Does the law on libel cover the internet? This issue persists because there are varied opinions and there’s no definitive ruling made by the Supreme Court. None yet, anyway, because the Supreme Court can only decide cases that reach its doors. Until that day comes, let’s continue the lively discussion on internet libel.
We’ve touched this subject in a previous post (see Libel for Bloggers: Liability Arising from Blog Comments). The post primarily relates to comments on a blog and assumes the existence of internet libel. The points made by community members, however, refer to the primordial question on whether libel covers the internet. It’s only fair that we have a separate post to have a more focused discussion.
At this point, let me thank those who argued well and bravely to defend their point of view. Some of the previous discussions are incorporated in this post. The purpose is to bring these points to the “marketplace of ideas”. Attack the issues, not the author of the comments. Any unsound argument should wither from the barrage of more logical ones. Everyone is encouraged to raise a point or fact-check the arguments. Let’s proceed.
What is libel?
Libel is covered by the Revised Penal Code and defined in Article 353 as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act or 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.”
Let us be clear that there’s no separate crime known as “internet libel” or “e-libel”. These terms are used for convenience, to refer to libel relating to the internet.
Why is there no internet libel?
The argument supporting the non-existence of internet libel makes a lot of sense. The internet emerged during the last quarter of the 20th century, while blogs started much later. The term “blog”, coined by Peter Merholz (peterme.com) in 1999, is a shortened version of “weblog”, a term coined in 1997 by Jorn Barger (source: The Huffington Post Guide to Blogging ).
The Revised Penal Code was approved on 8 December 1930 and came into effect on 1 January 1932. It is a basic principle that criminal laws are strictly construed in favor of the accused. It is also a basic principle that you cannot punish what is not prohibited. It’s impossible for the drafters of the Revised Penal Code to have remotely imagined blogs and the internet in general. Ergo, internet libel is beyond the scope of the Revised Penal Code, including its provisions on libel. However, we will show that this is not necessarily correct.
Publication as an element of libel
For a person to be liable for libel, the following elements must be shown to exist: (1) the allegation of a discreditable act or condition concerning another; (2) publication of the charge; (3) identity of the person defamed; and (4) existence of malice.
“Publication,” which is one of the requisites, is defined as the “communication of the defamatory matter to some third person or persons.”
The element is publication. Hot the material is “published” determines the exact classification. Defamation, which includes slander and libel, means injuring a person’s character, fame or reputation through false and malicious statements. Oral defamation is called slander. Libel, on the other hand, is defamation committed by “means of writing, printing, lithography, engraving, radio, phonograph, painting or theatrical or cinematographic exhibition, or any similar means.”
It could be argued that blogs and the internet are not included in the initial enumeration — “writing, printing, lithography, engraving, radio, phonograph, painting or theatrical or cinematographic exhibition.” There is, however, a catch-all phrase — “or any similar means.”
The television is not expressly included in the enumeration, but defamatory statements made on TV is still libel. While the earlier forms of TV already existed prior to the 1930’s, the time the Revised Penal Code took effect, the blog/internet is definitely a means of communication and publication. Blog posts are in writing. It could be subsumed in “any similar means.”
Besides, even the radio, and theatrical and cinematographic exhibitions have spilled over to the internet. You can now listen to radio or watch TV, live, through the internet. Any libelous pronouncements is not diminished by that fact.
In a recent case (Bonifacio vs. RTC of Makati, Br. 149, G.R. No. 184800, 5 May 2010), the Supreme Court dealt with internet libel. The SC noted, in relation to the rules on where libel may be filed:
The same measure cannot be reasonably expected when it pertains to defamatory material appearing on a website on the internet as there would be no way of determining the situs of its printing and first publication.
The case, as pointed out by Atty. Janjan Perez below, does not categorically deal on the issue on whether internet libel exists. The SC quashed the information because the case for internet libel was filed in the wrong venue, which, in criminal cases, means the court has no jurisdiction. While we could conclude that it’s a tacit acknowledgment of the existence of internet libel, this issue is not the ratio of the case.
Blogs and other internet publications
Wikipedia defines a blog is “a website, usually maintained by an individual, with regular entries of commentary, descriptions of events, or other material such as graphics or video.” Technorati distinguishes a website from a blog in this manner: “A weblog is a website that is updated frequently, most often displaying its material in journal-like chronological dated entries or posts. Most blogs allow readers to post comments to your the post, and link from their blog to your posts using the permalink URL or address. In a blog, the content can be published and syndicated separate from the formatting using an RSS feed. Readers can then subscribe to the feed to automatically receive updates.”
The definition cited by the Supreme Court is that appearing in wikipedia (visited 24 March 2010):
A blog is a type of website usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in reverse-chronological order and many blogs provide commentary or news on a particular subject.
An interesting argument was advanced by Goimon, who said that “blogs are online diaries”. Diaries are meant to be private, not to be read by anyone other than the author. If we extend this statement, with a diary there is no intent to communicate the contents to a third person. There is, therefore, no publication. There is no libel without publication.
It’s true that a blog is sometimes called an online diary. In certain respects this is correct. A blog could serve as a platform to record daily events, presented in a chronological manner, just like a diary. But the similarities don’t go far from there. Every blogger, even a newbie, knows that before a blog entry is posted and seen by others, the author presses a button which is labeled “publish” or something similar. If the author intends the online diary as private, then he/she should fix the settings accordingly so no one else can read it. Otherwise, it’s very much public in character.
A blog cannot be boxed as an online private diary. Traditional newspapers, for instance, now use blogs as a tool for reporting. Individuals have blogs to share their thoughts. These are not “diaries” in the traditional sense. Perhaps one of the reasons why there’s an explosion of blogs is the fact that it’s a very convenient way of sharing one’s thoughts. Blogs are meant to be read, which is why one of the distinguishing features of blogs is the comment section, where others are expected to post comments (although this feature is turned off in some blogs).
The power, and curse, of the internet
The internet has been labeled as a tool of democratization. A single person can take on a huge institution which just a computer, an internet connection, and a cause (or even without a cause). The internet provides instantaneous and worldwide exposure to one’s ideas and works. But freedom is not absolute. It has its limitations. Libel is one of those limitations.