Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens are not given “fair notice” or warning as to what is criminal conduct and what is lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another comment did not?

 Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is 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 cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

x x x x

(c) Content-related Offenses:

x x x x

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

Petitioners lament that libel provisions of the penal code^[37] and, in effect, the libel provisions of the cybercrime law carry with them the requirement of “presumed malice” even when the latest jurisprudence already replaces it with the higher standard of “actual malice” as a basis for conviction.^[38] Petitioners argue that inferring “presumed malice” from the accused’s defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for otherwise good jurisprudence requiring “actual malice” could easily be overturned as the Court has done in Fermin v. People^[39] even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice.^[40]

There is “actual malice” or malice in fact^[41] when the offender makes the defamatory statement with the knowledge that it is false or with reckless disregard of whether it was false or not.^[42] The reckless disregard standard used here requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even extreme negligence is not sufficient to establish actual malice.^[43]

The prosecution bears the burden of proving the presence of actual malice in instances where such element is required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter standard of “malice” to convict the author of a defamatory statement where the offended party is a public figure. Society’s interest and the maintenance of good government demand a full discussion of public affairs.^[44]

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who were public figures. Actually, the Court found the presence of malice in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact, as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of P6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement.^[45] For his defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact true.^[46]

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v. Republic of the Philippines,^[47] the United Nations Human Rights Committee (UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the accused has been prompted in making the statement by good motives and for justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression.^[48] Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be necessary and as may be provided by law.^[49]

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes “similar means” for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were enacted. The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.^[50] In a sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed with which such reactions are disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting sufficiently protects the freedom of expression of “netizens,” the multitude that avail themselves of the services of the internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of “aiding or abetting” a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is at times sufficient to guide law enforcement agencies in enforcing the law.^[51] The legislature is not required to define every single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets another in destroying a forest,^[52] smuggling merchandise into the country,^[53] or interfering in the peaceful picketing of laborers,^[54] his action is essentially physical and so is susceptible to easy assessment as criminal in character. These forms of aiding or abetting lend themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The idea of “aiding or abetting” wrongdoings online threatens the heretofore popular and unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within a year, translating to about 31 million users.^[55] Based on a recent survey, the Philippines ranks 6th in the top 10 most engaged countries for social networking.^[56] Social networking sites build social relations among people who, for example, share interests, activities, backgrounds, or real-life connections.^[57]

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared interests use Facebook to get in touch.^[58] Users register at this site, create a personal profile or an open book of who they are, add other users as friends, and exchange messages, including automatic notifications when they update their profile.^[59] A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone, depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can react to the posting, clicking any of several buttons of preferences on the program’s screen such as “Like,” “Comment,” or “Share.” “Like” signifies that the reader likes the posting while “Comment” enables him to post online his feelings or views about the same, such as “This is great!” When a Facebook user “Shares” a posting, the original “posting” will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send and read short text-based messages of up to 140 characters. These are known as “Tweets.” Microblogging is the practice of posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or other media—on the internet. Instead of friends, a Twitter user has “Followers,” those who subscribe to this particular user’s posts, enabling them to read the same, and “Following,” those whom this particular user is subscribed to, enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If a post is available to the public, any Twitter user can “Retweet” a given posting. Retweeting is just reposting or republishing another person’s tweet without the need of copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog; and f) the person who posts a link to the blog site.^[60] Now, suppose Maria (a blogger) maintains a blog on WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online, “Yes, this is so true! They are so immoral.” Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s “Followers” then “Retweet” the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s “Retweet” of Nena’s original tweet and posts this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as “Liking” an openly defamatory statement, “Commenting” on it, or “Sharing” it with others, to be regarded as “aiding or abetting?” In libel in the physical world, if Nestor places on the office bulletin board a small poster that says, “Armand is a thief!,” he could certainly be charged with libel. If Roger, seeing the poster, writes on it, “I like this!,” that could not be libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it, “Correct!,” would that be libel? No, for he merely expresses agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a crime.

But suppose Nestor posts the blog, “Armand is a thief!” on a social networking site. Would a reader and his Friends or Followers, availing themselves of any of the “Like,” “Comment,” and “Share” reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding “Friends” or “Followers” in the criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,^[61] a case involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing transmission, by means of a telecommunications device, of “obscene or indecent” communications to any recipient under 18 years of age; and (2) the knowing use of an interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner available to a person under 18 years of age communications that, in context, depict or describe, in terms “patently offensive” as measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom of speech for being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain civil regulations.

x x x x

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of protected freedoms.^[62]

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary and discriminatory enforcement.^[63] The terms “aiding or abetting” constitute broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages.^[64] Hence, Section 5 of the cybercrime law that punishes “aiding or abetting” libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections,^[65] “we must view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech.”

In an “as applied” challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition against third-party standing.^[66]

But this rule admits of exceptions. A petitioner may for instance mount a “facial” challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute. The rationale for this exception is to counter the “chilling effect” on protected speech that comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence.^[67]

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any government threat of punishment regarding certain uses of the medium creates a chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly complex web of interaction on social media websites would give law enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens are not given “fair notice” or warning as to what is criminal conduct and what is lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another comment did not?

Of course, if the “Comment” does not merely react to the original posting but creates an altogether new defamatory story against Armand like “He beats his wife and children,” then that should be considered an original posting published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic groups, races, or religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when “Google procures, stores, and indexes child pornography and facilitates the completion of transactions involving the dissemination of child pornography,” does this make Google and its users aiders and abettors in the commission of child pornography crimes?^[68] Byars highlights a feature in the American law on child pornography that the Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider and cannot be held civilly liable for any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene...whether or not such material is constitutionally protected.^[69]

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details. In this way, certain information is forwarded to third parties and unsolicited commercial communication could be disseminated on the basis of this information.^[70] As the source of this information, is the user aiding the distribution of this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated.^[71] In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker may for instance have done all that is necessary to illegally access another party’s computer system but the security employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to usernames and passwords of others but fail to use these because the system supervisor is alerted.^[72] If Section 5 that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the username and password could not file a complaint against him for attempted hacking. But this is not right. The hacker should not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.^[73] While this may be true with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the commission of such acts can be identified with some reasonable certainty through adroit tracking of their works. Absent concrete proof of the same, the innocent will of course be spared.