CALLS for the decriminalization of libel were made following the Supreme Court’s decision to uphold most of the controversial Cybercrime Law’s key provisions including online libel.
Sec. 4 of the Cybercrime Law punishes acts of libel as defined under Article 355 of the Revised Penal Code committed through a computer system. Libel, under the country’s penal code, means any malicious imputation tending to cause dishonor upon a person’s reputation.
The Philippine Press Institute (PPI) was among those groups who expressed disappointment over the Supreme Court decision, citing infringement of Free Expression protected by the Constitution.
PPI Executive Director Ariel Sebellino said that the online libel clause may shackle journalists in the practice of their job.
“Anything that narrows press freedom and democracy in the Philippines should be disagreed upon instead of propagating it,” he said, adding there should be no libel law in the first place, believing it to violate the Free Expression clause.
But media law professor Rigor Pascual said that the Cybercrime Law does not in any way violate the Constitutional guarantee to Freedom of Expression.
“I don’t think that freedom of expression is violated because libel is not part of your Freedom of Expression [clasue],” Pascual said.
A long line of jurisprudence seems to be in support of Pascual’s view.
Ever since the US Supreme Court ruling in the case of Chaplinsky vs. New Hampshire in 1942, it was understood that libel was not protected by the First Amendment of the Constitution, which counterpart in the Philippines is the Freedom of Expression. And in a subsequent case, New York Times Co. vs. Sullivan, in 1964 it was held that the burden of proving malice in a libel suit is with the one who suing if the latter is a public figure.
For Pascual, Cybercrime Law encourages an individual to be responsible in using the Internet.
“The problem with people right now, some of them, don’t think before they click,” he said. “That’s why we have cyber-bullying and unwarranted publicity of a particular person.”
Retired Makati trial court judge Oscar Pimentel said that the State has an interest in protecting a person's reputation, which is why libel should not be decriminalized.
Criticizing erring officials
Critics of the Cybercrime Law often cite the scenario wherein a social media user may be sued for libel by merely criticizing an erring public official through a Facebook or Twitter post.
Sen. Teofisto Guingona, who voted against the enactment of the law, said in a statement that every social media user is in danger of being sued for libel.
But such is not necessarily the case, according to lawyers.
Under the Revised Penal Code, the elements of libel are: imputation of a discreditable act or condition to another; publication of the imputation; person defamed must be identified; and most importantly, the presence of malice.
The Cybercrime Law merely adopted such age-old principles from the Revised Penal Code, which was enacted in 1932.
Lawyer Eldric Peredo, who teaches in the College of Commerce and Business Administration said not all critical remarks are considered libellous.
“Privilege speech in congress and fair and true reports of public concern by media or anything that is newsworthy including the discussion of public figures is protected by free speech,” Peredo said. “So if you post something about the government or public officials as long as [it has factual basis], it is not considered libellous.”
When Cybercrime Law was enacted in 2012, it initially punished those who “abet or aid” those who committed online libel. To illustrate, a person who wrote a malicious post against another person may be guilty of online libel and those who merely “reacted” to that person’s post—by means of “Liking”, “Retweeting”, or commenting—may also be punished. Such provision was struck down, so that only the original author is liable.
“By sharing, liking or retweeting, it does not make you the author of a defamatory statement,” he said. “That is the case where the court clarified that if you simply commented on it, you are not liable for online libel because the court declared the ‘aiding and abetting’ clause unconstitutional in which you help libellous materials to be published.”
Senate flipflopping?
In response to the Supreme Court decision, some senators expressed intent to decriminalize libel altogether.
Senate Bill 245 seeking to decriminalize libel and defamation was filed by Sen. Pia Cayetano, who told the media that while people are discouraged from making defamatory statements against others online, the Internet should still be regarded as a different kind of medium in which anyone has the right to express their views and opinions.
Senator Cayetano voted to pass the Cybercrime Law in 2012.
Likewise, Senators Teofisto Guingona III and Alan Peter Cayetano filed similar bills.
A dangerous country for journalists
With or without libel laws, it is the Philippine’s political culture which inherently limits freedom of expression, said Human Rights Watch Asia researcher Carlos Conde, citing numerous cases of journalist killings in the country.
“Our political culture is so premature and so depraved to the point that it does not have any room in the exercise of freedom of expression,” Conde said in an interview
There are at least 76 journalists killed due to their work, data from Committee to Protect Journalists (CPJ) shows. Fatalities include murders and accidents.
Paris-based press freedom watchdog Reporters sans frontiers (Reporters Without Borders) ranked the Philippines as fifth most dangerous country for journalists. India came in fourth. Syria, Somalia and Pakistan are the three most dangerous.
“Unfortunately in the Philippines, if you are a [passive] journalist, you’re safe but if you are the type of journalist who is critical, you would most likely be killed,” Conde said.
It has been four years since the Maguindanao Massacre wherein 58 people, 32 of which were media practitioners, were murdered by armed men led by the Ampatuan, but no one has been convicted.
The incident was marked as the single dealiest event for the press since 1992, according to CPJ.
During the first 40 months of the Aquino Administration, from July 2010 to October 2013, at least 23 journalists were killed, 16 of them were radio broadcasters and seven were print journalist.
Professionalizing journalism
Alice Collet-Villadolid, a veteran journalist teaching in the Faculty of Arts and Letters, said many of the journalists killed today are neither members of the Kapisanan ng mga Brodkaster ng Pilipinas (KBP) nor any media outlet.
“They are not real journalists who just wanted to buy block time on the radio, meaning they are not employees of the radio station,” Villadolid said. “They just pay the owner for a 30-minute blocktime and then they broadcast what they were paid to publicize.”
Villadolid, who is a former director of PPI, asked Kapisanan ng mga Brodkaster ng Pilipinas to sell block time only to those listed as a member of professional organization but so far nothing was done.
“I think it would decrease the number of killings if they were to professionalize journalists because radio stations will not sell any blocktime to non-journalists,” she said. “The one who is fighting political or economic struggles cannot use blocktime to attack their enemies anymore so therefore they will have no reason to hire a killer to the one who is broadcasting libelous statements against them.” Jelina Anne S. Bunagan
