Campos, Rosalinda: Electioneering through the Internet – Freedom of Expression and the Role of the Internet in the Exercise Thereof

SY 2008-2009, First Semester


I. ABSTRACT

The 1987 Philippine Constitution provides in its declaration of policies, Article II, Section 1, that “[t]he Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.”

Because of this, government officials are directly elected by the people to be their representatives in running the government. The election is the means by which the citizens or electorates choose an individual to hold formal office, the usual mechanism by which modern democracy fills offices in the legislature, in the executive, and in the local government.

As Montesquieu pointed out in Book II, Chapter 2 of “The Spirit of Laws,” “By the act of voting, the people operate in a sovereign (or ruling) capacity, acting as ‘masters’ to select their government’s ‘servants.’ The unique characteristic of democracies and republics is the recognition that the only legitimate source of power for a government ‘of the people, by the people, and for the people’ is the consent of the governed—the people themselves.”

The Administrative Code of the Philippines, in Section 23, Chapter 9 provides that “[p]ublic office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with the utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.”

Therefore, it is essential to ensure that the leaders being elected into various positions in the government have the abovementioned qualities. This can be determined by evaluating the means and methods employed by the politician to get into office. A politician who used unlawful and illegal means to promote himself and be elected cannot be said to have the abovementioned qualities.

Various modes and media are being used every election as tools for political campaign. These include media advertisements, posters and streamers, pamphlets bearing the qualifications and agenda for government of the politicians, and, the most recent tool, the Internet. According to statistics from Yahoo, there are fourteen million (14,000,000) Internet users as of April 2007, or 16% of the entire population of the Philippines. Because of this, it is of utmost importance that the use of the Internet as a tool for electioneering be assessed, evaluated, and verified whether the same conforms to the rules and regulations provided by law.

Republic Act No. 8792 or the Electronic Commerce Act of 2000 provides as follows:

Section 2. Declaration of Policy. – The State recognizes the vital role of information and communications technology (ICT) in nation-building; the need to create an information-friendly environment which supports and ensures the availability, diversity and affordability of ICT products and services; the primary responsibility of the private sector in contributing investments and services in telecommunications and information technology; the need to develop, with appropriate training programs and institutional policy changes, human resources for the information technology age, a labor force skilled in the use of ICT and a population capable of operating and utilizing electronic appliances and computers; its obligation to facilitate the transfer and promotion of adaptation technology, to ensure network security, connectivity and neutrality of technology for the national benefit; and the need to marshal, organize and deploy national information infrastructures, comprising in both telecommunications network and strategic information services, including their interconnection to the global information networks, with the necessary and appropriate legal, financial, diplomatic and technical framework, systems and facilities.

This paper will thus try to reconcile the basic right of the people to information, the right of the electioneers to freedom of expression, and the duty of the state to regulate the manifestations of such rights. It will focus on the Internet as a tool for electioneering and the laws and/or legislations allowing, regulating, or prohibiting the same, or even the lack of such laws and/or legislations. It will attempt to reconcile the prevalent use of the Internet for campaign purposes with the rules and regulations provided in the Omnibus Election Code of the Philippines in relation to valid electioneering. This paper will discuss the advantages and disadvantages of being an “Internet politician” on the side of the candidate as well as on the side of the electorates; the constitutionality of using the Internet as a tool in electioneering; and the use of the Internet in other states concerning the same topic.

Lastly, recommendations shall be made, as needed.

II. INTRODUCTION

In ordinary everyday life, a digital native, or one who depends on technology for any action that he/she makes, as the definition provides, will most likely depend on technology for any decision he/she makes, even such things as mundane as shopping or for the purchase of certain items. If he/she needs and item and is looking for it, it will be customary for him/her to go online, connect to the Internet, and use the various search browsers such as Google, Yahoo, MSN, and so forth. The Internet has been existing for more that 40 years already. However, just during the last few years, the use of the Internet not just for academic and research purposes but also for everyday, ordinary activities became so prevalent that it seems to have become the answer to any question or concern for anybody.

Going back to the idea of integrating technology and the Internet in everyday life, a shopper who exercises diligence in his/her purchasing activities would commonly search for the product first through the Internet, read the descriptions, check the specifications, and look for the best bargain he/she can get without compromising the quality of the product. At times, the process does not end with just getting the information from the Internet. It is becoming a common practice to discuss and agree on a transaction of sale online, which is consummated through the delivery of the item at the doorstep of the buyer–and there, the transaction is consummated even without the buyer and the seller meeting face to face. Truly, certain serious and knowledgeable decisions can be and are made in one sitting only and in front of a computer monitor.

This practice does not only extend as to daily activities. Countless times, it has been proven that the Internet is a very powerful and potent tool in any aspect of human existence. May it be civil, political, social, or ordinary facet of a person’s existence, the power of the Internet is without bounds. Concerns are aired, help is sought, support is asked, ideas are made known, names are built or destroyed through the Internet.

During the 2007 elections, the bid of certain candidates for a position became successful through the utilization of the Internet to promote their political agenda. For one, Senator Antonio Trillanes’ astonishing success may be attributed largely to the tremendous and overwhelming support that he got through the Web site designed to solicit support for his candidacy. The same can also be told about Senators Francis Pangilinan, Chiz Escudero, and others, who are also known for being active users of the Internet. Janette Toral wrote in her article published in Digit@l, a publication of the Internet and Society Program of the University of the Philippines Law Center, that the Internet played a prominent role for the abovementioned “senatoriables,” who may have obtained the help of bloggers and Internet users. [1]

On the other hand, some politicians did not have the same luck of being favored by Internet users. Reputations were smeared, many were lambasted and became the victim of unsavory remarks. Some candidates for national positions had their profile maligned and distorted online. For instance, some entries in the Wikipedia were take down because they were changed or edited to make fun of the candidates or to insert malicious, unfavorable descriptions and comments about them.

At present, with the 2010 elections being just more than a year away, once again, the Internet is being resorted to by politicians, lobbyists, advocates, concerned citizens, and ordinary persons alike to facilitate their respective agenda. Numerous write-ups are being published online, blogs are being created, surveys are “conducted,” Web sites are designed to promote certain candidates. The power of the Internet is, more than ever, being recognized and exploited to the fullest by people who express desire to be in governmental positions.

III THE CONCEPT OF ELECTIONEERING

A. Laws on Valid Electioneering in the Philippines

Electioneering is defined by the Merriam-Webster’s 11th Collegiate Dictionary as taking “part in an election.” Specifically, it is an act of providing support and working for the election of a candidate. It includes the participation or intervention in political activities, for instance, campaign, on behalf of or against a candidate for a public position.[2]

Within the context of the Omnibus Election Code of the Philippines, [3] specifically Section 79 of the said law, “[t]he term “election campaign” or “partisan political activity” refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

Thus, electioneering is committed mainly through the conduct of political campaigns. To regulate the conduct of political campaigns, the Omnibus Election Code provides in Section 80 as follows:

Sec. 80. Election campaign or partisan political activity outside campaign period. – It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period.

Sec. 82. Lawful election propaganda. – Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission’s authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted.

However, as other freedoms granted by law, the right to freedom oneself to be voted by the people is not absolute. It is subject to limitations imposed by the state in the exercise of its police power.

In the case of Arsenio Gonzales and Felicisimo R. Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969, in the matter of petition for declaratory relief regarding the constitutionality of Republic Act 4880, the high court was faced with the reconciliation between the freedom of belief and expression and that of protecting the right of suffrage through the prohibition of early nomination of candidates and limitation for the period of election campaign or partisan political activity. [4]

The court in the same case provided that the broadest scope and widest latitude to the freedom of expression should be recognized. [5] It further provided, quoting Emerson, that “the theory of freedom of expression involves more than a technique for arriving at better social judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of new society in which man’s mind was free, his fate determined by his own powers of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant.” [6]

In the case of ABS-CBN Broadcasting Corporation vs. Commission on Elections, it was stated that “the freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and political decision-making, and of maintaining the
balance between stability and change. It represents a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open. It means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any of public consequence.[7]

In conformity with what is provided in the case of Arsenio Gonzales and Felicisimo R. Cabigao vs. Comelec, it was also emphasized herein that the freedom of expression “could not remain unfettered and unrestrained at all times and under all circumstances. They are not immune to regulation by the State in the exercise of its police power. While the liberty to think is absolute, the power to express such thought in words and deeds has limitations.” [8]

However, the rights and reasons mentioned in the preceding section why such rights should be upheld cannot guarantee an absolutely free election.

Republic Act 9006, or the Fair Election Act, provides the following as lawful election propaganda: [9]

Section 3. Lawful Election Propaganda. Election propaganda, whether on television, cable television, radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties, observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC).

Among the most salient features of this said law is the provision on equal access to media and space, as follows:

Section 6. Equal Access to Media Time and Space. — All registered parties and bona fide candidates shall have equal access to media time and space.
This is aimed at giving the candidates an equal opportunity for the use of media as a vehicle for their campaign. Thus, because of such restrictions, candidates look for another medium by which to promote themselves. Among these media is the Internet, which has become very well known through the years.

In line with the objective of providing equal opportunity to all candidates, the questioned provision is intended to act as an equalizer between the rich and poor candidates. As it is, the moneyed candidate has the funds to engage in a myriad of campaign activities. To allow the rich candidates to have free reign over the use of media for their campaign would result in an unfair advantage over the poor candidates who have no funds or have meager funds to secure print space and air time, and yet, they may be equally qualified and deserving candidates.

III. THE INTERNET AS A TOOL IN ELECTIONEERING

Is Internet a useful tool or a destructive one?

Various modes and media are being used every election as tools for political campaign. These include media advertisements, posters and streamers, pamphlets bearing the qualifications and agenda for government of the politicians, and, the most recent tool, the Internet. According to statistics from Yahoo, there are fourteen million (14,000,000) Internet users as of April 2007, or 16% of the entire population of the Philippines. Because of this, it is of utmost importance that the use of the Internet as a tool for electioneering be assessed, evaluated, and verified whether the same conforms to the rules and regulations provided by law.

The Internet is defined by the Merriam-Webster’s 11th Collegiate Dictionary as “an electronic communications network that connects computer networks and organizational computer facilities around the world.” [10] Electioneering through the Internet is therefore defined as taking part in a political activity, specifically for the election of a candidate, through the use of electronic communications network such as the Internet.

The 1987 Philippine Constitution provides in Article IX(C) as follows: [11]

Sec. 4. The Commission [on Elections] may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefore, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

Is the Internet considered as media of communication or information making it susceptible to regulation by the state through the Comelec?

The use of the Internet for electioneering or political campaign has many advantages. Inasmuch as candidates are given only so much air time to use the mass media to promote themselves, the opportunity to know them or discuss their capabilities is likewise limited. Oftentimes, the air time is used only for campaign jingles and candidates’ plea for support. Rarely that it becomes a venue to specify their political agenda. Therefore, the use of the Internet serves to augment the insufficiency of the mass media. Though the Internet, a more in-depth discussion may be had concerning the qualifications and reputation of the candidates.

Also, the use of the Internet is much less expensive than that of the mass media or the printing and publication of propaganda materials. In the latter also, the act is unilateral in that only the candidates are given the chance to speak out through their media of campaign. No interaction ensues between the candidates and the electorates except for rallies and meetings, in which interaction is likewise limited. The Internet makes possible the conduct of political campaign for free.

For those whose lifestyle does not permit them to have the luxury of watching televisions and reading the newspapers, the Internet is resorted to for vital information in connection with the candidates and the election per se. Now, a person only has to click on to various Web sites to be able to access a vast amount of information regarding a certain topic.

On the other hand, the use of the Internet as medium for political activities has also its disadvantages. Because it is free, the use of the Internet through the years has become almost incapable of regulation. Anybody can make use of the Internet to advance his/her interests. Some candidates may grab the opportunity to displace their political opponents through massive character assassination through the Internet. During the 2007 elections, Wikipedia has been the medium of many Internet users in destroying the credibility of candidates or simply make fun of them. The administrator for Wikipedia cannot do anything except to take out the “polluted” entries.

In the Internet, anything can be written on any topic or about any person, thus the use of sound judgment is a vital requirement when reading articles and write-ups or blogs about a person.

Also, although the Internet will give the electorates a better chance to know the future candidates, there is no guarantee that the voters will thus choose better leaders. Thus, despite the use of technology to ensure that the voters are well informed, it might be that the results would still be the same, crooks would still be elected and their promises for a better Philippines will disappear like a puff of smoke as soon as they are sworn into office.

A. Forms of Electioneering Through the Internet

The use of the Internet as a vehicle to impart information, particularly those pertaining to elections, the candidates, their political agenda, their qualifications, their accomplishments, and other pertinent data takes many forms. Among these are online press releases, news items, forums, the candidates’ or political party’s Web site, political blogging, and many others.

Being 1 year and 6 months away from the next presidential elections, the Internet is beginning to be used actively to advance the interests of people and various organizations. For one, those who are already making known to the masses their interest to run for an office are beginning to make use of different forms of propaganda through the Internet. One of them is currently conducting a survey to determine his chances of winning, another is using his Web site to invite online users to sign up and support his future bid, whereas still others have posted discussions manifesting their interest to run.

In the article by Janette Toral entitled “Renewing interest in 2010 elections through blogs, she observed that “While there are no clear players to date, blogs and bloggers have a unique opportunity this year to serve as a medium where Filipino voters can share insights and important issues.” She thus encouraged the start of discussions to better prepare in analyzing the candidates and their platform. She also emphasized the need to use the power of technology. According to the author, bloggers from different parts of the country should unite to discuss political concerns.[12]

Political blogs are already on the making to monitor and discuss the incoming elections on 2010. In the Philippine Election Journal, a discussion of how bloggers can effectively participate during the 2010 elections prompted the submission a draft of a paper to the University of the Philippines College of Law Internet Society Program for project consideration, aimed to encourage interest groups to join and collaborate. The project is entitled “Blogging and 2010 Elections Program.” It aims to “discuss issues of importance that will assist voters in deciding on who to vote for by 2010, get in-depth 2010 election coverage on both national and local level, and have a facility where Filipinos can discuss, compare party platform, and go beyond motherhood statements.”[13]

In other countries as well, the use of the Internet is more rampant, dynamic, and widespread in the field of politics. In an article entitled “Politicians who miss net boat could miss vote” published by Silicon Republican, Ireland’s Technology News Service, it was stated that “Irish politicians who fail to embrace new media such as the internet, email, blogging and even social networking sites like YouTube are in danger of losing out on a vast number of younger people in their twenties and thirties who feel passionate about core issues but are stuck in traffic or too hard at work to be listened to.” [14]

According to the same article, the election on year 2007 will be remembered because it is the year that the candidates made use of the Internet to reach out to their electorates. Some had utilized blogging as a form of campaign, whereas others even used the YouTube by uploading videos therein. [15]

Meanwhile, it is a belief that the outcome of the recent Malaysian election was tremendously influenced by the Internet. Information obtained through the blogs and the Internet as a whole made possible for the voters to come up with an informed decision.

V. CONCLUSIONS

The right of suffrage is a very essential political right of a citizen. Because of this, as stated above, all steps should be taken to safeguard this right in that its exercise is not restricted but still within the bounds of law. The right of suffrage can only be exercised with utmost validity if the persons exercising the same are truly informed of all aspects of such right. The electorates can only make the best decisions if presented with all necessary information about the person they are voting for.

The Internet is one medium that can cater to such need. For one, many users of the Internet are not motivated by gain, thus honesty can at least be guaranteed. Unlike the mass media wherein every second of airing a candidate’s political propaganda is paid, the Internet is basically free, hence both the rich and the poor can make use of this tool.

On the other hand, the Internet can also be used as a vehicle to promote the honest conduct of election. In conformity with various political blogs, information on the evils of vote buying and other election offenses may be disseminated through the Internet. Surely, a substantial number of people can be influenced when informed.

VI. RECOMMENDATIONS

Through the years, the Internet has become a very powerful tool in all aspects of everyday life. In the political arena, it has shown immense influence to an already growing number of people. The exercise of the freedom of expression in whatever form and vehicle should be upheld. The use of the Internet to inform and advocate is not unlawful per se. It only becomes unlawful when the use of the Internet is abused by people.

Thus, although it is the position of this paper that the use of the Internet should be upheld and even promoted, as any other forms of right, this is not absolute. A regulation should thus be formulated by the government through the Comelec to make sure that the Internet is not being used to taint the reputation of other people.

One means of regulation is the enactment of a law providing that service providers should strictly impose regulations on the lawful use of the Internet. They should be under obligation to ensure that Internet users behave and conduct themselves according the terms and conditions required by such service provider. They should be made accountable for whatever transgression of free speech that Internet users commit if the same is within their knowledge and control. This will prompt the service providers to be more stringent in the implementation of the terms and conditions of the use of such service provider.

On account to the changing times, the laws and regulations should be designed in such a way that they can cope with the fast and ever-changing times, specifically in the field of technology. The intent of the law in promulgating the limitations and prohibitions as stated above should not be defeated due to the advancement of technology.

True that the Internet is a powerful tool, but like any other power, it has to be curbed to make it in consonance with the other rights.


Endnotes

[1] The Law and ICT. http://lawandict.blogspot.com/2008/09/role-of-internet-in-2010-election_18.html. Accessed October 6, 2008.

[2] Merriam-Webster’s 11th Collegiate Dictionary. Accessed October 20, 2008.

[3] Omnibus Election Code or Batas Pambansa Blg. 881. Enacted December 3, 1985.

[4] Arsenio Gonzales and Felicisimo R. Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969.

[5] Ibid.

[6] Emerson. Towards a General Theory of the First Amendment. 72 Yale Law Journal. 877 (1963).

[7] ABS-CBN Broadcasting Corporation vs. Commission on Elections. G.R. No. 133486, January 28, 2000.

[8] Arsenio Gonzales and Felicisimo R. Cabigao vs. Comelec.

[9] Republic Act 9006, or the Fair Election Act. February 12, 2001.

[10] Merriam-Webster’s 11th Collegiate Dictionary.

[11] 1987 Philippine Constitution, Section IX(C).

[12] Toral, Janette. Philippine Election Journal, Long-term Monitoring of Philippine Elections Development. http://www.2010-election.com/. Accessed October 20, 2008.

[13] Philippine Election Journal. http://www.influentialblogger.net/2008/01/important-issues-on-philippines-2010.html. Accessed October 20, 2008.

[14] Politicians who miss net boat could miss vote” published by Silicon Republican, Ireland’s Technology News Service. http://blogcampaigning.com/2007/04/electioneering-via-internet-increase-in-votes/. Accessed October 20, 2008.

[15] Ibid.

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