Much has already been said about the controversial insertion of libel into the recently-enacted “Cybercrime Prevention Act of 2012.” In my opinion, more than the inclusion of libel, the discussion should zero in on the effect of the law on service providers – the dominant players in the online world.
Despite it being very controversial in the past couple of days, the provision in the new law on libel is nothing but repeating the libel provision in the Revised Penal Code.
Section 4(4) of the Cybercrime law lists libel as a “content-related offense.” To define it, the Cybercrime law used the definition for libel in Article 355 of the Revised Penal Code, but amending it as libel “committed through a computer system or any other similar means, which may be devised in the future.”
The Code (Article 355) defines libel as a “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.” According to the Code (Article 355), a libel can be committed by means of “writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.”
In a bid to prevent abuse and to protect the freedom of expression rights of individuals and entities such as the press, the Code has added this clause as a limitation: “Every defamatory imputation is presumed to be malicious, even if be true, if no good intention and justifiable motive for making it is shown.”
Further, it outlines these exceptions: “(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.”
Libel in the new law has replaced “online defamation”, the term used in the Cybercrime bill. I wrote about online defamation in the Cybercrime bill in the first part of my two-part analysis of the bill. The link is here.
With this, is this another case of much ado about nothing? For me, yes, but only if the new law is clear about the exceptions and has detailed immunity clauses for service providers or online intermediaries. Service providers can cover social media, user-generated content websites and hosting websites to name a few.
A service provider in the new law is defined as “(1) any public or private entity that provides to users of its service the ability to communication by means of a computer system, and (2) any other entity that processes or stores computer data on behalf of such communication service or users of such service.”
In the second part of my analysis of the Cybercrime bill, I also mentioned the need to add immunity provisions for service providers. The link is here.
In the new law, Section 5(a) states that “Any person who wilfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.” In addition, the law, under the chapter on enforcement and implementation requires service providers (Section 12) to “cooperate and assist” law enforcement authorities in the collection or recording of traffic data.
Other than these two provisions involving service providers, the law is silent about the liability of service providers.
At least in the US, there is Section 230 of the Communications Decency Act of 1996, which provides legal protection to service providers, to include news websites, blogs and fora. The immunity covers defamation, to include libel.
Among other things, Section 230 does not consider a service provider as the publisher of a content created by another party. It states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Also, it provides immunity to service providers if they “(1) restrict access to or availability of
material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing..” and (2) if they offer technical means to restrict access to the materials.
In sum, I would say that this new law has failed, not because of its controversial list of offenses,
but because it lacks sufficient exceptions to liability, particularly for service providers.
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 email@example.com