The future of libel

In Disini vs. the Secretary of Justice et al. the Supreme Court, speaking through Associate Justice Roberto Abad, finally came out with a decision upholding the on-line libel provision of the Cybercrime Law thereby rejecting the contention of petitioners that the means adopted by the cybercrime law for regulating undesirable cyberspace activities violate certain of their constitutional rights. After extolling the benefits afforded by the internet to the public, the High Court warned that it could also be used by the ill-motivated to harm others. In the words of the ponencia, “the cyberspace is a boon to the need of the current generation for greater information and facility of communication.  But all is not well with the system since it could not filter out a number of persons of ill will who would want to use cyberspace technology for mischiefs and crimes.”

Criminal libel is seen by many, especially media practitioners, as a restriction of the speech and press rights. In the United States, criminal libel statutes took on a circuitous route before assuming its present legal and jurisprudential form which heavily favors free speech over libel prosecution.  It legal odyssey started in 1798 with the passage of the Alien and Sedition Acts allowing the president to imprison or deport aliens who were considered “dangerous to the peace and safety of the United States”. They also restricted speech which was critical of the federal government.

Their unpopularity ultimately helped the Democratic-Republicans to win in the 1800 elections and were thus eventually allowed to expire in 1800 and 1801. While 16 States today still penalize libel in their criminal statutes, they are now seldom used, and are seen to be redundant; oftentimes dismissal of libel complaints result because the alleged libelous statements are seen to be too trivial to warrant a full blown prosecution.

The English followed a more radical approach when seditious libel, defamatory libel, and obscene libel were recently abolished in the England and Wales and Northern Ireland on 12 January 2010 with the passage of the Coroner and Justice Act of 2009.

Libel in the Philippines

Here in the Philippines, libel breathes its life from Article 353 of the Revised Penal Code of the Philippines which defines libel as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.

In addition to criminal prosecution for libel under the Revised Penal Code, an aggrieved party may also take recourse under article 26 of the New Civil Code of the Philippines (Republic Act 386) for acts similar to libel but relief is limited to civil liability such as damages and/or injunction.  Article 26 of Republic Act 386 penalizes acts such as prying into the privacy of another’s residence; meddling with or disturbing the private life or family relations of another; and intriguing to cause another to be alienated from his friends, among others. Civil libel differs from criminal libel in that the penalty in the former may be limited to civil damages while the later may result in fine or imprisonment; although Supreme Court Administrative Circular 8-2008 already has provided for the preference of fine over imprisonment in penalizing libel under the Revised Penal Code.

The decision by the Supreme Court to uphold the constitutionality of online libel was anchored on Article 353 of the Revised Penal Code. According to the Court, on-libel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, it further added, Section 4(c)(4) of the Cybercrime Prevention Act merely affirms that online defamation constitutes “similar means” for committing libel.  Surely, cyber space and the internet is another medium for expressing one’s view and those of others. Opinions can be expressed and made public just like any other media with the difference that unlike other forms of media, transmission and dissemination of messages in cyberspace is instantaneous and made to a much broader audience base. In this sense, the internet is a powerful tool as it is unique.  

The fact that everyone can use the internet, including ordinary individuals who have no special skills for investigation and who are not aware of their accountability and can express their opinion on a plethora of issues of public concern makes for a vibrant democracy. We have seen innumerable times how netizens influenced public events and how they promoted transparency, public accountability and ultimately good governance.

But like most technology, the internet can be used for sinister motives. For instance, libelous material when posted in the internet can have devastating and lasting impact on the subject that can cause the aggrieved greater reputational damage. This is perhaps the reason why the imposable penalty for libel under the Cybercrime Act is one (1) degree higher than that provided for by the Revised Penal Code, as amended, and pertinent special laws.

‘Presumed malice’

Philippine libel law creates the presumption that malice is present in every defamatory imputation. The effect is that the prosecution need not prove malice on the part of the defendant (malice in fact), for there is a presumption under the law that defendant’s imputation is malicious (malice in law). The burden rests on the defendant to show good intention and justifiable motive in order to overcome the legal inference of malice. However, malice can be negated by one’s sense of justice or other legitimate or plausible motive. 

Associate Justice Carpio, in his dissent, expressed his serious reservations to this “presumed malice rule.” For him, this is violative of the constitutional guarantees of freedom of speech and expression adding that the Cybercrime law’s adaptation of this rule is “a gross constitutional anomaly. He said that the public official who filed the case should be the one to prove that the defendant had knowledge that the allegedly libelous statement was false or that the defendant had “reckless disregard” of whether the statement was false or not.  Associate Justice Arturo Brion wholly concurred with Justice Carpio’s opinion on the matter.

This writer fully subscribes to Justice Carpio’s view.  Basic is the criminal law principle that one is presumed innocent until proven guilty; and the “malice presumption rule” under the RPC and the Cybercime law runs diametrically opposed to this principle. In all criminal prosecutions, the onus to prove guilt rests on the shoulders of the prosecution, not the defendant. But under the present law on libel the defendant is given the burden to overcome the legal inference of malice. Moreover, the legal presumption in effect abridges, curtails or lessens the exercise of free speech and of the press.

The unfairness of this rule is accentuated insofar as it concerns public officials who, by law, are bound to perform their official functions with utmost diligence, integrity and transparency. By the character of their public office, they are subject to public scrutiny based on the principle that they are accountable to the people. Prosecution is no mere theoretical possibility. Given the ease with which libel complaints can be initiated the malice presumption rule can have a chilling and daunting effect to the public, particularly to media practitioners. Besides, why should a democratic society countenance the incarceration of those who have made offensive statements concerning public officials, particularly on matters of public concerns? Is imposing civil liability not enough?

There is wisdom behind the move to decriminalize libel. The threat of imprisonment definitely sends a chilling effect on the freedom of speech, expression and speech. These rights are paramount and are guaranteed by the Constitution.  Other than the Bill of rights of the 1967 Constitution, Article 19 of the International Covenant on Civil and Political Rights and other conventions also enjoin for the protection of these freedoms. If ever defamation is to be penalized it should not be done by means of imprisonment but through civil indemnity and other civil remedies only.  Indeed, criminal libel is an anachronistic punishment and has a harsh effect on freedom of expression.

In his lone dissent, Associate Justice Marvic Leonen said that “criminalizing libel contradicts our notions of a genuinely democratic society… The Constitution requires that libel… be struck down as infringing upon the guarantee of freedom of expression.” He further reasoned: the threat of being prosecuted for online libel under Republic Act No. 10175, the Cybercrime Law, stifles the dynamism of conversations in cyberspace.

While most countries, with a few exceptions, still retain criminal libel statutes, the call to abolish the offense is becoming more and more strident. And the Supreme Court is swimming against the tide in coming up with its decision. The need by the legislature and courts to rethink our libel laws is becoming more relevant especially with the widespread use of the internet, a medium like no other.  Criminal libel is an anachronism and, in the words of Justice Carpio, a legal anomaly. There is a need for legal and institutional infrastructures to keep abreast with technological progress and this need is best articulated by Chief Justice Ma. Lourdes Sereno when she said, “Laws and jurisprudence should be able to keep current with the exponential growth in information technology. The challenge is acute, because the rapid progress of technology has opened up new avenues of criminality.  . .  It is precisely during these times of zeal that the Court must be ever ready to perform its duty to uphold fundamental rights when a proper case is brought before it.” – Rappler.com