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Justice Antonio T. Carpio (Ret.)

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The pandemic in social media

There is a pandemic of hate speech and disinformation spreading in social media that is disrupting civility in the social and political discourse of democratic countries. The freedom of expression held sacred by democratic countries is being abused by internet platforms in their insatiable quest for profit. Internet platforms like Facebook allow the posting of hate speech and disinformation that go viral, generating traffic that attract commercial and political advertisers. In short, these internet platforms monetize hate speech and disinformation, whether libelous or not.

Nic Gabunada, the head of President Duterte’s social media group in the 2016 presidential elections, stated, “No one can control what people can say on social media.” Ashok Chandwaney, a Facebook software engineer, recently posted publicly his resignation letter, saying, “I can no longer stomach contributing to an organization that is profiting off hate in the US and globally.”

Section 230 of the US Communications Decency Act of 1996 provides, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In short, Section 230 classifies an internet platform like Facebook as neither a “publisher” nor a “speaker” for posts made by third persons on their platforms. As a result, only those who post libelous comments on internet platforms are liable but not the platform, its owners or employees. In the Philippines, internet platforms are still legally considered “publishers.”

Since US internet platforms are immune from suit in the US, they do not care who makes the posts and what posts they make. Worse, these internet platforms do not even care if those who post libelous comments are real or fictitious persons. The primary concern of these platforms is to increase internet traffic. The amount of internet traffic is the measure of how much these platforms can charge advertisers. Practically all libelous hate speech and disinformation posted on these platforms are made by fictitious persons. A sane person will naturally never disclose his real identity if he posts libelous comments since he can be held personally liable.

Internet platforms can very easily stop the abuse of their platforms. Internet platforms can require all those who use their platforms to submit at least two identification cards to prove their identities. Users can be required to upload scanned copies of their passports, driver’s license, SSS, GSIS, employee’s, voter’s or senior citizen’s identification cards. Any person aggrieved by any libelous post can ask the platform managers for the full name, address, email, or contact number of the user who made the post for legal redress.

Internet platforms can also require all users to reveal their real names in their accounts and posts. A person whose real identity is known will be more circumspect in what he posts, knowing that his reputation is at stake and he can be held to account if what he posts is libelous. A person who can hide behind a fictitious name can post whatever he wants to post, no matter how libelous, knowing that he cannot be held to account.

Internet platforms, however, are not expected to voluntarily require their users to submit proof of identity and to require the use of real names since these requirements will decrease substantially their platform’s internet traffic. The only recourse is to make these requirements mandatory by legislation. We know that authoritarian foreign powers have used fictitious accounts and users on internet platforms to destabilize the electoral processes of democratic countries. Chinese internet trolls now spread disinformation on the West Philippine Sea issue and they will be active in our 2022 elections.

Congress can enact a law compelling internet platforms, as well as online publications, to require all those who post comments on their platforms or publications to show proof of identity and to use real names. Failure to comply with these requirements can be penalized with triple damages in case the comments turn out to be libelous. Moreover, the use of fictitious names should give rise to a presumption of actual malice in case the libeled person is a public official or public figure, just like when the libeled person is a private individual. Such a law can bring back civility in the social and political discourse of the nation.

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Designed and developed by Sam Galope.