IS ELECTRONIC LIBEL ACTIONABLE?

IS ELECTRONIC LIBEL ACTIONABLE?

Nullum crimen, nulla poena sine lege. This is perhaps the first Canon that one learns in Criminal Law. There is no crime when there is no law punishing it.

With the advent of blogging, Facebook, Friendster and other websites where people may freely express their ideas, views or comments, a valid legal question arises with respect to the possible criminal liability of “internet citizens” for expressions in the internet. In particular: can any internet citizen be held criminally liable for libel? To concretize the point to an ordinary internet citizen: can you be held criminally liable for a libelous imputation against someone in Facebook?

Libel is defined and explained in the Revised Penal Code as:

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.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

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.


To my mind, there are two clashing interpretations, each of which may be supported by weighty considerations. The traditional interpretation is the doctrine of strict construction. In People vs. Terrado (1983), People vs. Subido, (1975) and a catena of cases decided by the Philippine Supreme Court, it has been held that:

“It is a well-known rule of legal hermeneutics that penal and criminal laws are strictly construed against the State and liberally in favor of the accused.”

An explanation of this doctrine, which is relevant to us, was expressed in People vs. Garcia (1950), to wit:

This means that penal statutes cannot be enlarged or extended by intendment, implication or any equitable consideration.

Prescinding from these premises, the doctrine therefore may be used as basis to exclude “electronic libel” from the definition of libel under the Revised Penal Code. Considering that the internet platform is of a recent development, the Spanish framers of the Codigo Penal and later on, the Philippine Legislature on the Revised Penal Code could not have contemplated its inclusion in the penal statute. The Penal Code operates on a fixed context, the crime of dueling and the punishment for “seconds” for instance, cannot be construed to include internet dueling or any other liberal use of the term “dueling” right now.

From a policy standpoint, strict construction of libel may be justified from the perspective of constitutionally guaranteed rights to free speech and freedom of the press. Internet, right now, it may be argued, is a tool for free expression of views and ideas, no matter how objectionable. Internet, in fact has become a tool for oppressed peoples of the world to air their views against their tyrannical governments.

On the other hand, a contrary argument, based on creative textual analysis and possible INTENT is also possible. The pertinent provision reads:

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 (emphasis supplied).

How do we interpret the phrase “any similar means”? In the doctrine of strict construction, this may be interpreted as any other similar means as contemplated by the framers of the Code at the time when the Codigo Penal or the RPC was enacted. A progressive albeit textual interpretation of “any similar means” however could yield the interpretation that the term includes “electronic libel”. From the point of view of intent, it could be argued that when Congress passes laws, it may be argued that it does so, with the future in mind. The gravamen of libel being public and malicious imputation, the crime libel includes electronic libel.

A public policy rationale that comes to my mind in support of the second argument is that the right to privacy is a constitutionally recognized right. A violation of such privacy therefore is actionable whether done in the newspaper or in the internet.

The two constructions have solid policy moorings. In deciding a concrete case in the future, the Supreme Court may have to choose between the two or find a way to balance these conflicting constitutional rights. Of course, this future scenario contemplates two or more persons who are physically present in the Philippines at the time of the “electronically libelous” statements were made. Penal laws are after all, territorial.

An interesting question therefore, if X, a Filipino based in Hawaii, libels Y, a Filipino here in the Philippines, will Y have a cause of action against X? Another interesting topic for my next blog. Hehe. So, feel free to blog on, as this legal issue remains unsettled.