Stifl ing the Internet Voices:

Analyzing the Libel Clause of the Cybercrime Law and the Case of

Esperlita Garcia

PHOTO CREDIT: UP APERTURE

L I B

REVISED PENAL CODE Enacted: 1930

Article 353. Defi nition of libel.

Public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who

is dead.

Art 354. Requirement for publicity.

Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifi able motive for making it is shown, except in

the following cases:1.A private communication

2.A fair and true report

Art. 361. Proof of the truth.

Th e truth may be given in evidence to the court if it appears that the matter charged as libelous is true Proof of the truth not constituting a crime shall not be admitted, unless the imputation have been made against Government employees with respect to facts related to the discharge of their offi cial duties. In such cases the defendant proves the truth of the

imputation, he shall be acquitted.

Art. 355. Libel mean by writings or similar means.

A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar

means, shall be punished.

Art. 362. Libelous remarks.

Libelous remarks or comments connected with the provisions of Article 354, if made with malice, shall not exempt the author nor the editor of a newspaper from

criminal liability.

Punishments for libel through means of writing

*Prision correccional - six months and one day to six

years*Fine - ranges from 200 to

6,000 pesos*Both

E L

ANTI-CYBERCRIME LAW

CHAPTER II Punishable Acts

(4) Libel. — Th e unlawful or prohibited acts of libel as defi ned in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be

devised in the future.

Enacted: 2012

SEC. 12. Real-Time Collection of Traffi c Data. Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffi c data in real-time associated with specifi ed communications transmitted

by means of a computer system.

SEC. 13. Preservation of Computer Data.

Th e integrity of traffi c data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of six months from the date of the transaction. Content data shall be similarly preserved for six months from the date of receipt of the order from law enforcement authorities

requiring its preservation.

SIDEBARLandmark libel casesNew York Times v. SullivanTh e New York Times published an advertisement in 1960 that Montgomery Public Safety Commissioner L.B. Sullivan considered the inaccurate criticisms of the police as defamation against him even though he was not directly mentioned.

Sullivan fi led a libel suit against the Times but the Supreme Court held that the First Amendment protects the publication of all statements, even false, about the conduct of public offi cials except when statements are made with actual malice. Th is requires the plaintiff to prove that the publisher in question knew that the statement are false or in reckless disregard of their truth or falsity. Under this new standard, Sullivan’s case collapsed.

Arroyo v. JournalistsMore than 40 journalists from the media announced their fi ling of a class suit against former First Gentleman Mike Arroyo in 2006 as a manifestation of the group of journalists and media organizations’ refusal to be intimidated by power such as that of the presidential spouse.

Arroyo fi led libel cases against 43 journalists and columnists since 2003, claiming a total of P141 million in damages. In fi ling of the libel suits, Arroyo violated Articles 19, 20, 21 and 32 of the Civil Code, which pertain to the abuse of one’s rights to impair another person’s civil rights.

Th e large number of libel cases caused several chilling eff ects to the media. Aft er a year, Arroyo called off all the libel cases fi led.

libel

Prita Mulyasari

Mathew Firsht UNITED KINGDOM – Th e fi rst successful case of defamation and

invasion of privacy regarding the social networking site Facebook

involved a creation of a fake account of a businessman in 2008. Mathew Firsht, owner

of Applause Store – a company that fi nds audiences for television and radio shows – fi led

the suit against his former school friend, Grant Raphael. Th e bogus Facebook account created by Raphael had been up for 16 days

INDONESIA – In May 2009, Prita Mulyasari, an Indonesian woman, spent three weeks in jail without charges. Mulyasari was sued by Omni International Hospital for criminal defamation due to her complains sent via private email to 20 of her friends that the hospital diagnosed her illness incorrectly as dengue fever when she had, in fact, mumps. Th is email was then publicly

posted in Facebook and other sites without her knowledge.Mulyasari was released by the police due to public outrage

Vicky BeloPHILIPPINES – In September 2009, Belo Medical Group Incorporated (BMGI) fi led libel charges against a lawyer who allegedly posted defamatory statements in his Facebook account, making it the fi rst Facebook libel case in the country. Lawyer-activist Argee Guevarra was slapped with four counts of libel in the City Prosecutor’s Offi ce of Taytay, Rizal by Dr. Vicky Belo, aft er he allegedly posted comments with “deliberate and malicious intent to destroy the reputation of BMGI and Belo’s practice,” and called for a boycott of the cosmetic surgeon’s clinics and services. Guevarra referred to Belo as “Reyna ng Kaplastikan, Reyna ng Kapalpakan” (Queen of False Pretenses, Queen of Incompetence) and questioned her competency as a doctor. Th e lawyer is the counsel of one Josefi na Norcio who sued BMGI for botched butt augmentation procedures that involved the use of the banned substance Hydrogel. In August 2010, another libel suit was fi led against Guevarra aft er he once again allegedly posted statement defaming Belo and her botox procedure done on singer Charice Pempengco. Th e Antipolo City Regional Trial Court dismissed the

cases in 2011, aft er it ruled that Internet libel “cannot be prosecuted” because of “jurisdictional constraints.

Sources: Inquirer.net, ABS-CBNnews.com

before Firsht was noted by his brother, which Facebook took down aft er Firsht reported it to them. Th e account allegedly contained false claims about his sexuality and political views. Th ere were also allegations in a group that Raphael created titled “Has Mathew Firsht lied to you?” about Firsht making up lies to avoid paying loans. Firsht won the suit against Raphael, where Judge Richard Parkes QC awarded him with 22,000 pounds in damages and dismissed Raphael’s defense that the account was created by strangers who gatecrashed at the party in his fl at as “built on lies.”

Sources: Th e Guardian, BBC News UK, News.com.au, London Evening Standard, Th e Telegraph

regarding her detention. While the district court cleared her of charges, the Indonesian Supreme Court reversed the decision in 2011. She was not arrested nor put to jail, but she would be in jail for

six months if she would commit a crime the following year. Her case challenged clauses from the Indonesian

Electronic Information and Transaction Law that dealt with cybercrime and data

security.

Sources: Th e Telegraph, BBC News Asia-Pacifi c, Herald SunPhotos used without permission from: QI.com,

Belo Beauty Blog, Kompas.com

cases

“s”On Cyber-Perling

Esperlita Garciaenvironmentalist, mayoral candidate in Gonzaga, Cagayan

“What really bothers me is how the prosecutors and the judge determined that I should be arrested

when I know that the law that supposedly punishes online libel was passed only this year and was even (restrained) by the Supreme Court.”

“I am a senior citizen but I was treated like a hardened criminal. Th ey did not even give me a chance to bathe or change from my house clothes. Th ey just

dragged me into a car.”

Edwin Lacierdapresidential spokesperson of President Benigno Aquino III

“No. Th ere is no Cybercrime case. Th is is not a Cybercrime case. Th is is a case of libel fi led. In

fact, if you notice, the bail posted was P10,000. Th e penalty for online libel is prision mayor, which is higher than the penalty imposed under the Revised Penal Code. Obviously, this is a case fi led under Article 355 of the Revised Penal Code. So this is not a case of e-libel.”

“Let me be clear, let me also inform our good friends from Anakbayan and I hope they don’t ride on this issue but apparently they already rode

on it, but they’re claiming that this is the start of e-martial law. Let me tell Anakbayan, please don’t be ignorant of the issues. First, you’re entitled to your opinion but you are not entitled to your facts.”

“s”On CYBERCRIME LAW

“I do not agree that the provision on online libel should be removed. Whatever the format is, if it is libelous, then there

should be some form of redress available to the victims.”

President Benigno Aquino III

“Another thing that Congress should expedite is our bill decriminalizing libel.”

Rep. Teddy Casino

Bayan Muna, running for senatorial position

“Sa takot mo na makasuhan ka, ‘di ka na lang magsasalita… Pati ‘yung gusto mong sabihin, ‘di mo na masasabi.”

Atty. JJ Disini (on commenting on public offi cials)

Cyber law expert

“Pinalakas ‘yung libel... Inilipat ‘yung problema sa old media papunta sa new media.”

Dean Luis Teodoro

professor and former dean, College of Mass Communication

Sources:Inquirer.net, Bulatlat.com, Interaksyon.net, GMA News Online

Photos used without permission

Stifl ing the Internet Voices:Analyzing the Libel Clause of the Cybercrime Law

and the Case of Esperlita GarciaWhen environmentalist Esperlita “Perling” Garcia

was slapped with a libel charge by Gonzaga mayor Carlito Pentecostes, Jr. due to a criticizing note she posted on the social networking site Facebook, many netizens against the Cybercrime Prevention Act cried foul, especially since the law was supposedly under a Temporary Restraining Order (TRO).

Yet, the Palace called otherwise, saying that the charge against Garcia was not backed by the highly criticized law, but by the libel provision of the Revised Penal Code itself.

Still, it raised alarm in the community of Filipino netizens, who already showed their opposition to the law through signing online petitions or changing their profi le or display pictures to black.

Whether it was under the grounds of the libel clause of the Cybercrime Prevention Act or the Revised Penal Code, what are the implications of libel in our Internet and press freedom?

Libel as tool for silence From its creation, libel has been used to stifl e press freedom in the country. For far too many times, it has been used to harass and intimidate media practitioners who are merely doing their job in making the comfortable uncomfortable.

Libel has always been a problem in traditional media, but with the passage of the Cybercrime Prevention Act of 2012, it has now offi cially reached the online world.

Libel, as defi ned in Chapter 2 Section 4 (4) of the Cybercrime Law is the “unlawful or prohibited acts of libel as defi ned in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.”

Take note that its libel defi nition is merely an expansion of the Revised Penal Code (RPC) libel

defi nition. What the CPL defi nition did was to include the Internet in the RPC defi nition’s scope.

Th ere are two problems with the clause. First, the Cybercrime Law’s proposed defi nition is problematic because by the book, RPC Article 355 does not defi ne libel. Rather, Article 355 merely enumerates the means by which libel can be committed. Th e defi nition of libel lies with Article 353, instead, which defi nes it as, “public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

In principle, the law cannot punish any perpetrator accused of libel because the law’s libel defi nition itself is nonexistent. Furthermore, should it have been properly cited, the lack of proper explanation and elaboration renders the clause (and the law itself) weak, strengthening the allegations that the law was railroaded.

Second, the phrase “or any other similar means which may be devised in the future,” is too broad and can pose numerous problems because it is open to a wide array of interpretations. With such broadness, even the most illogical and unreasonable of things can be made valid.

Under the Cybercrime Prevention Act, online libel is punishable by one degree higher than that of the original penalty. Before, an accused charged with libel can expect to face no more than four years and two months jail time. Under this law, the maximum penalty increased to ten years.

Under the Cybercrime Prevention Law, online libel is punishable by “one degree higher than that provided for by the Revised Penal Code.” As explained by information technology law expert Atty. Jose Jesus Disini, Jr., since the acts and crime of online libel are

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the same as what was defi ned in the RPC, it has been argued that the law violates the rule against double jeopardy which seeks to protect citizens from being penalized twice for the same off ense. Th is means then that someone accused of online libel can also be sued with the traditional libel because by defi nition, the Cybercrime Law’s and RPC’s libel are technically one and the same.

With all these going on, even the RPC proves itself as “archaic.” Enacted in the 1930s, the original text is written in Spanish, where the penal code refers to old crimes during the Spanish period. In the 21st century, the code is defi nitely antiquated and is aching for a revision apt for a modern society and a modern government. Crucial also is the fact that the libel clause of the RPC clashes with the Article 3, Section 4 of the 1987 Constitution, which clearly spells out that the prohibition of laws abridging free press, speech, and expression, among others.

Th e problems faced by members of the traditional media are increased twofold. As Prof. Danilo Arao of the UP College of Mass Communication explains, “it becomes possible that the culture of self-censorship would become more pervasive especially in online news media organizations.” A chilling eff ect brought about by heavy penalties would greatly hamper the work being done by the media, most especially those in the fi eld of online journalism. Ultimately, it would curtail the freedom of the press, as well as the freedom of speech itself.

Th e issue of the medium Despite a low 33 percent Internet penetration rate in the country, the presence of the Filipinos in the Internet cannot be underestimated, now that Philippines is even recognized as the social networking capital of the world.

In the fast pace of the social media and the Internet, it is now easy to publish or post thoughts and comments either for or against any individual. Th is “publication,” though diff erent from the traditional defi nition of a publication, can still be in the grounds of libel. According to Atty. Disini, libel law constitutes that sharing information to 2 to 3 persons can be grounds for a charge.

Online private messages and e-mails can still be made libelous since there is an assumption of an

“authority” or “administrator” which looks over all these exchanges.

In the evolution of the medium, libel laws even become more complex to actually apply. In the social networking site Facebook, a “like” may not cost you a libel charge, but commenting and sharing links can – even if you are not the original author of the post.

Th e medium itself cannot be liable, because of the Republic Act 8792 or the Electronic Commerce Law, which frees the “service provider” of liability, as long as it “does not have actual knowledge, or is not aware of the facts and circumstances” of which the material is published.

Facebook also has its own terms and conditions, dubbed as “Statement of Rights and Responsibilities,” which state legal terms such as prohibition on bullying, intimidation and harassment; on posting of content that is hateful or threatening; and on posting contents that “infringes or violates someone else’s rights or otherwise violates the law.”

Democracy in the Online Space Other than being a problematic law, the Cybercrime Prevention Act poses restrictions on freedom of speech and expression in the Internet, which supposedly serves a democratizing tool of today. While the other provisions may seem to properly police and regulate cybercrimes, the libel provision presents the most issues and should be struck down immediately.

Th e case of Garcia may just be the fi rst of many should the Cybercrime Law be fully enacted. A chilling eff ect will be felt, not only by journalists and the media, but even by ordinary citizens. In the case of Garcia, who had been slapped by a libel charge by a public offi cial despite the need for the actual malice standard, the venue of criticism is threatened more and more.

While libel may seem as a balancing factor in freedom of speech, press and expression, stifl ing voices – may it be online or not – is not the solution to hate speech. More speech and counterspeech can only provide it, if we are to continue to live in a democratic society governed well by our constitution, the highest law of the land.

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