Ending criminal libel

In last Saturday’s column, I summarized the decision of the Supreme Court in Disini vs. the Secretary of Justice that upheld most provisions of the cybercrime law, including the sections on Internet libel. I promised in that column to revisit the issue of criminal libel, a topic that deserves attention by itself.

Criminal libel finds its beginnings in the United States in 1798 with the passage of the Alien and Sedition Acts, which among others restricted speech that was critical of the federal government.  Some US states today still penalize libel in their criminal statutes, but these laws are now seldom used.

Here in the Philippines, Article 353 of the Revised Penal Code defines libel as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.

In addition to criminal libel, Article 26 of the New Civil Code of the Philippines established civil libel. The latter differs from criminal libel in that the penalty in the former may be limited to civil damages while the later may result in fine or imprisonment.

The decision by the Supreme Court to uphold the constitutionality of online libel was anchored on Article 353 of the Revised Penal Code (RPC). According to the Court, onlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it.  In effect, it further added, Section 4(c)(4) of the Cybercrime Prevention Act merely affirms that online defamation constitutes “similar means” for committing libel.  Surely, cyberspace/the Internet is another medium for expressing one’s view and those of others. Opinions can be expressed and made public just like any other media with the difference that unlike other forms of media, transmission and dissemination of messages in cyberspace is instantaneous and made to a much broader audience base.

Philippine libel law creates the presumption that malice is present in every defamatory imputation. The effect is that the prosecution need not prove malice on the part of the defendant (malice in fact), for there is a presumption under the law that defendant’s imputation is malicious (malice in law). The burden rests on the defendant to show good intention and justifiable motive in order to overcome the legal inference of malice. However, malice can be negated by one’s sense of justice or other legitimate or plausible motive. 

Associate Justice Carpio, with Justice Arturo Brion, dissented on this issue, in the Disini case, and expressed his serious reservations to this “presumed malice rule.” For him, this violates the constitutional guarantees of freedom of speech and expression adding that the cybercrime law’s adaptation of this rule is “a gross constitutional anomaly. He said that the public official who filed the case should be the one to prove that the defendant had knowledge that the allegedly libelous statement was false or that the defendant had “reckless disregard” of whether the statement was false or not.

I believe Justices Carpio and Brion are correct. In all criminal prosecutions, the onus to prove guilt rests on the shoulders of the prosecution, not the defendant. But under the present law on libel, the defendant is given the burden to overcome the legal inference of malice. Moreover, the legal presumption in effect abridges, curtails or lessens the exercise of free speech and of the press.

Associate Justice Marvic Leonen has even a stronger dissent and proposes the decriminalization of libel on the ground that “criminalizing libel contradicts our notions of a genuinely democratic society”; criminal libel provisions in the RPC and cybercrime law should be declared unconstitutional as infringing upon the guarantee of freedom of expression.

In an article I wrote for an Internet news site, I argued the wisdom behind the move to decriminalize libel. I pointed out that the threat of imprisonment definitely is anathema to freedom of expression and speech and proposed that defamation be deterred not by criminal prosecution but through civil indemnity and other civil remedies only. In this sense, criminal libel is anachronistic.

The Supreme Court, in the Disini decision, is swimming against the global tide in retaining criminal libel. England for example has abolished such libel and many other countries are doing so. The advent of new technology and social media is likely to hasten this and provide impetus for novel legal norms and processes.

My favorite quotation from the Disini decision comes from no less than the Chief Justice Maria Lourdes Sereno. The chief is right when she said, “Laws and jurisprudence should be able to keep current with the exponential growth in information technology. The challenge is acute, because the rapid progress of technology has opened up new avenues of criminality.  . .  It is precisely during these times of zeal that the Court must be ever ready to perform its duty to uphold fundamental rights when a proper case is brought before it.”

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