Self-inflicted cybercrime panic

During the Silly People’s Improv Theater oracle segment the night before the Supreme Court released its decision on the Cybercrime Prevention Act, a spectator asked: “Will I be convicted of a cybercrime this year?” Protesters asked social media users to turn their profile pictures black last Feb. 25 and rally at the Edsa Shrine. Many have spontaneously cursed the high court, but specifics are curiously absent.

Most people equate cyber martial law with the Cybercrime Act’s libel provision. Most cling to the untruth that this made online libel punishable, no matter how many online libel prosecutions under the circa-1930 Revised Penal Code have been reported. The National Bureau of Investigation has even said it is not interested in the cyberlibel provision. The attacks against the high court are sorely misinformed and amplified by militants’ demagoguery.

Chris Lao demonstrates just how misunderstood the decision is. Lao, then a University of the Philippines law student, was subject to national ridicule after he was filmed by a TV crew driving his car into a flooded street and the car floated. He recounted how his blood vessels erupted from the stress of being called  pambansang  bobo  (national idiot), “as if I had been physically mauled by thousands of people.”

(In the end Lao won, not by invoking libel, but by becoming a bank’s flood insurance endorser and then an advocate of the freedom of information bill. But I cannot forget the social media mood the day Lao’s car was featured on TV. There is no sight more embarrassing and ironic than dozens of UP law students spontaneously calling for the arrest of strangers over speech.)

The cybercrime decision actually makes it difficult for Lao to file libel cases as Justice

Marvic Leonen identified him as a “public figure” during the oral arguments. It reads: “Since the penal code and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter standard of ‘malice’ to convict the author of a defamatory statement where the offended party is a public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs.”

The decision then refuted an argument that public figure doctrine was not applied in a recent libel case against Cristi Fermin. Finally, it held that the online libel provision only applies against the author, making it unlikely for likes, shares and retweets to be libelous. The decision supported the Internet’s “freewheeling, anything goes writing style,” where one observes “quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed with which such reactions are disseminated down the line to other Internet users.” I wrote in 2003 that Philippine public figure doctrine is actually broader than US doctrine and is therefore even stronger protection against libel. The cybercrime decision, though it did not explicitly recognize the difference in the two countries’ doctrines, drove this critical point home.

Emphasizing that speech against public figures is already protected, the decision declined to strike down the libel provision because it did not accept the petitioners’ argument that it violated present international law. The implicit argument is that the decades-old RPC is better amended through the political process, a position I cannot interpret as cyber martial law.

That said, we must praise the minority justices’ more liberal stances. Senior Associate Justice Antonio Carpio argued to declare part of the RPC’s libel provision unconstitutional because of its clear conflict with present libel doctrine.

Indeed, there has been confusion among netizens who Google the RPC because its text does not include the court doctrines that temper it, such as the public figure doctrine. Leonen went furthest and argued that libel should be stricken from our criminal laws altogether for the same reason and, additionally, because the 1930 formulation is vague in today’s technological context. Chief Justice Maria Lourdes Sereno and Justice Arturo Brion also went beyond the majority decision. Sereno even noted that petitioner JJ Disini’s group faced a credible threat of libel given that some had written critical comments about Sen. Tito Sotto, who had stated he wanted to promote bloggers’ “accountability” under the Cybercrime Act.

The blind rage against the high court is unwarranted and only weakens the most likely bulwark against libel abuse in coming years. Instead of attacking the Court, first, netizens should back legislators championing libel’s decriminalization. It will be far more meaningful when the electorate itself declares that no man should be jailed for speech. Second, we should end the use of libel for harassment. Despite the public figure doctrine, harassment occurs in practice because a prosecutor might be under pressure from a local official not to dismiss a libel case outright, forcing a long, expensive trial. It must be made clear to judges, prosecutors and officials where public opinion stands.

I cannot emphasize enough how the Court was well within its bounds in its cybercrime decision. What must be criticized, if anything, is its practice of announcing a decision but releasing the full text days later, which only fuels speculation that in this case went against the Court.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) received UP’s 2003 Araceli T. Baviera Prize for research on Internet public figure doctrine [incorporated in The Complete Philippine Right to Privacy, 82(4) Phil. L.J. 78 (2008)].