We all know that our freedom of speech and expression is not without limitations. Your right ends when the right of others begin. Sic utire tuo ut alienum non laedas. Use your own as not to injure that of another. With this, it is settled that our constitutional right and freedom to express does not give us the unbridled authority to harm, defame or destroy a person or his or her honor. With the continued rise of various social media outlets, and the power that it possesses, we are always reminded to think before we click, like, share and comment.
In this edition, I will answer whether someone may be held criminally liable if he/she likes, shares and comments on a libelous post.
This question had already been lengthily answered and discussed by our Supreme Court in the landmark case of Disini vs the Secretary of Justice (G.R. No. 203335, February 18, 2014). The Disini Case tackled the constitutionality of the provision of the then newly passed law, Republic Act No. 10175 or the Cybercrime Prevention Act of 2012. In ruling that Section 5 of the cybercrime law that punishes “aiding or abetting” libel on the cyberspace as a nullity, the Highest Court enunciated:
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 is still not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a crime. xxx But suppose Nestor post 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?
The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel.
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. xxx 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.
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. The terms “aiding or abetting” constitute broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages. 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.xxx As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections, “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.
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.
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 constitutionality-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 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, the “comment” that 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.