POSTSCRIPT / September 18, 2012 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Handling libel under new cybercrime law

COMING TESTS: We now have a law intended to punish online libel and other Internet-related crimes, but the one-week-old Cybercrime Prevention Act of 2012 (RA 10175) still has to pass the test of live-fire enforcement.

The law takes effect 15 days after its publication in the Official Gazette (done) and in two mass-circulated newspapers. Agencies will be created to carry it out and lay down implementing rules and regulations (IRR) in 90 days after its signing by President Aquino last Sept. 12.

Even now there is discussion on how effective, or enforceable, the new law will be in tracking down and penalizing cybercriminals in a borderless world.

RA 10175 declares as crimes some modern offenses in cyberspace, a few of them with parallels in the Revised Penal Code. These include libel, fraud, piracy of intellectual property, cybersex, violations of the confidentiality and integrity of computer data.

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ELEMENTS: In mass media, a crime that has elicited much interest in connection with RA 10175 is libel — criminal and civil — which is the published counterpart of oral defamation. Libel is published/printed, while oral defamation is spoken.

Under Article 353 of the Revised Penal Code, libel is the “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.”

All these elements must be present: (a) imputation of a crime, a vice or a defect to another; (b) publication of the imputation; (c) identification of the person defamed; and (d) malice in the imputation. There is no libel if one element, such as malice, is missing.

With the advent of the Internet or the worldwide web and the frenzy of data exchange in the clouds, questions have been raised on how effective is the penal code that did not originally contemplate a cyberspace.

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PRIOR RESTRAINT?: While punishing libel and other Internet-related crimes, will not the Cybercrime Prevention Act of 2012 operate as a prior restraint to the press as a libertarian institution that has become part and parcel of our system?

The new law has a provision that widens its coverage to acts “committed through a computer system or any other similar means which may be devised in the future.”

RA 10175 has added to the list of crimes, but has it improved the community’s capacity to deal with them? (It is the law that makes or categorizes an act as a crime. If there is no law saying it is a crime, an act is not a crime.)

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IDENTITY: In the case now of libel in cyberspace, one real problem is identifying and pinning down the culprit.

Many bloggers and Internet users hide behind aliases and cryptic usernames. There is often no way of locating or sufficiently identifying who is posting malicious or damaging material about another person.

While there is technology that can unmask the person posting defamatory material, or at least pinpoint the computer or device used, the process is so tedious and expensive that only those with means can avail themselves of it.

The law allots a one-year budget of P50 million for fighting cybercrimes. Considering the widespread violations versus the dearth of modern hardware and competent personnel, is that sum enough to give teeth to the drive?

Probably the most that could be done is for enforcement agencies to pick exemplary cases or highlight those that merit priority attention.

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JURISDICTION: Another issue is jurisdiction. There may be minimum legal quibbling if the offending party and the hardware used are in the Philippines, but with the in-flux character of the Internet, many variables come in.

Suppose the suspect is a foreigner who has no presence or properties in the Philippines. There are provisions for coordinating with sympathetic anti-cybercrime agencies in other countries, but the network still has to be fully tested.

Even if the allegedly libelous material, say a blog or a remark on Twitter or Facebook, was accessed and circulated in the Philippines, if the culprit is a non-resident and unidentified, how will a local Regional Trial Court take jurisdiction over the case?

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VENUE: In libel cases in the traditional print and radio-TV media, the complaint must be filed in the place of original publication or, if the complainant is a government official, in the place where the official holds office.

The amendment limiting the venue for libel cases was meant to stop harassment. In the past, some complainants sued Manila-based journalists in remote Mindanao towns where the newspaper had been read. The respondent could just vanish on his way to the hearing.

If the person accused of libel is a foreigner blogging from another country, will RA 10175 enable Philippine authorities to take jurisdiction over the accused and impose local processes?

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RESPONDENTS: The cooperation of foreign governments will go a long way in cornering and penalizing cybercriminals. This is especially true with some countries with which the Philippines has standing agreements for coordination.

Some Philippine laws punishing Internet crimes are RA 9995 (Anti-Photo and Voyeurism Act of 2009), RA 9775 (Anti-Child Pornography Act of 2009), and RA 9208 (Anti-Trafficking in Persons Act of 2003).

In these laws and that on intellectual property rights, the United States, for instance, is quite serious in going after offenders. But what if the case is just one of simple libel involving an individual blogger or social media user?

The penal code lists the mandatory respondents in libel cases involving traditional media. If the alleged libel was carried out on Facebook, Twitter or a blog, will the host or server or service provider of the accused be impleaded?

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(First published in the Philippine STAR of September 18, 2012)

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