Thoughts from the past on cyberlibel

THE

recent case of Maria Ressa once more highlighted the cybercrime law which had attracted public attention in 2014 when oppositors constitutionally challenged its cyberlibel provision, among others. I was one of those who supported the challenge to the cyberlibel provision, but the court ruled against our opposition.

Without any reference to the pending Maria Ressa case (that, despite claims aired in advance of the formal proceedings, may or may not involve free speech issues), I relive my old thoughts on this precious freedom.

Traditional libel is the public and malicious imputation of a crime, vice, or defect, real or imaginary, tending to dishononor or discredit a natural or juridical person or to blacken the memory of one who is dead. Cyberlibel (or Internet libel) carries the same definition except that the communication or publication of the imputation is through the Internet. It also carries a penalty heavier than the penalty for traditional libel.

In upholding the provision’s validity, the court found that Congress passed the law in the exercise of its power to define and penalize crimes. The court reasoned out that substantial distinctions exist between cyberlibel and traditional libel to justify the increased penalty for cyberlibel.

My dissent was not based on the unconstitutionality of libel per se. Jurisprudence has long settled that libel is not protected speech and Congress, may validly prohibit its utterance.

I dissented because I found the increase in penalty for Internet libel to be constitutionally objectionable. In my view, the cyberlibel provision, insofar as it qualified the crime of libel, violated our cherished freedom of speech because it unreasonably increased the prohibitive effect of libel law on online speech.

First, I did not see any significant distinction in law between libelous speech made through the Internet and speech uttered in the real, physical world, to warrant the increased penalty.

Second, the increased penalty for Internet libel effectively leads to self-censorship in the Internet and unreasonably limits an otherwise robust medium for debate and discussion of public issues. Online discussions may contain both libelous and non-libelous matters; the deterrent effect of the harsher penalty can prevent even constitutionally protected non-libelous speech from being uttered.

The court pinned its justification on the capabilities of Internet communications: its speed, worldwide reach, and the relative anonymity it affords. It noted that cybercrimes, including cyberlibel, are more perverse than traditional crimes because of the anonymity and undeserved relative protection from prosecution it affords to perpetrators.

I did not contest the claim that Internet communications can indeed contribute to a libelous statement’s harmful effect on another. A libelous article, once published and openly shared in the Internet, could reach millions in a short period of time, and inflict more injury to reputations.

I considered though that the element of publication under both traditional libel and cyberlibel are the same. For prosecution purposes, a defamatory statement is considered published when it is transmitted to a third person other than the speaker or the person defamed.

Thus, the sender of a libelous e-mail might have intended to communicate with only one specific recipient who in fact solely viewed the email, yet, the sender would be penalized with a harsher penalty. Similarly, a person, who in an online chat with another, privately uttered a libelous statement about a third person, would also be similarly penalized. In both instances, the law imposes a higher penalty due solely to the Internet’s potential to reach millions.

The same reasoning applies to the anonymity afforded by Internet communications: a libelous author concealing his identity would be similarly penalized as a person identifying himself, simply because both of them used the Internet as the medium for their libelous statements.

I considered further that the element of publication of traditional libel (on which cyberlibel is based) does not consider the number of the recipients to be material. Libelous speech is penalized whether it reaches a single person by mail, or many persons through television or through a nationwide newspaper article. In all these, the defamatory imputations are punishable with the same penalty, a range within prision correccional or a fine, or both.

If the number of audience is not material under the original concept of libel, I do not see why cyberlibel, simply because of the use of the Internet, should merit a harsher manner.

I reasoned out, too, that the court should not rule on the basis of unusual and extreme situations and use these to justify the increased penalty for cyberlibel. If the court must err, it must err on the side of protecting freedom of speech, a fundamental right very high in the hierarchy of our constitutional freedoms.

I noted finally that despite the passage of the Cybercrime Law, bills punishing cyber-bullying and electronic violence had been filed in Congress. Cyber-bullying is the act of using social media to “harm or harass other people in a deliberate, repeated, and hostile manner.” Electronic Violence, on the other hand, is any act involving the exploitation of data that “can cause or is likely to cause mental, emotional, and psychological distress or suffering to the victim.”

These bills, in my view, revealed the underlying intent not to penalize extreme situations similar to what the court’s interpretation would allow. In cyberlibel, in particular, the law only recognized and clarified that the crime of libel may be committed through computer communications.

As then Chief Justice Sereno likewise pointed out, the cyberlibel provision did not only consider Internet use to be a qualifying aggravating circumstance that cannot be offset by mitigating circumstances; it also: increased the accessory penalties for libel; disqualified the offender from availing of the privilege of probation; and increased the prescriptive periods for libel and for its penalty.

These effects, taken together, unduly burdened freedom of speech as they extended beyond what was necessary to prevent the commission of cyberlibel: they fostered self-censorship in the Internet and effectively curtailed otherwise protected online speech.