THEN AND NOW

Due to the advent of social media, the sharing of ideas and opinions, as well as communication with other people, wherever they may be in the world, are now possible with a single click of a button. Facebook, Instagram, Twitter, YouTube, and TikTok are just a few examples of social media platforms where information may easily be created, accessed, and shared by users from around the globe. In fact, as of January 2021, reports showed that the Philippines ranked first in social media usage for the sixth year in a row, with Filipinos spending an average of 4 hours and 15 minutes online each day.

At a glance, it seems that social media has brought a positive development to how we interact with one another. However, like any other tool, social media may also be used to cause harm to other people. In a matter of seconds, a person’s reputation may be affected by a single social media post, or false information may be circulated to multitudes of other people. The question now is, are these potentially harmful social media posts considered libelous and criminal, and therefore, punishable by law, or are they considered as the rightful exercise of free speech?

To address this, it is first necessary to examine Philippine laws on libel, and its application in our society.

Libel, slander, and defamation: Are there differences?

The old Spanish Penal Code of the Philippines used the term “defamacion,” which was later translated to “libel” under the laws that succeeded it, namely: Act No. 277, or the Libel Law, and the current law on the matter, Act No. 3815, or the Revised Penal Code of the Philippines (RPC). Defamation, therefore, essentially means libel.

Article 353 of the RPC defines libel as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.” Libel may be committed: (i) in writing (Article 355); (ii) orally, i.e., slander or oral defamation (Article 358); or (iii) through other acts, i.e., slander by deed (Article 359). From the definition, slander, whether orally or by deed, is a means of committing libel.

Article 355 of the RPC

Libel under Article 355 of the RPC is “committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.” If a complaint merely states “libel” as the offense charged, then the defamatory content is understood to have been made in writing.

An example of this type of libel is an article published in a newspaper of general circulation to discredit, dishonor, or impute a crime or turpitude to a person.

Advancements in technology have rendered some of the provisions of the RPC, such as those on libel, archaic and limited in scope. Congress thus enacted Republic Act No. 10175, or the Cybercrime Prevention Act of 2012 (Cybercrime Law), which expanded the coverage of libel to include cyberspace, i.e., cyber libel, among others. Cyber libel under this new law is defined as “(t)he unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.”

While the Cybercrime Law is relatively new, there are already well-known cyber libel cases, such as those filed against Maria A. Ressa, the chief executive officer of Rappler, Inc. (Rappler). These cyber libel cases were filed due to alleged defamatory online news articles which were exclusively published in Rappler’s website.

Article 358 of the RPC

Libel that is committed by oral or spoken means is slander or oral defamation under Article 358 of the RPC. Slander or oral defamation is defined “as the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business or means of livelihood.”

Some examples of this type of libel involve shouting in public to accuse a barangay treasurer of stealing money and check of another person, and a verbal altercation between two neighbors where the accused shouted obscenities directed at the complainant, as witnessed by other neighbors.

Article 359 of the RPC

Libel committed through other acts may fall under Article 359 of the RPC, which penalizes “any act not included and punished in this title (Crimes Against Honor), which shall cast dishonor, discredit or contempt upon another person.” This type of libel is also known as slander by deed.

Some examples of this type of libel are: (i) a verbal confrontation that escalates to a physical confrontation where the accused chokes the complainant in front of their co-employees; (ii) verbal insults hurled at the complainant coupled by giving the complainant the “middle finger” or “dirty finger”; and (iii) two (2) spurious entries in the barangay blotter for alleged illegal possession of firearms that is used as the basis to obtain a search and seizure warrant and file a criminal case that is eventually dismissed.

Is gossiping a form of libel and thus punishable by law?

Yes, gossiping may be considered libel and punishable by law if the following elements under Article 353 of the RPC are present:

1. There must be an imputation of a crime, or of a vice or defect (whether real or imaginary), or any act, omission, status or circumstance.

2. The imputation must be made publicly. Notably, “(i)f the defamatory matter is not seen or heard by anyone except the defamer and the defamed, damages to character reputation

cannot result since a man’s reputation is the estimate in which others hold him, and not what he himself thinks.”

3. It is malicious.

4. It is directed at a natural or juridical person, or someone dead.

5. It must tend to cause dishonor, discredit, or contempt of the

offended party.

Hence, publicly indulging in pure speculation or gossip, in reckless disregard of the truth, which may harm the reputation of another or an organization, may be punished by law.

What is protected by free speech, and how is something determined as satirical?

Case law provides that:

“The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest….

The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative.… all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression.”

Despite the foregoing broadness, free speech does not protect “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are not an essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not, in any proper sense, communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’”

SATIRICAL MATERIALS

Satire refers to a literary form that employs devices such as sarcasm, irony, and ridicule to pinpoint prevailing vices in society and is targeted to any group or individual, either from the private or government sphere. For speech to be considered as satirical, the elements of exaggeration, analogy, and other rhetorical devices must be existent. Political satire enjoys the constitutional protection on free speech.

Like free speech, the protection over political satire is not absolute. Satire is a qualified or conditional privileged communication which means that although the speech may contain defamatory imputation,

it would not be actionable unless made with malice or bad faith. The bounds of acceptable (political) satire are drawn by case law, as follows:

• The intent of the writer to treat the published content as

humorous does not matter if the language used has passed the

bounds of playful jest and intensive criticism into the region of

scurrilous calumniation and intemperate personalities.

• While it is the right and duty of a citizen to make a complaint

of any misconduct on the part of public officials which comes to

his notice, such complaints should be addressed solely to some

official having jurisdiction to inquire into the charges, or power

to redress the grievance, or has some duty to perform or interest

in connection therewith.

• The defamatory remarks and comments published must pertain

to the discharge of official duties and not to the private character

of the public officer.

• “Cyber-squatting” is punishable under the Cybercrime Law.

It is the acquisition of a domain name over the Internet of a

name that is identical or in any way similar with the name of

a person other than the registrant. While the registrant may

invoke that it is merely for satire or any other literary device, as

far as the Cybercrime Law is concerned, such act is made in bad

faith to mislead, destroy the reputation, or deprive others from

registering the same name.

How can defamation or libel be weaponized against journalists and ordinary citizens, and what is the chilling effect?

The Supreme Court held that “[t]he norm does not require that a journalist guarantee the truth of what he says or publishes. But the norm does prohibit the reckless disregard of private reputation by publishing or circulating defamatory statements without any bona fide effort to ascertain their truth. This norm represents the generally accepted point of balance or adjustment between the two interests involved.”

The Philippine Journalist’s Code of Ethics also requires journalists to “scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by improper omission or emphasis,” and makes it his duty “to air the other side and to correct substantive errors promptly.”

The foregoing are essentially the limitations, duties, or obligations of journalists, violations of which may result in a suit for libel.

Defamation or libel may be weaponized against journalists, and even ordinary citizens, by alleging that a writing, more so a social media post or online news article, goes beyond the protection afforded by our laws and the Constitution. The journalist or ordinary citizen may then be subjected to a criminal trial for libel or cyber libel. While the case may be dismissed by a trial court, the journalist or ordinary citizen would have already been subjected to the rigors of a criminal trial. The possibility of prosecution may then deter journalists and ordinary citizens from publishing materials, voicing their ideas, reporting news, etc., despite these publications not being prohibited by law. Simply, defamation or libel may be wrongfully used (or abused) to incite fear among journalists and ordinary citizens, and prevent them from publishing lawful materials, in print, social media, or the like.

All penal laws have an inherent chilling effect, which is the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is proper. The chilling effect is not necessarily evil, and may be necessary to allow the state to address and penalize socially harmful conduct. The chilling effect of a law, however, may be violative if the means to achieve a valid governmental purpose unnecessarily sweeps the subject broadly (i.e., overbreadth), thereby invading the area of protected freedoms.

Fake news fall under libel laws, or are there only certain instances in which it may be punished?

“Fake news” is false news stories, often of a sensational nature, created to be widely shared or distributed for the purpose of generating revenue, or promoting or discrediting a public figure, political movement, company, etc. It is a recent concept that emerged due to the prevalence of social media and different internet platforms for communication. Because of the concept’s infancy, there is presently limited case law on the matter. Nevertheless, the current provisions of law on libel, and cyber libel, may be applied to determine if “fake news” may or should be punished.

If an online news article, or a social media post containing news material: (i) imputes a crime, vice, or defect, or any act, omission, status or circumstance against a certain person or entity; (ii) is accessible or may be viewed by the public, and not by certain persons only; (iii) is malicious; and (iv) tends to cause dishonor, discredit, or contempt of the offended party, then it may be considered libelous and punishable by law.

In the libel suit filed by Senator Franklin Drilon against Manuel “Boy” P. Mejorada, the Supreme Court found that “[i]t was not necessary to establish that the publication was motivated by any malice since the articles were not privileged communication or fair comments; thus, malice is presumed. The accusatory character of the subject articles, as well as petitioner’s failure to present any proof that the statements were based on established and documented facts, negates petitioner’s claim that the articles were made in good faith.” The takeaway from this pronouncement is that if a “fake news” article is proven to have been made maliciously, then the proponent of such “fake news” may be convicted for libel. Conversely, if an accused can show that there was no malice when the “fake news” was published, he or she may be acquitted from a libel suit.

Since the law is dependent on a person’s reputation and how much it was damaged, is there a difference when you defame a public figure versus an ordinary citizen?

Yes, there is a difference when the target of a publication involves a public figure (government official, celebrity, etc.) versus an ordinary citizen.

In the Philippines, honest criticisms on the official conduct of public officials and public figures are insulated from libel judgments. There is more leeway given to persons uttering statements against public officials vis-à-vis other private citizens. The reason for this distinction is “where the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth.” The exception is when the public official or figure proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not. In that case, the publication is libelous.

Afterword

Our society is ever evolving, and with it, our technology is advancing. Our laws, therefore, need to be modernized to keep up with these changing times. The Cybercrime Law was passed to help bridge the gap between our laws and technology, such as the need to regulate actions done through social media platforms, online news websites, and the like. Given this development, harmful social media posts may be the subject of a legal action for cyber libel. It may be argued, however, that even without the Cybercrime Law, common sense and decency dictate that the respect and care we show to other people in person should extend to social media, for cyberspace is simply an extension of our physical world. Cyberspace, especially social media, is and should not be a blanket of anonymity or tool to attack the honor or reputation of other persons.

Atty. Pia Isabel Co is a Senior Associate in Corporate Practice Group of GSE Law Firm. She sits as a member of the Board of Directors and acts as Corporate Secretary and officer of various corporations.

Atty. Mikee Florendo is a Junior Associate in GSE Law Firm’s Corporate Practice Group. In law school, Mikee was an intern with the Philippine Law Journal and a member of the Philippine Law Register.