Tag Archives: libel clause

#8: Forums, Proper and Improper

Lately, there have been calls from the part of prominent officials for those who oppose the dreadful RA 10175, also known as the “Cybercrime Prevention Act of 2012, to post dissenting views at the “proper forum”. Here is an excerpt of a Sun Star Manila article that mentions “proper forum”:

But presidential spokesperson Edwin Lacierda said Thursday that these hackers are not getting any sympathy from what they are doing and it would be better if they raise their concerns to the proper venue such as the court.

“Well it won’t win them brownie points if that’s what they are doing. I think the better venue for them is to really show their protests in a proper forum rather than hacking a government website or government websites,” he said.

Lacierda said the Palace respects the rights of the individuals and groups who have filed petitions before the Supreme Court questioning the constitutionality of the new law.

Try searching for “proper forum” Philippines on Google and see the results. “Proper forum” can easily turn into a cliche if the continuous use of the terms in the media continues.

Is the Supreme Court a Good Enough Forum?

Let us explore further. How did the Palace officials define “proper forum” Indeed, they did not state a precise definition of such, and they trust us to know what it is. We can state, provisionally, that one such forum is the Supreme Court, where seven petitions have been filed already against the delicate sections of RA 10175. Such sections are sections 4 to 7, concerned with the libel clause and other similar acts, and the notorious section 19, which says: “When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.”

The Palace seems to be proud of those developments. Abigail Valte, the deputy presidential spokesperson, was quoted here: “Like we have always said, there are legitimate avenues in expressing dissent.” Her definition of “legitimate avenues” counts the Supreme Court; with that,, I wish the petitioners lots of good fortune in their dealings.

The question now is: What is a proper forum, anyway?

We can count the Supreme Court as one such forum, but being a blog-hopper and a forum-hopper for years already, I know that in a forum, even if there are rules meant to preserve order and make interactions fruitful, anyone can see others post views and respond to them. At the Supreme Court, only the petitioners and their counsel know the status of their Court petitions, and very little is known about the discussions of the Supreme Court regarding the requests. Who knows what Ma. Lourdes Sereno and the other justices are thinking? In a forum, whenever you express something, it becomes transparent, and others will know about it and even speculate about your thought processes.

Thus the Supreme Court fails to have the spirit of a forum as I know it because there is no substantive interaction with the stakeholders (the Internet-using public) of the issue. It’s only between the petitioners, the justices, and the middling staff. It is no fault of the Supreme Court, though; it is simply a limitation. After all, the justices are leading busy lives, although it would be immensely better if they make their views public in a language that the cyber-public can easily understand, and far much better if the public responds intelligently and confidently. (But that takes practice, and the Supreme Court may better take the lead in enlightenment here and push the public to follow.)

Add-on: On October 2, the public will come to the Supreme Court and give it the soul of the forum. Here is the announcement:

Hacktivism

What about Anonymous Philippines, the hacktivist group that methodically defaced many government websites? Are they airing their views in the “proper forum”?

Clearly, government websites don’t really qualify as proper forums; after all, only the current agendas of the people running the sites are mentioned there. However, the Internet is itself one big forum; everything significant anyone does there is sure to be revealed by the inquisitive. People now know that government websites are being mutilated in protest against the oppressive law, and everyone knew well, to the extent that even the Palace had to respond. (Anonymous declared that it’s going to launch more attacks if the law isn’t pulled down or at least molded to sense.)

We have here the minimal elements of a forum in the true sense – a point of view (the Anonymous’ belief that the cybercrime law is bunk and “cunningly deceptive”), a means of expression (defacement of government sites), and responses (from concerned netizens to Palace officials). Call it a patched-up forum, or a forum definition that’s forcibly applied, but I’d rather call that a proper forum than call the Supreme Court as such, or Senate and Congress, or a staff meeting where the machinations of the boss bureaucrat goes unchecked.

A Greater Plea

If only our officials find out what’s going on in the minds of the people, then they will know more about how to improve their laws. If only our officials took the time to explore any of the numerous forums for Filipinos, then they will learn more about how the cybercrime law will affect the ordinary netfolk and they will adjust in return, unless they have some vested interests at the backs of their heads. They can just come to forums and blogs where heated but purposeful discussions can happen. I will consider some blogs as forums as long as there is active and strident, sometimes flaring, commenting taking place. Shielding oneself from the world, which can be positively correlated with snobbishness and partly due to insincerity, is a recipe for laws that are vexatious on paper and troublesome on application.

Now we’re noticing vibrant Internet discussions from various sectors regarding the cybercrime law. Such is the flow of untapped insights of the Philippine population of Internet users. Although there are plenty of inane views expressed in Philippine cyberspace, at least the prospect of “chit-chat” about the law is bringing out some reserved but thoughtful souls into the forefront. According to University of Michigan sociologist Scott Page, a necessary condition for discussions to yield remarkable accurate views is that the participants are smart enough (though not necessarily savants) and the views expressed be as diverse as possible. I believe that the cybercrime law will reduce the diversity of such views, thus making the Internet crowd prone to correlated mistakes (because of fear) and also prone to a vicious roundabout of more and more mistakes.

Internationally Challenged

Clearly, the law has already blasted in the international forum. A Yahoo! News article states: “Even before the Cybercrime law was passed… the UN Human Rights Committee had already called on the Philippines to decriminalize libel.” The UNHCR has already made its case; paying no heed to it will result to the substandard treatment of the government of its citizens when it comes to free speech. Right now, the Human Rights Watch, based on New York, has pitched in this warning: “When citizens face prison time for complaining about official performance, corruption, or abusive business practices, other people take notice and are less likely to draw attention to such problems themselves, undermining effective governance and civil society.”

When Filipino journalist Alexander Adonis got imprisoned because of libel last 2007, there came UNHCR’s calls for the Philippine government to remove libel from the list of criminal offenses. Hardly anyone above there listened. Did that mean that we’re a signatory on the International Covenant on Civil and Political Rights just on paper but not on spirit?

Finale, Including the Naked Emperor Test

The most proper forum is the world itself; if you want something close to home, the country can be next best. If you want to bring about a country that is a proper forum in the true sense of the term, then go talk to the people about their problems or at least do your intensive research while looking at people’s concerns with lens of purity, instead of bamboozling them with slogans that make them impatient with complete sentences with complete thoughts. Talk to the voting public (or at least to those willing to talk) about substantive issues related to the economy and culture, instead of hiding behind a wall of college degrees and connections while thinking that you’ve got everything figured out.

There’s the Internet anyway, where anyone can talk unless silenced out of fear that one’s going to unintentionally say something of bad taste, though that may be the truth. Here’s the naked emperor test in determining whether a free speech law is oppressive on its application even if it looks innocuous: “With that law, will I be able to say that the emperor is naked, in any medium, and allow it to be read by others, if the emperor is indeed naked? Will I be able to say similar statements with ease?”

And here’s a pithy saw, for those who persevered all the way to the end: Think before you squeak, or your squeak will bite back at you.

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#5: Thoughts on the Libel Clause of RA 10175 or the “Cybercrime Prevention Act of 2012″, Warrantless Access, Elder Statesman Vicente Sotto, and Areopagitica

Here is what will happen to you if you happen to commit “libel” under the Cybercrime Prevention Act of 2012, also RA 10175. Read the opening salvo of this article:

MANILA, Philippines – A person found guilty of libelous comments on the Internet could spend up to 12 years in prison with no possibility of parole, a lawyer warned Wednesday.

Libel committed on Twitter, Facebook, blogs, and other online content was made a more serious crime compared to printed libel because of to the newly approved anti-cybercrimes law or Republic Act 10175, according to Atty. Harry Roque, professor of constitutional law at the University of the Philippines.

“Three times longer imprisonment. Facebook and Twitter may lead to 12 years in jail,” he  said.  “Imprisonment for e-libel: 6 years and 1 day up to 12 years.”

“Conviction for e-libel now comes with a definite prison term. Increased prison term provided by new law makes convicts ineligible for parole,” he explained.

All of these are problematic, especially when compared with the penalties for ordinary libel. From the same article above:

In comparison, he said the penalty for printed libel set by Revised Penal Code is only 6 months and one day to 4 years and 2 months.

What justification do we have for the difference in magnitude? Maybe because it is so distressing – that information in the Net can spread far and wide, unlike information from printed sources? Is it because some posts can go “viral” in the Internet at a rate that most large publications today, with all their presses, can’t equal?

The increased penalties are extremely absurd. Any government official, indeed, ought not to touch any bill, or even let inside the government office, when inclined to act irrationally, or when one’s amor propio is pricked. The people handling the bill blasted things out of proportion. Now look online to see the wave of dissent roaring in.

What is startling is that the libel clause may be used not only to suppress legitimate Internet libel. The law may be used to scare dissenters who use online information-spreading mechanisms freely, like blogs, tweets, and Facebook posts, when they can’t find any printing press to do the dirty work for them. (Is it because the presses are sometimes infiltrated by vested interests? Perhaps, as any newspaper reader with a ken of critical reading and reasoning skills will say. Or it may be that the presses themselves are in dire monetary straits and have to make some profits, and they wouldn’t publish anything risky.)

One problem of the cybercrime law, when coupled with the propensity of the Filipino to take criticisms of action as criticisms of person, is that anyone who wants to post a legitimate grievance against an erring official may be scared to fear by the possibility of libel. After all, if you have complaints against someone, isn’t it that you should name that person for the public’s good? This is nasty, especially that elections are nearing; many candidates will be spared from criticism that they rightfully deserve (the destructive variety) or that will help them govern more properly (the constructive variety).

We lead the world in social networking; as we know, the Internet is the most non-partisan of all venues. It admits all beings with a computer and a Net connection regardless of creeds or political persuasions. While many Filipinos waste time on the Internet, the sheer volume of users ensures that there will always be intelligent users who use social networking to increase political enlightenment in the nation. Also, while I think that Filipinos don’t typically read blogs, those who do are bound together by a sense of community, for they frequently exchange views, sometimes even daily, until the usernames are just as familiar to us as nicknames are.

With the libel clause, these activities will be curbed out, mainly because of fear. A government that resorts to fear, however implied, is a government deprived of reason. Perhaps they are just uninformed – after all, not many people in our governmental offices are aware of IT. However, if that’s the case, then they ought to acknowledge that they can learn from the digitally-aware folks who have explored many dimensions of the issue and are willing to present their findings. They are still people, they speak like people in the Internet, and they still have human needs (some of which are satisfied by the Net). If this country is truly a democratic country, shouldn’t we admit that the digital folk can also help in governance?

There are also many technicalities that can make the application of the libel clause much more quirky, and many of them are examined at length by Raissa Robles in her article “Who inserted that libel clause in the Cybercrime Law at the last minute?” which has now netted 472 comments as of time of writing this blog post. All of them are quoted at length. Better read her full article because it also shows the origins of the so-called “insertion”.

1. Online, who are you going to sue for libel if for instance the one who posted the libelous material is unknown or under a false name?

2. On the Web, can someone suing for libel obtain a court order to compel an ISP (Internet Service Provider) or Facebook or Twitter to divulge the identity of the one who posted the alleged libel?

3. As a blogger, I believe in giving a wide democratic space to commenters, including those who criticize me. Can I now be sued for any comment that appears on my site? Besides, libel is in the eyes of the offended.

4. The Internet has a global reach. Can someone living in Metro Manila file a case of internet libel in Zamboanga City on the pretext that the complainant was surfing in an Internet Cafe in Zambo when he saw the offending piece?

5. If someone pretends to be me online and issues allegedly libelous material; or if someone hacks into my computer, obtains files and posts them online, can I be sued for libel? How do I defend myself on this?

6. What kind of evidence would the court accept on internet libel cases? Would screencaps suffice? How will the court determine if an of.fensive image has been manipulated? Or an offending piece was really posted by the person being sued?

7. Under Philippine libel law, truth is not a defense.

Here are some more, from a pre-Martial Law anniversary Inquirer editorial. Don’t think of this as nitpicking. Think of this as a tedious but necessary activity that ought to be done before we consider giving up even a sliver of our liberties.

When a newspaper reader e-mails a possibly libelous article to a friend, is that reader now liable for libel, too? The unthinking extension suggests that the answer is yes.

When an online viewer tweets a link of a possibly libelous video to a friend, is that first viewer now liable for libel, too? The unthinking extension suggests that the answer is yes.

When a friend “likes” or shares or comments on a possibly libelous post on Facebook, is that friend now liable for libel, too? The unthinking extension suggests that the answer is yes.

When the subject of a possibly libelous article written by a city-based reporter reads it in online form in a remote area, can the subject file a case against the reporter in that place? The unthinking extension suggests that the answer, again, is yes.

You can add a few of your own, if you so desire.  Lawyers who pride themselves on technical precision shouldn’t be at all pleased with a law that has been shown to contain lots of holes.

Well, shouldn’t all of these views be taken into account upon the upbringing of the law, especially when basic liberties guaranteed by the Constitution, and by humanity itself, are at stake? Especially when there are people to whom these liberties are so dear?

The crowd that formed and is still continuing to grow around opposition to the libel clause resulted to what James Surowiecki referred to as “the wisdom of crowds” (such is the title of his book too); he noted that “a group of people—unlike a colony of ants—is far more likely to come up with a good decision if the people in the group are independent of each other.” Look at the different views expressed by the bloggers – they diverge, with some covering technicalities, the others covering legal implications, still others covering human rights, with one even asserting that online libel isn’t an innovation it’s thought to be, but the union of the differences results to a juggernaut.

What about the legislature? They could have been swayed by common biases that pervade the Filipino elite. They could have been simultaneously taken off their mental guards. Either way, or any other way, because they wouldn’t have been independent of each other, Surowiecki insists that they are more likely to make mistakes because none around would have corrected them. If they have taken democracy seriously, perhaps they could have harnessed the power of the Net to see what others, who spend lots of time around blogs (or forums) and thus know their dynamics very well, have in mind. They could have asked around too!

Shouldn’t Takedowns be Left in MMA?

Read this provision from RA 10175 and see how you would react:

SEC. 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Here is one lawyer’s opinion about the act, as stated in the article “‘Takedown clause’ in cybercrime law ‘very dangerous,’ lawyers say”:

“[Section 19] is very dangerous,” stressed Atty. JJ Disini, professor at the University of the Philippines College of Law, in a phone interview. “It gives the DOJ the power to order the shutdown of websites at first appearance, sa unang tingin pa lang. Wala pang malinaw na violation, may order to restrict access na.”

All of this does not require that a warrant be given out.

So what happens? Even if there is no obvious violation of the law, the DOJ now has nearly unlimited power to make a website invisible to the public. While this can be applied to block sites that contain pornography, malware, and other such malfeasances, it can also be applied to shut down political opinion in opposition to whatever is deemed “official” at the moment. Because the DOJ’s power is almost unbounded, the people have practically no defense against this. They wouldn’t know when lightning will strike. Even the innocent ones won’t:

Reacting to the recently passed Cybercrime Prevention Act in the Senate, digital forensics practitioner Drexx Laggui told InterAksyon.com in an interview that prima facie evidence varies widely when applied in the physical and digital worlds.

“Prima facie evidence is great for physical evidence, because it’s something tangible. Hindi mo puwedeng ilipat-lipat ‘yan (You can’t easily interchange those),” Laggui told Interaksyon.com.

For example, Laggui said, a stolen wallet found in the possession of an individual could be considered as prima facie evidence for theft “because [that person] deprives [the owner] of the value of the money inside the wallet.”

“The problem with the electronic world is that, when you steal something, for example the personal information of an individual, you merely copy it,” Laggui stressed in Filipino.

“I still have my info, but somebody else has my identity also. So, prima facie evidence is much more nebulous in the cyber world,” he added.

Let’s not get used to this state of affairs. Let’s think this over many, many times. We can’t just let this last long and then allow mere exposure to drain the courage and the sense out of us. The Net would be a less pleasurable place to stay in if we knew that someone with searchlights has the power to mow down all that we have brought up painstakingly – websites, blogs, forums, Facebook statuses, Twitter posts, and all.

The Sotto of Liberty

The Internet is one of the last frontiers of freedom in our country. It is one of the last places in the earth where we can say what we really want, within certain constraints as dictated by an organic, not an imposed, decency. We are also used to the fact that interaction in the Internet is often passionate, and while that can result to flame wars, that guarantees that ideas will be examined, sometimes without mercy, and we will come out of discussions as more improved people than before. Purifying fire, as I would like to say. After all, wouldn’t we rather watch officials debating wildly but with sense about which laws should pass and which should not, leading to an overall improvement of the laws, rather than resting on their privileged nests and oiling the system according to their whims?

Let me reiterate something. The United Nations Human Rights Committee has already declared that the old Philippine libel laws are intensely draconian; with the enhanced penalties (which can be threefold the old penalties), the law just evolved from draconian to demented. Given that the Philippines was a signatory of the International Covenant on Civil and Political Rights or ICCPR, how come that the topmost officials in government, those who are supposed to have relevant information they need in their work and transcendent standards of rationality that Plato demanded – how come they overlooked that one significant fact? Not even one of them showed valiant opposition to the herd.

A look back at Philippine history reveals that there exist luminaries who have defended freedoms of the press from whom we can draw inspiration today. This is a section of the 1946 Sotto Press Freedom Law, named after its writer, former Senator Vicente Sotto. (Note the irony stemming from the name.) Here is the excerpt:

2. The freedom of the press includes the right to comment on pending judicial cases and the right to criticize the public and private life of all public officers, without any exception.

Look at the outright bravery of the last statement. As long as you are public officer (Vicente Sotto himself included) you, as a private citizen, are entitled to say your views about them, even about their private lives, without exception. Scrutiny of officials, instead of scrutiny of the informed masses, should be the norm, not the blatant exception.

What do you think would be his reaction if he saw what was happening to his grandson who now holds senatorial power? The elder Sotto would have been pleased that his words have yielded fruit, although in a digital context which would not have emerged in the wildest of his fancies about the way government is ran. He would say, “It’s just the people doing their thing, practicing their powers as part of the government. If they don’t want you to do what they think is plagiarism or outright lack of originality, then better learn from them. Now get back to work and stop whining that you’ve been ‘cyber-bullied’ – they may (or may not) have elected you, so listen to them.”

The Sotto now in Senate insists that the law will make bloggers, commenters and the like “accountable for their actions”. The elder Sotto, I surmise, wouldn’t have required that – I can imply that in Sotto’s thinking, for people to rightly “criticize the public and private life of all public officers, without any exception”, they need practice to do so, and only in a free space would that be possible. What has happened to that free space now?

Just a few lines later in the elder statesman Sotto’s bill, we read the following stunning prose rare in government discourse today:

5. Courts of justice annealed to face and ever ready to deal vigorously with attempts to turn them into puppets of domineering would-be dictators are essential in maintaining the reign of law and guaranteeing the existence of an orderly society.

If you read the whole text of his act, Sotto was referring to the Supreme Court of that time. However, an analogy can be applied to our executive and legislative branches. How come our executive was unaware about the tendency of the law to unduly shift power from the common people onto a practically unbridled elite? How come the legislature has not reflected thoroughly about the mammoth tendencies of the law, as pointed out by many of our dear bloggers, journalists, lawyers, and laypeople analysts, to mutate into a monstrosity that can black the lights out of the thriving online community in the Philippines, and possibly throw some people into jail undeservedly.

Oh, the madness of crowds, especially with hobnobbing members.

And let me add: those who have barely any historical consciousness won’t only repeat their past mistakes, according to Santayana; they will also commit ones they somehow didn’t make before.

Coda

The awareness that words have power, no matter in what medium they are expressed, have led to countless oppressions on the part of those whom the words didn’t favor. With that knowledge, let us wield words with much greater vigor than ever. Let us show how words are used so that they can change the way we view the world, and let us condemn those who get in our way.

Let’s go back farther in time to John Milton’s Areopagitica, a free-speech tract which merits close reading nowadays, and read these immortal lines:

Who kills a man kills a reasonable creature, God’s image; but he who destroys a good book, kills reason itself, kills the image of God, as it were in the eye. Many a man lives a burden to the earth; but a good book is the precious life-blood of a master spirit, embalmed and treasured up on purpose to a life beyond life.

The Net can’t be killed, though. As of this time. But don’t wait for it to run out of air.

Because of the fear that the libel clause induces, its mere existence in RA 10175 has killed the joy out of many Internet users all over this country, to which I still give my earnest hopes to become more enlightened when it comes to the boons of the Internet. It can also kill most of reason, passion, adventure, curiosity, initiative, and everything else that humanity holds dear if left in the hands of those whose motives are suspect since government was first formed.

To date the clause has not killed any blog or website, because it is still new, unless something fishy’s already going on. So while it’s still holding a stick instead of a sword, let’s bash it into bits before it breaks us.

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