TWELVE years after passing the eCommerce Act of 2000 (RA 8792) which regulates commerce via the Web, and after about the same number of years of practically ignoring the Internet, the Philippine Congress has enacted a law that a number of lawyers, print and broadcast journalists, and bloggers and social media users have described as restrictive of free expression.
President Benigno Aquino III signed Republic Act No. 10175, the Cybercrime Prevention Act of 2012, last September 12. The haste with which it was signed contrasted sharply with the glacial progress of the Freedom of Information bill that practically everyone now agrees is unlikely to pass during Mr. Aquino’s watch, and the lassitude with which Congress has addressed the demand to decriminalize libel, particularly in the context of a 2011 declaration by the UN Human Rights Committee that the 82- year- old Philippine libel law that criminalizes libel is excessive and must be reviewed.
Libel is one of the most problematic provisions of the Act, which, being primarily directed at crimes committed via the Net, penalizes acts only individuals who use cyber-technology for the dissemination, reception and discussion of information, opinion and analysis could commit.
The Act empowers the Department of Justice to determine if there is prima facie evidence that a crime, whether libel or any of the other offenses listed in the Act, has been committed. Among other offenses like child pornography, cyber bullying, prostitution via the Net, video voyeurism, and others, the Act incorporates libel among its roster of criminal acts by simply declaring libel, as defined by Article 353 of the Revised Penal Code, part of the Act.
Retweeting a tweet or sharing a comment over Facebook the Department of Justice may consider libelous makes the original and subsequent senders liable to libel suits. An email the DOJ says is libelous, and which a recipient forwards to a third party, can similarly make the senders liable to a libel complaint.
Because the Act declares that the penalties prescribed for crimes in the Revised Penal Code shall be imposed one degree higher, libel committed online, University of the Philippines law Professor Harry Roque among others has pointed out, could be penalized with 12 years’ imprisonment. What’s worse is that in addition to empowering the DOJ to determine what acts over the Internet are prima facie criminal acts, it also empowers it to take down the offending material.
These provisions are restrictive of free expression over the Internet, and affect bloggers, news site reporters and managers, social media users and anyone else who posts information or comment online. But during a September 24 roundtable conference among lawyers, print and broadcast journalists, bloggers, and online news site executives and reporters, at least one blogger was ardently supportive of the Act, declaring that it was about time it was passed, given, she said, the unchecked spread of malicious and false information, the use of insulting language, unflattering video clips and other practices proliferating over the Web.
The above abuses, and more, do occur. Those citizens who disseminate information, opinion and analysis over the Web and who discuss them with other Netizens — in short, those citizens who essentially perform the tasks of what’s increasingly being referred to as “traditional” (meaning via print and broadcast media) journalism — have also been taken to task, for, among others, lese majeste (in Thailand), and revealing state secrets (in Malaysia).
Bloggers and social media users have also been sued by both private individuals and public figures in other countries. In December 2011, a blogger was sued for defamation in the US for an online post that relied on an anonymous source for information. The judge ruled that the blogger was not a journalist, which put her beyond the protection of laws — including a shield law under the terms of which a journalist cannot be compelled to reveal his or her sources — covering journalists. In another case last July, two Twitter users were sued by the former officials of a town in the US state of New York who claimed that their reputations had been damaged by false information posted in the tweets of the defendants.
It is obviously necessary to draw a line between acts like uploading child pornography that are not protected by Article III Section 4 of the Constitution (“No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”)cralawand exercising one’s right to free expression by commenting on an issue of public concern. But the likelihood is that the Act will encourage in this country suits similar to the last two cases. A tidal wave of libel suits for which the penalty would be excessive and therefore corrosive of free expression over the Net is even more likely.
The Constitutionality of the Act has been challenged by civil libertarian and journalists’ groups, and hopefully, the resolution of such a challenge will come within this lifetime. But “citizen journalists” — a category that in the information age includes bloggers and social media users who use their sites and Twitter and Facebook to disseminate information and to discuss issues of public concern—need not wait for it.
What they can do is to adopt an ethics protocol that, because of the abuses committed over the Web, has been long overdue. Bloggers, social media users and other Netizens doing journalistic work through the new communication technologies are divided over the issue. But given the rapid developments in both the old and new media environments as well as in the technology itself, the crafting and adoption of such a protocol, which is already in place in some bloggers’ communities, is something that could enhance the challenge to such attempts at compelling Netizen accountability as RA 10175 by demonstrating that bloggers and social media users can regulate themselves.
Crucial to such a protocol is the basic imperative of assuring the integrity of the information disseminated via the Net. Practitioners need to check their “facts” before posting a report or a tweet online, for example, and there’s really no need to call people names in the course of a disagreement. There is also a need to contextualize — in most cases, by simply providing the background to a story being reported, in others through sidebars or related stories — as well as to provide space for divergent views.
At stake is the right to free expression in behalf of addressing via the online news sites and social media networks those events and issues that confront this country, and which need to be reported on, discussed, and analyzed by everyone who has a stake in the making of an alternative future. Interpreting the world towards changing it is what free expression is all about, and the exercise of that right should be non-negotiable.