Tuesday, October 09, 2012

I maliciously malign your sorry ass, you ugly frassum-wassum!

Libel, or more accurately, cyberlibel, has been in the news for the past several days now due to the passage of the Cybercrime Prevention Act of 2012 (Republic Act No. 10175). To date several petitions questioning the law's constitutionality are before the Supreme Court and the court has issued a temporary restraining order on the implementation of the law as they study these petitions. From what I gather, the main point against it is not its unconstitutionality but its vagueness, that is, it could be lacking in the requirements as to form (if there is such a requirement). In other words, it is poorly written.

Now there are other issues with the law, but it's the libel provision that has netizens' panties in a bunch. It seems that in their interpretation, merely liking a Facebook status message could land one in jail. The Aquino administration has assured the citizenry that the implementing rules and regulations of the law will see to it that this does not happen. Okay. Aquino however voiced his opinion that the provisions against libel over the internet is needed. Not so okay.

Senator Sotto (him again) has been accused of inserting the libel provision into the law. He has denied this accusation, but whoever was responsible hardly matters anymore. It's there, it has been signed into law by the President, and insufficiency in form notwithstanding, I am betting the Supreme Court will find it constitutional. It is very easy to defend the logic of Tito Sotto (and President Aquino) on the need for law on libel to cover the internet:

1) We have press freedom guaranteed by the Constitution. We have freedom of expression guaranteed by the Constitution.
2) We are all equal before the law, that is,  no special privileges for any sector of society under the law.
3) Any citizen who publishes information for dissemination, whether a journalist or not, is de facto a member of the press, and therefore has press freedom. 
4) Members of the press are subject to libel laws.
5) Anybody who publishes information for wider dissemination, even on the internet, is subject to libel laws.

Netizens' claim to exemption from a law that covers other citizens is claiming some sort of special privilege not available to other citizens. Why should, for example, Mang Juan the magtataho, who doesn't have internet access because he can't afford it, be sued for defamation (maybe he wrote on a wall or something, I dont know), and John Sossy can't be liable because he wrote his defamation on a Twitter app on his iPhone 5?

Netizens lament the chilling effect of the new law, but as blogger and now government official Manual L. Quezon III has said, this is the sort of thing a member of the press has to live with -- the libel law over his neck everytime he writes something for public consumption. Why should Blogger, Facebooker, or Twitterer be exempted from the discipline the libel law imposes on somebody who wants their views out there for everyone to read?

Now lest anyone think I am a flunkie for the ruling class in whose interests the libel laws of this country were crafted, let me assure you that I am not. I affirm the citizen's right to free speech and reject the ruling class's notion that it is 'not absolute'. That's like saying the right to life is not absolute. I recognize that with free speech comes the license to offend, to insult, and even to blaspheme, in short, to be a jerk. No, I am not defending the rightness of law on cyberlibel, merely the logic of the crafters and defenders of the law, which to reiterate is this: Libel is a crime for everybody else. What makes you so special?

On the contrary. My thesis is that the libel laws of this country are absurd and inimical to the best interests of its citizens. It is a tool of the powerful to harass. It is used to silence critics. It is time that libel is decriminalized. And to be fair to our lawmakers, a couple petitions to do just that are pending in Congress. These seek to get rid of the jail time associated with a libel conviction. Laudable, but futile. The loss of jail time may dull some of the sharpness of the axe over everyone's neck. in that there will be no more incarceration, but its power to harass when wielded by the powerful is still there; a blunt axe can still hurt your noggin. When used in this way, a hapless journalist or blogger, aside from being bogged down by court appearances and legal fees, also can face punitive damages if convicted.

Decriminalizing libel is not enough. That just takes care of the jail time. A decriminalized libel will not prevent, say, the secretary of DSWD from suing a blogger for her reporting. The law on libel must be changed fundamentally. What does libeling entail anyway? It operates under the assumption that we have reputations to protect. That's silly. We don't have reputations, that is, we don't own reputation. Our so-called reputation is contained in someone else's head. It is what other people think about us, their thoughts. I'm sure you agree that we don't own other people's thoughts. Libel law therefore is control of other people's thoughts. Seen in this light, we can change how we see libel.

Malice is a given when determining libel, however, there should be no libel when the alleged libel is true. Truth must be a defense. Even if done in malice, if an allegedly libelous article is demonstrably true, there could be no libel. A person running for public office for instance cannot sue a writer for libel even if the said writer was explicit in saying that his purpose for writing the article is to destroy the candidate's credibility -- destroying his reputation -- before the voting public if what he is writing is demonstrably true.

The complainant must show actual losses. For instance, the libel caused the complainant to lose revenue or a contract directly because of the libel. That is, if an untrue article done in malice results in actual losses, the complainant can file a case. Of course this could result in cases wherein complainant will claim medical costs due to stress, etc., but I suppose we can live with that. If an untrue article merely results in hurt feelings or 'emotional distress', there can be no libel. The best weapon to fight untruth is truth; the best weapon to fight misinformation is information. And in this information age, getting truth and information out there is no longer difficult.

In summary, for it to be libel, it must be 1) malicious and untrue, and 2) show actual losses. Any complaint that doesn't show these two criteria, the court gets to throw out.

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