Sticks and stones

THE FEBRUARY 18 decision of the Supreme Court is at best only a partial victory for free expression.

The Court declared the provisions of the Cyber Crime Prevention Act of 2012 (RA10175) on unsolicited commercial communications (Section 4c3), real-time collection of traffic data (Section 12), and blocking access to computer sites found in violation of the Act unconstitutional. These were among the key provisions the petitioners against the Act had identified as unconstitutional and infringing on several rights including the right to free expression.

The Court also declared Section 5 of the Act, on aiding and abetting and attempting to commit cybercrimes and Section 7, on liability under other laws, unconstitutional with respect to certain crimes defined in Section 4 of the law, because other laws already penalize those crimes.
But it upheld the constitutionality of libel as provided for in Section4c4 of the Act, although only when applied to the original author of the material in question.

The Court made it clear that the provision would not apply to anyone who passes, or comments on material that may later be deemed libelous, but it nevertheless affirmed that the original author would still be liable to imprisonment — under the terms of the Act, of as much as twelve years.

The Cyber Crime Prevention Act of 2012 adopts the 82-year old Revised Penal Code provisions on libel, but raises the penalties by one degree, from a minimum of six months’ imprisonment in the RPC per count of libel to six years.

The libel provisions of the RPC have been problematic for free expression and press freedom since 1932, when the RPC was implemented, primarily because of the penalty of imprisonment, which has been used in many instances to silence journalists.

Starkly demonstrative of how the libel law can be so used were the 2006 libel suits filed by Jose Miguel “Mike” Arroyo, the husband of former President Gloria Macapagal Arroyo, against 43 journalists in an attempt to silence criticism of his wife’s administration. During the same administration, libel suits against journalists also exposed them to the possibility of being arrested at the end of Friday working hours and being imprisoned over the weekend for failing to make bail.

The Philippine libel law has thus been correctly described as excessive by the United Nations Human Rights Committee, which in 2011 asked the Philippine government to review the law towards eliminating the penalty of imprisonment. It is also a continuing threat to press freedom and free expression.

Being imprisoned for six months for ridiculing, attributing a crime or defect to an individual, even blackening the memory of the dead, is patently excessive, words being exactly that — words. They’re not fists, sticks, stones, or bullets. But the Philippine libel law nevertheless punishes mere utterances with imprisonment, which, depending upon the number of counts of libel one is convicted of, can run to several years, as indeed happened to, for example, Davao broadcaster Alex Adonis.

In 2008 Adonis was convicted of several counts of libel for reading a tabloid account about an alleged hotel escapade by then House of Representatives Speaker Prospero Nograles. Adonis was sentenced to four years’ imprisonment, of which he had served two years at the Davao Penal Colony when he was pardoned in 2010. During his imprisonment, the law deprived his family of its sole bread-winner, and denied his wife and children the company and care of their husband and father.

Adonis’ lawyer Harry Roque had brought his case to the United Nations Human Rights Committee, which in 2011 called the attention of the Philippine government to review the libel law.

In 2012, in what looked like a malicious administration response to the demand for the decriminalization of libel, the Cyber Crime Prevention Act instead made the libel provisions of the RPC part of the sanctions against online libel and in addition raised the penalties. President Benigno Aquino III, whose hostility to the press and to the Freedom of Information Act has been amply demonstrated on numerous occasions, immediately signed the bill into law in September that year.

The Supreme Court decision upholds penalties for online libel — in fact all libel committed through the use of computers — akin to the penalties for homicide. Those penalties are obviously, brazenly, egregiously and patently even more excessive than the penalties in the RPC libel law. While libel as provided for in the RPC remains as problematic for press freedom and free expression as it has been for over 80 years, libel now has the potential to become an even bigger problem for free expression when committed online.

The libel provisions of the Act were inserted in it by Senator Vicente Sotto III, in response to criticisms over his alleged plagiarism of materials authored by several other persons in the course of the Senate debates on the Reproductive Health Act. Sotto alleged that he was being bullied, apparently because certain Internet posts had called him various unpalatable (some say well-deserved) names.

For all its empowering virtues, the Internet has also become host not only to bullying as well as outright lies, disinformation, and various other abuses, but also to criminal activities such as child pornography and identity theft.

One can agree with the need for legislation to prevent and stop crimes committed via the Internet, but the problem is that the Cybercrime Prevention Act of 2012 includes in its definition of crime mere expressions of opinion, and thus infringes on the right to free expression.

Its provisions on libel are particularly offensive to that right, which the Philippine Constitution supposedly protects — but with Section 4, Article 3 (“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.”) of which, the Supreme Court would have us now believe, they do not conflict.

Adonis’ lawyer Harry Roque brought the Adonis case to the United Nations in the conviction that redress for such injustices as imprisoning an individual for what he says over the media is no longer possible under Philippine law. The Supreme Court ruling suggests that Roque is right, and it’s time to bring the issue to the international arena.

(BusinessWorld)

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