The past election season saw a social media revolution. More than ever, the Internet has become a vehicle for expressing a myriad of opinions that sought to campaign for and protect a particular candidate, or to blacken his image or express dissent. Increasingly becoming one of the main sources of information, social media has changed the playing field. There, candidates and their supporters were able to get advertisement and highlight platforms, at little to no cost.

While the right to express opinions in social media is guaranteed by the freedom of speech enshrined in our Constitution, it is not absolute. Such prohibition is that imposed on civil service employees against partisan political activities.

With the potent role of social media during the elections, its use by government officials raises questions on permissible acts of expressing one’s views, and prohibited partisan activities.

Prohibition on partisan politics

The prohibition on partisan political campaigning stems from Section 2.4 of Article IX-B of the Constitution, which states, “No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.” This same prohibition is echoed in both Republic Act No. 7160 or the Local Government Code of 1991, and the Omnibus Election Code (OEC).

Engaging directly or indirectly in partisan political activities by members of the Civil Service could cause dismissal from service for the second offense, and a suspension of one month and one day to six months for the first offense. [1] Section 261(i) of the Omnibus Election Code also penalizes electioneering and partisan political activities by government employees with imprisonment of not less than one year, but not more than six years and shall not be subject to probation.

These activities, when done online, could also be considered a cybercrime, in light of Section 6 and 7 of Republic Act 11075 or the Cybercrime Prevention Act of 2012. Section 6 of the Act provides that the penalty shall be one degree higher than that provided for by the special law.

Liking, sharing, commenting

An analysis of whether a specific act falls under the prohibition necessitates a look at what would be considered as “partisan political activity.” Sec. 79(b), Article X of the OEC defines this as an “act designed to promote the election or defeat of a particular candidate or candidates to a public office.” Any activity that promotes or disparages a candidate in the context of the electoral race such as making announcements or commentaries for or against the election of any candidate, publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate, and directly or indirectly soliciting votes, pledges or support for or against a candidate, will fall under this prohibition. [2]

Take the case of posting commentaries on the merits and demerits of voting for a particular candidate in one’s Facebook account. This would fall under COMELEC Resolution No. 10049 which prohibits “making speeches, announcements, or commentaries… for or against the election of any candidate or party for public office,” as well as “publishing, displaying, or distributing campaign literature, or materials designed to support or oppose the election of any candidate or party.” [3]

Under this definition, government employees are prohibited from changing their profile pictures in support a particular candidate. When one says in their profile picture that candidate X is their President or Vice-President because he/she advocates certain policies that one believes should be prioritized by the next elected leader, they are, in effect, calling on other people to subscribe to the same view and support candidate X.

On the other hand, posting pictures with political candidates will not likely count as a partisan political activity, especially if one strategically posted pictures with all the other contenders.

However, “liking,” “commenting,” “sharing,” “re-posting” or “following” a candidate’s or party’s account, according to the Civil Service Commission’s Advisory on Electioneering and Partisan Political Activity are excluded from the coverage of electioneering or partisan political activity, unless these are resorted as a means to solicit support for or against a candidate or party during the campaign period [4].

The view that “liking,” “sharing,” or “commenting,” does not open up for liability for partisan political activity is consistent with the doctrine laid down by the Court in Disini. In Disini v. SOJ, the High Court ruled that there is no liability for libel for merely reacting to a post because there is no imputation or republication. Explaining the nature of these “likes,” “comments,” and “retweets,” the Supreme Court said, “Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting.” [5]

It may seem simple, but when would “liking,” “commenting,” “sharing,” or “reposting” be considered as a “means to solicit support or against a candidate?” Recent events on Facebook saw a trend on posts with instructions like “Like” if you support Candidate X, “Comment” if you support Candidate Y, or “Share” if you support Candidate Z. Under these definitions, this could be construed as partisan political activity as it seeks to solicit support for a candidate.

These examples prove that the law is tricky when it comes to distinguishing mere expression of views and soliciting support for candidates and partisan political activity. Statements of praise or testimonials favoring a candidate have the same effect of urging other people to support the candidates who espouse the same set of values.

Setting accounts to “Private”

Even if the account is set to “Private,” the government employee who has engaged in these acts does not escape liability. In the case of Vivares v. STC, the Supreme Court stressed that Facebook pages are necessarily public spaces, because setting a post’s or profile detail’s privacy to “Friends” is no assurance that it can no longer be viewed by another user who is not “friends” with the source of the content. The Court further explained that a profile, or even a post, with visibility set at “Friends Only” cannot easily, more so automatically, be said to be “very private…” [6]

If our present laws consider our social media spaces as public, it follows then that prosecuting bodies need not obtain a warrant to obtain evidence for possible prosecutions of these government officials.

Yet there is still room to argue that our social media accounts are private spaces outside the ambit of the prohibition. Vivares also recognizes a person’s privacy right in the digital age by saying that to deny a person such informational privacy right that accompanies his choice of setting his post to “Private,” “Only Me” or “Friends Only,” would make these privacy tools a feckless exercise. Such position, if adopted, will not only strip these privacy tools of their function but it would also disregard the very intention of the user to keep said photo or information within the confines of his or her private space. [7]

This view is bolstered by the ruling in Adiong v. COMELEC [8], where the Court struck down as unconstitutional a COMELEC Resolution since the restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen’s private property, a privately-owned vehicle. This ruling upheld the right of a citizen to use his/her personal property in the exercise of his political right to campaign.

Policy of neutrality

It may seem from a reading of the earlier provisions that government employees are urged to be absolutely neutral or silent. However, the Administrative Code of 1987 also recognizes the exercise of free speech of these employees during elections. Section 55 states, “Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports.” [9]

Even armed with feasible defenses, the fact remains that engaging in partisan political activities by government officials carry heavy sanctions. The general guideline is for government employees to be always careful when expressing political views on social media or in engaging in social media campaigns for their candidates, no matter how private these spaces seem to be. Perhaps, one could refrain from invoking one’s position in the conduct of the Facebook campaign. Most importantly, one’s support or disapproval of a candidate should not affect the discharge of their duties of employees of the government.

While the law does impose a restriction on the government employees’ freedom to full expression of his views and extends it to social media spaces, they are still granted the freedom to choose who they will vote for come election day. The essence of fundamental right to suffrage is ultimately not curtailed, and they should accept the limitation as an incident of holding a position in government.

Read more about the Emerging Media practice at Disini & Disini Law Office

[1] Sec. 46(D)(10), Rule 10 of CSC Resolution No. 1101502 or the Revised Rules on Administrative Cases in the Civil Service.

[2] Sec. 79(b), Article X, Omnibus Election Code.

[3] COMELEC Resolution No. 10049.

[4] See Disini v. Secretary of Justice, G.R. No. 203335, 11 February 2014.

[5] Ibid.

[6] G.R. No. 202666, 29 September 2014.

[7] Ibid at [6]

[8] G.R. No. 103956, 31 March 1992.

[9] Sec. 55, Chapter 7, Title I, Book V, EO No. 292.

Image courtesy of Pixabay.

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