‘Decriminalizing libel should not take away liability, albeit civil. But at least those accused, especially journalists, could be spared the disproportionate risks of criminal procedure.’
SEVEN bills relating to libel have been filed in both chambers of the 20th Congress. And they are not on the same page. Three of them — two in the House and one in the Senate — call for the decriminalization of libel. Four other House bills seek to address issues that will confirm the status of libel as a crime, or for that matter cyberlibel as a cybercrime.
My position, which I suppose is similar to that of most journalists in the country, if not in most libertarian democracies worldwide, is that libel should not be a crime, mindful of all the legal consequences of being charged with or convicted thereof. A crime entails arrest, detention and imprisonment. Regular libel is punishable by prisión correccional and cyberlibel by the harsher prisión mayor.
As a crime, libel requires the essential proof of malice, or the intent to harm someone’s reputation through a publication. As a result, the conviction rate for cyberlibel is low, according to a 2022 — and obviously outdated — news report. But that figure is of small comfort to libel defendants, because they have to defend a criminal case, they have to contend with arrest, bail, jail (if they fail to post bail), overseas-travel restriction, long trial timelines, the legal costs and the accompanying mental anguish.
This is something an honest-to-goodness journalist has to endure for making 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,” according to the Revised Penal Code.
Because a public official, or any aggrieved party for that matter, also has the right to sue, there is no stopping a legal suit subject to due process. And because due process can involve a lot of resources, that alone can sometimes serve as punishment for the journalist, even if he should win a dismissal, acquittal or reversal of a conviction.
Yet, according to Justice Undersecretary Jesse Hermogenes Andres last April, the courts are swamped with cyberlibel cases. In contrast with “regular” libel which is normally associated with printed matter, cyberlibel is “committed through a computer system or any other similar means which may be devised in the future.” These media include smartphones that, according to a data platform, more than three-fourths of Filipinos have in a country with more than 80 percent online-penetration rate and where 87 percent of the population are on social media.
In other words, it is extremely easy to fulfill the conditions required of cyberlibel as defined in Section 4(c)(4) of Republic Act No. 10175. If 99 percent of the nearly 1,500 cases reported last year by the Philippine National Police end up dismissed, or acquitted, imagine the number of defendants who just the same have to run the gauntlet of criminal procedure.
We believe that no one, including journalists, should be subjected to such duress. Most of all, we object to what appears at times to be the weaponization of the libel law to silence journalists and critics. In the United States, this is called SLAPP, or Strategic Lawsuits Against Public Participation.
Hence this column supports House Bills 441 and 1188 and Senate Bills 250 and 476, all calling for the repeal of certain defamation provisions in the Revised Penal Code.
HB 441 (introduced by party-list Reps. Antonio Tinio and Renee Co) and SB 250 (Sen. Erwin Tulfo) call for the near-sweep of Articles 353 through 361, excepting Articles 358 (for slander) and 359 (slander by deed).
Defamation is the general term for injury to one’s reputation. Libel is malicious defamation while slander is oral defamation.
HB 1188 (introduced by party list Rep. Brian Llamanzares) has only Articles 353, 354 and 355 in its scope. Article 353 defines libel, 354 lays down the presumption of malice for a defamatory statement, “even if it be true,” while 355 provides the penalty of “prisión 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.”
I would like to point out a seeming inconsistency in Llamanzares’ bill. If it seeks to decriminalize libel, then it should no longer be necessary to address the presumption-of-malice issue in Article 354.
SB 476 (introduced by Sen. Jinggoy Estrada) replaces the penalty of imprisonment with a fine ranging from P10,000 to P30,000, plus the civil option. Nevertheless, libel remains a crime, and defendants will still have to go through the same strenuous criminal procedure.
Sen. Estrada’s bill will also have to resolve an apparent conflict with Republic Act No. 10951 of 2017, which updated the fine for libel to range from P40,000 to P1.2 million.
Of course, the fines for the criminal aspect become moot once HBs 441 and 1188 or SB 250 are passed.
I object to HBs 263 (specifying the venue for criminal and civil action in libel cases against media) and 332 (fixing the criminal liability for cyberlibel to expire after one year from original publication) because they merely affirm the status of libel as a crime.
I also oppose HB 2249 because it still views cyber libel as a crime, but there could be some merit to the proposal to punish the offense if committed using a dummy account, which by itself already hints of ill will. Still, we maintain a civil, and not criminal, remedy.
Everyone has the right to a good name, which is just as important as the right to free expression. Decriminalizing libel should not take away liability, albeit civil. But at least those accused, especially journalists, could be spared the disproportionate risks of criminal procedure.
The 20th Congress has a three-year term. We will monitor the progress of these bills as well as the filing of additional bills, including a possible consolidation.
