There’s almost no libel on Facebook

There’s almost no libel on Facebook

By BERTENI “TOTO” CATALUÑA CAUSING

Author of the book entitled “Simplified Libel Law in the Philippines”

In the context of the Philippine laws on libel and the principles of criminal law, there is almost no crime of libel that can be constituted on postings on Facebook, other social network or any website.

The first reason is the impossibility of an answer to the question that goes: “Where was the crime of libel committed?”

The second justification is the fact that Facebook is free for all.

The third cause is that there is no definite law that classifies Facebook postings as included in the libel crime defined under Article 353 and as classified in Article 355, both of the Revised Penal Code of the Philippines.

The fourth support for the proposition is the requirement of proof beyond reasonable doubt.

The fifth justification is a ruling of the Supreme Court in one case involving a defamation posted on a website.

Crimes are prosecuted territorially

Any crime cannot be punished unless it is known where a crime was committed.

To understand this, see this.

A crime that happened in Japan cannot be prosecuted here in the Philippines, and vice versa.  A crime committed in China cannot be prosecuted in Indonesia.

Consider now the Philippine setting.

In the Philippines, territories to prosecute crimes are subdivided in provinces and cities. 

Thus, a crime committed in Makati City cannot be prosecuted in Manila City.  A crime done in Quezon City cannot be tried in Pasay City. 

Similarly, a crime committed in the province of Pampanga cannot be tried in the province of Bulacan.  A crime committed in Maguindanao cannot be tried in South Cotabato.

Moreover, a crime committed in General Santos City cannot be tried in South Cotabato courts even if General Santos City is located within South Cotabato.  This is so because General Santos City has its own charter that declares a criminal territorial jurisdiction separate from the mother province.

In the same manner, crimes committed in Lucena City cannot be tried by courts of the province of Quezon.  Crimes committed in San Fernando City or Angeles City cannot be tried in the courts of Pampanga.

Now, knowing that Facebook can be opened in any place in the world, it is possible that a defamatory posting against a person who is known to be a resident of Manila was posted in New York.   In one case being handled by this author, it is also possible that a defamatory posting against Annabelle Rama who claims to be a resident now of Cebu City was done in Manila or Quezon City or Pasay City.

And because every accuser is required to prove the place of commission of libel and in the face of thousands of possibilities about the place of commission, the question is: “How can the accuser prove the city or province where the Facebook posting was done.”  

The answer is: “It’s impossible because the accused will never reveal.”

The unlimited opportunity to defend

In newspapers or magazines or books, the persons who are subjected to criticisms or false claims of facts that put them to shame have no access to refute the allegations against them.  They need the consent of the publisher or editors for them to have their side of the issues printed. 

The same is true with respect to radio and television defamation stories, those criticized have no freedom to reply.

In Facebook or Twitter or whatever online publications, the persons assaulted of their “honor” can always refute.

And in refutation, the ones who have the truth in them can actually overturn the assaults.  They can always post their arguments and presentations of real facts that can be supported by the scanned documents attached to their replies.

And if the ones hit chose to be silent and they will not post their replies, then they can be deemed to have agreed and to have admitted the accusations. And if the charges are deemed true because of non-denial, then there is no more libel.

This is because libel is actually defined as the act of publishing defamatory imputations despite prior knowledge that the imputations are false.  So how can defamation now be deemed false if the one being charged do not refute?

So that the best the persons attacked to do is to make a reply and post or publish it online, on Facebook or on other online medium.

Libel law does not include online posts

There is nothing in the present law of the Philippines that defines Facebook or online defamation as a crime of libel.  And if there is none, then any online bloggers cannot be imprisoned for defamatory blogs.

This is said because a principle of criminal says that it is not a crime when there is no law that punishes it. They say it in Latin: “Nullum crimen nulla poena sine lege.”

The law that defines libel is Article 353 of the Revised Penal Code.  The law that classifies acts included as punishable under the libel law is Article 355 of the same Code.

Article 353 says:

“Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

Article 355 says:

“Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.”

Now, they may argue that “any similar means” includes Facebook and other online posts. This is untenable.

Why?

Another principle of criminal law says that any doubt in the law is always resolved in favor of the accused.  This is called in Latin as “Pro Reo.”

For sure, it is a big doubt whether “any similar means” include libel on Facebook and on other online sites.

Proof beyond reasonable doubt stands in the way

Another thing that bars any conviction of an accused for posting defamatory imputations on Facebook and on other online sites is the principle that requires “proof beyond reasonable doubt” for an accused to be convicted.

For postings on Facebook, there will always be a doubt that sticks as to the question where is the place that should be legally considered as the place where the crime of libel was committed.

That doubt becomes stronger when the accused does not reveal in what province or city he posted the questioned blogs or posts.

Another thing that cannot be proven beyond reasonable doubt is whether there is a law that exists to punish Facebook postings.

The Supreme Court ruling on a web defamation

In probably the only internet libel case that reached the Supreme Court, the case Bonifacio vs RTC of Makati, G.R. No. 184800, May 5, 2010, is instructive.

In this case, the Yuchengco family that owned Pacific Plans filed through its representative Jessie John P. Geminez a libel case against a group of parents fighting for injustice because Pacific Plans defaulted on their pre-need insurance obligations to finance their children’s education.

At the center of the issue was a story posted on a website created by these parents, damaging the reputation and honor of the Yuchengco Group of Companies.

The Yuchengcos insisted that when the website, www.pepcoalition.com, which is now offline and for sale, was opened by them in Makati then it is equivalent to the place where the defamatory item was first published and printed and as such it can now serve as the basis to say that the crime of libel happened in Makati City. 

The Yuchengcos said that the opening of the website in Makati was equivalent to “first published” within the meaning of the law under Article 360 of the Revised Penal Code.

In brief, Article 360 defines the rules on how to determine as a matter of law the place or situs of the occurrence of the crime of libel.  There are three choices provided by this law, and these are as follows: (a) It says that it is in the city or province where the offended party resided at the time of the publication if that individual was a private person at that time; (b) It also says that it is in the city or province where the offended party holds office if he or she is a government officer or employee at the time of the publication; and (c)  It is also in the city or province where the written defamation was printed and first published.

The Supreme Court ruled that it cannot accept the proposition that the act of opening a website is equivalent to “first publication and printing” as defined in law.  It says that allowing it will open the floodgates of libel cases filed in every province or city of the country because an article published on a website or on Facebook can be opened anywhere.

Said the Highest Court:

“Clearly, the evil sought to be prevented by the amendment to Article 360 was the indiscriminate or arbitrary laying of the venue in libel cases in distant, isolated or far-flung areas, meant to accomplish nothing more than harass or intimidate an accused. The disparity or unevenness of the situation becomes even more acute where the offended party is a person of sufficient means or possesses influence, and is motivated by spite or the need for revenge…

“The same measure cannot be reasonably expected when it pertains to defamatory material appearing on a website on the internet as there would be no way of determining the situs of its printing and first publication. To credit Gimenez’s premise of equating his first access to the defamatory article on petitioners’ website in Makati with ‘printing and first publication’ would spawn the very ills that the amendment to Article 360 of the RPC sought to discourage and prevent. It hardly requires much imagination to see the chaos that would ensue in situations where the website’s author or writer, a blogger or anyone who posts messages therein could be sued for libel anywhere in the Philippines that the private complainant may have allegedly accessed the offending website.”

This case law affirms the author’s proposition above that there is no way of knowing the place of printing and first publication.

Nevertheless, the author is expectant that the Supreme Court will agree with him if it is confronted by a question of whether a Facebook post or a blog is included in the definition of the crime of libel in the Philippines. This alone is enough to make it impossible for libel complainants to overcome.

Further, it is the author's proposition that Article 360 does not apply to blogs or Facebook postings.

This is because that article refers only to "printed" matter, obviously referring only to articles in hard copies and not digital or soft copies.  Additionally, posting a blog or a comment on Facebook cannot be considered as an act of "printing."

At best, it may be raised as included as an act of "printing" but it only constitutes a doubt and criminal law is not a game of doubt but beyond reasonable doubt.

Moreover, Article 360 applies only on "written defamation" as stated in its opening phrase.  Again, to argue that "a defamatory blog" is included as a written defamation is at best a doubt and not one beyond reasonable doubt.

Finally, Article 360 does not apply on blogs or Facebook posts because there is no law yet that clearly says that these are included as "any similar means."  To argue otherwise is at best a doubt and, again, criminal law is a game of proof beyond reasonable doubt.

One last word. Facebook postings and blogs are electronic and to prove its existence is to use the Rules on Electronic Evidence. However, the Supreme Court said that the Rules on Electronic Evidence is applicable only on civil cases and not on criminal cases.