Public figure the unknown libel defense

Many, alarmed by the recent cybercrime decision, look up libel in the circa 1930 Revised Penal Code, which the Cybercrime Prevention Act references. This, however, shows only half the law. It does not incorporate the free speech doctrines that restrict libel, making the law appear scarier than it is.

Only after reiterating the key “public figure” doctrine did the cybercrime decision allow the Cybercrime Act’s libel provision, and only because it rejected that international law prohibited criminal libel penalties and implied the penalty was for Congress to set.

Free speech is democracy’s lifeblood and discussions of public figures must not be scared away by libel. Such may not be punished even if vulgar, offensive or even untrue, so long as there is no “actual malice,” such as extreme recklessness or conscious lying.

The doctrine began by protecting fair comment on government officials, meaning we have allowed bloggers to criticize Sen. Tito Sotto since libel existed. The 1988 Ayer Productions decision later expanded it to cover anyone who naturally attracts public interest, such as celebrities of all stripes.

I wrote in 2003 that Philippine doctrine was broader than already liberal American doctrine. Our 1999 Borjal decision added an older US approach which focuses on the issue discussed, beyond current US doctrine which focuses on the person.

“If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant’s prior anonymity or notoriety.”

The addition is crucial. The classic US decision, the 1974 Gertz case, ruled that merely being a police shooting-victim’s lawyer does not make one a public figure. But in the 2013 Fortun decision, quoting Borjal, our Senior Associate Justice Antonio Carpio declared Sigfrid Fortun a public figure, being a defense lawyer in the highly publicized Ampatuan massacre. He allowed the media to report a confidential disbarment case against Fortun that was leaked to them.

Our justices might not yet fully appreciate how Philippine doctrine is broader. The 2009 Yuchengco decision claimed that our court adopted Gertz in 2005 such that there can be libel without actual malice even in discussions of public interest if the subject is not a public figure. This is unfortunate blind copying of US restrictions.

Our broader doctrine is critical in online libel. For example, US doctrine presumes that all public figures voluntarily attract attention. However, any bystander can upload a video of even a sleeping person. Philippine doctrine protects comments to a viral video of an accidental celebrity.

Public figures arise in limited contexts. One can be a celebrity in a narrow interest group or local community, especially if public is interpreted broadly to include even a high school class bickering on Facebook. Comments in any semipublic discussion should be protected.

I can tell first hand that University of the Philippines and Ateneo student election arguments on Facebook are as heated as those on national elections and should be equally protected.

On the other hand, an Internet user should not be a public figure solely because the world can read his post.

In public debate, smartphone users should not be subject to the fact-checking and legal risks a newspaper takes on, even if one has more Twitter followers. And responses to online libel can be instantly made in the same medium, reducing much justification for libel.

Consider how the fast-moving Boston bombing coverage saw ordinary bystanders tweeting news and established media groups’ updates immediately proving to be false. Bungling Internet detectives even floated the names of alleged bombing suspects who were not even in Boston, putting their lives at risk.

Nevertheless, this showed how it is best to let the Internet correct itself, not file lawsuits.

Take Robert Blair Carabuena. He was filmed by the Tulfos’ TV crew slapping a traffic enforcer in a busy intersection and the social media outrage included a petition for Philip Morris to fire him and a “Patayin si (Kill) Robert Blair Carabuena” Facebook page.

Under Philippine doctrine, his being a national conversation topic precludes libel for fair comment, short of posting his address and asking people to burn down his house. We need not reflect whether he sought to be a public figure.

People must be allowed to circulate a photo of Carabuena at a shooting range and discuss whether we need stricter gun controls as much as they must be allowed to ridicule him as “Road Rage Barney” because of his purple shirt.

However, drawing the line is not easy. What about Paula Marie Salvosa, the naïve but hardly evil “Amalayer” girl filmed shouting at a train security guard? What if the viral video was more innocent: of a lover’s quarrel, a girl tripping or someone asleep?

Our doctrine will protect comment so long as the issue has attracted interest no matter how inane or unfair the attention seems. But when is something simply not of public interest? Where does free speech end, and cyberbullying and libel begin?

We must appreciate how the cybercrime decision’s reemphasis on our broad public-figure doctrine actually makes the Internet a freer place, the need to decriminalize libel aside. But speech remains an ongoing experiment.

As life and law evolve, I doubt we can go wrong prioritizing that no one be afraid to contribute to a semipublic debate and emphasizing that speech is best met with more speech, not libel suits.

(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].)