AttyAtWork

We see the explosion of e-groups, blogs, message boards and other fora wherein people share facts, views and opinions in cyberspace. If we consider the huge amount of content written by and about almost everyone in the internet, it is only logical to expect the increasing number of libel cases filed against bloggers.

Internet Libel or e-Libel

At the outset, let us be clear that there is no separate crime known as “internet libel” or “e-libel”. These terms are used simply to refer to libel relating to the internet. 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.” Defamatory statements made on television is libel, even if TV is not a medium expressly enumerated. TV is subsumed in “any similar means,” just like any writings made on the internet.

Also, 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 internet, while not yet in existence when the law on libel was passed, is a means of communicating. The blogger “publishes” the post or article. Consistent with the fact that radio, theatrical and cinematographic exhibition had spilled over to the internet, other internet writings and publications, including blogs, would fall under “any similar means” of publication

In sum, notwithstanding the assertion of some, including those discussed in the article of Dave Llorito (End of Pinoy blogger’s age of innocence?), there is internet libel or e-libel.

Liability for Blog Comments

Whether e-libel is contemplated under existing laws is no longer the issue. The bigger issue is this: when someone posts a comment in another’s blog and such comment is libelous, is the owner of the blog liable for libel? Let’s weed out two related issues before proceeding. First, if the comment belongs to the blog owner (for instance, as a reply to some other comments in the article), there’s no doubt that the author, who happens to be the blog owner, is liable. This is consistent with the fact that a blogger could be wearing to hats, so to speak.

According to the Electronic Frontier Foundation (EFF):

Bloggers can be both a provider and a user of interactive computer services. Bloggers are users when they create and edit blogs through a service provider, and they are providers to the extent that they allow third parties to add comments or other material to their blogs.

Second, the webhost is generally not liable. Under the Electronic Commerce Act of 2000 (RA 8792), the service provider is not liable so long as it “does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent, that the making, publication, dissemination or distribution of such material is unlawful or infringes any rights subsisting in or in relation to such material,” among others things.

Liability for Blog Comments in the United States

According to the EFF, the “vast weight of authority has held that Section 230 [Communications Decency Act] precludes liability for an intermediary’s distribution of defamation” and that “courts have repeatedly rejected attempts to limit the reach of Section 230 to ‘traditional’ Internet service providers, instead treating many diverse entities as interactive computer service providers.” Section 230 defines “interactive computer service” as:

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

The definition of “provider” is broad enough to include a blogger, so long as he/she is not wearing the second hat — as a user or author.

Liability for Blog Comments in the Philippines

In Philippine jurisdiction, Section 5 (j) of the Electronic Commerce Act of 2000 defines a “service provider” as:

(i) On-line services or network access, or the operator of facilities therefor, including entities offering the transmission, routing, or providing of connections for online communications, digital or otherwise, between or among points specified by a user, of electronic documents of the user’s choosing; or

(ii) The necessary technical means by which electronic documents of an originator may be stored and made accessible to a designated or undesignated third party;

A blog could be considered as a “necessary technical means” by which electronic documents (the Implementing Rules and Regulations use the term “electronic document” interchangeably with “electronic data message”, but in MCC Industrial Sales Corporation vs. Ssangyong Corporation, G.R. No. 170633, 17 October 2007, the Supreme Court ruled that the IRR went beyond the parameters of the law in this respect) are stored and made accessible to undesignated parties, encompassing all internet users that may access the blog. In other words, a blogger may be considered as a “service provider.”

At this point, it is important to make a distinction between a moderated and unmoderated comment component of a blog. A moderated comment means that before a comment is published or posted, a moderator approves it first. An unmoderated comment section exists when a comment is automatically published when the author submits it. If a comment is moderated, then it could be assumed that the moderator was able to read the comment first before approving it. The mere fact that the blog owner removes certain comments does not classify a blog’s comment section as “moderated,” as such action is necessary with the proliferation of spam comments, which are similar to another internet nuisance, spam e-mails.

Notwithstanding such distinction (which may prove crucial in future cases), it is suggested that certain standards should be followed because when it comes to blog comments, among others, there are no established rules in the Philippines relating to e-libel. When a newspaper publishes a comment/letter to the editor that is libelous, there is no issue that the responsible officers of the newspaper are liable. Not so with blogs, wherein we cannot apply the traditional concept of a publisher of a newspaper or periodical. Here are the suggested standards:

1. Anyone who feels aggrieved with a comment posted in a blog must demand from the blog owner that the offending comment be removed or deleted. This could be done through the blog’s “Contact Us” feature or through a comment.

2. If the blog owner refuses to remove the objectionable comment, then he/she could be included in the suit for libel, when proper. In such event, the blog owner, even if he/she is not the author of the comment, could not claim that he/she “does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent, that the making, publication, dissemination or distribution of such material is unlawful or infringes any rights subsisting in or in relation to such material.”

Of course, contrary arguments could be made, but the discussions above are more consistent with freedom of speech and expression. It is true that freedom of speech is not a license to commit libel, but a blog owner should not be made liable for comments made by other persons, unless that blog owner is fully apprised of the offensive nature of the questioned comment. To hold otherwise would have the effect of stifling the robust exchange of ideas. These, however, are still subject to interpretation by the courts. Until such interpretation is given or until the E-Commerce Law is amended (or a new law enacted) to make it more explicit, bloggers should be mindful of the comments in their blogs.

* This is not a legal advice and should not be considered as such. Please see the Terms.