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)."
