SolGen: Netizens spreading ‘libelous’ posts criminally liable

MANILA (Updated) -- A simple "like" in a Facebook post, a "share," or a "retweet" on Twitter of libelous statements is already an expression of an opinion, which constitutes a violation of the controversial Cybercrime Prevention Act of 2012, the government's chief lawyer said Tuesday.

At the continuation of oral arguments on the law, Solicitor General Francis Jardeleza said that netizens may be held criminally liable by committing such acts, even though the original idea or post did not come from them.

On questioning by Associate Justice Roberto Abad, the member-in-charge of the consolidated case, Jardeleza argued that Republic Act 10175 treats approval of a post punishable as cyber-libel as a similar crime.

He insisted that a "like," being an approval of an opinion, can cause as much damage as actually directly saying the harmful words.

"Yes, defamation is defamation, whether we communicate through an instrument or a megaphone, letters, person to person, tweets, Facebook or e-mail. How about the person in a viral explosion, what do we do? Is reputation not of value anymore? So this will remain a question. Things can go viral (on the Internet), but what about reputation?" Jardeleza said.

The solicitor general’s admission is contrary to previous pronouncements from proponents of the law in Congress and the Department of Justice, which is conducting a review of the law, that online libel does not clearly extend to Internet postings.

Abad claimed the admission about the law, unless clarified, sends a chilling effect for those who "like" opinions, which they did not author in the first place.

"If 'liking' a post considered libelous is also libelous, then this law is bad. It can have chilling effect for those of us who like opinions, which we didn't author in the first place," said the magistrate, who admitted to having his own Facebook account.

For his part, Senior Associate Justice Antonio Carpio told Jardeleza that the libel provision under Section 4(c) of the law is derived from Section 354 of the Revised Penal Code, which has already been declared unconstitutional by the Court in previous rulings.

Carpio noted that Article 354 on libel cannot stand the scrutiny of constitutionality. He also cited as example a policeman asking a telephone company for a person’s traffic data.

"What if a law provides for penalty and suppresses at the same time? What if a policeman asks PLDT for your traffic data, is that constitutional? If it happens to you, would you raise the defense of privacy?" Carpio said.

Jardeleza said the Supreme Court (SC), under existing rulings, has not yet ruled on traffic data, "(but) I will say that it’s constitutional. I can't argue privacy because the data being sought from PLDT is external data, therefore, that is not covered by privacy."

He also said that even the US Congress gave statutory right to the government seeking to acquire traffic data of private individuals, but this can only be exercised if there is due cause.

Carpio and Associate Justice Teresita Leonardo-de Castro both pointed out that the law did not provide for the definition of "due cause" and as to who will determine it.

“Unfortunately, that’s one of my misgivings with this law. It is constitutional but, my right should better be protected,” the solicitor general said.

The Aquino administration, meanwhile, formally asked the SC to strike down the provision that allows the government to restrict or block access to computer data without a court order.

Jardeleza said while they agree that Section 19 is unconstitutional, this does not mean that the law should be junked altogether because it has benefits as well.

He said the law will be used to penalize hacking and other illegal activities done on the Internet like cybersex.

Last January 15, de Castro and Associate Justice Diosdado Peralta agreed with the petitioners' contention that penalizing people who committed online libel under the Revised Penal Code and the cybercrime law is tantamount to double jeopardy.

Raising the point of those against the law, Associate Justice Marvic Leonen asked Jardeleza if best way to protect a person from libel is through civil action. Jardeleza just left the matter to Congress.

Fifteen petitions against the implementation of the law had been consolidated as the SC issued a 120-day temporary restraining order, which will expire on February 5.

Court sources said the request to extend the stay order was not discussed by the justices in their en banc session earlier in the day.

"We will address that (TRO) in due time, we will come to it in a timely manner," Chief Justice Maria Lourdes Sereno later confirmed at the end of the oral arguments.

Sereno also directed the Office of Solicitor General and the petitioners to submit within 20 days their written memoranda stating their additional arguments, afterwards, the case will be deemed submitted for resolution.

Likewise, petitioner Harry Roque was given until Wednesday to submit an amended petition.

Four magistrates were absent during Tuesday’s hearing: Associate Justices Presbitero Velasco Jr., Arturo Brion, Jose Catral-Mendoza, and Estela Perlas-Bernabe.

Velasco, who was originally designated member-in-charge of the case, inhibited. (JCV/Virgil Lopez/Sunnex)