Law of the law

FIRST OFF, an irresistible aside. Why on earth would you watch J-Lo and complain later that you were shocked by the concert’s loudness? In fact, why would you claim to have finer sensibilities—“I have high taste in music”—and watch J-Lo in the first place? When in fact at about the same time J-Lo did MOA’s The Arena to a full house, Dave Grusin and Lee Ritenour were doing PICC to a fairly empty one? The latter was magical by the way.

But that aside aside, I’m glad Miriam Defensor-Santiago has been doing something better than finding fault with J-Lo’s music, if not her derrière (which would not be easy to find fault with), this past week. Specifically I’m glad she’s done a reboot of the cybercrime law by coming out with “version 2.0.” It doesn’t just take out the kinks in the old software, or law, it overhauls it entirely. It directly addresses the complaint of the netizens—which is, that in the old law’s attempts to curb the loudness of Internet traffic, it threatens to mute it completely. That is by way of criminalizing libel in cyberspace, far more so than in real space.

Miriam’s premise is laudable: “While it is important to crack down on criminal activities on the Internet, protecting constitutional rights like free expression, privacy, and due process should hold a higher place in crafting laws.” She adds, “The Magna Carta for Philippine Internet Freedom does not suffer from overbreadth and vagueness in its provisions on libel, unlike the law it tries to replace. In fact, it treats libel as a civil liability rather than a criminal act, which is a step forward in the move to decriminalize libel.”

That was what infuriated netizens about the original cybercrime law, its onerous provisions on libel, and indeed Miriam claims her bill was the product of consultations with them both online and offline. This is the first time, she says, a local bill has been crafted through “crowdsourcing,” or discussions in a virtual forum. While the bill retains many of the provisions combating child pornography, identity theft, and cyberterrorism, it makes libel a purely civil transgression and puts the onus of proof, with stringent rules, on the authorities.

About time someone came up with this. Miriam in fact may not just have done the netizens—in great part the youth—a favor, she may just have done government a favor. To say that the cybercrime law was unpopular is to say that “executive privilege” was unpopular: It was reviled with astonishing ferocity in the social media, P-Noy himself being repeatedly panned for signing it and endorsing it. Left untouched, the cybercrime bill might have cost government candidates a great deal in next year’s elections. The cybercrime law had been threatening to galvanize a youth vote into being—against those who voted for it. You underestimate the sentiments of the youth, you end up like Mitt Romney.

The Cybercrime Prevention Law, like the right of reply provision tacked on to the Freedom of Information Act, has no business being there. Both curtail freedom of expression and freedom of the press, reposing the determination of truth, or wrongful reporting, on public officials and various authorities. To be sure, media can be abusive too, media can be malicious too, media can lie too, and not just out of ignorance. But neither the right of reply nor the cybercrime law solves that problem, they only make it worse, adding a new wrong—and a far deadlier one—to an old wrong.

More than that, by focusing on the downside of cyberspace, the cybercrime bill misses out on its upside, or enormous potential for advancing democratic space, holding it back in the process. You need not look far to see that upside, just look at how Miriam’s bill was crafted by discourse in cyberspace, or what she calls crowdsourcing. That’s redefining the terms of public participation, or engagement, in national affairs in new ways.

Rather than a scourge of truth, cyberspace in fact can be, and has been, an ally of it. Last week, I was in Jing Magsaysay’s talk show in Solar, and he asked how we might improve standards in the press. After suggesting a number of things, I said social media itself was helping to do that, keeping mainstream media on its toes by being an alternative source of information and being a fact-check of sorts of its stories.

It’s completely altering our old worldview, or way of looking at things, which was that when something was printed or aired it took on the aspect of a truth writ in stone. Cyberspace has knocked that down, showing that anything printed or aired is open to challenge—and almost as soon as they are printed or aired. Wikipedia itself is open to challenge, it is open-ended, constantly updating, correcting, revising information as the need arises. If that doesn’t aid truth, I don’t know what does.

And of course, a point that can never be sufficiently belabored, social media expands the possibilities of democracy. What is democracy without public participation? A democratic government isn’t just for the people, it is of and by the people. Social media functions not unlike the town square, or our very own Plaza Miranda—at least as Plaza Miranda used to be known—allowing public engagement of, or weighing in on, matters of importance to the nation. The fundamental criterion of the soundness of a law then was, “If you can defend it in Plaza Miranda, you can defend it anywhere.” Of course it made for excess too, of course it made for demagoguery too. You can’t always rein in the enthusiasm of people. But better to err on the side of toleration, or liberalism, than on that of restraint, or censorship. In freedom of expression more than others.

If you can defend it in the social media, you can defend it anywhere.