I received a text message from a client on December 30, asking if she could file “a case” based on lies posted on Facebook. This is an interesting query, since the possible criminal liability for “internet libel” or “online libel”, is one of the subjects of the ongoing petitions in the Supreme Court challenging the constitutionality of Republic Act No. 10175 or the Cybercrime Law. In the proceedings before the Supreme Court, the Solicitor General has been quoted as saying that a person can be held criminally liable by merely clicking “like,” “share,” or “retweet,” on libelous posts on Facebook and Twitter; “A ‘like’ is an approval of opinion, … The approval of the opinion ‘Jones is a liar’ can cause as much damage as actually saying Jones is a liar.”
The Solicitor General argued with respect to Section 4(c)4 of the law (which makes libel as defined under Art. 355 of the Revised Penal Code when committed through a computer system or any other similar means a cybercrime), that:
Online libel is not a new crime. Online libel is a crime punishable under the Articles 353, in relation to Article 355 of the Revised Penal Code. Section 4(c)(4) just made express an avenue already covered by the term ’similar means’ under Article 355, to keep up with the times. This would immediately negate the oft-used defense that libel committed through the use of the internet is not punishable. That said, the relevant provisions of the Revised Penal Code on libel and jurisprudence on the subject gives ascertainable standards and well-defined parameters which would enable an accused to determine the nature of his violation.
The computer system is just another means of publication
Libel committed through a computer system can therefore be defined as 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 cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, committed through a computer system or any other similar means which may be devised in the future.
Libel is not constitutionally protected speech.
even without Section 4(c)(4), a public 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, made with the use of the computer system already constitutes libel.
online libel was already a crime punished under Articles 353 to 362 of the Revised Penal Code, and to date, has never been declared unconstitutional on the ground of abridging the right to free speech, freedom of expression and of the press.
it must be emphasized that cyber libel was not given a higher penalty under Section 4(c)(4). Notably, R.A. No. 10175 did not provide for a distinct penalty for Section 4(c)(4). The ‘one degree higher penalty’ was imposed under Section 6 for all the crimes under the Revised Penal Code and special penal laws committed with the use of ICT.
libel committed by using computer system is punishable under Articles 353-362 of the Revised Penal Code. Section 4(c)(4) merely made expressed another venue for the commission of libel. Said addition does not make said provision ex post facto. Libelous statements made through computer systems prior to the enactment of R.A. No. 10175 are already considered punishable under the Revised Penal Code.
The client’s query also reminded me of my first few posts: “Interesting Time to Start a Blog” (January 21, 2013) and “This Blog is Not Yet Dead” (February 5, 2013), both of which are about the petitions questioning Cybercrime Law, thus the need for a short update.
The Supreme Court recently held that online posting is publication (Fortun v. Quinsayas, GR No. 194578, February 13, 2013). More than three years prior, In Bonifacio v. RTC of Makati (GR No. 184800, May 5, 2010), the issue involved the matter of jurisdiction in criminal complaints for libel under Article 360 of the Revised Penal Code, concerning allegedly libelous statements published on the websites and e-groups maintained by a group of disgruntled plan-holders of a pre-need company, which were accessible to anyone with internet access.
The complainant/private respondent alleged that while he was in Makati on various dates from August to October 2005, he accessed the said websites and he “was appalled to read numerous articles [numbering 13], maliciously and recklessly caused to be published by [the accused] containing highly derogatory statements and false accusations, relentlessly attacking the Yuchengco Family, YGC, and particularly, Malayan.” And for which reason he filed a criminal complaint for Libel before the Makati City Prosecutor’s Office, which found probable cause to indict the accused for thirteen separate counts of libel. The Secretary of Justice reversed the findings of the City Prosecutor and directed the withdrawal of the Informations filed against the accused, on the ground that the crime of “internet libel” was “non-existent”.
The Supreme Court directed the dismissal of the criminal complaints for libel not because it agreed with the Secretary of Justice’s finding that there is no crime of “internet libel” but because there was no showing that Makati was the proper venue for the filing thereof:
In Macasaet, the Court reiterated its earlier pronouncements in Agbayani v. Sayo which laid out the rules on venue in libel cases, viz: “For the guidance, therefore, of both the bench and the bar, this Court finds it appropriate to reiterate our earlier pronouncement in the case of Agbayani, to wit: In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at that time. Whenever possible, the place where the written defamation was printed and first published should likewise be alleged. That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action. (emphasis and underscoring supplied)” It becomes clear that the venue of libel cases where the complainant is a private individual is limited to only either of two places, namely: 1) where the complainant actually resides at the time of the commission of the offense; or 2) where the alleged defamatory article was printed and first published. The Amended Information in the present case opted to lay the venue by availing of the second. Thus, it stated that the offending article “was first published and accessed by the private complainant in Makati City.” In other words, it considered the phrase to be equivalent to the requisite allegation of printing and first publication. x-x-x Clearly, the evil sought to be prevented by the amendment to Article 360 was the indiscriminate or arbitrary laying of the venue in libel cases in distant, isolated or far-flung areas, meant to accomplish nothing more than harass or intimidate an accused. The disparity or unevenness of the situation becomes even more acute where the offended party is a person of sufficient means or possesses influence, and is motivated by spite or the need for revenge. If the circumstances as to where the libel was printed and first published are used by the offended party as basis for the venue in the criminal action, the Information must allege with particularity where the defamatory article was printed and first published, as evidenced or supported by, for instance, the address of their editorial or business offices in the case of newspapers, magazines or serial publications. This pre-condition becomes necessary in order to forestall any inclination to harass. The same measure cannot be reasonably expected when it pertains to defamatory material appearing on a website on the internet as there would be no way of determining the situs of its printing and first publication. To credit Gimenez’s premise of equating his first access to the defamatory article on petitioners’ website in Makati with “printing and first publication” would spawn the very ills that the amendment to Article 360 of the RPC sought to discourage and prevent. It hardly requires much imagination to see the chaos that would ensue in situations where the website’s author or writer, a blogger or anyone who posts messages therein could be sued for libel anywhere in the Philippines that the private complainant may have allegedly accessed the offending website. For the Court to hold that the Amended Information sufficiently vested jurisdiction in the courts of Makati simply because the defamatory article was accessed therein would open the floodgates to the libel suit being filed in all other locations where the pepcoalition website is likewise accessed or capable of being accessed.
Given the foregoing, I advised the client of her option to file a criminal case against the author of the offending post, and of her option to file a complaint for damages. Then she informed me that the offending Facebook poster is her relative (aren’t they all?), who lives aboard. Since her resort to legal action may “inspire” her relative to step up her online attacks knowing that she is beyond the reach of Philippine law (and I very much doubt that libel is an extraditable offense), I advised the client, in the spirit of Christmas, to explore the possibility of resolving the matter through family-based mediation.