Songcal, Skylar: A study on internet libel in the Philippines


Introduction

Libel committed through the internet is still a novel issue in the Philippines. Unlike other highly industrialized countries such as the United States of America and the countries in Europe where the developments in technology has urged such countries to enact new laws in order to update existing laws, the Philippines has no law on internet libel. In 2000 however, the Philippine legislature enacted the Republic Act 8792, otherwise known as the E-Commerce Act which paved way to A.M. NO. 01-7-01-SC -RE: Rules on Electronic Evidence which was made applicable in the Revised Rules of Court. Although the E-Commerce Act did not specifically provide a provision on internet libel, it nonetheless provided for a the liability of the service providers in case the electronic data message or electronic document is unlawful and the service provider fall in any of the circumstance presented in Section 30(a) of Republic Act 8792.

Jurisprudence on the issue of libel committed through the internet is not available. As of October 2009, there are no Jurisprudence as decided by the Supreme Court of the Philippines in such matter.

There have been a number of cases filed in court involving libel committed through the internet but such cases which will be further discussed in this study have been discontinued after an amicable settlement or are still pending before the lower courts.

Libel in the Philippines

Libel in the Philippines is defined by Article 353 of the Revised Penal Code as “A libel is a public and malicious imputation of the crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonour, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

Libel is a form of defamation or defamacion in the Spanish text of the Codigo Penal of which the Revised Penal Code of the Philippines originated from. It is that which tends to injure the reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff. (MVRS Pub. Inc. vs. Islamic Da’wah Council of the Phils., Inc., 230 Phil. 241)

The protection of any person whether natural or juridical for any interference on his privacy or attacks on his honour or reputation is protected under the United Nations Universal Declaration of Human Rights as provided in Article 12 thereof to wit:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

The United Nation’s Universal Declaration of Human Rights is an international law which binds the Philippines since the latter is a member thereof. Article 3 section 1 of the 1987 Philippine Constitution does not explicitly provide for the protection of the right to privacy nor that of honor or reputation. Article 3 however, is not the source of civil and political right but a limitation on behalf of the state.

In a case decided by the Supreme Court of the Philippines, it held that the enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. The law recognizes the value of such reputation and imposes upon him who attacks it, by slanderous words or libelous publications, the liability to make full compensation for the damage done. (Worcester vs. Ocampo 22 Phil. 42)

In order for libel to attach in Philippine Law, the following elements were enumerated in a Supreme Court decision: (Diaz vs. Court of Appeals, G.R. No. 159787)

  1. It must be defamatory
  2. It must be malicious
  3. It must be given publicly
  4. The victim must be identifiable

It was stressed by the Supreme Court in Diaz vs. Court of Appeals that all the four (4) elements of libel must be present, for an absence in any one of those previously enumerated, the case for libel will not prosper. Thus, in order to understand the elements of libel punishable under the Revised Penal Code, a discussion particular to each element must be conducted.

The test of the defamatory character of the words used is that a.) It must be construed in their entirety and taken in their plain, natural and ordinary meaning, (Novicio vs. Aggabao, 463 Phil. 510, 516) and b.)The words are calculated to induce the hearers to suppose and understand that the person against whom they were uttered was guilty of certain offenses, or are sufficient to impeach the honesty, virtue, or reputation, or to hold him up to public ridicule. (U.S. vs. O’Connell, 37 Phil. 767)

As for the second element of malice, malice is presumed by law and thus the offender must prove that the act was done under any of the exceptions of Article 354 of the Revised Penal Code.

Article 354 of the Revised Penal Code which provides to wit:

“Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

  1. Private Communication made by any person to another in the performance of any legal, moral, or social duty;
  2. A fair and true report, made in good faith without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”

Under Philippine law, in relation to the application of law in libel, truth is not a defense. What is punished under Philippine law is the actual act or commission of the offense. Unlike in the United States however, truth is an absolute defense. Paragraph 1 of Article 354 of the Revised Penal Code states the presumption of malice in defamation. I regardless of the truthfulness of the imputation, the presumption of malice still exists unless otherwise proven that it was performed in good and justifiable intention. The offended party need not produce proof of malice.

Defamatory imputation may cover: a.) the imputation of a crime allegedly committed by the offended party, b.) a vice or defect, real or imaginary of the offended party, c.) any act, omission, status of, or circumstance relating to the offended party.

In the third element, Article 354 of the Revised Penal Code provides for the Requirement for publicity. It is essential that the defamatory statement was given publicly. The mere composing of libel is not actionable as long as the same is not published. It was held by the Supreme Court that the communication of libellous materials to the person of the defamed alone does not constitute publication since that could not injure his reputation that others hold of him. (People vs. Atencio, CA-G.R. Nos. 11351-R to 11353-R)

On the question of the meaning of publication and when the libellous matter is deemed published? It was held in previously cited case of People vs. Atencio that the communication of the defamatory matter to some third person or more persons is deemed to be a publication. However, the same defamatory matter must be read by the third person for such to constitute publications. Thus in a case where the defamatory matter was sealed in an envelope and sent through a messenger, the same does not constitute publication. (Lopez vs. Delgado, 8 Phil. 26)

In light of the requirement of publication to at least a third person in libel cases, there is an exception to the liability of the offender. Article 354 provides for an exception when the libellous matter was committed in the purview of a privileged communication whether it was an absolute privileged communication or a conditional privileged communication.

The members of congress in the discharge of their function are protected by absolute privileged communication and therefore not actionable regardless if its author acted in bad faith. There is a conditional privileged communication when the libellous matter was communicated in relation to a legal, moral or social duty. The communication however must be addressed to the proper party of who has been charged with supervision over the person the libellous matter was committed against. It was held by the Supreme Court that when the third party communication which constituted publishing was the supervisor of the person of whom the libellous matter was against, it is deemed to be a private communication if predicated upon the fact of a legal, moral, or social duty. (U.S. vs. Galeza, 31 Phil. 365)

In relation to libellous matter posted through an internet forum, message board, yahoo group, chat room, or any other similar means, the libellous communication is deemed to have been published when viewed by at least a third person as cited in People vs. Atencio. The matter posted in such internet platforms even when performed as a legal, moral, or social duty to bring to the knowledge of an official who has supervisory duty over the person of whom the libellous matter was against is still considered libellous for not being communicated privately. Thus, when the accused instead of communicating the matter to the official who is the proper authority, aired the same in a public meeting, it was held that the statements made where not privileged. (People vs. Jaring, C.A., 40 O.G. 3683)

It however, should be noted that in the case of Yuchenco vs. Parents Enabling Parents Coalition, Inc. where the Yuchengco’s filed a libel suit against the Parents Enabling Parents Coalition for allegedly posting in the latter’s website “malicious” articles against the former and their group of companies, the Court of Appeals has dismissed the case owing for the lack of endorsement by the Office of the Solicitor General, which should represent the government in the Supreme Court and Court of Appeals in all criminal proceedings as mandated under Presidential Decree 478. The Court of Appeals decision in the previously cited case added that any party may appeal a case before them without the conformity of the Office of the Solicitor General only in behalf of the civil liability claims. In the preliminary investigation of the libel suit in Yuchengco vs. Parents Enabling Parents Coalition, Inc. the City Prosecutor of Makati found probable cause to charge the members of the coalition with 13 counts of libel. The Regional Trial Court of Makati however dismissed the case for lack of jurisdiction. This prompted the Yuchengco’s to file an appeal without the endorsement of the Department of Justice. The issue involving internet libel in that case was ordered to be dismissed by the Department of Justice which ruled that there is no such thing as internet libel since Article 355 of the Revised Penal Code strictly provided for the means of which libel may be committed.

Here in lies the question on what the means libel may be committed in light of Article 355 of the Revised Penal Code. Article 355 of the Revised Penal Code provides for the manner of which it may be committed and the penalty for its commission, to wit:

“A libel committed by means of writing, printing, lithography engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correctional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.”

Since because of the novelty of internet libel in the Philippines there are no established Supreme Court jurisprudence as to the matter, it up to the bar to find existing jurisprudence of a similar nature to persuade the courts. Internet libel may be presented as among those means enumerated in Article 355 of the Revised Penal Code under “xxx or any other similar means, xxx”. It was held in one Supreme Court decision that defamatory words having been made in a television program was considered to be libel as contemplated by Article 355 of the Revised Penal Code. While the medium of television is not expressly mentioned among the means specified in the law, it easily qualifies under the general provision “or any other similar means.” (People vs. Casten, C.A.-G.R. No. 07924-CR)

The fourth element as enumerated by Diaz vs. Court of Appeals is that the victim of the libellous matter should be identifiable. The victim may be identified or identifiable based on the contents of the libellous article. It is not sufficient that the offended party recognizes himself as the person attacked or defamed; it must be shown that at least a third person could identify him as the object of the libellous publication. (Kunkle vs. Cablenews-American, 42 Phil. 757)

In the still pending case of Belo vs. Guevarra, which as of October 2009 is still in the stage of preliminary investigation, in relation to libellous statements posted through the internet social networking site Facebook by Atty. Argee Guevarra in his Facebook profile page, there allegedly was a string of posts in the profile status on the website page which were “malicious”.

Here in lies the question of whether or not libel published in different parts may be taken together to establish the identification of the offended party. According to one Supreme Court jurisprudence where in its facts there were two publications the first of which did not mention any names and the second of the two publication merely consists of a named cartoon of the person referred to in the first publication, the court considered the two publications together to establish the identity of the offended party. (U.S. vs. Sotto, 36 Phil. 389)

Thus, in relation to U.S. vs. Sotto and Kunkle vs. Cablenews-American, if through the publication in different parts of the libellous articles the entirety of the material produces the effect of being identifiable at least to a third person, the third element for identification is complied with. The identification however must not be to a group or class except when the statement is so sweeping or all-embracing as to apply to every individual in that group or class. (Newsweek, Inc. vs. Intermediate Appellate Court, 142 SCRA 171)

In view of all the elements of libel discussed, the attendance of any of those four (4) elements may be sufficient to hold any person who performs any act constituted in any of the following manner provided for under Article 355 of the Revised Penal Code in relation to Article 353 of the same article and communicates the same to at least a third party who may identify the person of whom the libellous article injures may be held liable for the crime of libel.

May the service provider of the internet platform of which the libellous article was published be held accountable for libel solidarily or jointly with the author of such libellous material?

Under the Republic Act 8792 or Electronic Commerce Act of 2000, generally, the Service Providers may not be held liable for the possible offenses committed by person who they are providing their service unless there is an attendance of any of the exception provided for by Section 30 of the said act. Section 30 of Republic Act 8792 provides to wit:

“SEC. 30. Extent of Liability of a Service Provider. – Except as otherwise provided in this Section, no person or party shall be subject to any civil or criminal liability in respect of the electronic data message or electronic document for which the person or party acting as a service provider as defined in Section 5 merely provides access if such liability is founded on –

(a) xxx

(b) The making, publication, dissemination or distribution of such material or any statement made in such material, including possible infringement of any right subsisting in or in relation to such material: Provided, That:

i.) The service provider does not have actual knowledge xxx

ii.) The service provider does not knowingly receive a financial benefit directly attributable to the unlawful or infringing activity; and

iii.) The service provider does not directly commit any infringement or other unlawful act xxx: Provided, further, That nothing in this Section shall affect –

a) Any obligation founded on contract;

b) The obligation of a service provider as such under a licensing or other regulatory regime established under written law; or

c) Any obligation imposed under any written law;

d) The civil liability of any party to the extent that such liability forms the basis for injunctive relief issued by a court under any law requiring that the service provider take or refrain from actions necessary to remove, block or deny access to any material, or to preserve evidence of a violation of law.”

One complaint involving libel published through a “blog” was brought to the City Prosecutor of Pasig, Metro Manila, involving the question of the liability of the service provider. The complaint of Aquino vs. RP Nuclei Solutions and Olandres has been dismissed by the City Prosecutor. The RP Nuclei Solutions was the alleged server or host of the website ‘greedyolddumbass.com’, an internet forum where the alleged libellous comments had been made. RP Nuclei Solutions is owned by a company called Ploghost which in turn is owned by Olandres. The Prosecutor noted that the RP Nuclei Solutions could not be held for libel because as a server it cannot vary or change the contents of the websites it is servicing. The service provider may only discontinue the service if the user violates the Terms of Service as agreed upon by their registration with the provider. Furthermore, the Prosecutor stated that “With worldwide web concerned, the traditional concept of publishers of a newspaper or periodical cannot apply insofar as liability for libel in the setting up, ownership, management and supervision of an Internet site, web log [blog] or forum is concerned. Hence, any liability for libellous statements or remarks that may be coursed through or communicated through the websites that it is hosting will solely devolve on the part of the authors.

Jurisdiction

The jurisdiction of the Philippine law as regards acts or omission punishable under the revised penal code are only those committed within the territory of the Philippines unless falling under any of the circumstance enumerated in Article 2 of the Revised Penal Code. The Philippine courts in order to validly try the case must have valid jurisdiction over the, a.) territory, b.) subject matter, and c.) the person.

In the 2007 controversy in the Philippines involving an Australian, Brian Gorrell, and Filipino, Montano, regarding the libellous articles posted by Gorrell in his ‘blog’ while he was in Australia against Montano for allegedly swindling him of money amounting to seventy thousand dollars ($70,000), it raised the issue of jurisdiction if ever the complaint will be filed by Montano in the Philippine court. A case may be filed in the trial court of the Philippines in the territorial jurisdiction of the court where the offense has been committed or the place of residence of any of the parties involved.

It must be noted of the existence of the principle in Private International Law of Lex loci delicti commissi. Lex loci delicti commsi means ‘law of the place where the tort was committed’. The principle applies when the two contending parties are domiciled in different countries. Under Philippine law as regards jurisdiction, the case may be filed in the place where the act was committed or the place of residence of either parties. Thus in international law, abiding by the principle of lex loci delicti commssi, the laws of the place where the tort was committed shall govern, and the same acquires proper jurisdiction.

In a case decided by the High Court of Australia involving defamation committed through the internet, it ruled that:

“The appellant’s submission that publication occurs, or should henceforth be held to occur relevantly at one place, the place where the matter is provided, or first published, cannot withstand any reasonable test of certainty and fairness. If it were accepted, publishers would be free to manipulate the uploading and location of data so as to insulate themselves from liability in Australia[235], or elsewhere: for example, by using a web server in a “defamation free jurisdiction” or, one in which the defamation laws are tilted decidedly towards defendants.xxx” (par.199, Dow Jones and Co. vs. Gutnick, 2002, HCA 56)

In the previously cited case, it also decided that the place of publication is not the server where the defamatory statements were posted. Though jurisprudence of another state may be called upon and be used to persuade the Philippine courts. As provided for by Article 21 of the New Civil Code, “Anyone who wilfully causes injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.”


References



Author licensed this article under Creative Commons Attribution 3.0 Philippine license

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