"DO NOT MAKE IT PERSONAL."
The conflict of laws relating to freedom of speech is influenced by cultural, political, and legal differences across jurisdictions. As globalization and the digital age blur traditional borders, the challenge of balancing freedom of speech with local laws is becoming more complicated. Countries must grapple with how to maintain their legal standards while respecting global communication and expression. The conversation continues to evolve as governments, international organizations, and tech companies seek solutions that uphold both free speech and the protection of individuals from harm.
The conflict of laws surrounding freedom of speech refers to the challenges that arise when the right to free expression, guaranteed in one jurisdiction, clashes with the laws or regulations of another jurisdiction that restrict or regulate speech. This issue becomes particularly prominent in an increasingly globalized world where communication crosses borders, and different countries have varying standards and limitations on what can be said, published, or broadcasted.
There is diverse standards of freedom of speech. In the United States, freedom of speech is a fundamental right protected by the First Amendment to the Constitution, which broadly protects speech from government interference. However, even in the U.S., speech is not absolute—there are exceptions, such as prohibitions on hate speech, incitement to violence, defamation, and obscenity.
European nations, on the other hand, have laws that allow for restrictions on speech, particularly when it comes to hate speech or speech that could incite violence or discrimination. The European Convention on Human Rights (ECHR), for example, allows for limitations on freedom of expression when it conflicts with other important rights, such as the right to dignity or the right to privacy.
As we are getting globalized, we now have an "extraterritorial application of laws." With the apparent strong influence of the internet and social media, speech often transcends national borders. A person in one country may express an opinion or publish content that is legal in their jurisdiction but illegal in another. For example, a statement that is protected as free speech in the U.S. might be considered hate speech or defamation in Germany or France.
An example of extraterritorial conflicts is the high-profile conflict of laws in free speech in the case of the Google Spain decision by the Court of Justice of the European Union (CJEU). It involved the “right to be forgotten,” where European courts ordered search engines to remove certain links to personal information, potentially infringing on free speech principles. Companies like Google have had to navigate these conflicting obligations—upholding free speech in some countries while complying with privacy laws in others.
The Google Spain decision (officially Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González) was a landmark ruling by the Court of Justice of the European Union (CJEU), delivered on May 13, 2014. It is significant because it established the "right to be forgotten" in the European Union, which allows individuals to request the removal of personal information from search engine results under certain conditions. The Court ruled that individuals have the right to request the removal of certain personal data from search engine results when the data is "inadequate, irrelevant, or no longer relevant" to the individual's current life situation, especially if it harms their privacy and reputation. The case clarified that search engines are indeed responsible for processing personal data because they index, organize, and display it.
What was apparent in the recent discussion revolved around balancing the protection of freedom of expression against the potential harms speech can cause, especially when it comes to hate speech, incitement, or misinformation. Countries differ on how to strike this balance, and the internet’s global reach makes enforcement challenging.
With the growing role of tech companies in moderating content, a major issue arises: should these companies be responsible for adhering to the legal frameworks of every country in which they operate, or should they be guided solely by the laws of the country in which they are based? For instance, U.S.-based tech giants like Facebook and Twitter must navigate competing demands for content moderation: some governments ask them to take down content to avoid hate speech or disinformation, while others prioritize free speech protections.
Global platforms also face challenges in reconciling the regulatory differences between countries. The European Union, for example, has implemented the Digital Services Act, which mandates that online platforms take steps to prevent harmful content from spreading. This raises questions about how platforms can reconcile such regulations with the broad speech protections provided in other jurisdictions like the U.S.
Diplomatic tensions can also arise when a country seeks to enforce its speech laws extraterritorially. For example, a country might pressure another to take down content that violates its laws, leading to diplomatic conflicts, especially if it involves content that a foreign government sees as critical or offensive. There are however international treaties, such as the International Covenant on Civil and Political Rights (ICCPR), which recognize the right to freedom of speech but also allow for restrictions in certain cases. These treaties help guide countries in determining when speech can be limited, albeit enforcement and interpretation differ widely across jurisdictions.
In the Philippines, the Philippine Constitution (Article III, Section 4) guarantees freedom of speech, which means the government cannot unduly restrict the expression of ideas or opinions. However, this right is not absolute and may be subject to restrictions, such as:
(a) speech that incites violence or poses a clear and present danger.
(b) libel and defamation laws.
(c) national security concerns
(d) public morality and public order
The guaranteed freedom of speech however includes the right of citizens to criticize public officials without fear of retaliation or punishment. Public officials, by virtue of their office, are expected to be more tolerant of criticism because they serve the public and are held to a higher standard of accountability.
In Pimentel v. Aguirre (G.R. No. 194421, March 5, 2014), the Supreme Court of the Philippines emphasized that public officials should accept public scrutiny, including criticisms and commentaries that come with their position. In this case, the Court ruled that public officials are subject to public review and discussion, which includes freedom of speech even when the criticism may be harsh or critical. Public officials are tasked with promoting the public welfare, and this responsibility means they must welcome and respond to criticism with maturity and understanding. The idea is that being "onion-skinned" or overly sensitive undermines public confidence and obstructs the role of checks and balances. When public officials are overly defensive or overly sensitive to criticisms, it can suggest insecurity or an unwillingness to be held accountable for their actions.
The Supreme Court has consistently upheld that public office is a public trust (Biraogo v. The Philippine Truth Commission (G.R. No. 191570, December 7, 2010). Public officials cannot be "onion-skinned." Former Sen. Miriam Santiago conversely expressed of "an elephant face." Public officials cannot expect to enjoy the same level of privacy and protection as private individuals. This is reflected in jurisprudence that underscores the role of criticism in a democracy. Public officials are required to endure with resiliency with such scrutiny because they have voluntarily chosen a career in the public sphere, where their actions are subject to the public’s judgment. The Court likened the role of a public official to that of a public servant who must remain accountable and resilient to public opinion, even when such opinions are unfavorable.
In De la Cruz v. Hon. Daza (G.R. No. 107642, September 22, 1995), the Court ruled that criticism of public officials is a form of political expression that the state cannot unduly restrict. Even if the criticism is unflattering or exaggerated, it is important for maintaining a vibrant democracy. The Court however, stated that public officials should be able to accept and understand the distinction between legitimate political criticism and defamation or slander. The Court also held that even unfavorable opinions or expressions made in good faith do not violate the rights of public officials, particularly when they pertain to their official conduct. This ruling reinforced the expectation that public officials must possess a thicker skin when it comes to criticism (Chavez v. Gonzales (G.R. No. 168338, February 15, 2008).
While the law provides legal mechanisms for public officials to protect their reputation against actual defamation or slander, these protections do not extend to mere criticism. In the case of Ciriaco v. Court of Appeals (G.R. No. 104606, June 22, 1993), the Supreme Court emphasized that the right to privacy of a public official must be balanced with the public’s right to know and discuss issues related to public figures.
Philippine jurisprudence consistently emphasizes that public officials, given their roles as servants of the public, must tolerate public scrutiny, especially when it involves freedom of speech and political expression. Public officials are not immune to criticism and must demonstrate resilience and maturity in handling negative opinions or even harsh public commentaries.
And that reminded me how former President Rodrigo Duterte responded while he was held inside the Villamor airbase amid commotion between his wife and child with the security forces: "Do not make it personal."
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