The hackers are at it again; and the government is understandably alarmed. The latter should not be surprised though.
The recent statement of President B.S. Aquino III — that he is open to amendments in the Cybercrime Prevention Act of 2012 (RA 10175) — has been welcomed; but his opining that libel should remain a crime touched a nerve.
Let’s stop for a minute and consider something: at the crux of the debate is how to balance freedom of speech with responsible speech.
Pertinent to this discussion is how (most of?) our lawmakers — and our President — believe that the only way to ensure responsible speech is to maintain libel as a criminal offense with hefty penalties — not just a fine but also imprisonment.
Put aside the fact that there seems to be very little faith in how journalists practice the ethics of their profession (and how netizens use the Internet), let’s review: if this government wants to put safeguards (presumably so that freedom of speech is not abused), is the law truly just?
In Chapter One, Section One of Article 355 of the Revised Penal Code, we find “Art. 354 Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown.”
And here I thought that libel can only be libel if a published statement is NOT TRUE, if it is in fact A FALSEHOOD, and circulated with ACTUAL MALICIOUS INTENT.
The law already presupposes malice regardless of whether the published statement is the truth. I’m no lawyer, but it seems to me that this is the equivalent of saying, “Why did you bare the truth unless you meant ill?”
As I understand it, the defendant is already judged guilty of libel, guilty of malice, and must prove his innocence. As opposed to being innocent until proven guilty. As opposed to the accuser having to prove that libel was committed, for malicious reasons.
One must ask: who is the law protecting here?
In addition, has this libel law been applied with great circumspection or has it been abused? Recent history has shown that there have been violations of the law, including mass libel suits from a single complainant.
Most significantly, there was the landmark case of broadcaster Alexander “Lex” Adonis, which led the United Nations Human Rights Committee to declare in October 2011 that the law on criminal libel in the Philippines is in violation of the International Covenant of Civil and Human Rights.
The Center for Media Freedom & Responsibility argues the case beautifully and explains it so much better than I (http://www.cmfr-phil.org/2012/02/17/decriminalizing-libel-un-declares-ph-libel-law-excessive) but allow me to sum up the pertinent details as it applies to the libel law.
As a signatory of the Covenant — enforced in 1976 — the Philippines agreed to Article 19, which stated:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for… carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
In its general comments, the Committee noted the following:
* that all defamation laws, in particular all penal defamation laws, should include the defense of truth;
* with regard to comments about public figures, “consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice;
* public interest in the matter should be recognized as a defense;
* care should be taken by state parties to avoid excessively punitive measures and penalties;
* states should consider the decriminalization of defamation; and
* application of the criminal law should only be countenanced in the MOST SERIOUS cases and IMPRISONMENT IS NEVER AN APPROPRIATE PENALTY.
(Obviously, I feel strongly about this, hence the all caps.)
That said, the Philippine Republic was urged to “review” its penal code on libel.
Fast-forward to 2012, and criminal libel is not only adopted in the Cybercrime Prevention Act of 2012 (RA 10175), its penalties are escalated by a degree.
Tell me: given that the soundness of the penal code regarding criminal libel is already contentious and under review, how can one not object to its perpetuation and escalation in the new law?
Why do our lawmakers and law enforcers continue to defend the criminalization of libel?
Again: who is the law protecting?
Private citizens, not just public figures, live and work by their reputation. So yes, libel is a serious offense.
But remember, journalists very much live by their reputations. If we’re to look at journalists, irresponsible and downright malicious reporting can lead to loss of reputation. S/he loses credibility to continue to practice the profession. S/he is suspended or fired. Public disgrace, no income, improbability of continuing in the profession. Is that not enough punishment?
Also: freedom of speech goes both ways. You can be accused, you can defend yourself.
Not every journalist is a nutjob. Not every public official is a hothead with an axe to grind. But both have the means at their disposal to protect themselves, air their grievances, be heard — and the law should allow this freedom, rather than curtail it.
I do understand the necessity to deter the spread of damaging falsehoods. I sympathize. I myself have been a victim of rumor. I have friends who have recently been subjected to a white paper spreading disinformation. I have seen how vicious society can be — but I also doubt that the law as it is now will resolve such matters. Whereas I am certain that the law as it is now has great potential for (and already done) harm.
Speaking of cyber-bullying: are we ready to take on the gargantuan task of penalizing every netizen who has typed or clicked or liked or shared a particular piece of innuendo or gossip or critical remark or meme or unflattering photo? Are we to penalize all the emoticons and the hahas? Also, are all cyber-bullies to be treated the same? Are there no juvenile delinquents in the Webspace?
Isn’t it more productive to initiate a campaign against cyber-bullying by moderation, reasoned argument, education, or behavioral modification through a culture of verification/responsible dialogue/debate rather than scaring netizens into stilted speech? Or worse, silencing all opposition? Or relegating them to hiding in anonymity and expressing dissent in the shadows (perhaps hacking)?
The law should balance interests. It should be crafted in such a manner as to prevent violations. It should not be excessive. It should, as the UN Committee so obligingly stated, not stifle freedom of expression. And it should definitely not provide a chilling effect on press freedom.
This is why I believe the Supreme Court and Congress should rethink criminal libel, and that the President should reconsider his position on the matter.
Do we even have to go into specifics of how the Cybercrime Prevention Act is so flawed in its intent and content, especially as far as libel is concerned?