Random thoughts on online defamation (Part I)

There’s this person I know who faced a libel charge in relation to an e-mail which she sent. The e-mail was a show cause memo addressed to a certain school official concerning charges of unethical conduct hurled against the latter. The sender sent the e-mail to this school official and likewise sent a carbon copy to certain government agencies. The argument of the school official was that the e-mail maliciously imputed defects to his person and that carbon copying said e-mail to third persons constituted the necessary publication, and thus, the act was libelous and felonious. Correspondingly, he filed a complaint in the Prosecutor’s Office against the sender for libel. But the Prosecutor held that there was no libel as there was no malicious imputation of a defect, & thus, dismissed the complaint. The Prosecutor used the RPC as legal basis.

A few months ago, a friend and I had coffee at this spanking new café in Los Baños. It was our first time there and my friend decided to order their special tea frappe. At first, he found the drink prickly, but because the glass was topped with whipped cream, it was only after he finished more than half of the drink that he realized his drink is laced with short strands of hair. Lots of it. We brought it to the attention of the café owner, but the horrible woman only made excuses, hastily took away the glass, and eventually had us pay for the disgusting drink. Yes, we paid for it, but we push-overs decided we’d just circulate an e-mail about what had happened, hoping that would ruin their business. Then I wondered, would that make me liable for libel? The contents of the email would be truthful, but then would truth be a defense when my intent was malicious? But it’s like a public advisory so that would make our intention “un-malicious!” Plus, we could just keep ourselves anonymous, that way, who would know we were the senders? Oh, but what of the thread? To cut the ramblings short, we never got to circulate our “public advisory” e-mail. To date, the blasted café (which stood right beside a barbershop) is still in operation.

These are my closest and most personal encounters with online defamation. Not quite personal by normal standards but still an anecdotal account of the issue. Besides, that there is defamation online is not new information. Consider the pervasive reach of the Internet and its function as a sounding board, and online defamation comes as one of the many logical consequences. And in considering online defamation, there are many issues to be confronted: Is posting online equivalent to publication? To what extent does freedom of speech protect the poster? Will the truth be a defense as well? How do you identify the author? What is the liability of the ISP provider, if any?

In other countries, the issues spawned by online defamation have been recognized and contended with legislatively and judicially. In the Philippines, the issues appear to have only been threshed out in academic fora. In my head, this lack of legislative and judicial measure was brought to fore particularly during the height of the Malu Fernandez drama, where the Philippine blogosphere identified MF as public enemy number one for having lambasted the OFWs and the Filipino masses in her controversial article.

I watched the MF episode of ANC’s Media In Focus where one angle they looked into was that of MF being the victim of a lynch mob made up of the blogging community. It is in that angle that the issues spawned by online defamation came to fore: Was posting their blog entries or comments equivalent to publication? Is writing a blog, which is kind of like a virtual diary, or making comments to blogs, protected under freedom of speech, if you write of personal opinions or random thoughts that happen to be “mean” comments about other people? Does the truthfulness of the comments that MF is “fat” and acted like a “b****” a defense for the defamatory statements? If MF validly made a defamation case against the persons who retaliated against her or her article? If the author of the comment is just named “Shaider”, how is the author identified then? Since you can’t run after the unidentified author of the “mean” statement, can you run after the person who created the blog?

On this last question, which is essentially the issue of the liability of the site provider, allow me to allot one entire blog post. So let me just to stop here and continue with my random thoughts on online defamation with another entry next week…