The House of Representatives recently passed on third and final reading House Bill No. 5808 or the Cybercrime Prevention Act of 2012. One of the most controversial issues about the bill is the last minute inclusion of cyber threats and cyber defamation to the list of punishable cyber crime offenses.
Does the bill’s inclusion of cyber defamation deserve the flak that it is getting? Let’s examine how exactly the bill regulates online defamation and how it compares with some similar laws abroad.
To start, copies of House Bill No. 5808 being circulated on the Internet do not include yet cyber threats and defamation to the list of punishable acts. The official statement from the Congress, however, has confirmed the inclusion. The link to the statement is here.
Part of the Congress statement reads: “Computer-related offenses such as computer forgery and computer-related fraud and content related offenses which include cybersex, unsolicited commercial communication, cyber defamation and cyber threats are also punishable under the measure.”
The updated bill, and later the consolidated bill — once this version from the Congress is combined with that of the Senate’s, will most likely list cyber threats and cyber defamation under the content related offenses in Chapter II (Punishable Acts).
This early, total opposition to the inclusion of cyber threats and cyber defamation may not be well grounded because Congress hasn’t released yet the details on cyber threats and cyber defamation. But if the final bill still fails to define in details the terms cyber threats and cyber defamation, then this will be a problem for sure. As a predominantly civil law country, the legislators should be clear and succinct when it comes to drafting regulations.
Philippine defamation law is found in the Revised Penal Code. The code has devoted an entire chapter for “Crimes Against Honor.” There libel (defamation by written words) and slander (spoken defamation) are thoroughly discussed. Thus, the proposed law should set clear guidelines on online defamation. How will this be different from the existing law regulating offline defamation? And why the need to have a separate defamation law for the online network?
Defamation, which pertains, in general, to false communication that harms a person’s reputation, is one of the limitations to freedom of expression. The United States, in particular, has taken a more liberal approach to freedom of expression by including a provision in its constitution.
The First Amendment of the US Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
This is the reason why it is more difficult to win a defamation case in the United States, and even more difficult for a public figure to bring a defamation lawsuit. This was first tested in the 1964 Supreme Court case New York Times v. Sullivan, in which the court held that a public figure in a defamation case must prove to the court that there was “actual malice” on the part of the defendant.
This is almost the same in Europe, for instance here in Germany: the slight difference is that in most cases, the human rights law in Europe takes precedence over the freedom to publish. In Germany, freedom of expression is limited by the provisions of general law, the statutory provisions for the protection of youth and the law of personal honor.
With the Philippines a former colony of the US, the First Amendment principle is mirrored in Section 4 of Article 3 of the Philippine Constitution. Our version reads: “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.”
The limitations to defamation as set out in the Penal Code reflects this “First Amendment” principle. For libel, the Code said that, “Every defamatory imputation is presumed to be malicious, even if be true, if no good intention and justifiable motive for making it is shown.”
Exceptions to this are (1) A private communication made by any person to another in the performance of any legal, moral or social duty and (2) A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”
On the one hand, Congress should also be credited for keeping up with the times.
As it is, defamation is one area in law that is most litigated. With the Internet, the complications worsen. A defamatory statement posted on the World Wide Web has a wider reach and can be continously available for public viewing.
In the US, there was the Blumenthal v. Drudge and AOL (1998) case, in which a blogger named Matt Drudge wrote in his column the Drudge Report accusing former presidential aide Sidney Blumenthal of spousal abuse. Blumenthal sued both Drudge and AOL, the Internet service provider hosting and paying for his column. The court held that AOL was immune from liability under section 230 of the Communications Decency Act which grants third-party online service providers broad immunity from tort liability. This was not exactly what happened with Drudge who later on reached a settlement with Blumenthal.
The general non-liability of online service providers is also being observed in Europe. The European Union has the 2000 Electronic Commerce Directive [Section 12 (e) and Article 14 (3)] which sets exemptions of the liability of intermediaries and gives member states an option to adopt similar safeguards such as the notice-and-takedown policy.
In general, the liability of Internet intermediaries for copyright infringement remains controversial as no international treaty has yet addressed third-party liability on the Web.
The Philippine Congress, thus, should also consider the liability of Internet intermediaries in thorny issues such as online defamation.
My next article will examine the other controversial issues in the bill such as the provision on monitoring requirement for service providers.
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Maricel is currently attending an LL.M. Program in Intellectual Property and Competition Law at the Munich Intellectual Property Law Center — our direct connection to Europe’s technology scene, and an international point of view of the Intellectual Property Law. You can reach her by e-mail at arcie_estavillo@yahoo.com
