I frankly think that the protests and demonstrations over the Cybercrime Prevention Act are an overreaction. In the first place, the Philippine justice system has never been famous for enforcing the law or getting a conviction. In the second place, there are a number of ways to beat the libel rap.
Back in the days when Tito Sotto was still wearing diapers, a radio commentator coincidentally surnamed Sotto had it all figured out. Damian Sotto was notorious for insulting his enemies on the air. But he had a way of putting it, which drove home the point but left him with legal wiggle room.
He would scream into the microphone: “Magnanakaw si Mayor Lacson? Tinatawag ko bang magnanakaw si Lacson?” (Mayor Lacson, a thief? Am I calling Lacson a thief?).
And Damian Sotto would conclude with a wicked chuckle: “Nagtatanong po lamang.” (Just asking).
Of course, the “net take-away” (to use an advertising term) of the listeners was the impression that the mayor of Manila was a thief.
Journalists of all stripes, particularly the yellow ones, have made the words “alleged” and “reported” among the most overused in news writing. This was particularly true during the days of the tabloids, the scandal sheets that never allowed the facts to get in the way of their fiction.
By using “alleged” and “reported,” newspapers avoided making a definitive statement about or against the subject of a story, as in, “The senator allegedly plagiarized his RH Bill speech.”
Note that the subject senator isn’t directly called a plagiarist, but the phrasing is enough to plant seeds of doubt in the readers’ mind, while providing the editors legal wiggle room.
A common technique used by journalists is attribution of an incriminating news leak to “reliable sources.” Whether or not the “sources” are merely the product of the fertile imagination of the reporter and editor, the law shields them from naming names. Which is why, the usual rebuttal of politicians who are being incriminated is to dare the accusers to “name names.”
Of course, no names are ever revealed. But the “revelations” generate reams of free publicity for all concerned.
And that brings up another tactic for avoiding libel. By hurling a blanket brickbat at the object of one’s derision – e.g., “those imbecilic, idiotic, do-nothing, stealing, grafting senators” – the wily reporter avoids being brought to court by a member of the august body.
It’s the same dynamics as farting in public. The first person to speak out is invariably suspected of being the one who let off gas. Indeed, under the circumstances, which self-respecting member of the senate would want to own up to the blanket defamation?
At any rate, the Cybercrime law may have created legal eagles of members of the press and social media habitués. I understand that they’re all googling the fine points of the laws on libel.
Libel is, in fact, not the easiest accusation to prove. While Article 353 of the Revised Penal Code of the Philippines defines libel 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 discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead,” the statute also points out that “the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and (d) existence of malice.”
Case law points out that “in order to constitute malice, ill will must be personal. So if the ill will is engendered by one’s sense of justice or other legitimate or plausible motive, such feeling negatives actual malice. (Aquino, Ramon C., The Revised Penal Code, Vol. III, Bk. II, 1997 Ed., citing People v. de los Reyes, Jr., 47 OG 3569).
There is no libel in the case of “a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of a statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions….If it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.”
Which brings us to the speech of Tito Sotto on the RH Bill, which a blogger claimed was plagiarized and which became the subject of media frenzy.
Were the reports “true and fair”? It appears that Sotto’s own official spokesman acknowledged that portions of the speech were sourced from somebody else’s work, which constitutes plagiarism. He even went as far as to declare that “everyone is a plagiarist, anyway,” or words to that effect.
But was the imputation of plagiarism made “without any comments or remarks”? Frankly, the mischievous social media habitués made more than “comments or remarks” – they got carried away and scourged Sotto more than he deserved.
Granted, Sotto did not handle the problem elegantly – and not even well – the way he was trashed on FaceBook was reminiscent of the gleeful cheers of the gallery in the Coliseum when the Roman emperors fed the Christians to the lions.
Of course, that’s still not enough justification to curb Freedom of Expression.
At any rate, there are other interesting defenses against a charge of libel. According to my trusty Google searcher:
Firstly, “if the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable.”
In other words, if you think Sotto is a plagiarist, you are entitled to your opinion. And if he thinks you’re an idiot for accusing him of plagiarism, he is entitled to his opinion, too.
Here’s something interesting: “Mere vulgar abuse is an insult that is not necessarily defamatory because it is not intended to be taken literally or believed, or likely to cause real damage to a reputation. Vituperative statements made in anger, such as calling someone an ‘asshole’ during a drunken argument, would likely be considered mere vulgar abuse and not defamatory.”
Now, don’t take my word for it. If you start hurling vulgar language in FaceBook at Sotto (and Noynoy Aquino for signing the Cybercrime law), I doubt that you can use the “drunken argument” as a defense.
But here’s what takes the cake: According to my research, ”if the person accusing you of libel is incapable of further defamation – e.g., the claimant’s position in the community is so poor that defamation could not do further damage to the plaintiff…such a claimant could be said to be ‘libel-proof’…Essentially, the defense is that the person had such a bad reputation before the libel, that no further damage could possibly have been caused by the making of the (allegedly libelous) statement.”
Does that apply to Sotto and the other members of the Senate?
As Damian Sotto would have put it: “Nagtatanong po lamang.”
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