When libel is not libel

Netizens protesting against libel’s insertion in the cybercrime law do not know what they are protesting against. In the Inquirer’s headline story on antimining activist Esperlita “Perling” Garcia’s arrest over a Facebook post (10/23/12), President Aquino’s spokesperson Edwin Lacierda argued that the arrest was for libel under the real-world Revised Penal Code, not the cybercrime law. This completely misses the point but results from the cyberlibel debate’s unintelligent framing as to whether or not Internet libel should be punished.

As everyone from Lacierda to cybercrime law sponsor Senator Edgardo Angara has pointed out, Internet libel has been punishable since the Internet’s inception. In fact, the Supreme Court imposed restrictions on cyberlibel well before the cybercrime law. Amending the cybercrime law will not render cyberlibel nonexistent, as Perling found out and as countless netizens fail to understand (although it will close some technical loopholes that even Angara has publicly acknowledged should be closed).

Why, then, are cyberprotesters not arguing that Perling’s statements are not libelous at all, whether made through Facebook, a newspaper, or smoke signals?

It is a testament to Philippine law schools’ worship of narrow memory games that cyberprotesters recite libel’s technical definition under our criminal laws, but not the free speech doctrines restricting libel under our Constitution. Libel is not an ordinary offense but a classic restriction on free speech, a restriction that our constitutional tradition holds must be minimal. Free speech is deemed the primal right because democracy would be meaningless without free discussion of public affairs, even at the cost of a few bruised egos. Constitutional law recognizes the “privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.”

Perling’s is a textbook case of a constitutionally acceptable bruised ego. Perling was charged with libel by the mayor of Gonzaga, Cagayan, Carlito Pentecostes Jr., after she wrote about Pentecostes’ alleged dispersal of activists. Pentecostes wanted to “teach her a lesson for her arrogance” because, he said, Perling “portrayed me as a very bad person on Facebook. She has been making up stories about the supposed opposition of the people of Gonzaga [to] mining when in truth, there is no such resistance here now.”

The Constitution sets a high bar for libel cases by a “public official” or “public figure.” The latter “enjoys great fame or notoriety,” “has thrust himself into public view,” or has become involved “in an issue of public interest.” Philippine public figure doctrine became even more liberal than American doctrine after it adopted two supposedly mutually exclusive American doctrines.

Under the classic reasoning from the golden age of newspapers, public officials and public figures have less need of the protection of libel laws because they have greater access to the media. Our President can instantly appear on national television to refute anything from criticisms of his policies to rumors of who he is currently dating. The constitutional preference is for speech to be met with more speech, not arrest warrants. Further classic reasoning holds that free speech needs “breathing space” as “erroneous statement is inevitable in free debate.”

In the Internet age, the cyberlibeled can instantly reply in the same forum or another of his choosing. A public official can readily post his own comments on Facebook and see whether he gets more “likes” than an elderly activist, instead of having her arrested. Breathing space is critical for the Internet, where speech is made with the casual spontaneity of conversation but the permanence of writing.

The Internet has democratized public debate and allows an elderly activist to reach the same audience as a media conglomerate. This constitutional utopia is fragile, however, given how the likes of Perling can be harassed through abuse of libel laws or coerced into self-censorship. The cyberprotest has laudably transformed countless netizens into free speech advocates, but they can best protect Internet speech not by merely attacking the cybercrime law but by promoting a culture that refuses to recognize statements regarding public officials and public figures as libel. This proposition ensures that the Constitution will protect the likes of Perling regardless of how a certain comedian-turned-senator might mangle a law and whether or not libel is decriminalized.

Libel must be branded the weapon of an intellectual and moral coward unable to prosper in the marketplace of ideas. Our newly minted free speech advocates need to look beyond the cybercrime law and would do well to repost the classic words of Justice George Malcolm, for whom the University of the Philippines College of Law building is named: “The interest of society and the maintenance of good government demand a full discussion of public affairs. 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.”

Oscar Franklin Tan ([email protected]) 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.