THE case of an optometrist who posted last Feb. 13 on Facebook that a foreign national died from corona virus 2019 at a private hospital in Mandaue City raises the question of what charges to file against the eye doctor.
Police would like to throw the book at him, as they love to say, especially these days when public attention is on the online crime related to the dreaded epidemic from Wuhan, China. But throw which book?
Col. Mario Castillo, chief of Regional Anti-Cybercrime Unit (Racu) 7, was quoted as saying he had three laws to use against the doctor: The Revised Penal Code of 1930, the Anti-Cybercrime Act of 2012, and the Cebu Province Ordinance of 2020.
They look adequately intimidating to make the doctor wince. But let’s quickly look at each law.
Cyber but not libel
It is doubtful if the doctor’s posting may be deemed libelous. Whose reputation was injured by the Facebook note? He didn’t identify the virus victim or, if he did, it must have been fictitious as the supposed foreigner didn’t even exist. The hospital may complain but only for civil liability.
Obviously, the doctor didn’t verify the information before posting the “news,” but it’s doubtful if he had malice or ill intent within the meaning of criminal law.
Cyber libel under Republic Act 10175 must be proved with the same elements provided in the Revised Penal Code. If there’s no libel, there cannot be one just because digital media is used.
The PB ordinance
How about the Cebu PB ordinance?
Though riding on the back of a set of protocols aimed solely against coronavirus, the Capitol ban has no qualification, which makes it easier to prosecute. It doesn’t carry the condition that qualifies the offensive act under Art. 154 on unlawful publications and utterances.
Approved only last Feb. 10, the ordinance against publicizing false news or information takes effect “immediately,” but only after it is published in a newspaper of general circulation.
Was it already in effect when the alleged crime was committed, that is on Feb. 13? Prosecutors may claim it as a continuing crime until the post is deleted or struck down. Still, they have to be sure the ordinance was already in force.
Unlawful utterances
“Unlawful use of means of publication and unlawful utterances” under Art. 154 of the Revised Penal Code appears to be the safer choice.
It fits the purpose of containing the circulation of false information, competing with the spread of the virus, because the RPC provision covers “fake news which may endanger the public order or cause damage to the interest or credit of the state.” While the state is working hard to contain Covid-19 to this country, here are these netizens who are making the job tougher.
But as we said here earlier, Art. 154 is limited to a specific kind of false news. Various other kinds not covered by it are still being addressed to by Congress.
[Online: “Seares: No new ‘fake news’ law yet; old penal code still applies.” SunStar, Sept. 8, 2017]
The penalty
There’s also the matter of penalty. The PB ordinance provides the penalty of a fine not more than P5,000 or imprisonment not exceeding one year, or both at the court’s discretion.
Art. 154 of the Revised Penal Code imposes the penalty of one month and one day to six months but carries the hefty fine of P40,000 to P200,000.
Picking the right law may be influenced by what they intend to do to the doctor: Give him a moderate spanking to dissuade him from repeating the offense or hang his hide on the door to discourage other offenders.