Internet libel in the cybercrime law: an unnecessary evil?By Francis Ed Lim
Philippine Daily Inquirer
The criticism on the cybercrime law has not waned. Cases have been filed against it. Recently, the Supreme Court issued a 120-day temporary restraining order against its implementation on the basis of allegations of violation of freedom of expression.
The freedom of expression sought to be protected pertains to that enjoyed by netizens in cyberspace or the Internet. This borderless communication is now challenged, threatened even, with the criminalization of Internet libel under the cybercrime law.
The question: Was it really necessary for the cybercrime law to have criminalized Internet libel, or is this an already existing crime under the Revised Penal Code?
The Internet era
In an age where Twitter and Facebook are considered primary sources of news and are up to date and reliable media of communication with various government agencies, it is understandable that any measure of regulation will be seen as a threat to close down the free exchange of ideas in cyberspace. After all, the Internet is in a class of its own when it comes to providing a venue for expression. Soon, print media will be one tweet or “like” away from becoming obsolete.
Among its so-called perks is the certain degree of anonymity enjoyed in cyberspace, which facilitates and encourages unrestrained dialogue among Filipinos—here and abroad. As a result, the Internet has become a hub of ideas—from mundane (i.e. sharing a picture of your food to all your followers) to proactive (i.e., tweeting all the potholes you encounter in order to have them fixed by DPWH).
The Internet, however, also became the playground of many cyber-bullies—unauthorized posting of private videos, hacking of e-mail and social media accounts, and uncensored blogging. For example, in the United States, people are “pushed” to commit suicide by means of the hurtful statements written about them in Web pages and blogs. In the local scene, some private individuals and government officials find themselves the trending topics in Twitter or other news feed—often in a very negative light. While some may believe that this is just a means of expressing grievances, what of those who become victims of hateful blogs that no longer reflect fact, but become personal attacks on the individual?
Internet libel and the Revised Penal Code
The Revised Penal Code came into effect in 1932, at a time when computers were probably still drawings on a paper, at best. Understandably, the Revised Penal Code could only strive to remain timeless in a rapidly growing environment—thus adopting phrases such as “any other similar means” in defining the ways by which a crime may be committed.
Perhaps, such is the case for libel. Under Article 355 of the Revised Penal Code, libel may be committed by means of “writing, printing, lithography, engraving, radio, phonographs, painting, theatrical exhibition, cinematographic exhibition, or any similar means.”
My own take is that even without an express provision in the cybercrime law, Internet libel is punishable under the Revised Penal Code. First, in 2000, Congress passed the Electronic Commerce Act (“ECA”), which makes electronic documents as the functional equivalent of paper-based documents. Hence, a libelous matter published in electronic form (such as by e-mail or in websites) satisfies, for all intents and purposes, the requirement of “writing” under the RPC. In fact, in one case, an employee sent an e-mail to various individuals wherein he called his superior a “robber.” The Supreme Court stated that the malicious imputation contained in the e-mail was “in writing” and upheld the employee’s dismissal for having made libelous statement (see Torreda v. Toshiba, G.R. No. 165960, 8 February 2007). Second, the phrase “any other similar means” under Article 355 of the Revised Penal Code is broad enough to cover publication in electronic form. Third, aside from the Torreda case mentioned above, there is another Supreme Court case that recognizes libelous matters published in electronic form (see Bonifacio v. Regional Trial Court of Makati City, G.R. No. 184800, 5 May 2010). Fourth, there is a catch-all clause in the cybercrime law—although not without its own share of controversy—to the effect that any crime punishable under the Revised Penal Code committed through the use of the computer system or similar means in the future is, likewise, publishable under the Act.
Yet, these things seem to be insufficient. There are people who share the view that the Revised Penal Code is unable to fill in all the gaps created by the technological leap from snail mail to e-mail. They argue that the Revised Penal Code, in penalizing the crime of libel, did not intend to include those committed through computers and the Internet, which were still being developed in 1932.
A clear example is the Bonifacio case cited above where the accused were charged with publishing libelous articles in their websites, before the City Prosecutor’s Office of Makati. The Makati city prosecutor found probable cause for libel against them. The secretary of justice reversed the finding, reasoning out that the crime of “Internet libel” was non-existent; hence, the accused could not be charged with libel under Article 353 of the RPC.
In addition, some say that the two Supreme Court decisions cited above do not expressly rule that there is a crime of cyber or Internet libel. Indeed, its existence or non-existence was not squarely at issue in those cases. The recognition partakes of the nature of what we lawyers call obiter dictum, which is not binding as a precedent and, therefore, the high court may rule in the future that there is really no crime of Internet libel.
Knowing how the legal mind works, the issue will be raised time and again in the future in defense of those charged with Internet libel.
Thus, there seems to be wisdom in expressly including Internet libel under the cybercrime law in order to remove any doubt as to the existence of the crime.
The question is: Will Congress exclude Internet libel from the cybercrime law for being an unnecessary evil? Or, instead of shooting it down, should Congress just improve it to address the various issues hurled against it?
Abangan ang susunod na kabanata!
(The author is the co-managing partner and head of the corporate and special projects department of the Accralaw Offices and may be reached at firstname.lastname@example.org.)
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