The Cyber Libel Law, or formally, the Cybercrime Prevention Act of 2012, has caused more confusion than the clarification it should have given the libel laws of the Philippines through their evolution and refinement since the Revised Penal Code was enacted in the 1930s. The chaos is most pathetic in this restrictive time of the coronavirus pandemic, when limited human communication and interaction has forced people’s concentration on the internet — now the most convenient, and at times the only, means of talking to the outside world from imposed isolation.
The allegory of the Biblical Tower of Babel comes forth in this confusing time. The chilling lesson of human pride building its hierarchic ziggurat of layered reputations for one to reach Heaven first, by whatever means including stepping on others’ shoulders, can be seen as parallel to the quarrels of libel and slander in our modern times. “Come, let us build ourselves a city and a tower with its top in the sky, and so make a name for ourselves; otherwise we shall be scattered all over the earth,” the descendants of Noah said (Genesis 11:4). They had gone down from the Ark as it was beached on the mountain after the Great Flood receded, and went from the East (figuratively the Garden of Eden) towards the West (Babylonia), symbolic of degeneration from the cleansed state (after the Flood) to mundane temptations from the exercise of free will and individual differentiation and competition. It was about pride and reputation.
In the beginning “The whole world had the same language and the same words,” it is said in Genesis 11:1. But in the 18 years (estimated by some Bible historians) building the Tower of Babel with its many rooms (like a high rise condominium), quarrels started among the descendants of Noah, much like the story of George Orwell’s Animal Farm, where organization and administration schematics were being drawn for that aimed-for perfection in governance, but thwarted by individual selfishness.
God saw that they were bickering and maligning each other, and in His omniscience saw that their hearts were stricken with the sin of Pride — they wanted to be God — may the best man win. “So the Lord scattered them from there over all the earth, and they stopped building the city. That is why it was called Babel, because there the Lord confused the speech of all the world. (Genesis 11:8-9).
The curse of the Tower of Babel is what drives defamation laws of the world, to protect persons and their reputations from libelous or slanderous declarations of others. Juxtaposed are the freedoms of speech and of the press — basic human rights in democratic societies, drawing from the philosophical free will and intellect that direct life, liberty, and the pursuit of happiness — from the break-out of the forced colonization of the Great Flood, when the Tower of Babel toppled and spilled the multi-lingual peoples of the new world. Different views ensued, resolved by ubiquitous politics.
There is always something that suffers in the translation, many have said only too often. And yet miscommunication can be an honest mistake, but a lie cannot ever be pardoned or easier forgotten for its affront to its recipient, be it an individual or to the public. The laws of defamation ask for motivation for the identifiable offense (publication, or at least 3rd person witness), and that is hard to establish by the affronted, and illogical for the libeler or slanderer to admit to. For this reason, many countries (like the US) have reduced libel to civil cases (guilt by a preponderance of evidence) from the earlier category of criminal cases or sins against the state/people establishing guilt by proof beyond reasonable doubt. In the Philippines, Libel is still a criminal case, although that may be good or bad depending on which side you are on — it is difficult to prove beyond reasonable doubt that the alleged defamation was motivated to defame, with no basis, or an outright lie. For the alleged libeler, “Truth is my defense,” but truth has to be proven with sources and evidence beyond reasonable doubt.
In newspapers and other media, the intrinsic element of publication constituting libel is most potentially incriminating. The journalistic What, When. Where, Why and How must be answered by the article, supported by evidence (it is actually occurring, or witnessed personally). So easily, “Truth is my defense,” the reporter can say. But of course “slant” can be suspected of the journalist — who can choose what elements of the story to emphasize, and details to omit or not tie up with an unspoken but implied conclusion. Biases, even subconscious preferences, especially on the higher level of values and personal principles cannot be avoided, though straight journalism must by professional ethics be objective and show both sides of an issue, if there is one, built into the story. Investigative journalism must have the integrity of truth.
For opinion writers/live media hosts, opinion which is slanderous, outright libelous or in any way defamatory is his/her own lookout, as the network or station always declares such opinion as separate and distinct to the writer/speaker and not shared by the company or its other employees and contractors. Freedom of speech and of the press is raised high with closed fists, and often closed minds in this area. Proceed at your own risk with libel and the law.
At the webinar “Libel and the Law” last week, motivations, two sides to an issue, proof beyond reasonable doubt, and difficulties with libel laws were discussed alongside technicalities of the law like the overriding prescriptive period within which to file libel cases. The audience was the restricted and isolated masses in coronavirus modified community quarantine, assumed to be already over-saturated with related news on the issues of the Cybercrime Prevention Law, the ABS-CBN franchise revocation, the warrantless arrests of the Anti-Terrorist Act, amidst updates on the rising numbers of COVID-19 contamination, deaths, and recoveries. The webinar focused on the technical incongruences of the decision of Judge Rainelda Estacio-Montesa, who convicted Rappler CEO Maria Ressa and former Rappler researcher Reynaldo Santos, Jr. for cyber libel committed in 2014 on Wilfredo Keng, a businessman and the private complainant, who was reportedly under surveillance for human trafficking and drug smuggling in 2012.
“The (Cyber Crime) Law should be stabilizing, but it is now the cause of dissention,” said lawyer Geronimo Sy, main speaker at the webinar. He pointed out that the CyberCrime Prevention Act started in 2008 with discussions on spam and other internet fraud, and lay quite dormant in Congress until 2012 when legislators decided hurriedly “to include at the last minute cyber libel, because (some) legislators were being pilloried in the media” at that time. Related law is the Bayanihan Act of 2020, which deals with “Fake News,” mostly on social media, also hastily put together by our legislators, Mr. Sy said. He stressed that “libel laws should once and for all be re-hashed and consolidated.” His parting words were, “Fair criticism should be OK and the higher an official goes, the official should be able to take it. Legislators are not able to account for bad laws.”
Retired Supreme Court Senior Justice Antonio T. Carpio, a panelist at the “Libel and the Law” webinar, emphasized two points: First, the 12-year prescription period is the “overriding issue in the Rappler case.” Cyber libel is not a new case but the same as a traditional libel case with merely a new medium/method (the computer, internet). The one-year prescriptive period for filing holds for cyber libel as it has for all libel cases since the Revised Penal Code of 1932 to now. The disputed Rappler article was published May 2012, which means complainant Wilfredo Keng had the right to sue only until May 2013. After Rappler corrected a typo in the story in February 2014, Keng then had the chance to sue until February 2015 (Rappler, June 16, 2020).
Justice Carpio’s second point, the elusiveness of social media and the internet: what of online newspapers and postings, when authors are sometimes anonymous or use aliases? The editors/publishers should verify news or claims and declarations — ultimately, the editors/publishers are liable. And finally, on the burden of proof in a libel case: in the libel of a private person, the burden of proof is on the libeler; in the libel of a public person, the burden of proof is on the public person.
Marites Vitug, veteran journalist and co-founder of Newsbreak magazine, and panelist at the same webinar, took up from Justice Carpio’s last statement on the public accountability of government officials. She had libel cases filed against her by at least five public persons in the terms of three presidents: Corazon Aquino, Gloria Macapagal Arroyo and Benigno Simeon Aquino III. Some are under arbitration, some still ongoing.
The allegory of the Tower of Babel persists in today’s quarrels for standing and reputation. The Tower leans, and again threatens to keel. Why do laws have to be so politicized?
Amelia H. C. Ylagan is a Doctor of Business Administration from the University of the Philippines.