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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.
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by donG hO
15 Apr 2008 at 23:37
a really good post. it’s very informative. thanks to this. i think all bloggers should read this.
by Atty. Fred
16 Apr 2008 at 13:40
donG, you’re welcome, and thanks for the kind words. Do spread the word.
by Alpha_Mike
16 Apr 2008 at 15:13
E-libel, eh? I frequent a number of message boards and blogs, and flaming and trolling, which usually results to uttering defamatory statements, are very common. Well, the websites hosting those message bards/blogs have moderators, but it is impossible to track each and every posts/comments. Anyway, I don’t foresee that many people filing cases of Libel based on e-libel except those involving “big” people in the society. The others, usually, will just do a counter-libel via a reply or will just ignore it.
Btw, nice blog entry there Atty. Fred. i’m very interested with the E-Commece Law (any other laws affecting internet life/transaction?)… [although we did not to discuss it well in the law school] coz I have a very active internet life.
by alexi
19 Apr 2008 at 17:42
Dear Atty. Fred,
I’m from UP Law Batch 2005, and I found your article both though-provoking and perfectly-timed. Having gone through several blogs, I think that sometimes, that truly libelous statements come from the comments section. I hope a case is brought to test your theory, because God knows we need to impose law and order in the blogosphere.
Thanks!
by Atty. Fred
19 Apr 2008 at 19:40
@Alpha_Mike, you’re correct, libelous statements are everywhere. If you get a peso for every libelous matter written in the internet, you’ll be a millionaire by now. By the way, with your expressed interest in e-commerce, I guess we’ll cross paths every so often. When it happens, kindly let me know that it’s Alpha_Mike I’m talking to.
@alexi, thank you for the kind words. There are test cases already: (1) I read in the news that a criminal complaint was thrown out by the Investigating Prosecutor, allegedly on the ground that there’s no libel arising from emails; (2) Officers of the Parents Enabling Parents or PEP were sued for libel arising from a comment on their blog; (3) We’ve handled a libel case for comments in a forum. How’s practice, by the way?
by alexi
20 Apr 2008 at 17:44
I heard about PEP and I know that the libel case has been dismissed as well. Practice has been good, Atty. Fred, I’ve been doing litigation mostly, not bad for a girl, who’s almost always underestimated in court
by Russ
20 Apr 2008 at 18:45
Based on this article, would Brian Gorrell be liable for libel, with respect to his posts and the comments in those posts? If DJ Montano files a case against Gorrell, would Montano succeed? Curious, that’s all. Thanks.
by orbil17
21 Apr 2008 at 23:09
thank you very much for this post atty fred, I’ve learned a lot. It’ nice to be informed of the applicability of the penal code’s laws in the internet world. Indeed, it is high time to amend the electronic evidence law to cater the latest advancements of the cyberspace.
by Author
23 Apr 2008 at 02:08
I think that according to attorneys, and according to highly thin skinned clients with lots of money, “libel is everywhere”. I highly disagree. Libel has many many elements, including that the statement is a false statement of fact, that material harm to a person’s reputation can be presumed, that the writer had malice as a motive when they wrote the statement, and other requirements.
I think libel is rare, compared to much speech on the internet which is anything from flame speech to rhetorical hyperbole, all of which is free speech. Many people on the internet don’t know libel law. The internet has only been around 15 years. Also, many people that press libel cases want the world to think their reputation has been measurably harmed by some person’s opinion, it has not. Also, most people in the world are good, not bad, and they are using the internet to expose some person’s wrongdoing of a personal nature. However, because it is wrongdoing it is then a matter of public concern.
Clogging the court system and dragging innocent people through court for years is unconscionable, yet that’s exactly what some attorneys and their clients would do, in this climate of uncertain law about internet libel.
I say state your opinion as an opinion, state your fact as fact, and if someone slaps you with a lawsuit, use the anti-SLAPP “special motion to strike” to cause the plaintiffs to show that they will prevail in their case. In the US most states have passed anti-SLAPP measures. Check your jurisdiction to see if these are applicable. Stop the thieves that would sue you for calling them a thief. And of course, don’t maliciously, falsely accuse anyone, but then most people wouldn’t even dream of it.
Demand your rights from these people that would use the libel law as a codgel to bully people, when the internet should be the great equalizer of between the haves and the have nots, to share the truth.
by goimon
30 Apr 2008 at 07:23
i dont think blogs can be a subject of libel… unlike other publications, blogs are selective.. you will not be able to read a blog unless you choose to… this is contrary to a newspaper, where a reader has no reasonable expectation on what to read.
blogs are characterized by its writer who more oftern than not, has a personality of his own whom the reader has some reasonable expectation…
bottom line, blogs are not the publication referred to in the crime of libel….
by Atty. Fred
30 Apr 2008 at 11:15
@Author, thank you for your opinion. You’re correct that there’s such a thing as free speech, but this is not a right without boundaries. Free speech has limitations and one repercussion when the line is crossed is libel. You’re also correct that many people on the internet don’t know libel law, but this does not make the law inapplicable. I also agree with you that dragging innocent people to court, clogging court dockets in the process, is unconscionable. Just like journalists, if there are important matters that must be disclosed, then by all means do so. Then stand your ground, knowing fully well that the people covered by the expose will use every weapon — rightly or wrongly — to silence you.
@goimon, you raised a very interesting point, specially the “selective” part. Let’s say, for the sake of discussion that a letter exists, and such letter contains libelous matters against person B. Let’s also assume that the author of the letter, person A, has a “personality of his own whom the reader has some reasonable expectation,” and that person C is fully aware of such “personality”. If A sends the letter directly to B and the letter is sealed, perhaps you’d agree that there’s no libel. If A, however, sends the unsealed letter through a messenger, person C, and that messenger reads that letter with its libelous contents, then you’d also agree that libel is present. If a blog, or a radio/TV talk show for instance, has a reputation of hitting people below the belt, would that mean that there’s no libel? Just for the sake of discussion. Thanks.
by hollowpoint
30 Apr 2008 at 12:06
radio/tv talk show will not constitute libel. if i recall, one element of libel is publication.
by Atty. Fred
30 Apr 2008 at 13:31
Thanks for making the distinction explicit, hollowpoint. It’s oral defamation or slander, with this point: in libel or slander, the “personality” of the accused or the “reasonable expectation” is not an excuse.
by goimon
30 Apr 2008 at 19:58
@atty fred… the key here is publication or broadcast… i dont think these are present in blogs…its as if you deliberately left your diary in a mall…
maybe another arguement would be, blogs are a special case…. the publication element is still questionable… being lazy about it… construe criminal laws in favor of the accused hehehehehe
by goimon
30 Apr 2008 at 20:05
another arguement is that, tv radio and papers have an element of intentional dissemination of information. thats publication… but in blogs, i dont think that intent can be presumed.
another arguement is that tv radio and papers have a dergee of influence which is not present in blogs…
dami pa ako arguements… tinatamad lang ako hehehe
by Atty. Fred
02 May 2008 at 16:05
Goimon, may I suggest that you state the other arguments to enrich the discussion.
Would you agree that there’s a distinction between a diary and a blog? A diary is meant to be private. It’s supposed to be for the consumption only of the author and is hidden even from other members of the family. On the other hand, blogs are out in the open, generally intended to be read by anyone who cares to read the contents. if you lock your blog and configure it in such a way that only you could access it, then perhaps that would be akin to a diary.
Publication is already defined by the Supreme Court. It’s the “communication of the defamatory matter to some third person or persons.” It doesn’t matter if the intended audience is one (except when it’s the subject person), or two or millions.
by pourus
02 May 2008 at 18:00
@hollowpoint
Correct me please if I am mistaken but I think that in the case of Filipinas Broadcasting Network, Inc., vs. Ago Medical and Educational Center-Bicol Christian College of Medicine, (Amec-Bccm) and Angelita F. Ago (G.R. No. 141994. January 17, 2005), the SC upheld the decision of CA which held FBN liable for libel.
by hollowpoint
02 May 2008 at 20:31
@porous
if you read the footnote number 23 on that case,
“Should be difamaci?n as stated in Lu Chu Sing and Lu Tian Chiong v. Lu Tiong Gui, 76 Phil. 669 (1946).”
by hollowpoint
02 May 2008 at 20:32
@porous
you might have missed the footnote number 23 in the said case.
by goimon
02 May 2008 at 23:57
@atty fred….
Publication is already defined by the Supreme Court. It’s the “communication of the defamatory matter to some third person or persons.” It doesn’t matter if the intended audience is one (except when it’s the subject person), or two or millions—
this is what i mean when i said that there is no publication in blogs… simply put blogs are online diaries… by the definition of a diary alone, there is no intent to give out information.. the fact that the entry was writing in the net is irrevelant. mere possibility of others reading the blog is not enough to satisfy criminal intent beyond a reasonble doubt… blogs being libelous has so many loopholes that the mere concept is contrary to principles of criminal law
by pourus
03 May 2008 at 10:39
Thanks for that
by pourus
03 May 2008 at 10:48
@goimon
Could it be interpreted that under said footnote, difamacion is used in the generic sense, that is, to cover all forms of defamacion?
Also, does it mean that by the said footnote, the ruling in this case cannot be used as legal precedent for supporting a conviction for libel in broadcasts?
by pourus
03 May 2008 at 10:52
@goimon
Isn’t it that by posting a blog entry, the author specifically wants others to read said entry?
by pourus
03 May 2008 at 10:55
sorry. one of the comments should be for hollowpoint not goimon. mea culpa.
by goimon
03 May 2008 at 11:26
@pourus: in reality, yes…but in paper you cannot assume that the blog author wants to publish his blog because of the medium he used… criminal law is always construed in favor of the accused… he may have that intention to publish but legally, we cannot assume this