THE BLOGGER'S FREEDOM OF EXPRESSION AND THE LIBEL LAW

INTENDED LEARNING OUTCOMES

At the end of this chapter, the student is expected to:

 Defend his rights to freedom of expression as well as to make or design his own blogs;

 Recognize the limitation of his right to free expression;

 Discuss the tests in which a subsequent punishment may be allowed for a person who has
abused his right to free expression.

 Be familiar with the libel law and its elements;

 Memorize the elements of defamation;

 Argue or judge whether a particular exercise of free expression constitute libel and/or
defamation;

 Interprets a libelous statement, and

 Conclude whether or not e-libel is included or within the sphere of libel.

Content:

 Blogger's Freedom of Expression and Libel Law

o Bases of the Guarantee of the Right of Freedom of Expression

o Elements of Defamation

o Libel in the Internet

o Libel Defined Revised Penal code

INTRODUCTION

With the emergence and popularity of blogging as a new form of expression, the coverage of defamation
laws has extended to cyberspace. The consequence is that, people who are adversely affected by
writings in this medium is bringing lawsuits to protect their name and reputation. While the Philippine
Constitution protects bloggers' right to free speech and expression, this does not give them unfettered
license to write to the detriment of others. This Chapter discusses the person's right to free speech and
expression while respecting the person's honor.

A blog is a type of website usually maintained by an individual with regular entries of commentary,
descriptions of events, or other material such as graphics or video.

This chapter aims to equip the reader relevant knowledge to supplement his skills in determining
whether or not a certain form of expression is within the scope guaranteed by the Constitution. This way,
as he practices his profession and/or rights through blogs, he can avoid the necessary expenses of
litigation.
Bases of the Guarantee of the Right of Freedom of Expression

Both foreign and local jurisprudence recognized that there are two (2) Philosophical bases for the
guarantee of this right thus:

1. Discovery of truth (free market of an idea).

The freedom of expression is essential for the search of truth. This is the marketplace of idea which
posits the power of thought can be tested by its acceptability in the competition of the market. When
men have realized that time has upset many fighting faiths, they may come to believe even more than
they believe the very foundations of their own conduct that the ultimate good desired is better reached
by free trade in ideas-- that the best test of truth is the power of the thought to get itself accepted in the
competition of the market, and the truth is the only ground upon which their wishes safely can be
carried out. (Justice Holmes, Abrams v. United States, 250 U.S. 616. (1919). The theory behind freedom
of expression is the principle that ours is a democratic society, and so the only way to rule ultimately is
by, means of public opinion, which is possible only when everyone can speak their minds out and
compete in the free market place of ideas.

2. For self-government

it is the people who have chosen directly or indirectly the person who will govern them, the scope of the
guarantee is broader when people criticize public officials. Thus, in the case of US vs. Bustos (37 Phil.
731), in which the defendants were charged with libel of a public official for statements made in a
petition for his removal addressed to his administrative superior, Mr. Justice Malcolm, writing the
opinion of the Court, said:

Public policy the welfare of society, and the orderly administration of government, have demanded
protection for public opinion. The inevitable and incontestable result has been the development and
adoption of the doctrine of privilege."

Scope of the Freedom of Expression

The Philippine Constitution provides that "No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances." (Art. III, Sec 4, Constitution). But how can we determine the
scope of this expression?

1. Freedom from Prior Restraint or Censorship

Prior restraint means official governmental restrictions on the press or other forms of expression in
advance of actual publication or dissemination. To illustrate, imagine that you are a blogger, if this
element of the freedom of expression will be eliminated, you have to seek first the approval of the
government before you can express yourself through the internet. The same holds true for all writers or
authors of a book notwithstanding its noble purpose. People will become wary of reading the
newspapers because to their mind, it has been subjected to the approval of the government and hence,
the truth has become evasive.
 2. Freedom from Punishment.

The freedom from prior restraint would be set at ught if the citizen would hesitate to speak for fear of
vengeance that he might suffer against the officials he criticized. Thus, in Villar vs. Technological Institute
of the Philippines (135 SCRA 706), SOME students were barred from re-enrollment because they had
ALLEGEDLY participated in demonstrations. Relief was given to one student who had complied with the
academic requirements of the school. The SC held that students who failed mostly in their academic
subjects were denied enrollment because TIP, in the exercise of its academic freedom has the right to set
academic standards and determine under what circumstances failing grades suffice for the expulsion of
students.

"Once it has done so, however, that standard should be followed meticulously. It cannot be utilized to
discriminate against those students who exercise their constitutional rights to peaceable assembly and
free speech. If it does so, then there is a legitimate grievance by the students thus prejudiced, their right
to the equal protection clause being disregarded."

LIBEL
Libel is punished by our Revised Penal Code which states:

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 prison correctional 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.

Strictly speaking, Art. 353 is referring to defamation in general or slander which came from the Spanish
text "defamation" and which was translated in the English text as "libel". The crime "Libel" is defined in
Art. 355. Thus a good definition of libel should be: Libel is a defamation committed by means of writing,
printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic
exhibition, or any similar means.

Reasons for Punishing Defamation

The bible said that "A good name is to be chosen rather than great riches. (Proverbs 22:1). In Proverbs
19, it says, "Better is the poor who walks in his integrity than one who is perverse in his lips, and is a fool.
In this sense, I am applying the Divine Command Theory under the premise that the reader is a Christian.

Elements of Defamation

A person may only be convicted of an offense if all the elements of that offense are present. If one is
absent, then the accused must be acquitted. For a person to be convicted of defamation, the following
elements should be present.

1. There must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance.
2. The imputation must be made publicly.
3. It must be malicious.
4. The imputation must be directed at a natural or juridical person, or one who is dead.
5. The imputation must tend to cause the dishonor, discredit, or contempt of the person defamed.

Meaning of Publication

Publication does not mean that the defamatory statement should be published in the newspaper of
general circulation, televised in national television, neither by refereed lSl journal, etc. There is
publication when the communication of the defamatory matter 1s made to some third person or
persons (People vs Atenci0, Dec. Or 14, 1954). e Thus, if Juan sent a letter to Pedro which reads: "Pablo is
a thief", this is sufficient e publication.

Identification of the Party is Required in the 4th Element

A blind item writer cannot be guilty of libel, as long as the person defamed cannot be identified. Thus, if
the blind item states: "The wife of the pound for pound king.” Although the name is not expressly
mentioned, the person can be easily identified, so the writer may be liable.

General Rule:
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,

Exception:
Except in the following cases: (This is the exemption to the general rule; here malice is NOT
presumed)
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.

Libel in the Internet

Arter reading the necessary materials pertaining to an individual’s right to freedom expression and the
libel law, we are now ready to study its application using the internet as its medium. Let us start our
study with the following scenario.

A Real Life Case Problem

Anna is a brilliant IT student of SEMANTICS COLLEGE, located at the Municipality of SYNTAX, Province of
LEXICON. Anna designed an internet Website to provide a forum wherein her schoolmates may express
their positive and negative comments for or against their teachers, co-students as well as officials of the
school.

During the first two semesters, the site received positive comments, giving praises, gratitude, and
appreciation to teachers and officials of the school.

Gina, a graduating student of BSIT failed in her final oral defense for her Capstone Project II and hence,
cannot join the graduation rites in April 2012. Gino, on the other hand, was NOT allowed to take his
FINAL EXAM for the reason that he has no PERMIT to take the said exam due to his failure to pay his
TUITION FEES.

Gina and Gino, due to their sad experience, posted negative comments against their instructors and the
school respectively on the site designed by Anna, thus:

Gina: "I think I was treated unfairly by the panelists! Ang hirap ng topic ko samantalang ung iba, simple
lang pero PUMASA. Tanung ng tanung di naman nagsusugest"

Gino: "Nangunguwarta ang SEMANTICS COLLEGE! Against sa CHED MEMO ang NO PERMIT NO EXAM
POLICY! MGA GANID ANG MAY-ARI NG SCHOOL! SA MGA GRADUATING HIGH SCHOOL STUDENTS, WAG
KAYO MAG-EENROLL DITO!"

Dennis Gosling, the VP for Administration through the OSA head, James Richi filed a case against Gino,
Gina and Anna for maligning the integrity of the school. They want these students to be suspended, and
if possible be expelled!

Dr. Nicklaus Wirth, President of the SEMANTICS COLLEGE, being aware that you have enough knowledge
about the legal aspects of computing, appointed you one of the members of the committee that will
adjudicate on the said case.

Libel in the Internet or e-libel is within the scope of Libel Defined in the Revised Penal code

The case of Bonifacio vs Jimenez (supra), unfortunately, was misinterpreted by some because they cite
this case to support their opinion that e-libel is beyond the ambit of Libel provided by the Revised Penal
Code. According to them since the SC had dismissed the case, it is already settled that e-libel cannot be
punished in our jurisdiction. I beg to disagree.

If will you read the full text of the case of Bonifacio vs Jimenez, it is very clear that Jimenez did not win
the case because of the wrong choice of option. If Jimenez simply alleged in the information that they
are (or at least one of the offended parties) presently residing in the City of Makati at the time of the
commission of the offense, that is enough to vest jurisdiction to the RTC-Makati and enable the latter to
hear and decide the case on the merits. The case was dismissed because RTC-Makati failed to acquire
jurisdiction of the case and NOT because there is no e-libel in our country.

Another argument is that, "at the time the revised penal code was enacted, there is no internet yet,
hence, the legislature could NOT have intended to include internet as a medium. To address this
argument let us reproduce the pertinent provision of the libel law with regard to this, thus:

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 (big emphasis supplied).