The Online Regulation Series | The Philippines

You can access the ORS Handbook here

The Philippines is one of the countries worst affected by terrorism in the world, ranking as the ninth most affected country in the 2019 Global Terrorist Index. The country has long been investing in its counterterrorism apparatus and there have been some signs that the Philippines might introduce legislation that targets online terrorist content. This is to be understood in the context of a growing internet penetration rate and increased use of social media (+8.6% in 2019-2020), coupled with growing concerns for how terrorists use the internet in the country.

Philippines’ regulatory framework:

• Anti-Terrorism Act (ATA), July 2020, providing the legal framework for the country’s counterterrorism response.




• Cybercrime Prevention Act (CPA), September 2012, the country’s regulatory framework for the use of information and communication technologies.

Key takeaways for tech platforms:  

• To date, tech companies have been exempted from liability for user-generated content posted on their platforms.




• However, recent suggestions to expand the Anti-terrorism Act of 2020 to allow for the regulation of social media indicate that making tech platforms liable for online terrorist content is not absent from the public debate in the Philippines.

Counterterrorism legislation and incitement to terrorism

Whilst the South-East Asian country does not directly regulate online content, the recent Anti-Terrorism Act provides a basis for the criminalisation of terrorist content online via its penalisation of terrorist incitement. The ATA was signed into law in July 2020, replacing Philippines’ previous counterterrorism legislation (Human Security Act of 2007). The ATA distinguishes between various types of terrorism, such as threats (any person threatening to commit a terrorist act), recruitment, incitement, and material support. Violations are tried in specific courts designated by the Supreme Court. The ATA also establishes an Anti-Terrorism Council, to be appointed directly by the President, overseeing terrorist investigations and with the power to “designate who is a “terrorist’” and authorise warrantless arrests.

Under the ATA, incitement of terrorism, “by mean of speeches, proclamations, writings, emblems, banners or other representations tending to the same end” is punished by life imprisonment without parole. The broad language used in the legislation allows for the penalisation of online material deemed to be inciting terrorism.

The legislation has been criticised by civil society and human rights groups – including Amnesty International and the Committee to Project Journalists – with critics warning that the ATA could be used to target government critics and that it threatens certain rights protected by the constitution. The main criticism concerns the criminalisation of incitement to terrorism, with critics concerned by the lack of clear definition of incitement which may provide “open-ended basis for prosecuting speech” as the Anti-Terrorism Council would be the unique arbiter of what constitutes a serious risk. The potential unconstitutionality of the law led to numerous petitions being signed to declare it unconstitutional. ^[1]

Opening an avenue for the criminalisation of terrorist use of the internet?

Even though the ATA does not explicitly address the issue of terrorist use of the internet, members of the Philippines’ armed forces have raised the possibility of extending the bill to cover regulation of social media. Such actors argue that this expansion could help counter “preparatory acts” of terrorism, for example by facilitating the traceability of content that can be used for radicalisation or financing purposes. For now, the extension of the ATA to social media remains a suggestion. Former justice secretary Franklin Drillon has said that such an expansion would be in violation of the country’s Bill of Rights, which enshrines freedom of information, whereas this law would impose regulation on service providers and social media platforms which might limit this.

Misuse of ICT

The legislation on Cybercrime Prevention acts as a framework for the use of information and communications technology (ICT) and lays out what are considered to be misuses and illegal access to ICT in the country, with individuals using online platforms being legally liable for content posted rather than tech companies. The legislation prohibits the use of ICT for any crimes penalised by the Philippines penal code and prohibits online defamatory content (known as “libel” content).

The prohibition of libel content online has led civil society groups to raise concerns about the law’s potential impact on freedom of information and freedom of expression, in particular due to the lack of a precise definition of what constitutes online defamation. Furthermore, as highlighted by the Electronic Frontier Foundation, libel in the Philippines is not adjudicated on what the author meant, but rather adjudication is based on the meaning the words used could have. This leaves substantial room for interpretation, and therefore presents some risk for freedom of expression, as users might be tempted to self-censor to avoid potential judicial consequences.

A Magna Carta for Internet Freedom

One of the most noteworthy aspects of online regulation in the Philippines might not be the actual legislations, but rather the civic initiatives that surrounded them. Indeed, the drafting of the CPA led a group of citizens (or netizens, as they called themselves) to propose a Magna Carta for Philippine Internet Freedom (MCPIF). The Magna Carta was the product of a crowdsourcing effort from citizens concerned with digital rights. The MCPIF was drafted with participation from individuals with different backgrounds – including IT specialists, bloggers, human rights advocates, lawyers, and academics – using online platforms to share their ideas and proposition for the enshrinement of digital rights in the Philippines.

Supported by Senator Miriam Defensor Santiago, the Magna Carta was created as a legislative response to the CPA that would ensure the protection of “the rights and freedoms of Filipinos in cyberspace”, as well as provide definitions for certain cybercrimes. In particular, the MCPIF was drafted so as to protect netizens from illegal searches and prevent the blocking or restriction of a website with appropriate legal due process. Whilst the MCPIF did not succeed in replacing the CPA, the crowdsourcing effort behind it led to the creation of Democracy.net.ph, an “Internet and ICT Rights Advocacy Organization” that is still active today.

[1] 25  petitions as of 6 August 2020.
At the time of writing, the signatories are waiting to be heard in an open argument by the Supreme Court in September 2020.

Resources:

Al-Jazeera (2020), “Philippine court asked to annul Duterte-backed anti-terror law”

Amnesty International (2020), “Philippines: Dangerous anti-terror law yet another setback for human rights”

Aspinwall Nick (2020), “After Signing Anti-Terrorism Law, Duterte Names His Targets”, Foreign Policy

Human Rights Watch (2020), “Philippines: New Anti-Terrorism Act Endangers Rights”

Institute for Economics & Peace (2019), Global Terrorism Index 2019: Measuring the Impact of Terrorism

Kemp Simon (2020), “Digital 2020: The Philippines”, DataReportal

Khaliq Riyaz (2020), “Philippines: Anti-terror act faces top court challenges”, Anadalou Agency

National Union of the Journalist of Philippines (2020), “No to criminalization of free speech”.

Pazzibugan Dona Z. (2020), “SC sets hearings on anti-terrorism law in September”, Inquirer.net

The Propinoy Project (2014), “Why there should be a Magna Carta For Philippine Internet Freedom”

Ramos Christia M. (2020), “Parlade defends social media regulation proposal”, Inquirer.net

Ramos Marlon (2020), “AFP Dials down Facebook ‘regulation’”, Inquirer.net

Reporters Without Borders (2012, updated in 2016), “Cybercrime law's threat to freedom of information”

Sen. Santiago Miriam D. (2012), “Magna Carta For Internet Freedom To Replace Anti-Cybercrime Law” Senate of the Philippines

Yap Ben Dominic R., Protacio Jesus Paolo U., Lopez Jess Raymund M., and Lazaro Vladi Miguel S., (2020), “Anti-Terrorism Act signed into law”, Lexology.com

York Jillian (2012), “Philippines' New Cybercrime Prevention Act Troubling for Free Expression”, Electronic Frontier Foundation