Ending criminal libel

By Dean Tony La Via | Mar. 04, 2014 at 12:01am

In last Saturdays column, I summarized the decision of the Supreme Court
in Disini vs. the Secretary of Justice that upheld most provisions of the
cybercrime law, including the sections on Internet libel. I promised in that
column to revisit the issue of criminal libel, a topic that deserves attention
by itself.
Criminal libel finds its beginnings in the United States in 1798 with the
passage of the Alien and Sedition Acts, which among others restricted
speech that was critical of the federal government. Some US states today
still penalize libel in their criminal statutes, but these laws are now seldom
used.
Here in the Philippines, Article 353 of the Revised Penal Code 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 discredit or cause the dishonor or contempt of a natural or
juridical person, or to blacken the memory of one who is dead. Thus, the
elements of libel are: (a) imputation of a discreditable act or condition to
another; (b) publication of the imputation; (c) identity of the person
defamed; and, (d) existence of malice.
In addition to criminal libel, Article 26 of the New Civil Code of the
Philippines established civil libel. The latter differs from criminal libel in that
the penalty in the former may be limited to civil damages while the later
may result in fine or imprisonment.
The decision by the Supreme Court to uphold the constitutionality of online
libel was anchored on Article 353 of the Revised Penal Code (RPC).
According to the Court, onlibel is actually not a new crime since Article 353,
in relation to Article 355 of the penal code, already punishes it. In effect, it
further added, Section 4(c)(4) of the Cybercrime Prevention Act merely
affirms that online defamation constitutes similar means for committing
libel. Surely, cyberspace/the Internet is another medium for expressing
ones view and those of others. Opinions can be expressed and made
public just like any other media with the difference that unlike other forms of
media, transmission and dissemination of messages in cyberspace is
instantaneous and made to a much broader audience base.
Philippine libel law creates the presumption that malice is present in every
defamatory imputation. The effect is that the prosecution need not prove
malice on the part of the defendant (malice in fact), for there is a
presumption under the law that defendants imputation is malicious (malice
in law). The burden rests on the defendant to show good intention and
justifiable motive in order to overcome the legal inference of malice.
However, malice can be negated by ones sense of justice or other
legitimate or plausible motive.
Associate Justice Carpio, with Justice Arturo Brion, dissented on this issue,
in the Disini case, and expressed his serious reservations to this
presumed malice rule. For him, this violates the constitutional guarantees
of freedom of speech and expression adding that the cybercrime laws
adaptation of this rule is a gross constitutional anomaly. He said that the
public official who filed the case should be the one to prove that the
defendant had knowledge that the allegedly libelous statement was false or
that the defendant had reckless disregard of whether the statement was
false or not.
I believe Justices Carpio and Brion are correct. In all criminal prosecutions,
the onus to prove guilt rests on the shoulders of the prosecution, not the
defendant. But under the present law on libel, the defendant is given the
burden to overcome the legal inference of malice. Moreover, the legal
presumption in effect abridges, curtails or lessens the exercise of free
speech and of the press.
Associate Justice Marvic Leonen has even a stronger dissent and
proposes the decriminalization of libel on the ground that criminalizing libel
contradicts our notions of a genuinely democratic society; criminal libel
provisions in the RPC and cybercrime law should be declared
unconstitutional as infringing upon the guarantee of freedom of expression.
In an article I wrote for an Internet news site, I argued the wisdom behind
the move to decriminalize libel. I pointed out that the threat of imprisonment
definitely is anathema to freedom of expression and speech and proposed
that defamation be deterred not by criminal prosecution but through civil
indemnity and other civil remedies only. In this sense, criminal libel is
anachronistic.
The Supreme Court, in the Disini decision, is swimming against the global
tide in retaining criminal libel. England for example has abolished such libel
and many other countries are doing so. The advent of new technology and
social media is likely to hasten this and provide impetus for novel legal
norms and processes.
My favorite quotation from the Disini decision comes from no less than the
Chief Justice Maria Lourdes Sereno. The chief is right when she said,
Laws and jurisprudence should be able to keep current with the
exponential growth in information technology. The challenge is acute,
because the rapid progress of technology has opened up new avenues of
criminality. . . It is precisely during these times of zeal that the Court must
be ever ready to perform its duty to uphold fundamental rights when a
proper case is brought before it.