The increased use of the Internet makes the prospect of electronic libel suits more real than it currently is. In my first blog entry, I tackled the issue of classical legal interpretation of libel compared with a progressive interpretation of the term. My comments there assume that the libel is between the persons physically present in the Philippines. What if libel is committed by a person outside of Philippine territory against someone in the Philippine territory?
The New Civil Code and the Revised Penal Code both enunciate the principle that crimes are territorial by nature. Lex loci delicti commissi. Can a libel “victim” file a criminal complaint here in the Philippines? Where is the situs of the crime?
The expected answer from a classic legal interpretation is that, a suit for libel where the perpetrator is outside of the Philippines cannot prosper in this jurisdiction. Physical presence of the perpetrator in the Philippine territory is a condition sine qua non.
An alternative analysis is possible. The last act (publication), which consummated the libel took place in the Philippines when the public (in the Philippine territory) viewed the libelous material.
The alternative analysis is akin to a situation where a person in the US side of the US-Mexico border shoots someone in the Mexico border. The crime is consummated in Mexico since the last act giving rise to the crime took place in the Mexican side. Mexican Courts have jurisdiction over the crime.
Now, jurisdiction over the person is of course, another issue. Whether jurisdiction over the person of the accused can be obtained depends on the presence of an extradition treaty between the two countries.
Internet Libel however, is not as simple as the situation in the preceding paragraph because of the issue of situs of the crime. How do you locate the Internet for purposes of establishing the contact points necessary for jurisdictional purposes? Corollary to this, it may be asked: Is the Internet defined by the location of the Internet Service Provider? Or perhaps, the place or location of the host of the website where the libelous material was posted?
Is the victim therefore left without a viable remedy? I submit that a possible remedy exists, albeit not criminal. The aggrieved party may still avail of the independent civil action for damages for the libelous imputations (Article 33 of the New Civil Code or the NCC). Although the NCC mentions “defamation”, there is jurisprudence to the effect that the term does not merely refer to oral defamation but also written defamation.
The classic jurisdictional issue of course is whether or not jurisdiction can be obtained over the person of the defendant can be obtained considering that a civil action under Article 33 is an action in personam. Extraterritorial service of summons is not available unless you convert the action to one in rem by attaching property of the defendant, if any, in the Philippines.
The New Civil Code and the Revised Penal Code both enunciate the principle that crimes are territorial by nature. Lex loci delicti commissi. Can a libel “victim” file a criminal complaint here in the Philippines? Where is the situs of the crime?
The expected answer from a classic legal interpretation is that, a suit for libel where the perpetrator is outside of the Philippines cannot prosper in this jurisdiction. Physical presence of the perpetrator in the Philippine territory is a condition sine qua non.
An alternative analysis is possible. The last act (publication), which consummated the libel took place in the Philippines when the public (in the Philippine territory) viewed the libelous material.
The alternative analysis is akin to a situation where a person in the US side of the US-Mexico border shoots someone in the Mexico border. The crime is consummated in Mexico since the last act giving rise to the crime took place in the Mexican side. Mexican Courts have jurisdiction over the crime.
Now, jurisdiction over the person is of course, another issue. Whether jurisdiction over the person of the accused can be obtained depends on the presence of an extradition treaty between the two countries.
Internet Libel however, is not as simple as the situation in the preceding paragraph because of the issue of situs of the crime. How do you locate the Internet for purposes of establishing the contact points necessary for jurisdictional purposes? Corollary to this, it may be asked: Is the Internet defined by the location of the Internet Service Provider? Or perhaps, the place or location of the host of the website where the libelous material was posted?
Is the victim therefore left without a viable remedy? I submit that a possible remedy exists, albeit not criminal. The aggrieved party may still avail of the independent civil action for damages for the libelous imputations (Article 33 of the New Civil Code or the NCC). Although the NCC mentions “defamation”, there is jurisprudence to the effect that the term does not merely refer to oral defamation but also written defamation.
The classic jurisdictional issue of course is whether or not jurisdiction can be obtained over the person of the defendant can be obtained considering that a civil action under Article 33 is an action in personam. Extraterritorial service of summons is not available unless you convert the action to one in rem by attaching property of the defendant, if any, in the Philippines.
It must be noted however that the canons of strict interpretation do not apply to civil cases. The Rules of Court has room for creative interpretation to resolve the procedural problem of obtaining jurisdiction over the person of the defendant. The book of Prof. Pangalangan and Justice Coquia (2000) on Private International Law cites jurisprudence explaining the increasing shift of emphasis from territoriality to minimum contacts and fundamental fairness in the United States for jurisdictional purposes.
The possibility of the adoption of the doctrine of minimum contacts and fundamental fairness is higher in civil law than in criminal law. In electronic libel, this could mean a possibility of a qualitative assessment of contact points between the aggrieved party and the internet, or the internet and the concerned public.
I say “possibility” of adoption because the expansion of libel law and jurisprudence to areas not originally contemplated by our statutes raises the spectre of purely policy question. “Policy” questions as we know, generally fall within the realm of Congress, being purely political questions.
The possibility of the adoption of the doctrine of minimum contacts and fundamental fairness is higher in civil law than in criminal law. In electronic libel, this could mean a possibility of a qualitative assessment of contact points between the aggrieved party and the internet, or the internet and the concerned public.
I say “possibility” of adoption because the expansion of libel law and jurisprudence to areas not originally contemplated by our statutes raises the spectre of purely policy question. “Policy” questions as we know, generally fall within the realm of Congress, being purely political questions.
1 comment:
In many cases horrible problems have been avoided for the community as a result of anonymous blogging. This includes whistle blowing for white-collar criminals, community awareness when sexual predators move into the neighborhood, and many other alerts that are of great community benefit.
Benefits notwithstanding, you can't make an omelette without breaking eggs and anonymous free speech on the Internet is one such omelette. There is no such thing as free speech; there is always a cost. Sometimes that cost is acceptable, moreover desirable, particularly in the case of positive community awareness. However, often their many false and deceptive rumors, and libelous attacks are motivated only by hatred and vindictive antisocial promptings. More often than not, these serial cyber defamers have some type of antisocial personality disorder. They have nothing better to do than hurt other people; in fact they are actually fueled by other people's pain. Normal people like 97% of the readers of my comment cannot begin to relate to how these people think. Stop for a moment and imagine not having a conscience..... it is simply impossible.
A concerted, focused and malicious Internet smear campaign can be as devastating for a person that relies on his or her reputation for employment as a fire can be for a farmer who loses his fields, barns, and livestock.
Respectfully submitted by Michael Roberts. Internet Libel Victim's Advocate.
www.Rexxfield.com
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