Libel in the age of like

The Supreme Court ruling on the Cybercrime Law tries to strike a delicate balance between protecting public interest and civil liberties.

All 15 justices unanimously decided that sections 12 (real-time collection of traffic data), 19 (restricting or blocking access to computer data), and 4(c)(3) on unsolicited commercial communications were unconstitutional. They were however split on the divisive and controversial provision on libel. Two justices inhibited on this issue – ­Estela Perlas Bernabe and Presbitero Velasco Jr.

In the end, the Court ruled online libel as constitutional “with respect to the original author of the post.” But it also declared online libel to be “unconstitutional only where it penalizes those who simply receive the post or react to it.”

The attempt at nuancing has created some confusion so that what has emerged as a clear conclusion from the High Court’s decision is that online libel is only partially unconstitutional.

Even Senator Miriam Defensor Santiago said the tribunal’s ruling on online libel was “erroneous” because of vagueness and overbreadth. (READ: Miriam: SC ruling on online libel erroneous)

Interestingly, according to inside information, 3 justices – Arturo Brion, Marvic Leonen, and Antonio Carpio – had their sights on the libel provisions of the Revised Penal Code. Justice Roberto A. Abad, who authored the majority decision, focused only on online libel.

Carpio and Brion wanted Article 354 of the Revised Penal Code declared unconstitutional in relation to public figures and public officials because of the presumption of malice, which runs counter to the spirit of the New York Times vs Sullivan case.

Landmark decision

Civil libertarians often cite this case as the basis of their arguments on the importance of free speech. In that landmark decision, freedom of speech and of the press were upheld by US justices led by William Brennan Jr who wrote that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Citing James Madison, who crafted the US First Amendment, Brennan said that even certain false statements “must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need…to survive.’”

In New York Times Co. vs Sullivan, a libel case was filed against the New York Times and 4 African-American clergymen who put out a full-page ad titled, “Heed Their Rising Voices.” The ad alleged police mistreatment of Black students engaged in non-violent demonstrations against racial injustice. Though unnamed, Alabama city official L.B. Sullivan felt alluded to and filed a libel case, citing factual errors in the ad. An Alabama jury ruled in favor of Sullivan but the case was elevated to the federal court.

The high court ruled on the case, with Justice Brennan pointing out that even if some of the statements in the Times ad were false, this should not be the basis of a libel conviction because “erroneous statement is inevitable in free debate.”

Grounds for libel

Reacting to the Philippine Supreme Court’s ruling on online libel, lawyer JJ Disini pointed out that the Court’s use of the word “simply” means that one cannot be charged with libel in the context of “merely” liking or reacting to a post. But anything more incendiary or aggravating may be grounds for a libel case.

Concretely, this means that in the age of social media if someone merely shares a potentially libelous story on his Facebook wall on say, Jeane Napoles and her grandiose lifestyle, he cannot be sued for libel because he is not the original author of the post.

Even if he adds detailed and more damaging commentary, he would still be safe because of Jeane’s status as a “quasi-public figure” (someone forced by circumstances or a situation to become more publicly known).

Thus, if he posts her real estate records in addition to the story, he probably cannot be charged with libel especially if his main motivation for doing so is to establish unexplained wealth, a public interest issue.

Yet if someone says something defamatory about her nose, for instance, a comment that has absolutely nothing to do with good intentions or the issue of unexplained wealth, that person may be held liable for his post.

This is consistent with the Revised Penal Code, which states that any defamatory imputation can still be libelous, even if true. In short, if malice is proven, truth cannot be used as a defense against libel.

Even more vulnerable would be someone who posts a potentially defamatory story on a private person. If inflammatory commentary topped that post (“by the way, this businessman is an asshole”), whoever posts it may be liable for libel.

In addition, according to Disini, reproduction or republication of defamatory content can be judged a crime. And anyone who does so must take full responsibility.

Decriminalization

This has raised the alarm bells for civil libertarians who have been pushing for the decriminalization of libel.

The most junior among the Philippine Supreme Court justices, Leonen, wanted to decriminalize libel, a core issue for freedom of speech advocates. In many countries, including the Philippines, libel is both a civil and criminal offense punishable by fines and imprisonment. Imprisonment, according to the Revised Penal Code, can range from 6 months and one day to as long as 6 years.

Fear of imprisonment can result in self-censorship, which does not encourage a vibrant exchange of ideas or spirited debates. In a democracy like ours, freedom of speech should take precedence over the protection of individual reputations, libertarians insist. While individual rights ought to be protected as well, the sanctity of the Bill of Rights as enshrined in the Constitution is primordial.

In less expressive societies, freedom of speech must be allowed to flourish, libertarians argue. Speech that seeks to systematically destroy reputations without any noble motive would perhaps be an exception. But punishment should never be criminal in nature – if the Philippines is to join a growing community of nations that views imprisonment due to libel as a step back in time.

Republic Act 10175’s Section 6 specifies that penalties should be “one degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.”

Chief Justice Maria Lourdes Sereno wanted this struck down but only at least 3 justices – Carpio, Jose C. Mendoza, and Leonen – are said to have voted with her on this provision.

Enforcement

In the online world where social media is pervasive and has become the platform and means by which to spread information rapidly, it is understandable how the online medium can be regarded as a more dangerous place that should offer heavier penalties to those who abuse it.

In a sense, defamatory information shared or stored online can be more virulent and can inflict more harm, but is there really a difference compared to broadcast media in terms of reach and impact, or to print media in terms of permanence?

The online medium is borderless, hard to control and police. Law enforcement in such an environment poses steep challenges not only to resources, but to personnel and equipment as well. How long before surveillance equipment, for example, used on possible violators become outdated and useless?

As Santiago herself pointed out, “There will be extreme difficulty in law enforcement and if you cannot enforce a law, you better strike it off the records because it promotes contempt for the law.”

Besides, in a democratic society’s hierarchy of values, erroneous statements made online might be a small price to pay for the continued enjoyment of the freedom of expression. To paraphrase a quote attributed to either French writer Voltaire or his biographer Evelyn Beatrice Hall, libertarians on social media today would likely say, “I may not like what you say, but I will defend to the death your right to say it.” –CHAY F. HOFILEÑA, Rappler.com