THE Supreme Court (SC) of the Philippines just upheld the constitutionality of most parts of the Cybercrime Prevention Act of 2012, including the contentious provision that punishes online libel.
The execution of the law was suspended in October 2012 by a temporary restraining order issued by the Supreme Court, following criticisms and protests among the media and human rights advocates.
However, with this new ruling of the Supreme Court, a person or entity who posts something (in words or pictures) — which can be proven false, and 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.
Yes, in the Philippines, libel is still a criminal offense. It is defamation in its very essence, but covers published work on print, television and other traditional media. The same is now true for new media like the internet.
This online/internet libel law, however, punishes only the original author of the post. Those who “liked,” “shared,” “retweeted” or re-blogged a post will not be criminally liable, unless (and I am presuming here) the person added a comment that may deemed to be libelous by a complainant.
In this case, I am deducing that he/she becomes an original author of his/her comment and may have to defend himself/herself in court if charged with online libel.
Libel in the US
In the United States, there are NO criminal defamation, libel or insult laws on the federal level.
Libel is deemed as 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 or freedom of expression.
Law.com states that “while it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it needs only be obvious that the statement would do harm and is untrue. Libel per se involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages.”
But rules on libel covering government officials and other public figures are special, based on US Supreme Court decisions. To uphold the right of people to express opinions or fair comment on public figures is constitutionally protected under the First Amendment, therefore, the libel must be “malicious” to constitute grounds for a lawsuit for damages.
“Malicious” means the defendant knows that what he or she is publishing is false, or has reckless regard of whether it is in fact true or false, because of the intent to injure a person’s or an entity’s reputation.
However, it is important to note that there are 17 states that have criminal libel. While rarely prosecuted, it still exists in the books of Colorado, Florida, Idaho, Kansas, Louisiana, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia, Washington and Wisconsin, along with Puerto Rico and the US Virgin Islands.
This is true, despite the US Supreme Court’s ruling more than 40 years ago in Garrison v. Louisiana, that state criminal libel statutes that permit prosecution for publication of truthful information violate the First Amendment.
According to the website of Reporters’ Committee for Freedom of the Press (RCFP): “Traditional journalists are almost never prosecuted under these statutes, leaving online content providers and other publishers to serve as targets of allegedly defamed people who wield significant political power. In the absence of a court decision declaring them unconstitutional, they remain good law.”
RCFP warns that criminal libel may be used to silence online publishers.
“A blogger or other online content provider in a state like Colorado or Wisconsin would be prudent to take some time and try to identify any community members who have influence with a prosecutor’s office and may try to exert that power if they are ever the subject of widely published reports, even wholly truthful ones. “
Criminalizing libel violates freedom of expression, says UN
The federal position of the United States on libel as a civil not a criminal offense, is pursuant to the provisions of the First Amendment of the Constitution protecting free speech, as well as the Universal Declaration of Human Rights (UDHR), particularly Article 19.
Article 19 states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”
The UDHR is a declaration adopted by the United Nations General Assembly in 1948. The Philippines is among the 48 nations, who voted in favor of it.
The UN Human Rights Committee (UNHRC) has in fact declared that jailing a writer for libel represents a violation of freedom of expression.
The Bureau for Investigative Journalism reports that this view was issued in response to the imprisonment of a former radio journalist Alex Adonis in the Philippines in early 2007.
Moreover, the UNHRC has also declared that the Revised Penal Code of the Philippines criminal libel provision is ‘incompatible’ with Article 19, paragraph three of the International Covenant on Civil and Political Rights (ICCPR), of which the Philippines is a signatory. With the recent SC decision, applicability of this may be contentious.
Article 19 of ICCPR states:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (order public), or of public health or morals.
While the UNHRC views are not binding legal judgments, human rights advocates around the world contend that these should compel governments such the the Philippines’ to comply with the view of the UN committee and honor their treaty obligations.
At the heart of criticisms and protests against the Cybercrime Prevention Act provision on internet libel (which was signed into law by President Aquino in September, 2012, and now has been declared as constitutional by the Supreme Court), is the provision’s violation of the Bill of Rights in the 1987 Constitution which states: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.” (To be continued)
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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 www.TheFil-AmPerspective.com, https://www.facebook.com/Gel.Santos.Relos
