If posting drug content online was illegal, there probably wouldn’t be enough jail space for all the violators.
On Instagram, accounts dedicated to dank weed jokes have millions of followers, while a quick search of the hashtag #weedmemes results in 1.7 million posts. On TikTok, creators are capitalizing on jokes about coke and ketamine, regularly (and not anonymously) meme-ing the sesh.
Now maybe you’re just paranoid, but you might be thinking:
Can’t all this be incriminating? Could the if-you-know-you-know nature of posting drug content online make whoever posts, shares, and engages with them a suspect in the eyes of the law? But, also, posting about drugs can’t be taken as actually doing drugs… right?
It’s important to know your rights, especially in a country that has become very dangerous for people linked to drugs.
VICE talked to Philippines-based lawyers to find out the risks of sharing drug-related memes. It should be noted, as the law might say, that their statements apply only in the Philippines, and that their opinions may change when presented with different facts specific to unique cases.
According to Frances Siapno, a lawyer based in Manila, posting drug content online doesn’t make you a criminal suspect, because there is no law in the country that explicitly prohibits posting drug jokes online.
“You cannot be made a suspect of a crime that does not exist in the first place,” Siapno told VICE.
In case you didn’t know, selling, possessing, and using certain drugs are punishable by law. In the Philippines, the specific laws in question are under the Comprehensive Dangerous Drugs Act of 2002. But Siapno said that merely posting drug jokes or content online doesn’t constitute sufficient proof that someone is selling, possessing, or using illegal drugs. “It just shows the type of humor a person may have,” she said.
The Philippine constitution provides people the right against unreasonable searches and seizures. In other words, cops need sufficient evidence of someone committing a crime in order to obtain a search warrant or warrant of arrest against a crime suspect. Some things that might merit a search warrant or warrant of arrest include photos of a person with illegal drugs. Siapno doesn’t think drug memes posted online would merit the same certainty.
She added that The Rules of Court provide for people to be presumed innocent until the contrary is proven beyond reasonable doubt in a court trial. Proof beyond reasonable doubt means that the evidence presented against someone must produce “a moral certainty” of that someone’s guilt. When there is even “a scintilla of doubt” of that moral certainty, said the lawyer, the court must acquit the suspect.
“Thus, a person cannot be held guilty of any crime under [the Comprehensive Dangerous Drugs Act of 2002] by the mere posting of drug jokes or content online,” said Siapno.
That doesn’t mean, however, that the posts can never be used against you.
“Although the posting of drug jokes or content online in itself is not a crime, and is insufficient to give rise to a warrant of arrest or search warrant for lack of probable cause, when it is coupled by other circumstances which may be sufficient to produce probable cause, past drug content posts may be admissible as circumstantial evidence,” Siapno explained.
She explained that probable cause for a search warrant is defined as “such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.” On the other hand, probable cause for a warrant of arrest is defined as “such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.”
According to Angelo Herbosa, also a lawyer based in Manila, merely sharing drug memes may also be safer, legally speaking, than creating original ones.
Citing the case Disini v. Secretary of Justice, he said that the Supreme Court of the Philippines ruled that those who share or comment on libelous statements cannot be held liable. “Applying this analogously, those who ‘share’ are safer than those who post original status messages or posts,” Herbosa said.
But perhaps the most important factor to consider when posting drug jokes online is your profile’s privacy settings.
Herbosa explained that in Vivares v. St. Theresa’s College, a case involving posts uploaded on Facebook, the Supreme Court of the Philippines advised that users who have posts set to “Me Only” or “Custom” enjoy a reasonable expectation of privacy with regard to their posts online. Public posts do not enjoy that same expectation.
“There is no reasonable expectation of privacy in online social networks if the settings [of the posts] are not in the ‘Me Only’ privacy setting, or when the user’s contact list has not been screened to limit access to a select few, through the ‘Custom’ setting,” explained Siapno. That means there’s no violation of privacy if these posts are given as evidence.
The right to privacy is intrinsically tied to the right against unreasonable searches and seizures, said Herbosa, so his advice is to keep online content private. Herbosa said people should be careful about projecting the image or suggesting the idea that they sell, possess, use, or manufacture illegal drugs.
Siapno reiterated that “merely posting drug jokes or content online will not be sufficient proof that one is selling, possessing, or using dangerous drugs.” But while that might be the case, and even when the Philippine constitution “guarantees” the presumption of innocence, Herbosa provided a word of caution.
“Blatant drug content may trigger suspicion, which can subsequently result in surveillance.” This means that the frequency with which one memes the sesh could contribute to that suspicion, “especially if a certain group, thread, or person is already subject to monitoring by the authorities.”
The views and opinions expressed in this article are solely that of the interviewees. VICE neither endorses nor encourages consumption of narcotics/psychotropic substances.
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