GENERAL SANTOS CITY (MindaNews / 22 Feb) – Freedom is a right. That is what God says. God must be meaning the right to think, say and do what is good. That is the moral or ethical meaning. Freedom is the right to think, say and do what is satisfying. That is what man says. That is the practical or pragmatic meaning.
“Good” is God-given; “satisfying” is man-felt. As God is in heaven and man is on earth, there is a heaven-and-earth difference between the good and the satisfying. The common saying “You cannot satisfy everybody” means “satisfaction” is the source of conflict – the root in some cases. Troubles among men and nations are man-made, not God-sent.
Blessing and Trouble
Cyber science and technology is good. It has revolutionized the means of social, commercial and other forms of communication – fast and affordable to almost everybody. Until the early 1990s, the fastest common means of communication were the local and long-distance telephone and fax; yet, the time to connect would take many minutes or even hours. Now through the highly developed computers and cell-phones, communication is instant – oral, textual, visual or pictorial. With affordable cell-phones, common people can communicate anytime, anywhere.
In revolutionizing communication, cyber science and technology has revolutionized industry. That’s the dual blessing of the 21st century – but also the trouble. Before, the dissatisfied could criticize government and its officials only through the newspapers and the radios; such criticisms were subjected to editing, to availability of space or time, and to delay or rejection
Now, through the newly established social media, criticism is instant, unedited, uncensored, That is very satisfying to the critics from all walks of life but unsatisfying to the President, members of his Cabinet, members of the Congress and others in government and out of government.
If critics and the media can use cyber technology to their satisfaction, members of the Congress can enact laws to curb the use of the same technology also to their satisfaction. So Republic Act No. 10175 – an Act defining cybercrime, providing for its prevention, investigation, suppression and penalties – was passed by the Congress on June 5, 2012 and signed by the President three months after on September12, 2012.
R.A. No. 10175 consists of: (1) statement of policy and definition of terms (Chapter I); (2) what constitute punishable acts (Chapter II); (3) penalties (Chapter III); and five other chapters on enforcement and implementation, jurisdiction, international cooperation, competent authorities to investigate, and final provisions. The intentions as policies stated are good; however, some punishable acts and their corresponding penalties were questioned in the Supreme Court.
The Supreme Court came out with its decision last February 18, two years after it had terminated the oral arguments on January 15, 2013. Fifteen petitioners (See: Wikipedia), with Sen. Teofisto Guingona III as No. 1 in the list, filed their petitions before the law would take effect on October 3, 2012. As Rappler.com (February 18, 2014: SC rules online libel constitutional) commented, the Court in upholding most provisions as constitutional, including online libel sought “to strike a balance between fundamental freedoms and government control”.
Philippine Daily Inquirer in its editorial (February 20, 2014) lamented: “Only four of 19 assailed provisions were declared unconstitutional. This means that this legal sword of Damocles we feel hovering above our heads has been pared down, made smaller—but it remains poised in midair, a continuing threat to the fundamental freedoms of speech and expression.”
The Court struck down categorically three provisions as unconstitutional: Section 4 (c)(3) which pertains to unsolicited commercial communications; Section 12 which pertains to real-time collection of traffic data; Section 19 which pertains to restricting or blocking access to computer data — [the power grated to the Department of Justice] (Rappler.com. 2-18-14).
Rappler.com, further reported three other provisions as “conditionally unconstitutional”.
Section 4(c)(4) on “online libel” is “constitutional as far as the original author is concerned” but unconstitutional when accusing someone or others other than the original author.
“Section 5, which pertains to aiding or abetting the commission of a cybercrime and to the attempt to commit a cybercrime” is constitutional; but, it is unconstitutional when pertaining to “the following cases: child pornography, unsolicited commercial communications (or spam), and online libel. Section 5 will apply to all other cybercrimes outlined in the law”.
“Section 7, which pertains to liability of a cyber criminal under other laws”, is constitutional; but it is unconstitutional when pertaining to “online libel and child pornography” as that would constitute double jeopardy.
But media – print, radio, television, online, social and other internet users – are not satisfied.
Philippine Daily Inquirer said the online libel provision was hurriedly inserted into the law. By not striking it down, the Court has preserved it as the focus of controversy in its decision. This is rubbing salt into injury. Media and some progressive-minded legislators have been moving for the decriminalizing of libel. In R.A. No. 10175, the Court upholds a new category of libel which is punishable one degree higher than the penalty under the Revised Penal Code.
The decision cuts deep into fundamental freedoms of speech, press, information and expression – the right to air grievances pertaining to government and to be heard. The libel law gives vent to feeling not founded on fact. Anybody who feels offended can file a libel case. Let me share my own experience: In four libel cases I had faced, three had no basis in fact. In one, the judge told my counsel and me in his chamber after fully trying and dismissing the case that there was no libel from the start but he could not disappoint the complainant – the case having been filed by his clerk of court whom I had exposed as having violated the legal notice law.
Philippine Daily Inquirer, in its February 20 editorial, refuted President Aquino’s statement “that the new law was not meant to curtail … basic freedoms”. It said: “Intention is one thing; the use of the law to harass, intimidate or persecute those on the wrong side of the political or legal or popular fence is entirely another.” Referring to “painful experience of journalists”, it continued: In the Philippines, libel “has been used and continues to be used, not so much to convict journalists, as to impede, or even to influence, their journalism”.
The protest against online libel is valid, justified and well-founded despite the good intentions and necessity of the law.
As we have stated earlier, the law is good; but provisions on punishable acts (Chapter II) and on penalties (Chapter III) have marred the good. It is a good example of that saying, “You cannot satisfy everybody.”
Chapter II, on “Punishable Act” has two sections – Section 4, on “cyber crimes” and Section 5, on “other crimes”. Section 4(a) and Section 4(b) protecting the right to access, use, and preserve the integrity of computer data, use of devices and related concerns posed no problem. Section 4(c), on “content-related offenses”, would have been unquestioned, too, had it not been for Section 4(c)(4), on “online libel” which PDI said “was a hurriedly inserted provision”.
Section 4(a) and Section 4(b) are necessary; so is the part of Section 4(c) pertaining to pornography. But Section 4(c)(4) pertaining to online libel is unacceptable. Had this provision been totally stricken out, the rest of the “19 assailed provisions” upheld could have been accepted as “tolerable”. Here is an example of how “one rotten tomato could spoil a basketful of good ones”.
Bayan Muna Rep. Karlos Isagani Zarate (MindaNews, February 21, 2014: Petitioners vs cybercrime law to ask SC to reconsider online libel ruling) suggests that R.A. No. 10175, is not that necessary. There are pertinent laws existing which have not been sufficiently implemented – the Electronic Commerce Act, Anti-Wiretapping Act; the Anti-Voyeurism Act for protection against sex videos.
Suffice it be to say that R.A. No. 10175 is more comprehensive and has more teeth than the three other laws; moreover, together they can provide the cyber industry and the people in general adequate protection from immoral and illegal users of the Information and Communication Technology.
Traditional, online and social media with other internet users and their allies in the Congress and rights groups can petition the Court to reconsider its decision pertaining to online libel. That is their first option. From MindaNews and Philippine Daily Inquirer reports (February 21, 2014), they say they will.
It is to be expected that the petitions will be to declare Section 4(c)(4) as unconstitutional. Senator Miriam Defensor-Santiago (Philippine Daily Inquirer, February 21, 2014: Santiago vows to lead fight against online libel) is apparently suggesting that if the online libel provision cannot be stricken out, it should be revised as it is “vague and broad”.
She explained: “You hardly know who are covered by it. Although the SC said it is only the sender who is liable not the person who is commenting or who is receiving, but what does this word mean? Who is the sender? The service provider? The individual netizen? Or if they are a group, how are we identifying them? Or even worse, if they are not using their true identities, how are you going to go beyond what they profess to be their identities on the Internet? That is the main problem today.” (Bold text supplied)
But what Santiago seeks to be clarified is not explicitly in the text of the provision. Section 4(c)(4) states the provision on online libel, in Santiago’s words, vaguely and broadly: “The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.” The more imperative it is to revise the provision for clarity.
However, revising the text of the provision does not remove the “legal sword of Damocles”. Only outright repeal as unconstitutional will.
The second and best option is decriminalizing libel. Once this is done, libel will no longer be the dreaded “legal sword”. The move to decriminalize libel has been revived in both Houses of the Congress. Media, the netizens and rights groups must rally behind their allies in the Senate and in the House to defang libel.
In the interim, media can do only two things: (1) utmost precaution; and (2) if charged in court, face the music. While conviction for libel is difficult, the emotional and financial burden are most inconvenient.
(“Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards recently honored Mr. Diaz with a “Lifetime Achievement Award” for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You can reach him at [email protected])