The company we keep

The campaign to decriminalize libel has been going on for three decades — since the 1986 “People Power” military-civilian mutiny put an end to the Marcos Sr. dictatorship. It is no exaggeration to say that that campaign has been a dismal failure despite the unflagging efforts of journalists’, media advocacy, and human rights defenders’ groups. Under the libel provisions of the 1932 Revised Penal Code (RPC) and the 2012 Cyber Crime Prevention Act, journalists can still be imprisoned if convicted of libel in the Philippines, just as, in certain other countries, they can also be jailed for this or that alleged offense.

Any attempt to correct that anomaly was bound to fail during the media-baiting Duterte regime. But in the last six months of 2022, at the onset of the Marcos II administration and as the year was ending, two bills, one in the House of Representatives and another in the Senate, were filed to decriminalize libel, the laws on which have penalized those convicted of it with imprisonment.

Similar bills have been filed in the past by press freedom and free expression defenders. None have passed Congress due to its majority membership’s opposition. But even if one such bill had made it through that body, the consensus among many observers is that it would have been vetoed by then Presidents Joseph Estrada, Gloria Macapagal-Arroyo, Benigno Aquino III, and Rodrigo Duterte, during whose terms such bills were filed. In validation of that assumption, one can cite the fact that rather than review the libel law in the 1932 RPC as suggested by the United Nations Human Rights Council, even the Aquino III administration, which claimed to be for human rights, included harsher penalties for cyber libel in the 2012 Cyber Crime Prevention Act, which has since then been used to intimidate independent journalists and other truth tellers.

In re-filing her and her fellow sponsors’ House Bill 1769 last July, Alliance of Concerned Teachers (ACT) Representative France Castro was moved by outrage over the Court of Appeals’ upholding of a lower court’s cyber libel conviction of Nobel Peace Prize Laureate and online news site Rappler CEO and Editor Maria Ressa for which she can be imprisoned for six years or more if her appeal to the Supreme Court is denied.

Ms. Castro noted that the country’s libel laws have been used to prevent journalists from uncovering and reporting official wrongdoing, since many “onion-skinned” officials have been quick to file libel and/or cyber libel complaints.

Senator Risa Hontiveros’ filing her own bill was, on the other hand, provoked by the cyber libel conviction of Baguio-based journalist and Rappler contributor Frank Cimatu on Dec. 12 for a Facebook post of about a dozen words, for which, however, he was sentenced to a maximum of five years and five months in prison, plus moral damages of P300,000.

“Our libel laws,” the senator pointed out, “have been weaponized to stifle very basic fundamental rights. Those laws have been used to constantly attack many of our freedoms… particularly the freedom of the press. We need to decriminalize libel if we are to truly defend press freedom.”

Ms. Hontiveros’ fellow senator Raffy Tulfo supports the decriminalization of libel, but on the condition that any bill that would do so will cover only those practitioners from “established” media organizations who adhere to the ethical and professional standards of journalism. Those who spread disinformation or “fake news,” he insisted, should still be subject to imprisonment.

The National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) is opposed to House Bill 1769, and is presumably against the Hontiveros bill as well. The task force in fact declared last July through one of its officials that it “will not allow” (!) the decriminalization of libel on the argument that it would lead to “chaos” by permitting the “unbridled exercise of free expression.” In criminalizing the offense, the country’s existing libel laws prevent “excesses” in the exercise of the rights to free expression and press freedom, it said.

Chaos has not ensued in the United States, where libel and slander are not criminal offenses despite the media’s supposed “excesses.” But the claim implicit in the NTF-ELCAC argument is that free expression and press freedom have limits has been made often, and it indeed seems reasonable to assume that no right is without restraint.

However, Section 4 of Article III, the Bill of Rights of the Constitution, declares that “no law shall be passed abridging (underscoring mine) the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for the redress of grievances.”

The emphatic phrase “no law shall be passed” and the word “abridging” would seem to imply a prohibition against any diminution, no matter how slight, of those rights, since “to abridge” means to shorten, to subtract from, or to diminish. But one can grant that hate speech or incitement to violence should not be Constitutionally protected because of the harm they can cause their targets and society as a whole. In some jurisdictions, committing either can lead to criminal prosecution, but both offenses are carefully defined so as to prevent anyone’s being prosecuted solely for his or her political or other views.

Perhaps the bill or bills decriminalizing libel could include provisions making both hate speech and inciting to violence criminal offenses, but on the condition that they be carefully defined — the first as any slur on anyone on ethnic, religious, or gender grounds, and the second as any call to harm anyone or to physically attack a person or organization. Both would then be clearly marked as offenses against civil society.

However, the NTF-ELCAC’s opposition to the decriminalization of libel is not based on those legitimate concerns but on its fears of “fake news.” One could argue that a provision exempting the authors and purveyors of disinformation could also be included in a bill decriminalizing libel. Unfortunately, defining disinformation without political bias is as problematic as the question of who will decide what information is false and which true.

Is an opinion on a public issue that departs from government’s views, or criticism of government even when supported by relevant facts “disinformation?” The interest of any administration and its officials in getting public approval through favorable media reports and commentary makes it a political issue that could influence a court’s or any other government agency’s deciding whether something reported, analyzed, or interpreted by a journalist is “fake news” or not.

That issue is what makes Senator Tulfo’s demand that the authors and disseminators of disinformation be criminally liable difficult to put into law and to implement without violating anyone’s right to free expression and press freedom. There is also the question of who or what will decide whether a journalist is ethically and professionally competent.

But above all these issues and of even more significance is the fact that punishing anyone with imprisonment solely because of a news report or opinion piece, as the UN has pointed out, is by itself excessive for any country that dares describe itself as a democracy.

Libel should be decriminalized, period. But by insisting on libel as a criminal offense, the Philippines has put itself in the same company as those other countries with hardly any democratic pretensions such as China, Russia, Myanmar, Iran, and Belarus, where journalists are imprisoned for such “offenses” as “insulting” government officials — or simply for telling the truth.