Cybercrime lCybercrime law: ’50 shades of liability’ aw: ’50 shades of liability’

MANILA, Philippines – “50 shades of liability” is how Pamantasan ng Lungsod ng Maynila Law Dean Ernest Maceda described the layers of ambiguity in Republic Act No. 10175 or the Cybercrime Prevention Act.

Unlike the bestselling book “50 Shades of Grey,” however, the law’s contents are far from sexy.

Maceda and other lawyers warned that the newly signed Cybercrime Prevention Act, given the vast domain of the online universe, may extend liability for libel and allow the arbitrary closure of websites.

Let’s look at these so-called “shades” of liability:

1. From the publisher to the ‘retweeter’

Article 360 of the Revised Penal Code states that, “Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means,” shall be held responsible for libel.

The provision specifies that “the author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication is responsible for the defamations contained therein to the same extent as if he were the author thereof.”

But if this Penal Code provision is applied in online libel, who can be sued?

The Cybercrime Prevention Act seeks to provide an answer. It defines libel as the “unlawful or prohibited acts of libel as defined 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.”

This is problematic, lawyers said, since much can be done using a “computer system,” which is the gateway to the online world.

If someone uses this “computer system” to re-tweet a defamatory comment, for example, is he liable for libel?

Maceda said the Cybercrime Prevention Act is vague on this.

In a September 20 editorial “A blow against free speech,” the Philippine Daily Inquirer said that the law’s provision on libel offered “no distinctions, no qualifications” as to who shall be held liable for libel or what actions constitute the crime. The Inquirer raised the following questions:

“When a newspaper reader e-mails a possibly libelous article to a friend, is that reader now liable for libel, too?”

“When an online viewer tweets a link of a possibly libelous video to a friend, is that first viewer now liable for libel, too?”

“When a friend ‘likes’ or shares or comments on a possibly libelous post on Facebook, is that friend now liable for libel, too?”

Maceda said these should be addressed in the law’s implementing rules and regulations (IRR). But he stressed that since the law itself does not make these distinctions, it would be difficult to find these in the IRR as well.

Guingona’s dissent

Senator Teofisto Guingona III, the only senator who voted against the passage of the cybercrime prevention bill into law, said: “Transplanting the Revised Penal Code definition of libel without specifying who is liable exposes the owner of online newspapers, blogs, sites to liability. ”

He added: “This is problematic because in the case of online communities, people are encouraged to actually participate (make comments, re-tweet, repost on facebook). With this law, editors and owners of these sites will be forced to lock down their websites and prevent people from commenting. I believe that editors can regulate the works of their writers but if you gag the general public, surely the Constitutional right to freedom of expression is threatened.”

Another law, however, already clarifies when a service provider is held liable or not for libel. Republic Act 8792 or Electronic Commerce Act of 2000 states that “Service Providers” may not be held liable for the possible offenses committed by clients if they do not have “actual knowledge” or are not aware of the facts of the publication or distribution of a libelous material.

In the case of Aquino vs RP Nuclei Solutions and Olandres, a Pasig city prosecutor said RP Nuclei Solutions cannot be held liable for the libelous remarks made in the forum www.greeddyumbass.com because the company only hosts and does not own or operate the site.

2. The journalist and social media

Libel, as defined in Article 353 of the Revised Penal Code, is a “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 discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

Article 355 says that this can be in the form of “writing, printing,lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.”

De La Salle College of Law Dean Jose Manuel Diokno said it is redundant to make libel a cybercrime because libel – as defined in the Revised Penal Code – already includes online publication as a platform for the crime.

Ateneo School of Government Dean Antonio La Viña agreed, saying “publication” refers to all kinds – whether online or not.

But Maceda said that the Cybercrime Prevention Act helps clarify what the phrase “any similar means” refers to, which is the Internet. Ultimately, of course, it is the Supreme Court or Congress that should define what the phrase “any similar means” really means, he added.

The absence of “Internet libel” has led to the dismissal of a case against a lawyer in 2011.

In 2009, dermatologist Vicki Belo filed a libel case against lawyer Argee Guevarra for calling her “Reyna ng Kaplastikan, Reyna ng Kapalpakan” (Queen of Deceit, Queen of Incompetence) on his Facebook account. The Antipolo regional trial court dismissed the case in 2011, saying Internet libel was not defined in any law at the time.

In another case, however, the Department of Justice (DOJ) said that the phrase “similar means…covers libelous statements posted in the Internet.”

Assistant City Prosecutor Viven C. Andino said this in a resolution which ordered the filing of a libel case against former Newsbreak editor-in-chief and now Rappler editor at large Marites Dañguilan Vitug in 2011. The libel case was in connection with a story that Vitug wrote on the alleged role of Supreme Court Justice Presbitero Velasco Jr in the 2010 campaign of his son Lord Allan for the lone congressional post of Marinduque.

Vitug interviewed residents who said that the justice invited them to join his son’s ticket, with a promise that he would help fund their campaign. The article appeared on ww.abs-cbnnews.com.

With the Cybercrime law, UP lawyer Harry Roque said this online platform extends to the social media. He said journalists can be sued for libel not only for their articles now, but also for what they have posted on their Facebook or Twitter accounts.

La Viña cautioned that a distinction should be made between the social media accounts of news organizations and their reporters. This will address the question on who caused the publication of a libelous remark. If a journalist tweeted using his personal account, then in principle, his editors should not be held liable for that tweet, La Viña added.

A lawyer who asked not to be named, citing company policy, said the provision is tricky. For example, messages – libelous or not – could be inadvertently posted on one’s account due to a virus or hacking. The law is silent on this.

3. ‘Borderless’ crime

The same lawyer said that the Cybercrime Prevention Act broadens jurisdiction for libel.

Section 21 of the new law states that the “Regional Trial Court shall have jurisdiction over any violation of the provisions of this Act including any violation committed by a Filipino national regardless of the place of commission. Jurisdiction shall lie if any of the elements was committed within the Philippines or committed with the use of any computer system wholly or partly situated in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines.”

The lawyer took this to mean that even if a journalist was outside the country when he posted an article considered libelous, a case may still be filed against him by the offended party in the Philippines.

The lawyer also asked: “What does ‘partly’ mean?”

4. Against freedom of speech

The Center for Media Freedom and Responsibility has criticized the Aquino administration for passing the Cybercrime Prevention Act, saying it ignored the 2011 declaration of the United Nations Human Rights Committee that the libel law is “excessive” because it puts violators behind bars.

Roque said the law is against the UNHRC view, which asserts that criminalizing libel violates freedom of expression.

Diokno also noted that the Cybercrime Prevention Act further increased the penalty for libel.

Section 6 of the new law states: “…The penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.”

This means that those who committed libel using a “computer system” may stay behind bars from 6 to 12 years when ordinary libel is only punishable with imprisonment from 6 months to 4 years.

Also Under Sec. 19 of the law, the DOJ is given the power to “issue an order to restrict or block access” to computer data that is “prima facie found to be in violation of the provisions of this Act.”

Diokno said this is dangerous because it goes against the clear and present danger principle. Under this principle, he said, the government, before committing an extreme act, must not only establish “prima facie” (at first sight) evidence but show there is imminent and grave danger that it needs to prevent from happening.

Diokno stressed that this provision should be struck down as unconstitutional. –PURPLE ROMERO, Rappler.com