THE DEBATES ON LIBEL

Jaime E. Masagca

#advocatusdiaboli

#chasinglightschasingdreams

 

 

On February 18, 2014, after imposing a 120 days Temporary Restraining Order (TRO) the Philippine Supreme Court (SC) upheld the constitutionality of most provisions of Republic Act 10175 or the Cybercrime Prevention Act of 2012.

The constitutionality of R.A. 2012 was challenged before the high court by nitezens, lawyers, and cause-oriented groups all in the context that the cybercrime law infringes on the freedom of expression.

"The SC ruled that the controversial provision on online libel is constitutional, but is subject to one condition: only the original author, not those who receive or react to the post, can be penalized".

Fair enough as a mere recipient of a message, willing or otherwise, cannot be faulted for something that is not of his authorship. Neither can he be morally responsible for any impression that the same elicits in his mind.

 

The shield as defined by the ruling extends to recipients who even with ill will or malice reposted the defamatory material through sharing, liking, or re-twitting provided that no new defamatory posting is created by the remark added.

The Supreme Court admitted however that prosecuting those who simply receive and react to defamatory social media posts would be difficult if the complexities of cyberspace are ignored in the crafting of a cyber-libel law.  So it was really the difficulty of prosecuting rather than the morality of the subsequent acts that set the boundary of criminal liability.

Three provisions were however voted down as categorically unconstitutional:

Section 4 (c)(3), pertaining to unsolicited commercial communications; Section 12 on the real-time collection of traffic data; and Section 19 which pertains to restricting or blocking access to computer data primarily by the Department of Justice without a court warrant.

The SC in its ruling said, "that granting power to the Department of Justice to restrict computer data on the basis of prima facie or initially observed evidence was not in keeping with the Constitution."

This ruling on online libel was met with indignation by many netizens and some lawmakers who expressed disappointment that the Court upheld online libel as a crime, but however, hailed the decision against the two controversial provisions.

I wish to reiterate the observation that in Philippine society, justice or righteousness is premised on whoever is favored, rather than on the objectivity, logic, or fairness of a decision.  How some sectors met the court ruling is characteristic of this idiosyncrasy.

“Don’t imprison libel offenders.”

The Supreme Court decision renewed the call of activists and journalists to decriminalize libel, or to remove the penalty of imprisonment.

Senator Juan Edgardo Angara, an author of the cybercrime law in the House when he was Aurora province’s representative, said "online libel is necessary but offenders must not be imprisoned. 'Imprisoning a person convicted of libel might prevent him or her from digging into issues and concerns,  that with the deep investigation, might expose anomalies and abuses.”

Correct, as this is the main constraint among would be "whistleblowers" to expose anomalies in government agencies. The parties complained of can conveniently cry "libel" to impeach a legitimate witness to an anomaly.

The definition and elements of the felony both in the Revised Penal Code and Cybercrime Prevention Act of 2012 should therefore be reviewed rather than focus merely on its penal sanction, at least to encourage the culture of whistle-blowing in the bureaucracy and consequently prevent charges of libel from being used as a dagger by the corrupt instead of as a cloak for innocents.

Senator Angara further said that "In a country where democracy is primarily infringed on the freedom of speech and expression, in a State where the media is considered the fourth state, it is a sad reality that existing laws on libel have not been attuned to the evolving needs of the people under a democratic rule and the rising importance of media in effecting transparency and accountability in governance".

 

From another perspective, would decriminalizing libel not have a corresponding adverse effect on the civil consequence of criminal liability?

Senator Miriam Defensor-Santiago, a constitutional law expert and former trial court judge, has termed the ruling as erroneous as the provisions on online libel "violated two principles of constitutional law against vagueness and overbreadth", which “in case of doubt, the doubt must be resolved in favor of freedom and against restriction. That is the meaning of that wording. Otherwise, there is no reason why the framers would have used that kind of terminology and would have placed it as Section 1 of the Bill of Rights."

She added that the ruling posed "a very significant constraint" on the fundamental rights to free speech and free expression enshrined in the Constitution.

It's strange how the distinguished Senator claiming to be an expert on the law has vowed the abolition of the cybercrime law or online libel without any reference to the Revised Penal Code (RPC) provisions on libel when "posting" is synonymous with "publication" as one of the elements of libel as defined and penalized under the RPC.

Internet freedom advocates have found an unlikely ally in the son of former President, Ferdinand E. Marcos. Senator Ferdinand "Bongbong" R. Marcos, Jr. has filed a bill seeking to scrap the provision imposing a penalty for online libel higher than that imposed for libel committed through print and broadcast media that would reduce the penalty for online libel.

“The Internet, particularly social media, is the closest thing we have to the Athenian brand of democracy, where everyone can speak his mind freely. I think the Senate should give a high priority to bills seeking to protect freedom of expression in cyberspace", said Sen. Marcos in a press statement.

The young Senator objected to the provision in the anti-cybercrime law that imposed a higher penalty for cybercrimes compared to crimes defined under the Revised Penal Code and special laws, as it was “not in accordance with the principle of justice and equality and sound public policy.

‘If a crime is committed through and with the use of information and communications technologies, then the penalties provided under the present laws should be imposed accordingly and should not be increased solely on the ground that the crime was perpetrated through the use of cyberspace,” the Senator added.

It perhaps escaped the Senator’s appreciation that any damage to one’s morals committed through cyberspace is instantaneous and far-reaching compared to the effects of ordinary publications on billboards, print, or even the broadcast media. 

This is more in keeping with the Philippine justice system, the same way that criminal laws have graduated penalties proportionate to a crime.

Less serious physical injury carries a lower penalty than Serious physical injury, or murder has reclusion perpetua and reclusion temporal for homicide.

Senator Edgardo Angara, a co-author of the law has pushed for his bill seeking to amend Article 355 of the Revised Penal Code, which penalizes those found guilty of libel with 6 months to 4 years imprisonment or a fine ranging from P200.00 to P6,000.00. Senator Francis Escudero of Sorsogon has filed a similar bill.

Human rights lawyers and international groups like the United Nations Human Rights Council urged the Philippines to decriminalize libel, saying the prison penalty is excessive and violates freedom of expression.

Teofisto “TG” Guingona III was the lone Senator who voted against the law but however refused to comment on the Court ruling until he reads the entire decision.

Yet Senate President Franklin Drilon, a former Secretary of the Department of Justice, does not see any need to amend the cybercrime law’s online libel provision.

"Leave libel laws at that. 'Judges do not impose the penalty of imprisonment in libel cases anyway. 'In libel cases, the judges would not impose prison terms because there is an alternative, imprisonment or fine, again subject to confirmation. 

My understanding is that libel as a crime would not call for the imposition of a prison term,” he said, but refusing to weigh in on the free speech and free expression debate.

“Some believe libel is necessary in order to safeguard, to protect the character of people, others believe it’s part of freedom of expression. Let’s leave it at that. We have the libel law, we have the cybercrime law sustained.”

President Benigno Aquino III said, "curbing freedom of expression is not the intent of the cybercrime law, and that the Internet, as a medium, should not be given special treatment compared to other media."

‘So if there's something wrong in what you say on TV or radio, or what you write in newspapers or magazines if you move formats, should you be exempted? I don't think you would agree with that. Why? Because that gives unequal protection to violators. (President Benigno S. Aquino III, Rappler.com).

Lawyer Raymond Fortun, a renowned wedding photographer as well and who has gained prominence as defense counsel in President Joseph Estrada's plunder case, as well as being the spokesman in a recent controversial case, has the most logical view, which I took the liberty of quoting here:

"To reiterate, online Iibel WAS a crime as early as 1932. RA 10175 only made it clearer. Neither should you get mad at the Supreme Court; the latter actually clarified that only the ORIGINAL AUTHOR can be charged for online libel and not those who like, share, or re-tweet the post.

'If libel is an exception to Free Speech, there are also a lot of libel protections. The most important protection is called the "public figure" doctrine, which provides that the FAIR DISCUSSION of a public figure is NOT libel in the absence of actual malice. A "public figure" is defined as someone the public will talk about because of his position, professional or business status, his celebrity, his having wittingly or unwittingly placed himself into the limelight or his becoming involved "in an issue of public interest".

'So yes, in the absence of actual malice, you can call your favorite senator an "idiot" or your favorite lawyer as "abogago". But I suggest that you state your reason/s for doing so to avoid an accusation that the outburst was fueled by hate, resentment, scorn, or with intent to shame or ridicule him without basis. And sorry to say this, but cursing and hurling invectives at someone, even over the internet, have been libelous for the past 82 years.

'Malice" is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed. That a person had an intention to injure the reputation of the offended party may be shown by the words used and circumstances attending the publication of the defamatory imputation (Atty. Raymond Fortun, Legal Article, NETIZENS, SAY HELLO TO THE "PUBLIC FIGURE" DOCTRINE, Facebook account.)."

With these recent issues, the nature of "libel" had been a popular topic in cyberspace. I can't help but think when I, with 18 others and a national television network was maliciously charged for libel. But in an apparent "accommodation resolution" the prosecutor downgraded it to "intriguing against honor". We the defendants howled in protest for we believed that a libel case is more glamorous than being prosecuted for being "intrigueras de primera".

During arraignment, we chorussed "Not guilty, your honor!", that the presiding Judge almost laughed out loud. We were acquitted after several years of trials, postponements, replacement of Judges, and after 3 co-accused died, all for a malicious case that carries with it the penalty of aresto menor or a fine not exceeding 200 pesos if convicted.

The complainant however died a miserable death after suffering for sometime. MORAL: NO MATTER HOW TRIVIAL IS THE CHARGE DON'T BE A FALSE WITNESS AS THE COMMANDMENTS SAY. "CARMINA VILLARUEL or CARMI MARTIN" (KARMA) WILL ALWAYS BE UNFORGIVING AND THEY COME SO SWIFTLY.

Online libel a breach of human rights? In spite of having been a victim of unwarranted litigations for libel, I still subscribe to the wisdom of the Supreme Court in its just ruling on the constitutionality of the Cybercrime Law, a ruling that is ethically consistent with Philippine laws and jurisprudence.

What really are the opposite of the Cybercrime Prevention Act afraid of, when the best way to avoid prosecution is to confine that right of expression within the bounds of responsibility and accountability?  

As a right is never absolute it is not proper to hurl invectives at another but refuse accountability.

As admonished by the high court in its 50-page decision dated February 11, 2014, “Make no mistake, libel destroys reputations that society values. If allowed to cascade on the Internet, libel would destroy relationships and, under certain circumstances, generate enmity and tension between social or economic groups, races, or religions, exacerbating existing tensions." The court however added that "legislators should be careful in constructing a cyber libel law so that freedom of expression is not be trampled on".

Outside of the legalistic discussions on the merits of the Supreme Court ruling or arguments on the morality of the law, still, it is basic in any sane society that the right of one ends where the right of another begins. Freedom of expression so ends where the dignity and honor of another are to be protected, including that of the State, its officials and employees though "a public official, more especially an elected one, should not be onion skinned (in Nemesio Yabut, et al vs. Office of the Ombudsman, G.R. No. 11130, June 17, 1994)."