This whole episode about the libel provision of the Cybercrime Act is fascinating. Libel is one of those crimes that is extraordinarily difficult to prove because the prosecution must show intent to harm.
If you want a quick study on libel laws in the Philippines, please refer to this article, from which the following paragraph was extracted: Libel Laws of the Philippines, abogadomo.com.
- Under Article 353 of the Revised Penal Code of the Philippines, libel is defined 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 discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice. [Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191 SCRA 61, 67]
Reader GabbyD challenged my thinking on libel a couple of days ago by stating the challenging question:
- "oh, then you are against the core logic of libel -- that words have REAL effects. "
It is a powerful challenge because I had previously acknowledged that words have effects, but are properly countered with words. A libel charge counters words with acts . . . like 12 years in jail or somesuch.
My response to GabbyD was, in part:
- Words do have real effect, but sometimes words that person A finds negative are positive in a different context. I can call Senator Sotto a scoundrel, which he finds harmful, with the aim of encouraging other senators not to repeat his acts, or readers not to live according to his standards. So my words make him a personal sacrifice to a higher cause.
What is the point of free speech? It is that we ought to have the right to protest that with which we disagree, and not be punished for it. It envisions an open state where ideas put out in the public arena can help shape the values and institutions of democracy.
As I reflect on that, I would use a technology term and peg America as an "open-sourced" nation. Opinions are a part of the fabric that drives social values ever forward and upward.
The Philippines appears to want to be open-sourced, too, but some of the totalitarian players in government are having a hard time letting go of their own sensitivities, their own thin onion skin, to get there. I am quite confident that Senator Sotto does not have Thomas Jefferson's grasp of what a government free of totalitarian influence would look like, and act like.
We live in a world of gray. Not black and white.
To protest something is always an attack on somebody or something, and it is hard to know who is right or wrong. People seeking complete independence for the Philippines protest American troops on Philippine soil. So America is thrown out of Clark and Subic. The result is that the Philippines is more vulnerable to intimidation by China 25 years later. And independence is more at risk. What is right or wrong is murky gray.
Believe me, during those arguments, a lot of people were attacked for their views. Even called treasonous. Just like Senator Enrile and Senator Trillanes have both accused other loyal Filipinos of treason during the recent dust-up over Trillanes engagement with China.
- Does Senator Trillanes really believe Foreign Affairs Secretary Del Rosario should be thrown into prison for life?
- Does Senator Enrile, a rehabilitated coup plotter himself, really believe Senator Trillanes should be thrown into prison for life?
Words mean what the speaker intends, not what the hearer hears. The speaker means "you are hurting the Philippines", the hearer hears "you want me in jail when I am innocent; that is malice."
Libel is difficult to prove, but it doesn't stop those who perceive an injury from seeking redress and a few million pesos in the courts.
Libel does not mean words can't be hurtful or offensive. But hurt is one thing and malice another. Hurtful words are often descriptions with a punch, nothing more than protests. Admirable qualities in light of what the Constitution says about free speech and freedom to assemble.
Libel is something different. Something deeper. Something more harmful and intentional. It is the point where the intent upon uttering the words is damage, not argument. Libel would be if Senator Enrile knows Senator Trillanes is not treasonous, but claims he is with the intent that he would be thrown into jail. It would take a hypnotist or psychic to plumb Senator Enrile's brain to find out what he really thinks.
Onion skin. Was it James Fallows of the Atlantic who coined this attribute of Filipinos in his commentary on the Philippines several years ago? I referred to the Humpty Dumpty New World Dictionary on "onion skin" and came up with two definitions:
(1) a kind of paper that is so thin you can see through it; ideal for tracing, and
(2) a condition in which human emotions that are so sensitive that every perceived criticism is taken as deeply personal, rendering candid dialogue impossible.
Big egos, thin skins. Put the legal tool of "libel' on the table in a culture of onion skin and suddenly the democratic premises of lawful protest and free speech stand at risk. That's where we are today, in the Philippines, in dealing with characters like Senator Sotto.
They are trying to shift the definition of words to the hearer rather than the speaker. The words hurt; they must be libelous.
No, not if the overriding aim was to protest perceived wrongful deeds or achieve some greater good. Like encourage other senators to be ethical.
It is important, in looking for tomorrow's leaders, to find those who are confident of their own knowledge, and the limits of their own knowledge. Those who are open to contrary views without taking them personally.
I think the term "libel" should be stricken from all law books, and certainly from the Cybercrime Act. The word is itself a libel to the concept of free speech and right of protest. It is an intimidating word, seeking to suppress expression.
Look at the result. Actual injury. Not the use of words that are sometimes painful to an individual, but meant for good purpose.
Words can be countered with words. They need not be countered with jail time because someone with thin skin can't stand the heat.
So yes, GabbyD, I believe words have REAL effects. Most of the time, well intended, even if spoken in anger. We should legislate to a standard of thick skin, able to withstand aggressive protest and rabid free speech. Not thin skin, crying and running to Mommy Law at every perceived slight.