The fight versus cyberlibel continues

The Supreme Court on Tuesday upheld the constitutionality of libel in the Cybercrimes Prevention Act of 2012. This is both unfortunate and disturbing. Our Supreme Court, as early as Angara vs. Electoral Tribunal, is recognized as a co-equal branch of government despite its lack of political and military power because its task is to uphold the supremacy of the Constitution. But with this unfortunate decision, the Court has clearly abdicated its role to uphold fundamental freedoms.

I represented journalists in this constitutional challenge led by Alexander Adonis. Adonis spent a year behind bars for libel courtesy of former Speaker Prospero “Burlesque King” Nograles. He went to the UN Committee on Human Rights for a view that criminal libel here is contrary to freedom of expression enshrined in the International Covenant on Civil and Political Rights. He succeeded and the Committee declared, for the first time, that criminal libel is unnecessary and disproportional for the protection of privacy of private individuals. The Committee ruled that the alternative to achieve this aim is civil damages and not incarceration.

The rationale for why criminal libel infringes on the right to free expression is because of a principle known as “overbreadth”. Under this, legislation so broadly tailored should be annulled on its face since its enforcement may cover even protected speech. This is why many states in the United States have stricken down much criminal libel legislation as being unconstitutional. Specifically, it may criminalize criticisms against public officials, which even if untrue, were nonetheless said without knowledge of falsity or in utter disregard thereof. The rationale for this in turn was summarized in the case of New York Times vs. Sullivan: “debate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Garrison v. Louisiana then said why speech motivated even by hatred and ill-will should not be penalized: “Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth”.

The fact that the cyber prevention act criminalizes libel in the Internet, a different medium form print or broadcast, also adds to the confusion. For instance, the Revised Penal Code provision on libel says: “Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same”. The issue now is who else, besides the author, should be held liable for libel. Should the ISP and the intermediary, whose facility is indispensible for Internet publication, also be held liable? Are cybercafé owners, because bulk of our netizens goes to these cafes, also liable?

The Court attempted to narrow the scope of application of the cyberlibel law by ruling that only original posts may be penalized. This reflects that the court does not fully appreciate the nature of the Internet as a technology. Netizens today not only repost Facebook entries, they also reproduce them through cut and paste. So in the case of cut and paste, who are the original authors? Moreover, the court spokesperson said that comments are not liable for persecution. But how can these be when comments, by their very nature are in fact original posts distinct to the Web page or the Facebook entry that they seek to propagate?

Ultimately, the objection to the cybercrime law is that it seeks to penalize individual space on the Internet, which is recognized as the realization of the free market place of ideas. The theory of free speech is right or wrong; information should be made available to everyone, as ultimately, people will use their own intelligence in distilling the truth from falsity.

Karen Davila in her show yesterday was correct. The Internet is the medium of communication of the future. This is why they now seek to regulate it. For unless they instill fear in the hearts of those who criticize government, the possibility exists that government will cease to be a business and be  a means to serve the public. This is what they seek to prevent by legislating the draconian cybercrime prevention act.

But make no mistake about it: the fight shall continue. There shall be a motion for reconsideration in due course and a new petition in the future, for the alternative that of having the draconian law in force is simply unacceptable.


12 comments on “The fight versus cyberlibel continues

  1. I totally agree with you, Prof. Roque.,

  2. jcc says:

    Lace your MR with the thoughts of Thomas Jefferson and discuss “libel” simply as a tort, which if made in connection with public issues, even as a tort (civil) it is up for a rough sailing. Or a derogatory statement against a public official is always an opinion and as an opinion it is always correct and therefore without malice.

  3. jcc says:

    The principle of “protected speech” is a slippery slope. You were giving the court a veritable arsenal because jurisprudence classifies “libel” as unprotected speech, like child pornography or advertisement for the sale of contraband. We must argue that all speech is protected and would allow the good sense of the public only as its censor. This is Jeffersonian logic.

  4. Prof. Roque..Hi! I am Jane M. Arzadon, Legislative Committee Secretary in the Senate for Science and Technology. We would like to invite you as our resource person this March 3 at the Senate for a hearing on Cybercrimes. We have met before in Malaysia, i was then with Sen. Chiz. Where can I reach number is 0917-5913386 or at I am with Sen Recto presently.

  5. jcc says:

    speech is meant to be offensive, if it isn’t, it doesn’t need the protection of the first amendment.

  6. ferdie Brizo says:

    God PM po Sir

    I’m one of your avid blog subscribers. Thanks for the excellent opinion in our current events. If you don’t mind sir, can we reprint your opinions in our local newspaper in Catanduanes for free to share it also to our readers? thanks po

    Ferdie Brizo po ito
    Bicol Peryodiko.

  7. Hi Atty. I agree that it should have been invalidated ‘on it’s face. It’s indeed very broad. Looking forward to a favorable decision on your MR

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