Amended petition vs Cybercrime law underscores unconstitutionality of libel

Anti-Cybercrime law rally at Supreme Court Oct 2012. Photo by Mario Ignacio of VERA Files.

Last week, we amended our petition against the Cybercrimes Prevention Act of 2012 (R.A 10175) to have it declared wholly as unconstitutional.

Please click here for:

Amended Petition

“We” refers to our group VERA Files and fellow petitioners namely Davao-based radio broadcaster radio broadcaster Alexander Adonis, lawyers/bloggers Harry Roque, Romel Bagares, and Gilbert Andres, legal officer of Media Defense Southeast Asia.

Our earlier petition filed last Sept 28 asked the Court to declare only the provision of the Cybercrimes Prevention Law on libel as being unconstitutional. In our amended petition, we asked the Supreme Court to expressly declare Art. 355 of the Revised Penal Code providing for the crime of libel also to be unconstitutional.

As explained by our lawyers, Harry Roque and Romel Bagares of The Center for International Law and the Southeast Asia Media Defense, “We’ve had to clarify that pursuant to the View of the UN Human Rights Committee in Adonis vs. Republic of the Philippines, libel under the Revised Penal Code is contrary to freedom of expression. In its annual report this year on the Philippines, the UN Human Rights Committee also decried that instead of complying with this view and repeal Art 355 of the RPC, the Philippines even expanded the coverage of libel through the Cybercrime Prevention Act.”

Roque said, “It is important to have both libel under the RPC and under the new law be declared as illegal. Prior to the amended petition, the petition only asked the Court to indirectly declare the ordinary crime of libel as unconstitutional by implication. Since Art. 355 was reproduced by way of reference in the definition of electronic libel with the additional element that it should have been published electronically, it is incumbent for the Court to also consider the issue of whether ordinary libel is constitutional. The amended petition was necessary since the law does not favor implied declarations of unconstitutionality.”

Our petition is one of the 15 filed against the Cybercrime law signed by President Aquino on Sept. 13, 2012. The Supreme Court issued a 120-day temporary restraining order on the implementation of the law that has generated widespread concern on its effect on basic freedoms. The High Court has scheduled oral arguments on Jan. 15.

Our petition stressed on the human rights issue of the law especially the provision on libel. Our co-petitioner Adonis was imprisoned for three years after he was convicted for libel in a suit filed by former House Speaker Prospero Nograles.

Nograles brought the suit against Adonis in 2001 over a radio report citing newspaper accounts that the congressman was seen running naked in a Manila hotel shortly after the husband of a woman he was allegedly having an affair with caught them in bed.

Adonis was sentenced to four years and six months in prison.

With the help of Atty. Roque, he questioned his imprisonment for libel as a violation of his right to free expression and brought it to the UN Human Rights Committee, which declared that criminal libel in the Philippines conflicts with the country’s obligations under Art. 19 of the International Covenant on Civil and Political Rights.

According to the United Nations, Philippine criminal libel is contrary to Art. 19 of the International Covenant on Civil and Political Rights because it is disproportionate to the ends that it seeks, that is, the protection of privacy of private individuals; and that there are an alternative in the form of civil libel.

Roque said those whose right to privacy may be violated by the media after criminal libel is declared unconstitutional or repealed by a law of Congress can still have recourse to a civil case for damages and recourse to the media’s self-regulating mechanisms such as the Philippine Press Institute for the print media and the Kapisanan ng Brodkasters ng Pilipinas for radio and television.

Our petition against the Cybercrime Prevention Act is the only petition that challenges the constitutionality of libel law in the country. Roque said: “We’re excited to argue this issue since we believe that there are now changed circumstances to warrant a reversal of previous Supreme Court decisions upholding the legality of libel. Some of these include our ratification of the ICCPR itself and the View of the UN Human Rights Committee.”

January 4, 2013 10:28 pm  Tags: ,   Posted in: Malaya, Media

30 Responses

  1. Ellen - January 4, 2013 10:34 pm

    SNV says he takes a different view on libel. Here’s his take:
    http://frauslatet.blogspot.com/

  2. saxnviolins - January 4, 2013 11:12 pm

    I am not against arguing on the basis of freedom of speech. that is the right we wish to preserve, anyway. Freedom of speech, however, has exceptions, as declared, both in the US Supreme Court, and our Supreme Court.

    So if only to win, and achieve the same end, preservation of the right, I take a tack, which is clearer (in my opinion), and less susceptible of exceptions, whether by liberals, conservatives, or anybody else in between.

    There is no questioning the fact that the accused is presumed innocent unless proven guilty. Corollary to that Constitutional presumption, is the burden laid by the Constitution on the prosecution, to prove each and every element of the offense.

    Malice is an element of the offense of libel. The law, as written, presumes malice. So that is the problem, because there is the unconstitutional shift of the burden of proof – from the prosecution (to prove malice) to the defense (to prove good faith). That unconstitutional shifting of the burden can be the basis for striking down that law.

    The above is an easier route (in my opinion) to a verdict of unconstitutionality, than freedom of speech, or UN obligations, as is the tack of Harry Roque. The result, for the madlang people, is the same, the striking down of the law. As they say in Tagalog, saan man dumaan ang procession, sa simbahan din ang bagsak. or as Deng Xiao Ping says, black cat, white cat, same, if it kills the mouse.

    Can the government cure the defect by saying that they will issue implementing rules and regulatios (IRR) that makes the application constitutional? No, according to the Supreme Court of Alabama, in the case of Ivey v. Alabama. Constitutional applications or implementations cannot save an unconstitutional law. You cannot save the mother by giving antibiotics to the baby.

    Why do I refer to ivey v Alabama? Because it was in Alabama that Commissioner Sullivan sued the New York Times, in the landmark case of New York Times v Sullivan, which has been declared by our Supreme Court as applicable in the Philippines.

    Sa aking palagay, my take is the daang maigsi tungo sa pagpapawalang bisa ng batas ng libel, kasama ng anak niyang cyber libel.

  3. saxnviolins - January 4, 2013 11:29 pm

    Some petitions question only parts of the law. There is the questioning of the penalty, it being harsher than libel by print media. There is even the question on double jeopardy.

    I believe it is much better for all concerned, however, to attack the mother law, thus, taking down the child law with it. I do not know, however, if anybody has presented my legal questions in their petition. If not, then it will not be considered by the Supreme Court, until another case is presented.

    In fact, were I defending your Davao journalist co-petitioner, I believe I could have presented a new argument to the Supreme Court, so that they would have no recourse relying on old jurisprudence that upheld the validity of presumed malice, as written in the libel law.

    That is the problem of presenting a legal question that has already been tackled; you are susceptible to a denial based on old jurisprudence (See abogadomodotcom thanks to baycas2). But if you present a novel issue of law, then the Court will be forced to craft a new doctrine.

    Maliwanag ang criminal law. Mahirap ilusot yung presumption of an element of the offense as constitutional.

  4. saxnviolins - January 5, 2013 9:37 pm

    How will the cyber law play out, vis-a-vis the internet? The best example here is the case of Steubenville Ohio. If you search Steubenville on google news (better in this case than google web search), or one consummate turd, Michael Nodianos, you will get a good case of new media versus old law playing out.

    In August 16, several parties saying goodbye to summer were held in Steubenville, Ohio – a town which had seen better days, before the coal mining and iron industry died. The only source of pride of the town now, is its football team.

    A 16 year old girl from West Virginia went to Steubenville, drank and got completely plastered, and passed out. This is where the fun, for turds, begins. They (high school football players ) take sexual liberties on her, and even do it in public (before other people in the party). The girl is oblivious to all this, since she passed out. Many, later, tweet, instagram and post on the occurrence, even posting photos of the poor girl. The girl, later, with the help of her parents, files charges for rape. The identity of the perpetrators, however, is unknown; the photos are about the girl, not the perps.

    Nobody notices in the Wall Street fixated United States, until a former resident of Steubenville, a crime blogger, blogs about this rape. Many, later, post anonymous comments on her blog. When she was sued for defamation (libel in the Philippines), the plaintiff (alleged as a perpetrator or accomplice to the sexual assault) asks the court to force the blogger to reveal the identity of the commenters. Is it getting relevant to you readers now? The icnonic ACLU got into the act, volunteering to defend the commenters.

    The famous (infamous to some) Anonymous hackers group takes a vigilante stance. It states that they want a public apology from the perpetrators, or their identity will be revealed. Deadline was January 1, 2013. No takers. Okay, Anonymous launches its first punitive act. It releases a video of Michael Nodianos (a piece of fecal matter disguised as a homo sapien), who laughs hysterically, jokes, and sneers at the victim. (Google the name Michael Nodianos, and get ready to stew in your own anger.).

    So what happened to the defamation case? It was dismissed. Apparently, the plaintif settled with the blogger, but no money was involved. I have yet to get the details, but I believe the request for subpoena on the identity of the commenters was denied by the court, so the plaintiff withdrew. The criminal case for rape, however, is still to be tried.

    Is the video of Michael Nodianos admissible in evidence? Nice legal question there. Can his lawyers ask for an injunction? Oops, no under Bartnicki v. Vopper – if material is illegally obtained (hacked by Anonymous) and legally passed on to journalists, then the journalists may not be punished.

    So hayan. Completo recado. We have new media, a scandal, the viral passing of info, and some turd crying foul because he was defamed. The gallant (gallantly charging fees) lawyer wants to subpoena the identities of anonymous commenters on a blog. The judge, apparently, not wanting to violate freedom of speech, did not issue the subpoena. Will that be the case in the Philippines, if your Davao co-petitioner makes a blog, and reposts his news? Will the Davao blogger be forced to reveal the identity of the commenters on that blog?

  5. saxnviolins - January 5, 2013 10:21 pm

    Read the latest intel from Anonymous about the “Rape Crew”, as these fecoids call themselves.

    http://localleaks.blogs.ru/

    Note the .ru, which means the site is hosted in Russia. So if the cyber crime law is not struck down, I see many NoyPis setting up blogs hosted in Russia, Macedonia, or even the Fiji Islands. There will be many workarounds if the Supreme Court does not step up to the plate.

  6. baycas2 - January 5, 2013 11:10 pm

    A eureka moment!

    May petitioners follow the SnV way…

  7. vic - January 6, 2013 1:41 am

    Rights and freedoms in Canada
    1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
    Fundamental freedoms

    2. Everyone has the following fundamental freedoms:
    (a) freedom of conscience and religion;
    (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
    (c) freedom of peaceful assembly; and
    (d) freedom of association

    Section 1 our Charter, guarantees the rights and freedoms set out in it with justifiable limits S. 2 sub b. guarantees belief, opinion and expression and other form of media of Communication subject to limitation under the Criminal limits of If Proven that such exercise of Freedoms and Rights violates the Security of Nation and to Promote Hatred against a group based on religion, race, sex, sexual orientation and colour…all other will be matter of Tort between the offending party and the Plaintiff…(the government could be sued and can sue) Meaning …other than as Prescribed by law and have met the Test of Constitutionality (the Oakes Test, or challenge) other than the two violation, Libel and Slander is not a Criminal Offense…and the court will decide just how much the damage such Tort will be awarded to the injured party (if the parties can not settle the case among themselves amicably).

  8. Ellen - January 6, 2013 7:35 pm

    SnV, nahilo ako.

    The rape case has been forgotten and the issue became defamation, freedom of speech?

  9. saxnviolins - January 6, 2013 8:53 pm

    Nanganak lang ang kaso. The case against the perps is still rape.

    The case was hardly noticed, until the blogger, Alexandria Goddard blogged incessantly about it. One of the friends of the perps, ex boyfriend of the victim, who, said “Nobody breaks up with Cody Saltsman”, may have had a revenge angle to it. He sued Goddard for defamation, and he wanted a court order to force her to reveal anonymous commenters’ identities on her blog. That is how freedom of speech got thrown in as an issue in the defamation case.

  10. Ellen - January 6, 2013 8:58 pm

    I think this is stretching the freedom of speech too much, isn’t it?

    BTW, the Davao petitioner is not a blogger. he is a radio reporter.

  11. saxnviolins - January 6, 2013 8:58 pm

    Here is the New York Times article which appeared only after Goddard got the US media’s attention. Note the date, December 16, 2012.

    http://www.nytimes.com/2012/12/17/sports/high-school-football-rape-case-unfolds-online-and-divides-steubenville-ohio.html?pagewanted=all&_r=0

  12. saxnviolins - January 6, 2013 9:00 pm

    # 10

    Why? Bawal sabihing may na rape sa bayan mo? (Goddard is from Steubenville). Bawal mag-comment sa blog ni Goddard, saying, “put_____ nilang lahat?”

  13. saxnviolins - January 7, 2013 8:27 pm

    Okay. Here is a case which may be the type you will face, if the cyber libel law is not voided.

    A City Councilman (Cahill) in Delaware sues an anonymous commenter on a political blog for defamation. The judge is requested to force Comcast (internet provider) to reveal the identity of John Doe. Two comments of John Doe are as follows:

    Cahill is a prime example of failed leadership.

    Gahill [sic] is as paranoid as everyone in the town thinks he is. The mayor needs support from his citizens and protections from unfounded attacks…

    The case goes up to the Delaware Supreme Court. My new idol, Chief Justice Steele, writing for the court en banc, had the following choice statements, which beautifully sums up all the issues relative to your petition before our Supreme Court. There is the issue of democratization of public debate brought about by the internet, the empowerment of commenters with no money to access traditional media, and the reason for respecting anonymity over the internet. Hats off Your Honor:

    The advent of the internet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate. Unlike thirty years ago, when “many citizens [were] barred from meaningful participation in public discourse by financial or status inequalities and a relatively small number of powerful speakers [could] dominate the marketplace of ideas” the internet now allows anyone with a phone line to “become a town crier with a voice that resonates farther than it could from any soapbox.” Through the internet, speakers can bypass mainstream media to speak directly to “an audience larger and more diverse than any the Framers could have imagined.” Moreover, speakers on internet chat rooms and blogs can speak directly to other people with similar interests. A person in Alaska can have a conversation with a person in Japan about beekeeping in Bangladesh, just as easily as several Smyrna residents can have a conversation about Smyrna politics.

    Internet speech is often anonymous. “Many participants in cyberspace discussions employ pseudonymous identities, and, even when a speaker chooses to reveal her real name, she may still be anonymous for all practical purposes.” For better or worse, then, “the audience must evaluate [a] speaker’s ideas based on her words alone.” “This unique feature of [the internet] promises to make public debate in cyberspace less hierarchical and discriminatory” than in the real world because it disguises status indicators such as race, class, and age.

    It is clear that speech over the internet is entitled to First Amendment protection. This protection extends to anonymous internet speech. Anonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering. As the United States Supreme Court recently noted, “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.”/

    Note the highlighted phrase. The internet forces the reader to evaluate only your words (or ideas). It does not come with the baggage (positive) of fame, or (negative) obscurity (some walang tinapos, who will be relegated to the sidelines by the posturing elite.)

    Read the full text here:

    http://courts.delaware.gov/opinions/download.aspx?ID=67130

  14. chi - January 7, 2013 9:29 pm

    Thanks, atty SnV. Whew, dami kong hilo dun a, but worth every second reading all posts/comments.

  15. saxnviolins - January 7, 2013 10:56 pm

    More reason to protect anonymity, as stated by Chief Justice Steele.

    A defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics. The revelation of identity of an anonymous speaker “may subject [that speaker] to ostracism for expressing unpopular ideas, invite retaliation from those who oppose her ideas or from those whom she criticizes, or simply give unwanted exposure to her mental processes.” Plaintiffs can often initially plead sufficient facts to meet the good faith test applied by the Superior Court, even if the defamation claim is not very strong, or worse, if they do not intend to pursue the defamation action to a final decision. After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is still free to engage in extra-judicial self-help remedies;

    more bluntly, the plaintiff can simply seek revenge or retribution.

    Bakit panay ang demanda ng mga tulad ni Mike the Pig at yung kaklase niyang tumakbong neked-neked?

    To silence their critics, not really to seek redress. Hindi ako ang nagsabi niyan, si Chief Justice Steele:

    Indeed, there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics. As one commentator has
    noted, “[t]he sudden surge in John Doe suits stems from the fact that many defamation actions are not really about money.” “The goals of this new breed of libel action are largely symbolic, the primary goal being to silence John Doe and others like him.” This “sue first, ask questions later” approach, coupled with a standard only minimally protective of the anonymity of defendants, will discourage
    debate on important issues of public concern as more and more anonymous posters censor their online statements in response to the likelihood of being unmasked.

  16. saxnviolins - January 7, 2013 11:11 pm

    Nandito ka ba sa America chi? Or on vacation?

    You probably have heard the news about Steubenville on TV.

    Yung may low blood diyan, at gustong magpataas, panoorin niyo ang video ni Michael Nodianos. Just google the name.

  17. chi - January 8, 2013 1:46 am

    atty, North Carolina based ako. I read about Steubenville Putok nga butse ko e! I signed a petition pa nga that demands the school and the coach to publicly apologize to the girl via Change org., member ako nyan.

    I also am aware of the Goddarg blog. Yeah, now I appreciate more your position on libel law. Kuha ko ang legal konek-konek.

  18. arvin - January 12, 2013 11:04 am

    Dapat di iyan maging batas. Dapat mapigilan iyan.

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