A friend of mine read the two blog posts on Monday and Wednesday, October 22 and 24.  She said she also noticed the capital letters in the comment and asked if I was offended by it.  I said no.  I realize that inevitably, when I voice an opinion or view, people will either agree or disagree with it.  Understandably, people react.  If a person writing a blog does not grasp this, he or she will not develop a tough hide and will quit blogging altogether.  It is a fact that people react to words; some react graciously and use polite words; others disagree agreeably; others hit back with equally forceful words. Often, it is not what is said so much as how it is said that matters.  This, I think, is the point of the Cybercrime Prevention Law’s provision on libel.

The Cybercrime Prevention Bill (RA 10175) was a law enacted by the Philippine Congress in response to the Budapest Convention on Cybercrime.  The Budapest Convention on Cybercrime was a treaty that sought to harmonize the laws of nations to uniformly define and punish crimes committed via the internet.  Among the crimes defined under the Budapest Convention on Cybercrime are hacking (violations of network security or integrity), infringements of copyright (plagiarism), computer-related fraud (phishing or spamming), child pornography and hate crimes(cyber bullying).  According to the sponsors of the bill, the provisions are identical to the Budapest Convention on Cybercrime which came into force sometime in 2006.  The Philippines is a signatory to this convention and the passage of the law is a ratification of its provisions and recommendations.

When the law was hotly opposed on the social media, I was surprised.  First, I didn’t know what the law contained.  Second, the vehement objections were numerous, in fact, it was viral.  Third, the objection was not about the law as a whole: the vociferous objections centered mostly on the provision that increased the penalty for online libel. The objections were mostly how the increased penalty for libel was a form of curtailment of the right to free speech and the right to a free online press.

Many people changed their profile picture on Facebook and on Twitter to signify their protest against the enactment of the law.  All over the web, black squares stared reproachfully.  Numerous petitions were filed against the constitutionality of the cybercrime law that some lawmakers quavered.  Some began pointing fingers as to who was responsible for the insertion of the libel provision. Others who were running for reelection in 2012 and were wishing to court favor with the voting public vowed to introduce amendments to the newly enacted law if elected.  The Supreme Court finally issued a 120-day temporary restraining order on the implementation of the bill to quell the clamor.  After the issuance of the TRO by the Supreme Court the black squares faded. Until the TRO expires and the Supreme Court finally adjudicates the constitutionality of the law, the law is sub-judice (under the bench) and need not be discussed further or the ensuing discussions may influence the Court in its deliberations.  I am a lawyer.  I abide by the sub-judice principle.  I will not discuss the Cybercrime Prevention Law or why it is unconstitutional. I am writing, however, to reflect on the objections to the law and the reasons for the objections.

People thought that the Cybercrime Law was creating a new crime.  It was not.  Libel has been in the Revised Penal Code since January 1, 1932.  The provisions of the Revised Penal Code were lifted from the Spanish Penal Code which had been in effect in these islands since the Spanish Conquest in the 1600s.  Libel is not a new crime.

Libel in the RPC differs from the libel in the Cybercrime Law.  Under the RPC, acts are defined to be criminal because they show moral turpitude (malum in se, evil by nature).  The Cybercrime Law is a special law and defines criminal acts which may or may not be immoral but are just prohibited (malum prohibitum, it is illegal simply because it is prohibited).

Libel in the RPC refers to libel on the mainstream as well as internet media.  The case of Cyber Perling illustrates this.  A woman, known on Facebook as Cyber Perling, used her account to post pictures and publish comments on certain mining practices.  She was sued for libel under the RPC because she could not be sued under the Cybercrime Law as the implementation o the Cybercrime Law is suspended.  The crime libel as defined in the RPC can refer to any form of publication: on paper, as in broadsheets or magazines; on the radio or television or on the internet.  The criminal charge for libel under the RPC against Cyber Perling showed that libel in the Cybercrime Law is superfluous and unnecessary because the libel in the RPC can be used to prosecute crimes against honor.

Vox populi is most certainly not vox dei.  The objections to the Cybercrime Law were overwhelming but I hasten to add that just because the majority cries that the law is unconstitutional does not make it unconstitutional. The right to property is not absolute.  People may be deprived of their property as long as this is done with due process of law.  This means that, your Facebook and Twitter accounts are not really yours (you may have the passwords to access those accounts but in reality, the owner of Facebook and Twitter have the final say whether they will delete your account because they, in fact, own it, not you.  The right to free speech is similarly not absolute: you can say anything you like but you have to be responsible so that the words you use and the manner by which you use them do not invade the private lives of others or put others’ reputation and character in dishonor.  Even the mainstream media know this.  This is a rule by which all serious journalists live.  They can publish facts (meaning they have proof of the truth of the things they publish; they must use only fair, reasonable and impartial words; and they have to give the opportunity for all the persons on all the sides of the controversy to have their say). The rules for the mainstream media must apply to all media, even online media and even personal Facebook and Twitter accounts since we can all ‘publish’ comments using these means.

The existence of a cyber libel provision only means you can be charged for libel, it does not mean that the libel charge will succeed.  No less than the legendary journalist Luis Beltran was sued by the then sitting President Cory Aquino because he made a comment in his column that at the height of a coup d’etat, President Cory was “hiding under the bed.”  The court acquitted Luis Beltran: one, she is a public figure who must realize that all her public acts will be scrutinized; second, the journalist used an idiom, a figure of speech: no one took his words at their literal meaning.  Everyday complaints for libel are filed and very few succeed.  Libel is a check on the possible excesses of media; a check on the unsavory use of words that have no purpose other than to malign individuals.  But libel still has to be proved; and those charged with libel still have defenses available to them in law.

Libel is a costly and tedious crime to prosecute.  A person suing for libel needs to prove the fact of publication; and he must prove that his honor was maligned; and that malice aforethought spurred on the publication.  Since the TRO was issued: nurses from Taguig have been terminated from their employment for “liking” a comment that criticized hospital administration.  Students in a university in Isabela or Cagayan have been placed on disciplinary suspension for publishing criticism.  High school students in Quezon City have been suspended for voicing objections.  Much earlier, students from a Catholic high school were deprived of their right to march in their graduation ceremonies for publishing photos of themselves while bikini-clad in Boracay.  The libel provision will be rendered inutile as there are other less costly ways to curtail the freedom of speech.

When I find a post in my newsfeed that offends my sensibilities (these are usually risqué photos or videos that may corrupt my friends and students who are minors), I just block the person who posted them.  I can even report or un-friend the person who posted them.  Facebook will investigate and will take appropriate action.  Facebook censors itself. On my blog account, all comments have to be approved by me first before they can be posted on my blog page.  This is also censorship.

This is mainly why I am surprised at the objections to the Cybercrime Law on libel.  There are other ways to curtail our freedom of speech on the internet: the law merely confirms that already prevalent practice.  People who objected to the Cybercrime Law do not realize this but, truly, your right to free speech is not absolute and there are other ways to curtail it that does not require a costly criminal prosecution.

More on this next week….