Libel is not the issue, e-martial law is

Posted at 10/08/2012 9:25 AM

There are many things about that Cybercrime Law that bother me but fear of libel isn’t at the top of my list. Journalists have lived with libel, as defined in the Revised Penal Code, for years. Fairness and a sense of responsibility have proven to be effective in avoiding problems in this regard. And since libel in any medium should be avoided, as former Sen. Rene Saguisag puts it, being sued for libel is not a problem a responsible blogger or social media user should excessively worry about.

The Courts have also been lenient and always ready to defend our constitutional rights in deciding libel cases through the years. We should find comfort in our Constitution which provides under the Bill of Rights absolute freedom of speech: “No law shall be passed abridging the freedom of speech, of expression, or of the press... "

What bothers me is the irony of having elected a President who promised to liberalize access to information in a Freedom of Information law but signed and delivered instead the Cybercrime Law with worrisome provisions restricting freedom of expression in cyber space.

Giving authorities the power to collect data from personal social media accounts and listen in to conversations on Internet voice services is something the communist dictatorship in China does, not our democratic government. Even the BPO industry, one of our biggest job providers and dollar earners, is collectively concerned about the last-minute provision on warrantless collection of traffic data. It would seem P-Noy has effectively declared e-martial law and he still doesn’t get it.

Fr, Joaquin Bernas, S.J. describes the chilling effects of this law clearly: “the law deals not only with the most delicate rights of freedom of expression, freedom of communication, and the privacy of communication but also with the equally sacred right of the people ‘to be secure in their persons, houses, papers and effects’ against government intrusion. These rights suffered during the period of martial rule. Their suppression or impairment is usually the target of governments that have dark intentions.”

I expected the son of Ninoy Aquino to use his congressional clout to decriminalize libel, something civilized countries are doing. Yet, to my horror, he signed a Cybercrime Law that even increased the severity of the penalty for libel provided under the Revised Penal Code. To me, this is a betrayal of the people who voted him into office in the hope that he will preside over a government in a golden age of transparency and accountability.

The other big thing I feel bad about this Cybercrime Law is the lack of diligence of our legislators in carrying out their duties. I had covered both houses of Congress before and after martial law and I know first hand how laws are made and should therefore not be surprised. But I still cannot help feeling utter disgust upon hearing Chiz Escudero and then Pia Cayetano and Bongbong Marcos admit their vote for the measure was a "personal oversight" or claim the controversial provisions were not there when they approved it. They should really stop trusting the bicameral conference committee and allowing it to get away with insertions not taken up on the floor.

Libel by itself is not the main problem. I had a great professor who taught me all I need to know about libel. The late UP Law Prof. Perfecto Fernandez clearly explained that landmark case, New York Times vs Sullivan. Under this doctrine, public officials or public figures must prove actual malice before something can be libelous. The extremely high burden of proof and the difficulty in proving malice, something that is essentially inside a person's head, make it difficult for public officials to win libel cases in court.

The same principle was established in a 1918 local case, US vs Felipe Bustos. In that case, the court pointed out that “Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts…”

There you have it; we have the jurisprudence to protect our rights in the application of the libel law. There is also no need to include libel in the Cybercrime Law. The Revised Penal Code already has a catch all definition when it listed “or any similar means” in reference to the various media for committing libel. In other words, bloggers and social media folks are already covered by our Libel law without their realizing it.

What I think is absolutely wrong is punishing libel more severely under the Cybercrime Law. Libel under the Revised Penal Code is punishable with up to 4 years imprisonment. Cybercrime law increased the severity of the punishment to between 6-12 years.

And there is the provision that raises a clear danger of double jeopardy or being prosecuted for the same act twice, thus bringing the strong possibility of harassment.

The so called “take down” provision is also excessive. Fr. Bernas thinks it is a throwback to a similar provision under martial law but worse. He points out that “under the draconian rule of martial law warrants could issue only after ‘examination under oath of the complainants and witnesses he may provide,’ no such safeguard is found in Section 19.”

Giving government the power to swoop down and take away computers, hard drives, thumb drives and even our cell phones, etc on the flimsiest excuse without a court order strikes at the heart of press freedom. Because that will allow them to inspect our notes and files, our right to protect sources is jeopardized. That negates the intent of the Press Freedom Law (now known as the Sotto Law, Republic Act No. 53) enacted in 1946 that protects journalists from being compelled to name their news sources. Yes folks, Senator Tito’s grandfather was no clown. He was a highly respected legislator and a fierce champion of press freedom.

Section 19 or the “takedown provision,” does not require probable cause but only prima facie evidence determined not by a judge but by the Department of Justice. It makes the justice secretary too powerful. The Secretary of Justice can also immediately censor online content without benefit of a warrant or court order. There are also no guidelines on when or for how long the content should be blocked. How can anyone give a government institution sweeping powers to be prosecutor, judge and jury all rolled up into one?

It is obvious our lawmakers do not understand how social media works. Facebook is one big virtual Plaza Miranda…or Hyde Park. Everyone is free to express himself or make a fool of himself. It is also almost impossible to police other than self policing by the participants themselves. Restrictions don’t work, as China and other repressive regimes are experiencing. On the other hand, I have seen social media participants themselves take down people who have plagiarized or for being such assholes so as to disturb the quality of the conversations going on.

What scares many ordinary Facebook users is the possibility that they could be accused of libel simply because they clicked their mouse to express liking a post of a Facebook friend. Maybe the fear here is exaggerated. Lawyers point out that possibility in line with the principle that anyone who has some participation in spreading a libelous statement is liable. Reduced to absurdity, I remember Perfecto Fernandez saying that in theory, even the newsboy peddling a newspaper with a libelous article can be hauled to court. But that has never happened.

More worrisome to me is the possibility that some reactions to posts on my Facebook wall may prove to be libelous. Or worse, someone posts something libelous or pornographic on my wall without my knowledge and consent and because I was too busy to take it down quickly enough, I can be liable for someone else’s crime.

Yes, we ought to express our indignation in the strongest possible terms and use social and mainstream media to put utmost pressure for our legislators to immediately fix this law before their holiday break. Or get the Supreme Court to declare portions of it unconstitutional for violating the principle that no law should be passed to abridge our rights to freedom of speech and of the press.

But having said all that, I have to also concede that the state of blogger and social media responsibility leaves a lot to be desired. Foul and obnoxious language is common. And even those from whom one would expect better, it is often clear they post their comments before really thinking. Cyber-bullying is a problem. Invasion of privacy, even black mail happen. And criminal mafia-type operators thrive in cyberspace. All these seem to justify giving government some powers to fight all those as well as other internet crimes like hacking, identity theft, spamming and intellectual property theft.

Nevertheless, our legislators must act with intelligence. And so should the President. P-Noy should have crowd sourced the vetting of this law before he signed it rather than depending on his incompetent Palace legal staff. Of course, it isn’t reassuring that P-Noy was clueless enough to follow the recommendation of his hopeless lawyers and thereafter, defend his indefensible mistake.

I don’t think P-Noy realizes it but he has actually declared e-martial law. Ninoy, the former journalist and a champion of press freedom and free speech, must be squirming and embarrassed up there in the great beyond that his son has done something as grievous as this.


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