Calling Tito Sotto an idiot is no cybercrime

The decision of the Supreme Court upholding much of the Cybercrime Prevention Act, including the online libel provision inserted by a now haughty Sen. Tito Sotto, has provoked countless panicked, confused responses. A spontaneous Twitter campaign tried to make the hashtag #NonLibelousTweet trend, a protest by sarcasm and insincere praise. Prominent bloggers floated methods to sanitize criticism, from anonymous accounts to secret codes. The embarrassing question is why we did not protest simply by calling Sotto an idiot.

It is a disgraceful indictment that we have forgotten that libel is but an exception to the fundamental rule that is free speech. We have likewise forgotten that the most basic reason for free speech is to voice honest criticism of officials, even in ways vulgar, unkind, or even untrue. In the classic words of Dean and Justice George Malcolm: “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.”

This revered formulation means that calling Sotto an idiot for his damnable insertion cannot be libel absent “actual malice,” which sincere disagreement with a law cannot be. This is a hallowed constitutional principle that not even a thousand Cybercrime Acts can erode.

Unfortunately, there is a fair legal reason for letting Sotto’s insertion stand. The Cybercrime Act merely refers to the circa 1930 Revised Penal Code’s definition of libel. Prof. Harry Roque made an admirable argument that criminalizing libel violates international standards that emerged after 1930. However, as Justice Marvic Leonen countered during the arguments, the justices may fairly reject that these standards bind us. What punishment to impose on libel is thus not a legal issue. Senators Sonny Angara and Chiz Escudero are right to push for a law decriminalizing libel in response to the decision.

Yes, online libel has been a crime since 1930. A criminal libel case involving teenage online rants such as “I super frikin wanted to kill her and make her the frikin next assuming queen!” was filed before the Cybercrime Act and reached our Court of Appeals in 2012 (“DOJ punishes Facebook felonies,” Opinion, 2/8/2013). The arrest of antimining activist Esperlita “Perling” Garcia over a Facebook post in 2012 was also under the real-world Penal Code.

But when Sotto crudely imported the 1930 law into the Cybercrime Act, he also imported longstanding libel protections. The most important is the “public figure” doctrine, where fair discussion of a public figure is not libel again absent actual malice. A public figure is someone the public will naturally discuss because of his celebrity, his thrusting himself into the limelight or his becoming intertwined “in an issue of public interest.” Last year, lawyer Lorna Kapunan filed a libel case against Internet reporter Natashya Gutierrez for writing about Jeane Napoles’ P80-million Los Angeles condo, allegedly because of envy from high school. Gutierrez countered that she wrote this after the Napoleses became public figures following the Inquirer’s pork barrel exposé, and Kapunan failed to argue actual malice. Also in 2013, Senior Associate Justice Antonio Carpio emphasized public figure doctrine in the Fortun decision that refused to punish Inquirer.net and other websites that reported a confidential disbarment case against Ampatuan lawyer Sigfrid Fortun. Moreover, the cybercrime decision itself clarified that online libel will generally be against the original author only and not those who react. This protects likes, shares and retweets (which are vague in terms of the intent required to establish libel anyway) and generally how messages can casually be resent on the Internet.

The media bear some blame for how the issues were miscommunicated, down to how many still think online libel was not a crime before the Cybercrime Act. This focus on libel meant the law’s more technical, more insidious provisions escaped public attention. Outraged citizens must appreciate how the decision prohibits without a court warrant (1) collection of “traffic data,” or data regarding Internet and phone usage that reveals the intimate patterns of one’s life, and (2) taking down websites allegedly involved in cybercrimes. The “double jeopardy” provision imposing higher penalties on cybercrimes compared to their real-world counterparts was upheld except in relation to libel and child pornography. Note that Bayan Muna Rep. Neri Colmenares, who is now vocally protesting the decision, was assigned to attack this provision at the Supreme Court but came unprepared, giving answers such as “I’m not very good at the Internet” and “I’m not familiar with the technology.”

Netizens must critically understand the cybercrime decision before joining the angry bandwagon. That said, I invite the outraged to call Sotto an idiot in a truly #NonLibelousTweet. Know that doing so is no cybercrime, but part of a storied tradition traced to our parents who stood against tanks at Edsa in 1986 and to the sacrifice of all who died wearing our flag and uniform in our great nation’s history.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) is a former Philippine Law Journal chair who received UP’s Araceli T. Baviera Prize for cyberlibel research [incorporated in The Complete Philippine Right to Privacy, 82(4) Phil. L.J. 78 (2008)] and its first Bienvenido C. Ambion Prize for cyberjurisdiction research.