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Ending criminal libelBy Dean Tony La Via| Mar. 04, 2014 at 12:01am

In last Saturdays 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 restrictedspeech 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 thatthe 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).

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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 committinglibel. Surely, cyberspace/the Internet is another medium for expressing

ones 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 defendants 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 ones 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 laws

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 orthat 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

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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 behindthe 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 theexponential 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

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be ever ready to perform its duty to uphold fundamental rights when a

proper case is brought before it.