the form of censorship and regardless of whether it is exercised by the executive, legislative or judicial branch of government,” Gatmaytan said.

He added: “Any law or official that requires authorization prior to publication commits a violation of the constitutional right. The MOA does not restrict the press in any way.”

Fact-checking consortium Tsek.PH has found that presidential candidate Ferdinand “Bongbong” Marcos Jr. has been the main beneficiary of fake news since the election season. Calida campaigned for Marcos in 2016.

Calida’s first public statement against the Rappler-Comelec deal was made on the same day that the Marcos camp also drew attention to it.

This isn’t the first time the two have acted in sync, as on the same day they also filed motions aimed at stopping Deputy Judge Marvic Leonen from Marcos’ election protest against Vice President Leni Robredo – a case Calida helped Marcos with, too if it was so, the Office of the Solicitor General (OSG) held a different position than Comelec, its legal client.

Calida was able to use the law creatively to silence political dissidents and even oust a chief justice outside of the constitution-preferred impeachment process. Calida’s shenanigans have been labeled a weapon of law, but he has been largely upheld by a Supreme Court staffed with appointments from his boss, President Rodrigo Duterte.

Calida also tried to shut down news giant ABS-CBN by quo warranto, but the Supreme Court acted passively in ABS-CBN cases, letting them become contentious. It meant the House of Representatives had unlimited power to kill ABS-CBN’s franchise and take them out of the open channel until now.

Rappler previously went to the Supreme Court to challenge the constitutionality of President Rodrigo Duterte’s reporting ban on Rappler journalists, but it remains pending before the Supreme Court after nearly three years.

Other arguments

Rappler’s agreement with Comelec includes three main aspects:

  1. Be a partner in fact-checking, including alerting Comelec of incorrect election information. It involves a consortium of fact-checkers made up of 13 other newsgroups and over 100 civil society organizations.
  2. Integrate the Comelec district finder on the Rappler website
  3. Use Move.PH, Rappler’s civic engagement arm, to share election FAQs

Calida’s argument is largely that Rappler has no legal entity.

Citing the Code of Conduct, Calida said Comelec, as a government body, is now trapped in the agreement and may be implicated in future lawsuits against Rappler.

“The Commission can be prevented from denying Rappler’s corporate existence in a lawsuit against Rappler. In such a case, all beneficiaries of the transaction made by Rappler and Comelec can be held liable for the contract, despite being aware of the legal defects,” says Calida.

The Securities and Exchange Commission revoked Rappler’s license in 2018 at Calida’s request, ruling that foreign investments through American philanthropist Pierre Omidyar’s Philippine Depositary Receipts (PDRs) amounted to “some foreign control.” Media companies should be 100% Filipino owned. However, Rappler is not the only media company that has used PDRs as financial investment vehicles.

Later in 2018, the Court of Appeals issued a decision agreeing with the SEC that Omidyar’s PDRs amounted to foreign control.

But as the SEC itself has long acknowledged, its decision is not final and enforceable until a court confirms it. The case remains pending with the CA.

Didn’t the CA already decide that in 2018? What Calida always omits is that the core of the CA decision was to refer the case back to the SEC, urging them to give Rappler the grace period to correct his mistake, which is permissible under the company code.

In the same decision, the Court of Appeal said that when Omidyar donated the PDRs to Rappler’s Filipino managers, “the problem appears to have been permanently eliminated.”

The SEC, however, did not budge. It has triggered a new round of deliberations by the competent authority.

Comelec spokesman James Jimenez previously said that while the court would resolve the issue, the commission saw no reason why it should not recognize Rappler as a legitimate news outlet.

Calida also said Comelec gave Rappler access to the confidential precinct finder database without authorization from the National Privacy Commission (NPC). That’s wrong.

The agreement only allows Rappler to embed the Comelec district finder. It’s like embedding a YouTube video or a Twitter post on a website – the content is viewable on that website without accessing any of the other party’s data.

Calida also said the partnership for MovePH to disseminate election FAQs was too broad as the agreement “lacks clear qualifications of the individuals that will make up MovePH to ensure that those individuals are impartial and non-partisan.” .

Even Rappler’s election microsite has been criticized by Calida for allegedly not including a provision in the deal stating that Comelec will review what Rappler will post. “This grants Rappler complete discretion over what information it may release about a candidate,” Calida said.

Calida did not show up Monday, nor did he send his attorneys to the case. Instead, he sent two administrative employees who could neither answer questions nor give a copy of the petition. – Rappler.com

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