By Gel Santos Relos
February 25 marked the 28th anniversary of the People Power Revolution -- a proud moment in the history of the Filipino people when we commemorate how we toppled the Marcos dictatorship and reclaimed our fundamental rights in a democracy.
But a few days leading up to this commemoration, the Supreme Court (SC) made a ruling that upheld the constitutionality of most parts of the Cybercrime Prevention Act of 2012, which included the controversial provision that punishes online libel.
“Ironic that SC upheld constitutionality of cyber libel near anniversary of EDSA. The son now running scared like the despot! Sad!”, lamented activist, lawyer and UP Professor Harry Roque on twitter.
The irony alluded to was the fact that it was President Benigno Aquino III, son of the Philippines’ icon of democracy Ninoy and Cory Aquino, who signed this contentious bill into law.
Critics of the president and of the online libel law contend that this will curtail freedom of expression, one of the very important rights Filipinos fought so hard for in the People Power Revolution.
Protests and criticisms of human rights and press freedom advocates followed, prompting the SC to issue a temporary restraining order, pending review and ruling of the appeal questioning the constitutionality of the law. But with the February 18 decision of the highest court, the provision on internet libel could now be fully enforced.
The provision considers online libel as a criminal offense. 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.
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.
Libel Laws: United States vs Philippines
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.
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.
What about libel cases filed by 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.
“Actual malice,” in libel 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.”
If an individual is classified as a public official, defamatory statements relating to any aspects of their lives must meet the actual malice standard of fault for there to be liability. Moreover, even after passage of time or leaving office, public officials must still meet the actual malice standard because the public has a continued interest in the misdeeds of its leaders. (via Digital Media Law website)
The TRUTH, therefore, becomes the DEFENSE of the defendant in libel cases filed by public officials and public figures.
Another defense is the RIGHT OF PEOPLE TO EXPRESS OPINIONS AND FAIR COMMENT on public figures, no matter how scathing or critical. This defense covers expressions of opinion, everything from movie reviews to columns on the op-ed page.
IN THE PHILIPPINES, I was told “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 pos) 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.
Now that libel laws cover 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.
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”. She vowed to lead fight against online libel and to repeal the law.
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.
Meantime, Raissa Robles wrote on her blog how the online libel law is a "mockery of EDSA People Power":
"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.' "