In our jurisdiction, the right to speak and express one’s self as he/she pleases is considered as one of the most basic and guaranteed freedoms. But since a right almost always gives rise to a corresponding obligation (to do or not to do), there are certain types of expressions that are not legally protected. This means that the law could penalize those who would engage in that kind of unprotected expression. Libel is one of them.

 

The law defines libel “as a 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.” On the other hand, oral defamation or slander is libel committed by spoken means. If instead of being spoken, the defamatory words are written, then the crime is libel.

 

The legal consequences of committing defamation, either oral or written, can be serious. It can give rise to an independent civil action, or a criminal action. This does not mean that the decriminalization of libel in other jurisdictions make their civil action any less potent since the amount of damages that may be imposed can also severely impact the defendant.

 

Whereas some jurisdictions have decriminalized libel, the Philippines extended the application of libel laws in the internet, and hence the concept of cyberlibel under the Cybercrime Prevention Act in relation to the Revised Penal Code. The justifications for extending libel laws in the internet are the ease by which the author can evade identification because of the anonymity that the internet affords, the speed by which the publication can spread, and the fact that the author can reach a much wider audience. While these justifications are sound, they do not stand on solid grounds.

 

A criminal prosecution for libel requires the establishment of the following: (If the libel is committed by, through and with the use of information and communication technologies, then it becomes cyberlibel).

 

One, the victim must be identifiable. Identifiability is met through intrinsic reference (i.e., based on words the author used); or through description (i.e., based on the descriptions and the facts and circumstances surrounding the defamed character); and through extrinsic evidence

 

Two, the imputation must be defamatory. This requisite is in general easy to comply with considering that the imputation of anything that tends to “cause dishonor, discredit, or contempt of a natural or juridical person” is considered libelous.

 

Three, the offender must have acted with malice, that is, the imputation was maliciously made. Under the law, every defamatory imputation is already presumed malicious even if the imputation is true. This is otherwise known as malice in law. However, there are instances when the law will not presume malice, in which case the complainant must establish malice as a fact. One such instance is in the case of privileged communications.


There are two types of privileged communications: (i) absolutely privileged communications are those that do not give rise to any liability. An example would be statements made by members of Congress in the discharge of their legislative functions (Article VI, Section 11 of the Constitution provides that “No Member [of Congress] shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.”), and (ii) qualifiedly privileged communications are those that, although containing defamatory language, would not be actionable (because the privilege destroys the presumption of malice) unless complainant shows that defendant acted in bad faith i.e., defendant made the imputation without good intention or justifiable motive.

 

What is interesting about privileged communication, more particularly qualifiedly privileged communication, is that while it may be based on statutory law, ultimately it finds its roots in English and Anglo-American common law and so its exact contours under Philippine law remain open for exploration. Examples of qualifiedly privileged communication are private communications made in the performance of any legal, moral, or social duty; fair and true report without comment or remarks; and, fair commentaries on matters of public interest, which applies to public officers involving the discharge of their public functions or public figures as complainant.   

 

In these instances where malice is not presumed but the communication remains actionable, the prosecution must establish malice in fact, i.e., the author of the libelous remarks made such remarks with knowledge that it was false or with reckless disregard as to the truth or falsity thereof.

 

Closely related to malice is the defense of good intention and justifiable motive. When the libelous statement is not considered privileged communication, and therefore malice is presumed, the defendant can still raise the defense that he acted with good intention and justifiable motive in order to overcome the presumption of malice

 

Four. The defamatory imputation must be given publicity. The element of publication is satisfied when it is communicated to a third person. Of the four elements of libel, publication is the one that created more challenges in applying traditional libel in cyberspace. This is because venue is jurisdictional in criminal actions and in traditional libel, the venue of criminal action is partly dependent on where the defamatory article is “printed and first published” clearly contemplating of a libel on ink and paper.

 

Under traditional libel: where the complainant is a public officer, a criminal action for libel may be filed in the place where he/she held office at the time of the commission of libel, or in the province or city where the libelous article was printed and first published. On the other hand, where the complainant is a private person, the venue is either the place where the complainant actually resides at the time of the commission of libel or where the alleged defamatory article was printed and first published.

 

The venue of cybercrime, including cyberlibel, is the place “where the cybercrime or any of its elements is committed, or where any part of the computer system used is situated, or where any of the damage caused to a natural or juridical person took place.” Because the place where the article is “printed and first published” is “problematic” in cyberspace, the last of these three alternative venues is almost always the venue of cyberlibel.

 

While online libel or slander is quite common nowadays, it was only relatively recent when the Supreme Court resolved the issue of whether the rules on venue in (traditional) libel apply if the libel was committed through radio or television broadcast. Even if the law expressly refers to "written defamations" the Supreme Court answered in the affirmative. It ruled that in that case the place of “print[ing] and first publi[cation]” is the place of “the radio or television station where the broadcast of the libelous statement originated.”