Interesting excerpts from the Cybercrime case decision

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By Kelvin Lee

Question of Law

Wednesday, February 26, 2014


I HAD the chance to review a copy of the Supreme Court decision in Disino et al. v Secretary of Justice et al., (G.R. No. 203335, 11 February 2014), also known as the Cybercrime case. It is a very interesting decision, both for its content and the effects it will have. However, due to the decision’s length, I will focus this column on some of the more interesting excerpts in that decision.

You will recall that in this decision, the Supreme Court upheld cyberlibel as constitutional. The Supreme Court explained that: “libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation” The Supreme Court then further explained that “cyberlibel is actually not a new crime since Article 353 [of the Revised Penal Code], in relation to Article 355 already punishes it.”

The Philippine Internet Freedom Alliance will file its Motion for Partial Reconsideration to challenge the Supreme Court’s finding on cyberlibel.

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Interestingly though, the Supreme Court went on to explain that merely liking a post or commenting on one is not necessarily cyber libel under the “aiding or abetting” provision of the cybercrime act. The Supreme Court explained:

“The question is: are online postings such as ‘Liking’ an openly defamatory statement, ‘Commenting’ on it, or ‘Sharing’ it with others to be regarded as ‘aiding or abetting?’ In libel in the physical world, if Nestor places on the bulletin board a small poster that says ‘Armand is a thief’!’ he could certainly be charged with libel. If Roger, seeing the poster, writes on it, ‘I like this!,’ that could not be libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it ‘Correct!’ would that be libel? No, for he merely expresses agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel is a crime in the physical world.”

Following the reasoning above, and after an analysis of the practical and legal implications and jurisprudence, the Supreme Court then held that:

“The terms ‘aiding or abetting’ constitutes broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments and other messages. Hence, section 5 of the cybercrime law that punishes ‘aiding or abetting’ libel on cyberspace is a nullity.”

One portion of the decision that is particularly interesting – and which I found amusing – was the discussion on spam. The Supreme Court had this to say about spam and its history:

“The term ‘spam’ surfaced in early internet chat rooms and interactive fantasy games. One who repeats the sentence or comment was said to be making a ‘spam.’ The term referred to a Monty Python Flying Circus scene in which the actors would keep saying “Spam, Spam, Spam and Spam” when reading options from a menu.”

Despite this most intriguing discussion on spam, the Supreme Court then found the cybercrime Act’s provisions on “spam” unconstitutional.

All in all, one must admit the decision makes for very interesting reading. Though I do not agree with many crucial parts of the decision, I must give the ponente, Justice Roberto A. Abad, my congratulations for writing it. It is certainly a page-turner.

***

The opinions expressed herein are solely of Atty. Lee. This column does not constitute legal advice nor does it create a lawyer-client relationship with any party. You can reach Atty. Lee at HYPERLINK "mailto:lvlawoffices@gmail.com" lvlawoffices@gmail.com

Published in the Sun.Star Davao newspaper on February 27, 2014.

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