Regulate social media under terror law? Drilon says it’s ‘illegal, unconsitutional’

Senator Franklin Drilon.
INQUIRER FILE PHOTO / GRIG C. MONTEGRANDE

MANILA, Philippines — Senate Minority Leader Franklin Drilon on Tuesday branded as “illegal” and “unconstitutional” the proposal of the new Armed Forces of the Philippines (AFP) chief to include the regulation of social media in the anti-terrorism law’s implementing rules and regulations (IRR).

“That will go beyond the real intent of the law and, therefore, it is illegal and unconstitutional,” Drilon, a former Justice secretary, said in a statement.

The senator’s statement comes after AFP Chief of Staff Lt. Gen. Gilbert Gapay said he wants the use of social media regulated under IRR of the Anti-Terrorism Act of 2020.

But Drilon, who is among the senators who voted in favor of the measure, said that an act of government which “chills expression” is subject to nullification or injunction from the courts as it would violate Section 3, Article III of the Constitution.

“Freedom of speech is a sacred and inviolable right of every human being. The Constitution guarantees freedom of speech,” he added.

He stressed that the IRR should not contradict the text of the law itself, citing previous Supreme Court cases which held that administrative or executive acts are invalid if they contravene the laws or the Constitution.

“No law can be amended by a mere administrative rule issued for its implementation,” Drilon said.

In an earlier press briefing, Gapay said he would propose provisions in the IRR of the anti-terrorism law that will regulate the usage of social media as it is the platform being used by the terrorists to radicalize and even plan terrorist acts.

“There is nothing in the law which would allow enforcers to regulate or control social media. A proper governmental purpose may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms,” Drilon, however, said.

“The threat of restraint, as opposed to actual restraint itself, may deter the exercise of the right to free expression almost as potently as the actual application of sanctions,” he added.

According to Drilon, there are existing ways to clamp down on terrorist propaganda posted on social media “without the need to regulate social media in general.”

Youtube videos and soundbites posted by terrorist groups communicating to a wider audience are “clearly identifiable and may be taken down,” the senator said.

If Gapay intends to go after personal communications between terrorists to pre-empt terrorist attacks, Drilon said the military chief can look to Section 16 under the anti-terror law which requires a law enforcement agent or military personnel to file an application with the Court of Appeals before surveillance activities may be conducted.

This provision, Drilon noted, applies to private communications, data, information, messages between members of judicially outlawed terrorist organizations, members of a designated person, or a person charged with or suspected of committing terrorism.

“Social media is an effective platform for our people to voice out their criticisms against the government.If we insist on implementing the law this way, which is clearly contrary to legislative intent, then we justify the fears aired by the people against the passage of the law,” the lawmaker said.

“Let us not be so imprudent as to prove to the people that they are right in their distrust of the law’s implementors,” he added.

JPV