Who inserted that libel clause in the Cybercrime Law at the last minute?

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By Raïssa Robles

Why, nobody else but Senator Vicente Sotto III.

Because of Sotto, libel is now a crime that’s lumped together with cybersex, child porn and strangely enough, the electronic mailing of advertising spam.

What makes the libel rider interesting is that it is SUCH a clumsy cut-and-paste job, without any attempt to take into account the nature of the Internet.

No congressional public hearing was ever held on libel in the Internet.

This section on libel has grave implications for freedom of speech on the Internet. People who post on Facebook, Twitter and write comments in news websites can be sued for libel in much more insidious ways than those in the traditional news media.

I am all for making people personally accountable for what they post online, but not this way.

It was Senator Sotto who inserted libel as a “content-related offense” in Republic Act No. 10175 (the Cybercrime Law), his Chief-of-Staff Hector Villacorta confirmed to me today in an interview.

“I can verify that,” Villacorta told me.

When I asked him why Sotto felt the need to insert libel at the last minute into this law, Villacorta said: “I have to ask him.”

When I asked Villacorta why it’s important to include libel as a crime on the Internet, he replied: “I’m not yet ready to discuss that. I have not seen the text of the law.” He explained that once a law is approved at the Senate only three hard copies of that particular law exist.

Remember Sotto’s warning

Sotto warned around two weeks ago that those who were lambasting him on the Web had better watch out because “once the cybercrime bill is enacted into law, they will be accountable for what they say or write.” He had issued this warning amid criticisms that he had plagiarized in three separate speeches delivered on the Senate floor.

I had wondered then what Sotto meant by that. I had examined both versions of the Cybercrime bill – House Bill 5808 and Senate Bill 2796 (which consolidated all the similar bills). I could not find a single mention of “libel” or “cyberbullying”.

Libel was never in the Senate and House versions of the Cybercrime bill prepared by the respective committees of both chambers. The section on libel therefore never underwent any congressional public hearing.

It was only introduced as an amendment by Senator Sotto on second reading on the Senate floor and verbally agreed to by the bill’s main sponsor, Senator Edgardo Angara.

The inclusion of libel was never reflected in any piece of legislative document that was made publicly available.

This stealth amendment therefore raises the following questions: Who is Sotto trying to protect? Why did other senators let him get away with it?

And why did President Benigno Aquino III sign it into law with this clause?

I asked Communications and Strategist Secretary Ricky Carandang about the libel clause of the newly-signed Cybercrime Law. He told me: “I haven’t gone over it. I haven’t studied it, nor have I discussed it with the President.”

He promised to get back  to me after studying the bill.

This makes me wonder whether President Aquino is aware that he just signed a potentially repressive law on the eve of the 40th anniversary of the declaration of   Martial Law.

How Sotto inserted the libel clause

It has since turned out that Sotto knew all about the new section on libel in the Cybercrime Law because he did the insertion himself.

On January 24, 2012, while the nation was riveted on the impeachment trial of then Chief Justice Renato Corona, Sotto introduced an amendment to the proposed Cyber Crime Law. Here is an excerpt from the official Senate journal for that day:

Sotto said introducing internet libel would make people more cautious on the Net.

He therefore proposed a new section:

Senator Angara, the law’s main sponsor at the Senate, accepted the amendment because he said – “cyberspace is just a new avenue” for spreading libelous material:

Is it really? Can we simply adopt the present law on libel that covers print and broadcasting to apply to the Internet as well?

Why the result of Sotto’s cut-and-paste is dangerous

I’d like to share with you some of my concerns on this new law on libel that Sotto’s cut-and-paste manner of legislation did not take into account. Some of what I’m about to write was pointed out to me by my hubby Alan.

I would have to tell you something about Alan Robles. He has lectured on Internet politics at the International Institute for Journalism in Berlin for the last  seven years. He has been writing and researching about the Internet since the mid-1990s and has interviewed luminaries such as Internet guru Nicholas Negroponte and Vinton Cerf, the “Father of the Internet”. He physically covered both phases of the UN-backed World Summit on the Information Society (WSIS) which took place in Geneva in 2003 and in Tunis in 2005.

This is what Alan said:

Make no mistake about it. This is a blow against freedom of expression on the Internet.

There should be other means crafted to give people protection against libel that are appropriate to the Internet.

Besides, what happened to the political noises to decriminalize libel?

In contrast to Alan, I’ve learned about the Internet by trial and error. Mostly error, which is a wonderful way to learn a lot of things.

My concerns about the new Libel Law:

One: It is easy to determine who is committing libel in the traditional media. In newspapers, those sued for libel are usually the writer, sometimes the news source quoted in the article, and the editors who vet the news before publication. It’s similar in broadcast media.

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?

Can the one who “Shares” or “Likes” on Facebook or re-tweets on Twitter the offending piece now be held liable for libel? Can someone who posts a comment agreeing with the alleged libelous material also be sued?

Two: In traditional media – newspapers, TV and radio networks – the origin of the libelous material is easy to identify. 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? Can these entities also be held liable since they carried the offending material the way newspapers carry a libelous story?

Three: 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.

Four: 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?

This is what politicians do, actually. They file libel suits against reporters in remote places. Alan reminded me that in a libel suit, the complainant need not even attend hearings. Only the respondents are compelled to appear every time. In the Philippines, libel suits are mostly not meant to be won. These are mostly filed in order to create a chilling effect on other reporters and to make the accused journalist’s life harder.

Remember the suits filed by the ex-First Gentleman Jose Miguel Arroyo? I wrote about this in 2006. Here is an excerpt:

Presidential spouse Jose Miguel Arroyo is a natty dresser and a man of many suits. But his critics are finding out his favorite is the libel suit.

Mr Arroyo has sued or is suing six politicians, two publishers, and 12 editors and writers. Two weeks ago, he threatened to sue three more journalists and, this weekend, another congressman.

His critics say he uses the courts as a political tool. But Mr Arroyo, who could not be reached for comment, has claimed his critics have maliciously and falsely accused him of corruption. The claims include vote-buying for his wife President Gloria Macapagal-Arroyo’s 2004 poll victory, money laundering, demanding illegal gambling payoffs and influence peddling.

He has also said they called him fat.

In an 11 million peso (HK$1.68 million) damages suit against Lito Banayo, a columnist and spokesman for opposition senator Panfilo Lacson, Mr Arroyo complained Mr Banayo had described him as el esposo gordo (the fat spouse). This description was “obviously meant to denigrate me for my rotundity”, Mr Arroyo complained.

Two weeks ago, Mr Arroyo showed Mr Banayo he was serious. Appearing in court for a pretrial hearing, Mr Arroyo brought along bomb-sniffing dogs and presidential palace guards, who barred the media from the proceedings. The judge, Concepcion Alarcon-Vergara, ordered Mr Banayo’s lawyer to cross-examine Mr Arroyo without being given time to study Mr Arroyo’s 102-page testimony.

“I want to dispose of this case immediately because the complainant [Mr Arroyo] is a very busy man,” the judge said.

Last week, eight policemen entered the legislature trying to arrest Senator Jinggoy Estrada, son of jailed president Joseph Estrada, over a 10 million peso criminal libel suit filed by Mr Arroyo five months ago.

The young Estrada had linked him to alleged smugglers in a privileged speech inside the legislature.
The arrest was thwarted only by the intervention of Senate president Manuel Villar, who reminded authorities that lawmakers were constitutionally immune from arrest if the crime – like libel – was punishable with less than six years in jail.

Last week, Malaya newspaper publisher Jake Macasaet, along with his editors and reporters, were compelled to attend a pretrial conference after being arraigned on Mr Arroyo’s libel charges. All have pleaded not guilty to maliciously publishing a May 2004 article in which former opposition senator Francisco Tatad named Mr Arroyo as “chief cheating operator”.

Five: 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?

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

Seven: Under Philippine libel law, truth is not a defense. Something posted online may be true but the offended party could claim it is malicious. For instance, ex-FG Mike Arroyo thought that calling him fat – even if true – was malicious. How is malice proven online? What should ordinary people online guard against so that they are not accused of malice?

I’m fairly sure there are other issues and complications which will emerge.

Historically, in the Philippines, it is the rich and the powerful who use libel as a weapon to suppress criticisms about them.

Before the Internet came along, it was easier for the rich and the powerful to control criticisms. All they needed to do was buy a stake in newspapers, TV and radio. Or sue them.

Now they have realized that the Web is beyond their control.

The only way to put back a measure of control is to introduce libel on the Internet. Ask yourself this: Who can afford to file libel cases and tie down their critics in court?

By the way, a public figure and a public servant like Sotto has no cause to complain of cyberbullying. How can ordinary citizens bully a senator who can deliver privilege speeches galore in defense of his personal honor? Remember, a senator can utter the most libelous statements during privilege speeches. He remains immune from suit during privilege speeches.

In contrast, the Internet has a self-correcting mechanism in the form of people who take opposing views on all issues. While there are Sotto-bashers, there are also Sotto-lovers.

Media men have long asked for the passage of a Freedom of Information Act. Guess what. The joke’s on us. We got a libel law instead with absolutely no safeguards which the rich and the powerful can now use to chill critics. How convenient that the law was passed just eight months before a national election

Good job, senators and congressmen. Let’s remember this on election day.

For starters, here are the names of the senators who voted “Yes” to the Senate version on Third Reading of the Cybercrime Law:

Loren Legarda
Francis Escudero
Gregorio Honasan II
Aquilino “Koko” Pimentel III
Pia Cayetano
Ramon “Bong” Revilla Jr.
Jinggoy Ejercito-Estrada
Panfilo Lacson
Manuel “Lito” Lapid
Ferdinand “Bongbong” Marcos
Ralph Recto
Vicente Sotto III
Manny Villar

Only Senator Teofisto “TG” Guingona voted “No.”

You can read the Cybercrime Law containing the section on libel here.