THE FIL-AM PERSPECTIVE

Does online libel curtail freedom of expression? Compare US. vs PH Libel Laws

By Gel Santos Relos 

 

Aquino defends online libel law (Photo credit: cablenewsasia.com)

 

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.' " 

Michael Christian Martinez Defying All Odds

 

  

Michael Christian Martinez tweets me on November 4, 2013, asking for support from his kababayans for his Olympic bid.

Michael Christian Martinez has shown us that there are no "ifs" and "buts" on the road to victory. Keep your eyes on the goal. In the end, what matters most is how hard you fought. If you know in your heart you have given your best shot defying all odds, you are already a winner!  

Mabuhay ka, Michael Christian Martinez!

 Read post: Michael Christian Martinez Highlights the Need for More Government Support for Sports

What You Need to Know About about Internet Libel Before You Post Something Online

 

By Gel Santos Relos

on Asian Journal Op-Ed

 

 

 

Internet Libel as a Criminal Offense (Photo credit: rferl.org)

 

The Supreme Court 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. And even for government officials and public figure, there seems to be a presumption of malicious intent on the part of the accused when the case of libel is filed by complainant.

 

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 for private citizen complainants, "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 despite a US Supreme Court's ruling more than 40 years ago-- (Garrison v. Louisiana) that state criminal libel statutes that permit prosecution for publication of truthful information violate the First Amendment -- there are still 17 states that have criminal libel.

 

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. 

 

Criminal libel cases, however,  are rarely prosecuted because if a defendant can prove that what he/she posted is true, or that it was  a fair and honest opinion, then the libel case is dismissed.

 

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, however, 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)

Michael Martinez Highlights Need for More Philippine Government Support in Sports

By Gel Santos Relos 

Op-Ed article on the Asian Journal

 

Michael Martinez: Proud to be Filipino in Sochi Winter Olympics

Seventeen-year-old Michael Christian Martinez has put the Philippines in the spotlight during the 2014 Winter Olympics in Sochi, Russia — ranking 19th in the figure skating competition during his Olympic debut. Michael was also the only figure skater who made it to the Top 5 most talked about Olympic athletes on Facebook during the first week of Winter Olympics, and figure skating was the sport that attracted the most interest.

Before Sochi, Michael has won 19 medals in other international competitions. He made history,  being the first-ever figure skater from Southeast Asia to compete in the 2012 Winter Youth Olympics and in the 2014 Sochi Winter Games.

He may not have won a medal for the Philippines in Sochi, but Michael has already made his country and kababayans proud. He has defied the odds, given the very little support serious athletes get from the Philippine government — from early training to actual competition in the global arena.

 

Michael's Challenges On His Road to Sochi Winter Olympics

Photo Credit: PhilNews

Michael started skating in 2005 at the young age of 8, reportedly training in the ice skating rink of SM Megamall. Since he started competing internationally in 2009, his family has been covering the costs for his training and competitions.

Our homegrown star athlete wouldn’t have made it to Sochi without the help of people from the private sector, who believe in Michael. “We are truly thankful to Shoemart (SM), to the Philippine Skating Union, and to the Philippine Olympic Committee (POC) for their help,” said his mom, Maria Teresa Martinez, in a report by ABS-CBN News.

I just found out myself that the POC is a private agency, and not a branch of government.  It was through the assistance of POC that Michael was able to obtain a scholarship from the International Olympic Committee’s Solidarity Scholarship Fund. This scholarship would award $1,500 a month for eight months, until February 2014 , and would include the $500 fee for the Michael’s coach.The POC has reportedly already delivered the stipend from July to October, while the balance has yet to be given.

Mrs. Martinez also expressed gratitude for the financial support extended by SM Investment Corp. Since May 2013, Michael received P150,000 from SM for 10 months. Michael’s mom said that while this might seem like a big amount, it is still not enough to cover all the expenses in the very expensive sport of figure skating.

“From SM we are getting about $111 a day. That is already a big help but it is still not enough since, when we train in the US, we spend at least $400 a day just to cover the coaches’ fees ($100-$150/hour) and $40 for ice rink time ($10-16/ hour). That amount is just not enough to prepare an athlete for the Olympics. And it takes many years of training to be in the Olympics, not just 10 months,” she clarified with ABS-CBN News.

Mrs. Martinez disclosed that there are also additional expenses for international competitions. In 2013 alone, Michael participated in nine competitions in Europe and the US. After Sochi, Michael will proceed to Moscow where he will be preparing for the 2014 ISU Junior World Championships. Mrs. Martinez said the expenses for his preparation period at the Novogorsk Training Center in Moscow exceed $420 a day just for coaching fees, excluding accommodation expenses.

Michael’s mother said that they had finally received the pledged $50 daily allowance or $1,200 for 24 days for Michael’s sojourn in Sochi from the Philippine Sports Commission, which was delivered by POC executive secretary Gina Calaguas on February 13.

As ABS-CBN News reported, Mrs. Martinez confirmed that Calaguas had also given $7,200, but this was directly to Michael’s Russian coach Viktor Kudryavtsev on that same date, as payment for his coaching duties while in Sochi (covering the period Jan. 30 to the end of February). Mrs. Martinez said Kudryavtsev has been training the Michael since the end of December,  and will continue to do so until the last days of March.

Imagine how much more our athletes could achieve internationally, if they get full support from the government, as in the case of richer countries like US, Canada, Japan, and even Russia. This is why news about government officials pocketing tax payers’ money infuriates many kababayans. These funds could have been put to better use, if they were instead appropriated to finance better sports programs in the Philippines.

Kababayans around the world have now been expressing all out support for Michael Martinez and other Pinoy athletes, shelling out their own hard earned money to help them become more competitive in international competitions.

Lawmakers like Tito Sotto and Manny Pacquiao have filed resolutions to honor Michael Martinez for the honor he has given the country in Sochi.  

While this is a good move from the government, what will be better is a clear government policy and program that supports sports for Filipinos from childhood, up until they compete in the global arena.

 

The Benefits and Importance of Sport in Society

The benefits and importance of sports in society go beyond fame and bragging rights.  As the United Nations states in its website: “Sport has a unique power to attract, mobilize and inspire. By its very nature, sport is about participation. It is about inclusion and citizenship. It stands for human values such as respect for the opponent, acceptance of binding rules, teamwork and fairness.”

Moreover, “Sport plays a significant role as a promoter of social integration and economic development in different geographical, cultural and political contexts. Sport is a powerful tool to strengthen social ties and networks, and to promote ideals of peace, fraternity, solidarity, non-violence, tolerance and justice.”

The UN website further states that according to the Sport for Development and Peace International Working Group, sport is seen to have the most benefits in: -Individual development -Health promotion and disease prevention -Promotion of gender equality -Social integration and the development of social capital -Peace building and conflict prevention/resolution -Post-disaster/trauma relief and normalization of life -Economic development -Communication and social mobilization.

But the UN warns that sport is not a cure-all for development problems. “As a cultural phenomenon, it is a mirror of society and is just as complex and contradictory. As such, sport can also have negative side effects such as violence, corruption, discrimination, hooliganism, nationalism [parochial], doping and fraud. To enable sport to unleash its full positive potential, emphasis must be placed on effective monitoring and guiding of sports activities.” 

Op-Ed article on the Asian Journal

Legal Perspective: Aiza Seguerra and Liza Diño can challenge the definition of marriage in the PHL

By Gel Santos Relos

 

Aiza proposes to Liza (Photo credit: Rappler.com)

 "The Philippine Constitution does NOT define marriage as a legal union between one man and one woman. This is a solid legal ground for the constitutional challenge of the Family Code. The Constitution has primacy. It is the supreme law of the land.” -- Atty. Arnedo Valera

 

In the midst of debates about the Obama administration’s policy to grant federal benefits, protection and services to all married same-sex couples in America equal to those accorded to their heterosexual counterparts, multi-talented actress and singer Aiza Seguerra just proposed marriage to the love of her life, model-actress Liza Diño in the Philippines. 

 

Filipinos are generally more conservative and oppose same-sex marriage. However, just like many conservative Republicans here in America, the dynamics change when a member of the family admits to being gay and professes to marry his/her lover or partner.

 

It seems that the Aiza-Liza engagement was received quite well by many kababayans around the world, as indicated by the “feeling happy” response to the news on Rappler.com’s mood meter.

 

This proves that many Filipinos are considerate of Aiza's situation because of her celebrity status. She is like family to many of our kababayans, who have been following Aiza from the time she was this cute funny little girl in Eat Bulaga, up to the present -- as an openly gay, extraordinary musician. 

 

While many are excited about the couple's engagement, there are also those who ask (myself included) how they can possibly get married. 

 

After all, same-sex marriage is not legal in the Philippines. And even if they tie the knot in California, as they reportedly plan to do, their marriage will NOT be legally recognized in the Philippines. 

 

This would mean that while they would be fully recognized as wife and wife in America, they still would not be able to enjoy the benefits and protection accorded by law to couples in a traditional marriage in the Philippines. 

 

I asked Atty. Arnedo Valera (a Fil-Am community leader and lawyer who specializes in international law and human rights) what options Aiza and Liza have,  given their circumstance.

 

Option 1: Be a US citizen first

 

Valera said  when Liza (who is a US legal permanent resident/green card holder) becomes a US citizen, they can get married in a state where gay marriage is legal, they should able to enjoy all the benefits and protection Philippine laws give to heterosexual couples in the Philippines in a traditional marriage.

 

“A conflict of laws under international law can arise if you deal with marital rights and property rights of same-sex couples married outside of the US and are US Citizens,  but have decided to live permanently in the Philippines, have several property investments in the Philippines, and one or two decide to embrace dual citizenship,” Valera added.

 

Atty. Valera pointed out that the closest conflict of laws under international law is between the law legally recognizing same sex marriage and Art. 26 of the Family Code which states, “All marriages solemnized outside the Philippines in accordance with the laws in force in the country (let us say the US) WHERE THEY WERE SOLEMNIZED AND VALID THERE AS SUCH SHALL ALSO BE VALID IN THIS COUNTRY, except Articles 35(1), (4), and (6), 36,37 and 38(71a)...”

 

Valera argued: “It is to be clearly noted that Article 26 does not mention Same Sex Marriages as VOID as it is not included in the enumeration. However, the Family Code in Art. 1 defines this as 'between a man and a woman' and it is an essential requisite to marriage But this applies only to Filipino Citizens who contracted marriage in the Philippines.”

 

Valera explained that the Family Code of the Philippines is based on antiquated "siete partidas" codigo civil under our 300 years of being a colony of Spain. 

 

Valera contended that the Aiza-Liza marriage will “raise a constitutional challenge vs the Civil Code’s definition of marriage based on equal protection laws . The fact that the marriage was validly recognized where celebrated is enough."

 

 

 

Option 2: Get married now and take legal battle to court 

 

“On the basis of a constitutional challenge anchored on the fundamental civil right and liberty of an individual or person, this portion of the Family Code on defining marriage between man and woman should be declared unconstitutional”, he said.

 

Valera took it further and said “Pakasal na sila [in California as planned]”.

 

Atty. Valera was also pointing to how the Philippine Constitution, in fact, does NOT define marriage as a legal union between one man and one woman, citing Article XV:

 

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.

 

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

 

Section 3. The State shall defend:

(1) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood;

(2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development;

(3) The right of the family to a family living wage and income; and

(4)The right of families or family associations to participate in the planning and implementation of policies and programs that affect them.

 

Section 4. The family has the duty to care for its elderly members but the State may also do so through just programs of social security.

Valera said that it is the Family Code of the Philippines which defines marriage “as a special contract of permanent union between man and woman.”

 

“It is a solid legal ground for the constitutional challenge of the Family code,” Valera argued. “The Constitution has primacy. It is the supreme law of the land.”

 

Should Aiza and Liza make history and challenge the constitutionality of the limiting definition of marriage in the Family Code, in the name of "equality for all?"