16 Righting Wrongs: Criminal Law Provisions in the Philippines related to National Security and their Impact on Human Rights Defenders The Human Rights Committee has clarified that truth should be a defense in defamation cases as should a public interest in the subject of the criticism. Defamation laws should not be applied to forms of expression that are not, of their nature, subject to verification. Laws should not punish or render unlawful those comments that are untrue yet have not been published with malice, particularly where they concern public figures.97 Calls have been made by the Human Rights Committee and UN special procedures to decriminalize defamation. Specifically, the Human Rights Committee stated that States Parties should consider decriminalization of defamation. If criminal law is applied, it should only be countenanced in the most serious cases and imprisonment is never an appropriate penalty.98 The Working Group on Arbitrary Detention echoed an earlier call made by the UN Special Rapporteur on freedom of expression and opinion that “jail sentences and disproportionate fines should totally be excluded for offences such as defamation.” It further emphasized that offences such as defamation should be dealt with under civil, not criminal, law.99 The UN Special Rapporteur on freedom of opinion and expression has clarified that civil penalties for defamation should not be so heavy as to cast a chilling effect on freedom of expression; instead they should be proportionate to the actual harm caused and the law should give preference to non-pecuniary remedies, including apology, rectification and clarification.100 D. Analysis of provisions in the light of international standards on the right to freedom of expression In examining Article 154 of RPC and the criminal libel provisions in Philippine law (both in the RPC and the Cybercrime Prevention Act), it is necessary to evaluate whether the provisions themselves and their implementation constitute lawful, necessary and proportionate limitations or restrictions to the right to freedom of expression within the framework of international human rights standards. a. Article 154 of the RPC (unlawful use of means of publication and unlawful utterances) Article 154 of RPC is both vague and overbroad and can inhibit the distribution of a very wide range of information. The criminalization of publication of “false news” which may “endanger the public order or cause damage to the interest or credit of the State” in Article 154(1) is so broad and imprecise that it may be used to punish and have a chilling effect on the publication of news based on confidential sources or information that is difficult to verify. It fails to adhere to the principle of legality and thus the requirement that a restriction on the right to freedom of expression be prescribed by law. Due to the broadness and imprecision of Article 154(1), it cannot be said to be necessary and proportionate for the protection of national security. Likewise, Article 154(2) of the RPC that criminalizes publications deemed to encourage disobedience of the law or duly constituted authorities risks repressing and penalizing people who engage in legitimate political discussions that question the correctness of certain criminal laws. Further, in criminalizing words that are considered to “justify” an illegal act, it outlaws the advocacy of even peaceful civil disobedience. It thus does not meet the requirements for permissible restrictions to the right to freedom of expression under Article 19 of the ICCPR. 97 Human Rights Committee, General Comment No. 34, UN Doc. CCPR/C/GC/34 (2011) at para. 47. 98 Human Rights Committee, General Comment No. 34, UN Doc. CCPR/C/GC/34, para. 47. 99 Mr. Abdul Kareem Nabil Suliman Amer v. Egypt, Working Group on Arbitrary Detention, Opinion No. 35/2008, U.N. Doc. A/ HRC/13/30/Add.1 at 146 (2010) para. 36. 100 Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc. A/ HRC/14/23 (2010) at para. 83.