The dissents

The Supreme Court decision (Jesus Disini vs SOJ, Feb. 18, 2014) on the Cybercrime Prevention Law (CPL) upheld the constitutionality of libel (both printed and online), as I explained last Sunday. I will now discuss portions of the dissents that I find reasonable.

Sereno dissent. To be sure, the CPL has several provisions on libel. Sec. 6 of the law states that online libel shall be penalized “one degree higher than that provided for by the Revised Penal Code” (RPC). Simply stated, this legalese means that the penalty is increased from a range of “six months and one day to four years and two months” imprisonment to a range of “six years and one day to 10 years” imprisonment.

The majority upheld this section on the ground that the severity of penalties is a law-making, not judicial, prerogative. Chief Justice Maria Lourdes P.A. Sereno dissented, arguing that the more severe penalty has an “invidious chilling effect” because, aside from being lengthened to 10 years, it carries the accessory penalty of “temporary absolute perpetual disqualification.” Which means deprivation of (1) any public office the offender may hold, (2) the right to vote and be voted to public office, and (3) retirement pay and pension.

The higher penalty also “neutralizes the full benefits of the law on probation.” Under this law, those who are convicted of crimes penalized by not more than six years imprisonment, and who renounce their right to appeal may avoid incarceration and “undergo rehabilitation outside prison.” Since the CPL increased the penalty to a maximum of 10 years, this benefit is denied to cyberlibel offenders.

Also, the higher penalty lengthens the prescription period of the crime from one year to 10 years. In lay terms, this means that while a printed libel charge can be filed within one year only from its commission, an online libel complaint can be instituted within 10 years. Thus, the threat of prosecution for online libel lingers 10 times longer.

Carpio dissent. Justice Antonio T. Carpio voted “to declare unconstitutional Article 354 of the RPC as far as it applies to public officers and public figures.” This article presumes the existence of malice in every defamatory imputation, thus making it ipso facto punishable, “even if it be true, if no good intention and justifiable motive for making it is shown…”

However, the Supreme Court, he said, has consistently held—following American jurisprudence—that criticism of public officials is protected by the constitutional right to free expression and cannot be penalized “even if such criticism is defamatory and false.”

The only way to overturn this protection is to prove that the defamatory statement was made with “actual malice, that is, with knowledge that it was false or with a reckless disregard of whether it was false or not.”

The actual malice rule was later extended to public figures. According to Borjal vs Court of Appeals (Jan. 14, 1999), a public figure is “a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling gives the public a legitimate interest in his doings, his affairs and his character … in short, anyone who has arrived at a position where the public attention is focused upon him as a person” due to his or her celebrity or notoriety.

Significantly, the majority upheld the actual malice rule but found no need to void Art. 354 because existing jurisprudence already limits its scope. I think, however, that it is better to declare it unconstitutional “as far as it applies to public officials and public figures” to stress the Constitution’s supremacy and the Court’s devotion to free speech.

Leonen dissent. Justice Marvic Mario Victor F. Leonen went further by holding that libel is completely unconstitutional. He stressed that “its continued criminalization especially in platforms using the [I]nternet unqualifiedly produces a ‘chilling effect’ that stifles our fundamental guarantees of free expression. Criminalizing libel contradicts our notions of a genuinely democratic society.”

Historically, libel was used by our colonizers, the Spaniards and the Americans, to suppress speech critical of foreign rule and supportive of independence. After independence was attained, criminal libel, he added, is now used by “the powerful and influential to silence their critics,” citing a study made by Dean Raul Pangalangan that “libel cases are pursued to their conclusion mainly by public figures… [since those filed] by private persons are settled before the prosecutor.”

The “legal remedy [of the maligned] is civil in nature… [where] the facts that will constitute the cause of action will be narrowly tailored to address the perceived wrong.” The relief is injunction and damages.

In sum, I believe (1) libel should be decriminalized as held by J Leonen; or (2) at the very least, Art. 354 of the RPC should be declared unconstitutional as opined by J Carpio; and, (3) the higher penalty for online libel should be declared unconstitutional, as detailed by CJ Sereno.

A final note. Inquirer articles are posted online and subjected to comments and reactions, whether fair and objective or malicious and skewed. These vibrant interactions show that inevitably the public can discern truth from propaganda, objectivity from prejudice, and credibility from implausibility. Invariably, liars and charlatans expose themselves and lose respect. That should be enough vindication for those who believe in the liberating power of free speech.

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