Does online libel curtail freedom of expression?

IT IS the 28th anniversary of the People Power Revolution — a proud moment in the history of the Filipino people.
We commemorate how we toppled the Marcos dictatorship and reclaimed our fundamental rights to a democracy: freedom of speech, freedom of the press and freedom of expression.
Fast forward to 2012. Pres. “PNoy” Aquino (son of Philippine icons of democracy, Sen. Benigno “Ninoy” Aquino, Jr. and  former President Corazon “Cory” Aquino) signed into law the Cyber Crime Prevention Act of 2012.
Protests and criticisms of human rights and press freedom advocates followed, prompting the Philippine Supreme Court (SC) to issue a temporary restraining order pending review and ruling of the appeal questioning the constitutionality of the law.
Recently (on February 18) the Philippine Supreme Court (SC) made a decision on the Cybercrime law and ruled that most parts of it are in accordance with the Constitution — including the controversial cyber or internet libel.
Activist, lawyer and UP Professor Atty. Harry Roque tweeted: “Ironic that SC upheld constitutionality of cyber libel near anniversary of EDSA. The son now running scared like the despot! Sad!”
PNoy justified the SC ruling, saying: “Will it curtail freedom of expression? I don’t think that’s the objective.”
“You, as responsible journalists, you have rights. Those rights have their limits, right? We were taught in school that your rights end where they impinge on the rights of others,” Aquino said.
The provision states that a person or entity who posts something (in words or pictures) that is false — a post that is intended to harm the reputation of another by tending to bring the target into ridicule, hatred, scorn or contempt of others — may be arrested, detained, and imprisoned because of libel.
Critics of the president and the cyber libel law said that curtailing freedom of expression is exactly what the online libel provision does.
US vs PH on libel laws
In the United States, there is no existence of criminal defamation, libel or insult laws on the federal level.
Libel in America is considered a civil offense, where a person or entity suing for libel may only collect monetary damages from the person who published or posted libelous materials. This is meant to remind people or entity not to abuse press freedom and freedom of expression.
In the US, private individuals can sue for libel for statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages. Again, only damages and no jail time.
The Reporters’ Committee for Freedom of the Press (RCFP) illustrates just how much freedom of expression is protected in the US, through a recent decision by the Supreme Court. The SC made clear “that even the most repugnant speech on public issues is entitled to First Amendment protection.”
“Accordingly, such ‘morally flawed,’ highly offensive speech like that spewed outside the funerals of fallen soldiers cannot give rise to tort liability against its speaker, the Court held in Snyder v. Phelps.”
What about public officials and public figures? In the United States,– a plaintiff (complainant) who is considered a public figure or official,  has a higher standard of proof in a libel case than a private plaintiff, based on Supreme Court decisions.
In New York Times Co. v. Sullivan, the SC ruled that “public figure or official must prove that the publisher or broadcaster acted with ‘actual malice’ in reporting derogatory information.”
As RCFP clarified, “Actual malice,” in libel parlance, does not mean ill will or intent to harm. Instead, it means “the defendant knew that the challenged statements were false or acted with reckless disregard for the truth.”
This is to uphold the right of people to express opinions or fair comment on public figures — a right that is constitutionally protected under the First Amendment.
In the Philippines, however, “malice” is presumed, “ill will” is presumed, despite accuracy and truth in story/ statements posted, even for comments/statements about public officials.
The burden of proof (to defend one’s self and to prove that there is no malice in the post) lies with the defendant, instead of according presumption of innocence to the defendant.
“Truth is NOT a defense in PH libel. If public official claims you have malice aforethought, patay kang bata ka, ” tweeted newspaper reporter, writer and blogger Raissa Robles.
Malice aforethought in libel is defined as a conscious, intentional wrongdoing to damage reputation of another when we post or publish something.
With libel laws covering traditional media to be applied to new media (like the internet), human rights advocates believe it will be the government’s way to intimidate independent bloggers and ordinary citizens and to prevent them from criticizing the government.
‘Erroneous and vague’
Sen. Miriam Defensor Santiago (who is a constitutional law expert and former trial court judge as well)  said that the SC’s decision to uphold the constitutionality of online libel is “erroneous.”
Santiago argued against the continued criminalization of libel in the Philippines. She said that the ruling poses “a very significant constraint” on the fundamental rights to free speech and free expression, which are protected in the Constitution.
Santiago also pointed out that the ruling is “vague,” and may create more problems, when implemented.
“Of course, the Supreme Court said it is only the sender who is liable, not the person who is commenting or who is receiving. But what do these words mean? Who is the sender? The service provider? The individual netizen? Or if they’re a group, how do we identify them? Or even worse, if they are not using their true identities, how are you going to go beyond what they profess to be their identities on the Internet? That is the main problem today,”she said.
A mockery of EDSA People Power
Meantime, Raissa Robles wrote on her blog how the Internet “gives more rights to the ordinary person. Not just to the journalist but to anybody who can access the Internet.”
“Today, political leaders can get firsthand information on how ordinary voters really feel about their governance by going to Facebook and Twitter. Of course, they would have to be discerning but they will get a good idea.
This is the world that Internet libel wishes to control and reduce.
So when PNoy said, ‘your rights end where they impinge on the rights of others,’ this really has to be placed in context of Philippine reality: The rich and the powerful have more rights. True, ordinary people on the Internet impinge on the rights of the rich and the powerful, but it is because they want to equalize the rights.
And isn’t that in our social contract – the 1987 Constitution?
Article XIII, Section 1 of the Constitution states that ‘The Congress shall give the highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.’
Internet libel mocks the 1986 EDSA People Power and its promise to equalize opportunities.”

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Gel Santos Relos is the anchor of TFC’s “Balitang America.” Views and opinions expressed by the author in this column are are solely those of the author and not of Asian Journal and ABS-CBN-TFC. For comments, go to,

Gel Santos Relos

Gel Santos Relos is the anchor of TFC’s “Balitang America.” Views and opinions expressed by the author in this column are solely those of the author and not of Asian Journal and ABS-CBN-TFC. For comments, go to and

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