Jurisprudence - Cyberlibel

G.R. No. 208146, June 08, 2016 - VIRGINIA DIO, Petitioner, v. PEOPLE OF THE PHILIPPINES
AND TIMOTHY DESMOND, Respondents.

A.M. No. 17-11-03-SC, or the Rule on Cybercrime Warrants, which became effective on 15 August 2018.
Meanwhile, the DOJ issued Advisory Opinion No. 1, s. 2018, clarifying the roles of the National Bureau of
Investigation ("NBI") and the Philippine National Police (PNP) in the prosecution of cybercrime cases.

WAS THE FB POST RE-POSTED???

And don't think that if you delete a defamatory post then you can't be sued - you can. The length of
time it is visible could affect the amount of damages you would have to pay, but just because you've
deleted it doesn't mean others haven't already reposted it. Once it's out there, you can't always take
it back.

HOW DID COMPLAINANT (SANGIL) KNEW ABOUT THE POST?

HOW MANY DAYS/HOUR BEFORE SISON DELETED THE POST?

WAS THE POST SHARED/RE-POSTED?

R E M O V I N G D E FA M A T I O N F R O M FA C E B O O K A N D
T W I T T E R : D E FA M A T I O N L A W Y E R I N S I G H T S
So, the good news is that for both the person who believes they’re the victim of defamation of
character and for the person who posted the statement, which allegedly is a false statement of fact,
which is subjecting you to a threat letter for defamation, is that these posts can be removed. At least
as long as they’re not shared onto someone else’s wall already. So, unlike many situations that an
Internet lawyer will get involved in, this was one that has a remedy that can be typically executed by
both parties to the defamation.

So here’s the way it would typically work. Let’s say I’m an attorney representing the person who
believes they’re a victim of defamation of character as a result of someone else posting something on
Facebook, on their wall, which is a statement of fact which diminishes their reputation and which is
factually untrue. What I’m going to do is I’m going to analyze the post. Make sure that I can find a
false statement of fact. Call out the opinions that might be in there that are first amendment protected,
and see if there’s a false statement of fact in the post that can be proven as true or false.

Assuming that I, as the plaintiff’s attorney, get through that hurdle, the next thing I’m going to do is
take a look at whether or not a threat letter is appropriate to the person, the account holder on
Facebook or Twitter who actually posted that defamatory statement. I might contact them through
Facebook inbox, or I might contact them as a result of other information I’m able to pull off of the
Internet about who they are, where they’re located, and who they work for.
I’m typically going to try and send that defamation of character threat letter in as many different
directions as I can to that person. If I am representing the person who’s been accused of defamation
of character on Facebook or Twitter, what I’m going to do is the same thing. I’m going to see if the
statement qualifies as opinion or whether or not there’s potential liability for defamation of character
as a result of what is said there.

In either instance, the goal is to potentially try and resolve the defamation issue, and in that instance,
if I’m representing the plaintiff, we’re going to demand that the post be removed. We might demand
a retraction. We might demand any number of different things to go along with that.

If I believe that there’s liability and I’m representing the defendant in a defamation of character on
the Internet issue, such as on Facebook or Twitter, then what I’m going to do is I’m going to advise
the client to potentially remove the post, assuming that we can get a release of liability from the
person who’s making the accusation of Facebook libel.

So those are the ways that we’re going to typically handle these issues. Twitter is a little bit more
challenging because of how easy it is for people to share tweets. So assuming that I can remove the
tweet from my own account page, I may not be able to remove the tweet from other people’s account
page. That might require some additional work, asking people to remove the post, etc.

The good news is that in many instances there’s not a lot of sharing going on, on Twitter. It’s the
unusual tweet that actually results in someone reposting a tweet. So, these things can spread like
viruses if in fact they’re popular, the person who’s being defamed is a famous person or someone
who is known within an industry.

Are social media posts

admissible in evidence?
By: Francis Lim - @inquirerdotnet
Philippine Daily Inquirer / 03:40 AM May 01, 2014

Read more: https://business.inquirer.net/169386/are-social-media-posts-admissible-in-
evidence#ixzz5tRCKxDQt 
Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

Social networking has become part of our daily life with 93 percent of Filipino
Internet users having their own Facebook account.
On the whole, this is an excellent social phenomenon. But there is also a bad part of it.

Consider, for example, a Facebook post by Mr. Y that reads: “Senator X is a crook. He
stole millions of taxpayers’ money from the PDAF. He is a certified thief. He deserves
all the public humiliation that he is now getting.”
This kind of comment is definitely libelous. It may be the basis for a civil case for
damages and a criminal case for libel.
The post, in turn, is admissible in evidence not only in a civil case but also in a
criminal case. (SC En Banc Resolution dated September 24, 2002 in AM No. 01-07-
01)
The Facebook post in question is considered a document pursuant to the functional
equivalence and non-discrimination principles under the E-Commerce Act of 2000
(ECA) and the Rules on Electronic Evidence (REE), which the Supreme Court
promulgated in 2001 to implement the ECA in our courts of law.

Under these principles, an electronic document is considered the functional equivalent

of a paper-based document and should not be discriminated against as evidence solely
on the ground that it is not in the standard paper form.

In fact, Section 12 of the ECA expressly provides that “nothing in the application of
the rules of evidence shall deny admissibility of an electronic data message or
electronic document on the sole ground that it is in electronic form, or on the ground
that it is not the standard form.”
The REE further provides that “[w]henever a rule of evidence refers to the term of
writing, document, record, instrument, memorandum or any other form of writing,
such term shall be deemed to include an electronic document as defined in these
Rules.” (Section 1, Rule 3)
In layman’s terms, the Facebook post in question should be treated as a paper-based
document. The legal question is how to prove or authenticate this Facebook post as
evidence in a court of law.

Electronic document

There are two possible situations.

The first is that a record of the Facebook post is retained. In such case, the post is
characterized as electronic document under the ECA and REE.
Section 2, Rule 5 of the REE provides that “[b]efore any private electronic document
offered as authentic is received in evidence, its authenticity must be proved by any of
the following means: (a) by evidence that it had been digitally signed by the person
purported to have signed the same; (b) by evidence that other appropriate security
procedures or devices as may be authorized by the Supreme Court or by law for
authentication of electronic documents were applied to the document; or (c) by other
evidence showing its integrity and reliability to the satisfaction of the judge.”
The first two modes are technical. The first is authentication through digital signatures
which, although not well known when the REE was promulgated in 2001, is now fast
becoming commonplace.
The second is authentication through other security procedures or devices (retina scan,
PDF-8, etc.) as may be authorized by the Supreme Court. No such other procedures or
devices have yet been authorized.
The third mode is what I normally refer to in my Ateneo Evidence class and my
MCLE and PHILJA lectures as the “layman’s approach” to authenticating electronic
document.
Under the third mode of authenticating electronic documents, an electronic document
may be authenticated by any “other evidence showing its integrity and reliability to
the satisfaction of the judge.”
For example, the prosecution may present a witness to testify that he saw Y write the
post in his Facebook account because, according to him, he “hate[s] public officials
feasting on the people’s money.”

In practical terms, under the layman’s approach, authenticating an electronic

document is just like authenticating a paper-based document under the traditional
rules of evidence. No more, no less.

Ephemeral communication

The second situation is that the Facebook post is deleted at a certain point, as what
often happens.
The REE has a provision specifically addressing the situation. If deleted or removed,
the post is considered ephemeral electronic communication under the REE.
Section 1(k), Rule 2 of the REE provides that “[e]phemeral electronic
communication” refers to telephone conversations, text messages, chatroom sessions,
streaming audio, streaming video, and other electronic forms of communication the
evidence of which is not recorded or retained.”
The REE provides for the method of proof of the Facebook post in question when it
states: “Ephemeral electronic communications shall be proven by the testimony of a
person who was a party to the same or has personal knowledge thereof. In the absence
or unavailability of such witnesses, other competent evidence may be admitted.”
(Section 2, par. 1, Rule 11).
In effect, this mode of authentication follows the layman’s approach for authenticating
electronic evidence.

The author is a senior partner of the Angara Abello Concepcion Regala & Cruz Law
Offices and a law professor in the Ateneo Law School. The views expressed in this
column are solely his and should in no way be attributed to Accralaw or Ateneo Law
School. He may be contacted at francis.ed.lim@gmail.com.

Cyber-libel cases rising, as friends

turn into foes via online platforms
By
 Joel R. San Juan
 -
March 19, 2018

BUSINESS MIRROR

“Usually complainants suspect that authors of these libelous posts are people they
somehow know because the information is so nonpublic, in a sense that only people
close to them or known to them would have such information,” Uy noted.
Uy said one of the challenges that the investigators encounter pertains to the
identification or attribution and authentication of the online account that is the subject
of the complaint.

“If there is specific denial, it requires authentication. So either we request the platform
concerned like Facebook or Twitter, we request for information with respect to the
subscriber who uploaded the
supposed article, or we apply for search warrants depending on the IP address of the
uploader,”  Uy explained.

But it the offense is committed through online platform based in the United States, Uy
admitted this would make the investigation more difficult owing the First Amendment
under the US Constitution, which prohibits Congress “from making any law
respecting an establishment of religion, prohibiting the free exercise of religion or
abridging the freedom of speech, the freedom of the press, the right to peaceably
assemble, or to petition for a governmental redress or grievances.”

In this case, Uy said prosecutors would rely on other forms of evidence, such as
testimony from witnesses attesting or authenticating that the respondent is the real
owner of the account.

When asked whether the cyber-libel provision is still relevant considering calls from
various sectors to decriminalize libel, Uy said it has been the position of the DOJ
Cybercrime Office that the said provision should have not been included anymore in
the Cybercrime law.

“We want the cybercrime law to focus on heinous crimes, such as online child abuse,
to be part of cyber offenses under the law,” he said.  “With respect to libel being a
crime, there have been different schools of thought and different positions wherein it
would be better to decriminalize libel, either because it is easier to prosecute the civil
action or it is somehow better in a sense it would declog the dockets of the courts,” he
added.

But, Uy advised netizens to be responsible in posting anything online even if libel will
be eventually decriminalized in the future.
“Whether it is  considered a crime or be decriminalized, it is the social responsibility
of every individual to respect the right of the people. We need to strike the balance
between the freedom of expression and the right of individuals. So if you think the
context would be harmful and not true, we should not be writing such thing even if
we  may not be liable civilly or criminally,” Uy said.

Evidence You'll Need To Bring a

Defamation Lawsuit
To make your best defamation case, you'll need to be be able to back up
your claims with the right evidence.
Defamation can occur when someone makes a false statement of fact about you, and
you suffer harm as a result (financial damage or harm to your reputation, for
example). In this article, we’ll discuss some of the important evidence that you will
need to gather (and be ready to present) in order to make sure your defamation
lawsuit is successful.

Types Of Evidence in a Defamation Case

In any kind of civil lawsuit, the purpose of evidence is to persuade the trier of fact—in
a defamation trial, that's usually a jury—that a fact or issue of the case is or is not
established. Evidence can either be direct or circumstantial.
Direct Evidence. Direct evidence means that the evidence supports the disputed fact
without the need for any intervening inference. For example, a witness testifying that
they heard the defamatory statement would be direct evidence.
Circumstantial Evidence. Circumstantial evidence, on the other hand, consists of a
fact or series of facts that, if proven, indirectly prove another fact. Circumstantial
evidence is the most common form of evidence. In a defamation case, an example of
circumstantial evidence would be proof that the defendant is the domain name owner
of a website where a defamatory statement was posted.
Forms Of Evidence in a Defamation Case

There are four common forms of evidence in a defamation case: testimonial,

documentary, physical, and demonstrative.
Testimonial Evidence. Testimonial evidence is oral or written evidence that is offered
in court, usually by oath or affirmation under penalty of perjury. This type of evidence
can include lay or expert witness testimony.
Documentary Evidence. Documentary evidence is any evidence introduced at trial in
the form of documents or writings—for example, an email containing the defamatory
statement.
Physical Evidence. Physical evidence, or real evidence, is a material object
introduced at trial. These objects are tangible, meaning they can be seen, touched, or
felt.
Demonstrative Evidence. Demonstrative evidence is evidence that illustrates or
represents other evidence that is introduced at trial. For example, a timeline showing
when the defamatory statements were made would be demonstrative evidence.

Supporting Your Case For Defamation

When you gather your evidence, it must be focused on meeting all elements of a

defamation claim. This is sometimes called establishing a "prima facie" case. Though
each state has its own particular requirements as to what constitutes defamation,
generally all of the following elements must be satisfied:
 publication (to someone other than the person who brought the case)
 of a false statement
 of fact (rather than opinion)
 that injures the reputation of the person being defamed (“plaintiff”), and
 is not privileged.
Burden Of Proof. The law requires that these elements be established in a manner
that meets the burden of proof. The burden of proof in a civil lawsuit is usually "by a
preponderance of the evidence" (i.e., greater than 50% chance that the proposition is
true).
Sources Of Evidence
Most evidence for a defamation case will be found and gathered by interviewing
witnesses, obtaining documents, conducting legal research, and consulting with
experts.
Interviewing Witnesses. You will need to gather a list of witnesses who will be able
to testify that they heard or read the defamatory statement. The information they
provide you must be verified. In addition, other factors must be considered, such as
whether or not a jury will find these witnesses credible.
Obtaining Documents. If the defamatory statement was made in writing, such as in a
magazine or newspaper, or even online through a blog, website, or email, make sure
to save a copy. This is especially important for writings that are not in your control,
such as someone’s Twitter feed (screenshots are a good way to preserve online
statements). You should also collect receipts, paystubs, and other documents to
support your claim for actual damages.
Conducting Legal Research. It is also important to research case law to determine
how courts have interpreted certain legal issues. For example, perhaps in your case,
you want to assert that being called a “jackass” is a defamatory statement. However, if
a previous case established that this type of statement is merely an opinion, you will
have a more difficult time making your case.
Consulting With Experts. Experts can be an invaluable tool to help you assess the
damages you have suffered with respect to your property, business, trade, profession
or occupation, and for those losses for which money is only a rough substitute—such
as shame, mortification, or emotional distress.
Preparing For Potential Defenses. Though not part of your prima facie case, it is
also a good idea to gather evidence to rebut any potential defenses to a defamation
lawsuit that the defendant may have. For example, if you lost your job as a result of
the defamatory statement, in order to recover the full amount of your salary loss, you
will need to prove that you attempted to mitigate the harm (i.e., you will need to
provide evidence that you looked for a job afterwards, but couldn't find one).

The Discovery Process in a Defamation Case

Much evidence is obtained during the discovery phase of a defamation case.

Discovery is a pretrial stage where both sides exchange information in preparation for
trial. The length of this period varies according to the type of case and jurisdiction.
Common discovery tools used in a defamation case include:
  interrogatories (questions the other party must answer in writing and under
oath)
 depositions (a question-and-answer session under oath)
 requests for production of documents
 requests for admissions, and
 subpoenas.
The rules for evidence during discovery are generally more lenient than those
followed during trial. For example, during trial, evidence must be relevant, meaning
that it must have a tendency to prove or disprove a fact that is of consequence. During
discovery, generally, the evidence must only be able to reasonably lead to other
matters that could bear on an issue in the case.
Discovery can be very expensive and time-consuming. In most defamation cases,
discovery makes up the bulk of the lawsuit costs. An effective discovery game plan
requires both in-depth knowledge of evidence rules and familiarity with legal
strategies. It's critical to have an experienced defamation lawyer on your side.

Generally speaking, a person who brings a defamation lawsuit must prove the following:

1. The defendant published the statement. In other words, that the defendant uttered or
distributed it to at least one person other than the plaintiff. You don’t need to be a media mogul to be
a publisher. There is no requirement that the statement be distributed broadly, to a large group, or
even to the general public. If you publish something on the Internet, you can assume that this
requirement has been met.

TO WIN AN INTERNET DEFAMATION LAWSUIT

PLAINTIFFS MUST:
↻ Prove the defendant published or broadcast the statement;
↻ Prove that the statement is false;
↻ Prove they were harmed by the statement;
↻ Demonstrate that the defendants did not verify their claims.

CAN AN INTERNET DEFAMATION LAWYER GET

STATEMENTS REMOVED FROM THE WEB?
Depending on the circumstances, yes. To read case studies and legal explanations about
removing content from the Internet

 A study on internet libel in the philippines (2)

1. 1. A Study on Internet Libel in the Philippines Posted by paladan on May 13, 2011 at 4:06
PMIntroductionLibel committed through the internet is still a novel issue in the Philippines.
Unlike other highly industrialized countriessuch as the United States of America and the countries
in Europe where the developments in technology has urgedsuch countries to enact new laws in
order to update existing laws, the Philippines has no law on internet libel. In 2000however, the
Philippine legislature enacted the Republic Act 8792, otherwise known as the E-Commerce Act
whichpaved way to A.M. NO. 01-7-01-SC - RE: Rules on Electronic Evidence which was made
applicable in the RevisedRules of Court. Although the E-Commerce Act did not specifically
provide a provision on internet libel, it nonethelessprovided for a the liability of the service
providers in case the electronic data message or electronic document isunlawful and the service
provider fall in any of the circumstance presented in Section 30(a) of Republic Act
8792.Jurisprudence on the issue of libel committed through the internet is not available. As of
October 2009, there are noJurisprudence as decided by the Supreme Court of the Philippines in
such matter. There have been a number ofcases filed in court involving libel committed through
the internet but suchcases which will be further discussed in this study have been discontinued
after an amicable settlement or are stillpending before the lower courts.Libel in the
PhilippinesLibel in the Philippines is defined by Article 353 of the Revised Penal Code as“A libel
is a public and malicious imputation of the crime, or of a vice or defect, real or imaginary, or any
act,omission, condition, status or circumstance tending to cause the dishonour, discredit, or
contempt of a natural orjuridical person, or to blacken the memory of one who is dead.”Libel is a
form of defamation or defamacion in the Spanish text of the Codigo Penal of which the Revised
Penal Codeof the Philippines originated from. It is that which tends to injure the reputation or to
diminish the esteem, respect,good will or confidence in the plaintiff or to excite derogatory
feelings or opinions about the plaintiff. (MVRS Pub. Inc.vs. Islamic Da’wah Council of the
Phils., Inc., 230 Phil. 241)The protection of any person whether natural or juridical for any
interference on his privacy or attacks on his honouror reputation is protected under the United
Nations Universal Declaration of Human Rights as provided in Article 12thereof to wit:“No one
shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor
 to attacksupon his honor and reputation. Everyone has the right to the protection of the law
against such interference orattacks.”
2. 2. The United Nation’s Universal Declaration of Human Rights is an international law which
binds the Philippines sincethe latter is a member thereof. Article 3 section 1 of the 1987
Philippine Constitution does not explicitly provide for theprotection of the right to privacy nor
that of honor or reputation. Article 3 however, is not the source of civil andpolitical right but a
limitation on behalf of the state.In a case decided by the Supreme Court of the Philippines, it held
that the enjoyment of a private reputation is asmuch a constitutional right as the possession of
life, liberty or property. The law recognizes the value of suchreputation and imposes upon him
who attacks it, by slanderous words or libelous publications, the liability to make
fullcompensation for the damage done. (Worcester vs. Ocampo 22 Phil. 42)In order for libel to
attach in Philippine Law, the following elements were enumerated in a Supreme Court decision:
(Diaz vs. Court of Appeals, G.R. No. 159787)1.It must be defamatory2.It must be malicious3.It
must be given publicly4.The victim must be identifiableIt was stressed by the Supreme Court in
Diaz vs. Court of Appeals that all the four (4) elements of libel must bepresent, for an absence in
any one of those previously enumerated, the case for libel will not prosper. Thus, in orderto
understand the elements of libel punishable under the Revised Penal Code, a discussion particular
to eachelement must be conducted.The test of the defamatory character of the words used is that
a.) It must be construed in their entirety and taken intheir plain, natural and ordinary meaning,
(Novicio vs. Aggabao, 463 Phil. 510, 516) and b.)The words are calculatedto induce the hearers
to suppose and understand that the person against whom they were uttered was guilty ofcertain
offenses, or are sufficient to impeach the honesty, virtue, or reputation, or to hold him up to public
ridicule.(U.S. vs. O’Connell, 37 Phil. 767)As for the second element of malice, malice is
presumed by law and thus the offender must prove that the act wasdone under any of the
exceptions of Article 354 of the Revised Penal Code.Article 354 of the Revised Penal Code
which provides to wit:“Every defamatory imputation is presumed to be malicious, even if it be
true, if no good intention and justifiablemotive for making it is shown, except in the following
cases:1.Private Communication made by any person to another in the performance of any legal,
moral, or social duty;2.A fair and true report, made in good faith without any comments or
remarks, of any judicial, legislative, or otherofficial proceedings which are not of confidential
nature, or of any statement, report, or speech delivered in saidproceedings, or of any other act
performed by public officers in the exercise of their functions.”Under Philippine law, in relation
to the application of law in libel, truth is not a defense. What is punished underPhilippine law is
the actual act or commission of the offense. Unlike in the United States however, truth is an
absolutedefense. Paragraph 1 of Article 354 of the Revised Penal Code states the presumption of
malice in defamation. I
3. 3. regardless of the truthfulness of the imputation, the presumption of malice still exists unless
otherwise proven that itwas performed in good and justifiable intention. The offended party need
not produce proof of malice.Defamatory imputation may cover: a.) the imputation of a crime
allegedly committed by the offended party, b.) a viceor defect, real or imaginary of the offended
party, c.) any act, omission, status of, or circumstance relating to theoffended party.In the third
element, Article 354 of the Revised Penal Code provides for the Requirement for publicity. It is
essentialthat the defamatory statement was given publicly. The mere composing of libel is not
actionable as long as the sameis not published. It was held by the Supreme Court that the
 communication of libellous materials to the person of thedefamed alone does not constitute
publication since that could not injure his reputation that others hold of him.(People vs. Atencio,
CA-G.R. Nos. 11351-R to 11353-R)On the question of the meaning of publication and when the
libellous matter is deemed published? It was held inpreviously cited case of People vs. Atencio
that the communication of the defamatory matter to some third person ormore persons is deemed
to be a publication. However, the same defamatory matter must be read by the third personfor
such to constitute publications. Thus in a case where the defamatory matter was sealed in an
envelope and sentthrough a messenger, the same does not constitute publication. (Lopez vs.
Delgado, 8 Phil. 26)In light of the requirement of publication to at least a third person in libel
cases, there is an exception to the liability ofthe offender. Article 354 provides for an exception
when the libellous matter was committed in the purview of aprivileged communication whether it
was an absolute privileged communication or a conditional privilegedcommunication.The
members of congress in the discharge of their function are protected by absolute privileged
communication andtherefore not actionable regardless if its author acted in bad faith. There is a
conditional privileged communicationwhen the libellous matter was communicated in relation to
a legal, moral or social duty. The communication howevermust be addressed to the proper party
of who has been charged with supervision over the person the libellous matterwas committed
against. It was held by the Supreme Court that when the third party communication which
constitutedpublishing was the supervisor of the person of whom the libellous matter was against,
it is deemed to be a privatecommunication if predicated upon the fact of a legal, moral, or social
duty. (U.S. vs. Galeza, 31 Phil. 365)In relation to libellous matter posted through an internet
forum, message board, yahoo group, chat room, or any othersimilar means, the libellous
communication is deemed to have been published when viewed by at least a third personas cited
in People vs. Atencio. The matter posted in such internet platforms even when performed as a
legal, moral,or social duty to bring to the knowledge of an official who has supervisory duty over
the person of whom the libellousmatter was against is still considered libellous for not being
communicated privately. Thus, when the accused insteadof communicating the matter to the
official who is the proper authority, aired the same in a public meeting, it was heldthat the
statements made where not privileged. (People vs. Jaring, C.A., 40 O.G. 3683)It however, should
be noted that in the case of Yuchenco vs. Parents Enabling Parents Coalition, Inc. where
theYuchengco’s filed a libel suit against the Parents Enabling Parents Coalition for allegedly
posting in the latter’swebsite “malicious” articles against the former and their group of
companies, the Court of Appeals has dismissed thecase owing for the lack of endorsement by the
Office of the Solicitor General, which should represent the governmentin the Supreme Court and
Court of Appeals in all criminal proceedings as mandated under Presidential Decree 478.The
Court of Appeals decision in the previously cited case added that any party may appeal a case
before themwithout the conformity of the Office of the Solicitor General only in behalf of the
civil liability claims. In the preliminary
4. 4. investigation of the libel suit in Yuchengco vs. Parents Enabling Parents Coalition, Inc. the City
Prosecutor of Makatifound probable cause to charge the members of the coalition with 13 counts
of libel. The Regional Trial Court ofMakati however dismissed the case for lack of jurisdiction.
This prompted the Yuchengco’s to file an appeal withoutthe endorsement of the Department of
Justice. The issue involving internet libel in that case was ordered to bedismissed by the
Department of Justice which ruled that there is no such thing as internet libel since Article 355
 ofthe Revised Penal Code strictly provided for the means of which libel may be committed.Here
in lies the question on what the means libel may be committed in light of Article 355 of the
Revised Penal Code.Article 355 of the Revised Penal Code provides for the manner of which it
may be committed and the penalty for itscommission, to wit:“A libel committed by means of
writing, printing, lithography engraving, radio, phonograph, painting, theatricalexhibition,
cinematographic exhibition, or any similar means, shall be punished by prision correctional in its
minimumand medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to
the civil action which may bebrought by the offended party.”Since because of the novelty of
internet libel in the Philippines there are no established Supreme Court jurisprudenceas to the
matter, it up to the bar to find existing jurisprudence of a similar nature to persuade the courts.
Internet libelmay be presented as among those means enumerated in Article 355 of the Revised
Penal Code under “xxx or anyother similar means, xxx”. It was held in one Supreme Court
decision that defamatory words having been made in atelevision program was considered to be
libel as contemplated by Article 355 of the Revised Penal Code. While themedium of television is
not expressly mentioned among the means specified in the law, it easily qualifies under
thegeneral provision “or any other similar means.” (People vs. Casten, C.A.-G.R. No. 07924-
CR)The fourth element as enumerated by Diaz vs. Court of Appeals is that the victim of the
libellous matter should beidentifiable. The victim may be identified or identifiable based on the
contents of the libellous article. It is not sufficientthat the offended party recognizes himself as
the person attacked ordefamed; it must be shown that at least a third person could identify him as
the object of the libellous publication.(Kunkle vs. Cablenews-American, 42 Phil. 757)In the still
pending case of Belo vs. Guevarra, which as of October 2009 is still in the stage of
preliminaryinvestigation, in relation to libellous statements posted through the internet social
networking site Facebook by Atty.Argee Guevarra in his Facebook profile page, there allegedly
was a string of posts in the profile status on the websitepage which were “malicious”.Here in lies
the question of whether or not libel published in different parts may be taken together to establish
theidentification of the offended party. According to one Supreme Court jurisprudence where in
its facts there were twopublications the first of which did not mention any names and the second
of the two publication merely consists of anamed cartoon of the person referred to in the first
publication, the court considered the two publications together toestablish the identity of the
offended party. (U.S. vs. Sotto, 36 Phil. 389)Thus, in relation to U.S. vs. Sotto and Kunkle vs.
Cablenews-American, if through the publication in different parts ofthe libellous articles the
entirety of the material produces the effect of being identifiable at least to a third person, thethird
element for identification is complied with. The identification however must not be to a group or
class exceptwhen the statement is so sweeping or all-embracing as to apply to every individual in
that group or class.(Newsweek, Inc. vs. Intermediate Appellate Court, 142 SCRA 171)
5. 5. In view of all the elements of libel discussed, the attendance of any of those four (4) elements
may be sufficient tohold any person who performs any act constituted in any of the following
manner provided for under Article 355 of theRevised Penal Code in relation to Article 353 of the
same article and communicates the same to at least a third partywho may identify the person of
whom the libellous article injures may be held liable for the crime of libel.May the service
provider of the internet platform of which the libellous article was published be held accountable
forlibel solidarily or jointly with the author of such libellous material?Under the Republic Act
8792 or Electronic Commerce Act of 2000, generally, the Service Providers may not be heldliable
 for the possible offenses committed by person who they are providing their service unless there is
anattendance of any of the exception provided for by Section 30 of the said act. Section 30 of
Republic Act 8792provides to wit:“SEC. 30. Extent of Liability of a Service Provider. – Except as
otherwise provided in this Section, no person or partyshall be subject to any civil or criminal
liability in respect of the electronic data message or electronic document forwhich the person or
party acting as a service provider as defined in Section 5 merely provides access if such liabilityis
founded on –a.xxxb.The making, publication, dissemination or distribution of such material or
any statement made in such material,including possible infringement of any rightsubsisting in or
in relation to such material: Provided, That:i.The service provider does not have actual
knowledge xxxii.The service provider does not knowingly receive a financial benefit directly
attributable to the unlawful or infringingactivity; andiii.The service provider does not directly
commit any infringement or other unlawful actxxx: Provided, further, That nothing in this Section
shall affect -a.Any obligation founded on contract;b.The obligation of a service provider as such
under a licensing or other regulatory regime established under writtenlaw; orc.Any obligation
imposed under any written law;d.The civil liability of any party to the extent that such liability
forms the basis for injunctive relief issued by a courtunder any law requiring that the service
provider take or refrain from actions necessary to remove, block or denyaccess to any material, or
to preserve evidence of a violation of law.”One complaint involving libel published through a
“blog” was brought to the City Prosecutor of Pasig, Metro Manila,involving the question of the
liability of the service provider. The complaint of Aquino vs. RP Nuclei Solutions andOlandres
has been dismissed by the City Prosecutor. The RP Nuclei Solutions was the alleged server or
host of thewebsite ‘greedyolddumbass.com’, an internet forum where the alleged libellous
comments had been made. RP
6. 6. Nuclei Solutions is owned by a company called Ploghost which in turn is owned by Olandres.
The Prosecutor notedthat the RP Nuclei Solutions could not be held for libel because as a server it
cannot vary or change the contents ofthe websites it is servicing. The service provider may only
discontinue the service if the user violates the Terms ofService as agreed upon by their
registration with the provider. Furthermore, the Prosecutor stated that “Withworldwide web
concerned, the traditional concept of publishers of a newspaper or periodical cannot apply insofar
asliability for libel in the setting up, ownership, management and supervision of an Internet site,
web log [blog] or forumis concerned. Hence, any liability for libellous statements or remarks that
may be coursed through or communicatedthrough the websites that it is hosting will solely
devolve on the part of the authors.JurisdictionThe jurisdiction of the Philippine law as regards
acts or omission punishable under the revised penal code are onlythose committed within the
territory of the Philippines unless falling under any of the circumstance enumerated inArticle 2 of
the Revised Penal Code. The Philippine courts in order to validly try the case must have valid
jurisdictionover the, a.) territory, b.) subject matter, and c.) the person.In the 2007 controversy in
the Philippines involving an Australian, Brian Gorrell, and Filipino, Montano, regarding
thelibellous articles posted by Gorrell in his ‘blog’ while he was in Australia against Montano for
allegedly swindling himof money amounting to seventy thousand dollars ($70,000), it raised the
issue of jurisdiction if ever the complaint willbe filed by Montano in the Philippine court. A case
may be filed in the trial court of the Philippines in the territorialjurisdiction of the court where the
offense has been committed or the place of residence of any of the partiesinvolved.It must be
noted of the existence of the principle in Private International Law of Lex loci delicti commissi.
 Lex locidelicti commsi means ‘law of the place where the tort was committed’. The principle
applies when the two contendingparties are domiciled in different countries. Under Philippine law
as regards jurisdiction, the case may be filed in theplace where the act was committed or the place
of residence of either parties. Thus in international law, abiding bythe principle of lex loci delicti
commssi, the laws of the place where the tort was committed shall govern, and thesame acquires
proper jurisdiction.In a case decided by the High Court of Australia involving defamation
committed through the internet, it ruled that:“The appellant’s submission that publication occurs,
or should henceforth be held to occur relevantly at one place,the place where the matter is
provided, or first published, cannot withstand any reasonable test of certainty andfairness. If it
were accepted, publishers would be free to manipulate the uploading and location of data so as
toinsulate themselves from liability in Australia[235], or elsewhere: for example, by using a web
server in a “defamationfree jurisdiction” or, one in which the defamation laws are tilted decidedly
towards defendants.xxx” (par.199, DowJones and Co. vs. Gutnick, 2002, HCA 56)In the
previously cited case, it also decided that the place of publication is not the server where the
defamatorystatements were posted. Though jurisprudence of another state may be called upon
and be used to persuade thePhilippine courts. As provided for by Article 21 of the New Civil
Code, “Anyone who wilfully causes injury to another ina manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.”by Skylar Songcalsource:
http://techlaw.berneguerrero.com/2009/10/24/a-study-on-internet-libel-in-the-philippines/
7. 7. A lawyer who published defamatory attacks in his Facebook account against cosmetic surgeon
Dr. Vicki Belo and theBelo clinic, was charged with libel by the Office of the Provincial
Prosecutor of Rizal.Argee Guevarra accused the Belo clinic to have committed errors on the
cosmetic surgery performed on the buttocksof a certain Josephine Norcio. While media reports
pointed to Guevarra as Norcio’s legal counsel, no complaint hasbeen formally communicated to
Dr. Belo or the Belo clinic.In a resolution issued by Assistant Provincial Prosecutor Maria
Ronatay in Taytay Rizal, the crime of libel underArticle 355 of the Revised Penal Code was
committed by Guevarra, who is “probably guilty thereof and should beheld for trial.”Guevarra is
liable for libel because he has “maliciously imputed defects, omissions and illegal acts on the part
of theBelo clinic in published statements over his Facebook account, which is one of the most
popular internet socialnetworking sites in the world.”The resolution stated Guevarra made his
entries against Belo available to all his friends or network in Facebok, whichhas satisfied the
elements of publicity in the crime of libel.In his counter-affidavit, Guevarra claimed there is no
such thing as internet libel because the enumeration underArticle 355 of the Revised Penal Code
does not include the internet as means of publication.However, the court decided otherwise and
said internet has become a means of communication and may beconsidered publication which can
be used as evidence in the crime of libel against its author.Considering the elements of libel, the
identity of the person defamed was clear, referring to Dr. Belo. Malice was alsopresumed in the
posts made by Guevarra to discredit Dr. Belo and ultimately bring down the Belo
clinic.NEGATIVENewell, in his work "The Law of Slander and Libel," describes absolute
privilege thus —"In this class of cases it is considered in the interest of public welfare that all
persons should be allowed to expresstheir sentiments and speak their minds fully and fearlessly
upon all questions and subjects; and all actions for words
8. 8. so spoken are absolutely forbidden, even if it be alleged and proved that the words were spoken
falsely, knowingly,and with express malice." Sec. 350, pp. 387-388" (quoted in Sison v.
 David,supra.)It does not matter, therefore, whether or not there was malice on the port of the
herein appellee in making thestatements complained of, since said statements are contained in a
judicial pleading and protected by the mantle ofprivileged communication. But in further
interpreting the above-quoted provision of the Revised Penal Code, thisCourt in the case of
Tolentino v. Baylosis, G.R. No. L-15741, January 31, 1961, held that counsel, parties, orwitnesses
are exempted from liability in libel or slander for words otherwise defamatory published in the
course ofjudicial proceedings, provided that the statements are connected with, or relevant,
pertinent or material to, the causein hand or subject of inquiry.Agbayani v. Sayo[35] which laid
out the rules on venue in libel cases, viz:For the guidance, therefore, of both the bench and the
bar, this Court finds it appropriate to reiterate our earlierpronouncement in the case of Agbayani,
to wit:In order to obviate controversies as to the venue of the criminal action for written
defamation, the complaint orinformation should contain allegations as to whether, at the time the
offense was committed, the offended party wasa public officer or a private individual and where
he was actually residing at that time. Whenever possible, the placewhere the written defamation
was printed and first published should likewise be alleged. That allegation would bea sine qua
non if the circumstance as to where the libel was printed and first published is used as the basis of
thevenue of the action.Bonifacio vs RTC MakatiIf the circumstances as to where the libel was
printed and first published are used by the offended party as basis forthe venue in the criminal
action, the Information must allege with particularity where the defamatory article wasprinted and
first published, as evidenced or supported by, for instance, the address of their editorial or
businessoffices in the case of newspapers, magazines or serial publications. This pre-condition
becomes necessary in orderto forestall any inclination to harass.The same measure cannot be
reasonably expected when it pertains to defamatory material appearing on a websiteon the
internet as there would be no way of determining thesitus of its printing and first publication. To
creditGimenez’s premise of equating his first access to the defamatory article on petitioners’
website in Makati with“printing and first publication” would spawn the very ills that the
amendment to Article 360 of the RPC sought todiscourage and prevent. It hardly requires much
imagination to see the chaos that would ensue in situations wherethe website’s author or writer, a
blogger or anyone who posts messages therein could be sued for libel anywhere inthe Philippines
that the private complainant may have allegedly accessed the offending website
9. 9. LAW FOR NEGATIVE: Freedom of Speech"Law and the Internet - Regulating
Cyberspace"Defamation and the Internet: Name Calling in Cyberspaceby Lilian Edwards 1In
recent years, defamation or libel on the Internet has become one of the hot topics of Internet law.
Many gallons ofboth real and virtual ink have been spilled in computer and legal journals, as well
as on-line electronic fora, as theimpact of "terrestrial" defamation law on both suppliers and
consumers of Internet services has been debated 2 Thisarticle will not attempt a comprehensive
treatment of the area 3 but will focus on two crucial points:why users of the Internet are more
likely than ordinary citizens to be found publishing comments which are actionableas defamatory,
andwhat problems (or, looking at it from the other side of the fence, opportunities) arise if those
who are the victims ofdefamatory comments on the net attempt to seek compensation by taking
legal action.Two preliminary points are worth emphasising at the start. First, any lawyer looking
at the problem of Internet libel isimmediately struck by the fact that it is has an inherently
transnational nature. Because of the internationalconnectivity of the Internet, its speedy
transmission of huge amounts of data simultaneously to multiple destinations,and general lack of
 respect for national borders, it is extremely easy for an individual to make a defamatory
commentvia a computer situated in (say) Scotland attached to the Internet, which can then be read
by thousands if not millionsof people similarly equipped in multiple other national jurisdictions -
where (as discussed below) the law of, anddefences to, defamation may be very different than
those found in the Scottish legal system. In pre-Internet days,such transnational publication
would have, for economic reasons, been almost exclusively the preserve of atraditional publisher,
such as a newspaper, TV station or book publishing house, who would be likely to have both
theresources and the foresight to take legal advice, and to have a system of prior checking in
place, to avoid incurringexactly such legal liability. Very few of the individuals now setting up
home page Web sites, contributing tonewsgroups, sending email or taking part in Internet Relay
Chat (IRC) will have such defensive strategies orknowledge of what speech might be legally
actionable. Where defamatory statements cross national boundaries,inevitably problems of
international private law are invoked, with difficult questions raised such as what country
(orcountries) will have jurisdiction to hear any action for damages raised, what countrys law
should govern the action(the choice of law question) and if a decree is obtained, how can it be
enforced if the defender lives outwith thejurisdiction of the court (as will frequently be the case)?
Those libelled on the Internet may find then that their case isnot the simplest to pursue. By way of
comfort, however, Internet libel defenders may also be dismayed to find thatthey can be sued in
the courts of multiple countries to which they have little or no connection, and where the
lawapplied is foreign to them in the extreme. Hardened libel lawyers will say there is nothing
very new here, which is,formally, true - but the problems of traditional publishing and defamation
are so multiplied when applied to a forum aslarge, as accessible, as cheap and as transnational as
the Internet, that it is not hard to see why there is a perceptionthat the law of libel has been
transformed by its application to the new electronic highway.
10. 10. Secondly, Internet users cannot be regarded as a homogenous group. In particular, it is
important to separate out thepotential liability of those who give individuals and corporations
access to read, and write to, the Internet : not just theso-called Internet Service Providers (ISPs)
such as CompuServe, Demon, Pipex, America On-Line et al, whotypically provide access to the
Internet on monthly subscription or at an hourly rate, but also non-commercial hostssuch as
universities, who give Internet access for free to many students and staff, and corporate hosts,
who have anInternet link (whether dedicated, or via an ISP) and allow their employees, and
perhaps their clients, access to theInternet via their facilities. The particular problems of Internet
Service Providers (and equivalent hosts) in this areaare considered below.Sites of defamation on
the InternetIn considering why the Internet is a defamation prone zone, there are at least four
distinct sites where defamationmay occur on the Internet that can usefully be separated out, as to
some extent they raise distinct problems.(i) One to one email messagesAs anyone who has used
email will know, it is remarkably quick and easy to use. Comments can be typed in hasteand sent
at the press of a button. Compared to conventional written correspondence, where there is
typically time todraft the statement, print or type it out, re-read, re-draft, and then think before
signing, putting the message in anenvelope, attaching a stamp and putting in the post,
transmission of email is virtually instantaneous and usually, oncesent, is irrevocable. As a result,
email correspondence is often in substance more like spoken conversation thanwritten interaction
for habitual users - hasty, ungrammatical and rash - and tends to lead parties to say things
theywould not only not normally commit to writing, let alone widely published writing, but
 would in fact often also not sayin face to face interaction with the other party. Psychologically,
electronic interaction combines a sort of deceptivedistance - one is after all sitting safe behind a
terminal in ones own office when writing - with a kind of equallydeceptive intimacy. Studies and
anecdotal evidence show that there is a lack of body language, eye contact orspoken cues, as there
would be in conversation or on the phone, to prevent the making of inappropriatestatements4 . All
this means that those sending email are dangerously prone to making remarks that turn out to
belegally actionable.To add insult to injury, it is very easy to repeat or forward the defamatory
comments of others via email, and in thelibel law of many countries, a re-publisher is just as
liable as the original publisher (bar the possibility of innocentdissemination defences, discussed
below)5. For example, party A receives an email concerning the foul practices ofa competitor and
forwards it with a few keystrokes to parties C and D who later send it on to E and F6. Only later
is itdiscovered that the message is not true; subsequently the competitor discovers the re-
publication and sues party Arather than or as well as the original author who may be (say) without
funds. In this way, actionable email statementscan be re-published far and wide with the speed of
transmission of any other computer virus.Sending an email containing defamatory statements
from person A to person B will in some legal systems not beregarded as "publication" for the
purposes of libel law, since there is no communication to the public but only to thespecified
recipient. This is true, for example, of English law7, but not apparently, of Scots law8. However,
as is truewith Internet publication generally, emails can be, and often are, sent across national
boundaries eg from Scotland toEngland, or to France or the US. As already mentioned, this may
mean that the law governing any potential actionmay not be that of the defenders residence or
domicile. Thus the risk will not go away just because the email sender(or their ISP) are resident in
England.(ii) Mailing lists
11. 11. The format of an electronic mailing list is that various parties subscribe by email to the list,
which is administered bysome central host. The subject of discussion of the list may be anything
from Internet law to real ale to homosexualfantasies. Usually the list is set up so that, by default,
any email message sent by any one subscriber to the list, is"bounced" or "exploded out" to every
other subscriber (many of whom will, as the parlance goes, "lurk" and never beknown to exist to
the person commenting). Mailing lists combine all the general problems of email discussed
above,with some extra difficulties of their own. It is very easy for the slightly careless or
inexperienced user of such a list tothink they are replying only to the maker of a particular
comment - but actually send their reply to every member ofthe list. The embarrassment factor can
be considerable, particularly where the members of the list form a smallprofessional community
within which the professional reputation of the person defamed can be severely damaged. Itis not
a coincidence that one of the very few cases across the globe on Internet libel not settled out of
court, Rindos vHardwick9, revolved around comments made on a mailing list for academic
anthropologists in which comments weremade implying that Rindos, the Australian plaintiff, had
been denied tenure because he was not a properly ethicalresearcher and was academically
incompetent.(iii) Newsgroups, the USENET and discussion fora.Newsgroups are discussion fora
which are made up of comments from their subscribers, sorted by subject matter. Allit takes to
subscribe and post comments to a newsgroup is rudimentary software, obtainable for free as
shareware,and an Internet connection. Collectively, the newsgroups available to Internet users are
sometimes known as the"Usenet".10 There are something like 14,000 Usenet newsgroups
subscribed to en masse by millions of subscribers,located in every country where there is Internet
 access. As a result, any comment posted to a Usenet newsgroup isvirtually guaranteed to be
published, and read, within days if not hours, in many hundreds of national jurisdictions. Ascan
be imagined, the volume of material published in these fora is enormous - one estimate is that
around 4 millionarticles are available at any particular time.Newsgroups are even more
problematic from the defamation point of view than the rest of the Internet because ofwhat may
be described as traditional "Internet culture". Until very recently - roughly, the early Nineties - the
Internetwas largely the domain of technophiles, students, academics and workers in the computer
industry, principally in theUS. These users largely accessed the Internet for free and used it for
non-commercial purposes. There was a strongcollective sentiment towards anarchy,
libertarianism and free speech rights - and a strong corresponding dislike ofcorporate,
governmental or legal authority or control. In this culture, full, frank and unfettered discussion
known as"flaming", which was often indistinguishable from rudeness and abuse, was not only
tolerated but by and largeencouraged. The usual remedy for being flamed was not to post a writ
for libel, but extra-legal self help - in otherwords, flame back. It was and is not uncommon for
newsgroups to degenerate into "flame wars" - torrents of abusivecomments which destroy all
sensible discussion in the group. This was all very well, perhaps, when most Internetusers shared
a similar cultural background. But in recent years the Internet has ceased to be the domain
of"netizens" and become extensively used by individuals and families, including children, who
pay for Internet accessand expect it to respect the same standards of decency and courtesy as
other media. Even more importantly,corporate use has expanded enormously, as firms who see
the Internet as a domain for commercial expansionestablish their own connections and Web sites.
For these users, flaming and abuse are not acceptable, not are self-help remedies, and
preservation of corporate reputation is paramount. Corporate culture now seems to have
firmlyencountered the Internet as in July 1997, the first corporate email libel case to be publicly
settled in the UK receivedextensive publicity. This case was brought by Western Provident
Association who sued Norwich Union Healthcare forspreading untrue rumours on its internal
email system about Westerns financial stability11. A settlement wasreached under which Western
Provident paid out the not insubstantial sum of £450,00012.
12. 12. (iv) The World Wide WebThe Web is now so large, and increasing in size so fast that it is
impossible even to pin down estimates of its size. InSeptember 1996, there were 30 million Web
pages, located on 275,000 servers, indexed by the Alta Vista searchengine. At around the same
date, it was estimated that the Web doubled in size every 45 days13. Like newsgroups,Web sites
can be accessed and read in multiple jurisdictions, and they therefore share many of the problems
oftransnational publication discussed above. But perhaps the major unique problem with the Web
is how far it allowsany individual to mimic traditional publishing at very low cost. "Home pages"
can be set up which do a good job oflooking like electronic journals or glossy magazines and
which can be extremely attractive, with good design andgraphic content. However many of the
parties setting up Web sites - often fans of popular music or TV programmes,students, pressure
groups, or amateur associations - are not already hard copy or traditional publishers, have
noknowledge of the law of defamation or libel, and may well find themselves publishing
defamatory statements withoutfully appreciating their potential liability14. There has already
been one at least one case in the UK whereproceedings have been initiated against a Web
publisher for libel. In February 1996, the Poetry Society was sued forpublishing a Web page in
which a vanity publishing company was accused of "preying on poets who could nototherwise get
 their poems published". The matter appears to have been subsequently settled out of
court.Interestingly, although the Poetry Societys web site at the time was itself physically hosted
by the BBC server, thereseems to have been no attempt made to involve the BBC as co-
defenders, possibly because the aim was removal ofthe offending statement rather than financial
compensation.Problems and opportunities for Internet libel pursuers and defendersJurisdiction,
choice of law and enforcementAs mentioned above, one of the major features of Internet libel or
defamation is that it will often have beentransmitted across national boundaries. In such cases, it
will be necessary for a plaintiff or pursuer to work out wherehe or she may, and perhaps may
most advantageously, raise any action. Once jurisdiction is established, there isthen the question
of establishing choice of law. There are self-evidently crucial differences between national laws
ofdefamation which may favour either the pursuer or defender. For example, if we take a random
scenario :An individual resident and domiciled in Scotland posts a defamatory comment about a
person also resident anddomiciled in Scotland, but having a national reputation throughout the
UK, to a Usenet newsgroup. The group is readby subscribers in many countries, including
England. The defamed party wishes to sue.The obvious court in which to sue is the Court of
Session in Scotland. But under the Civil Jurisdiction andJudgements Act 1982, Schedule 8 (which
applies in cases between two Scottish domiciliaries) there can bejurisdiction either in the court of
the defenders domicile - Scotland - or in the place where the delict is committed.Where is a delict
such as defamation committed? There are two obvious interpretations - firstly, the place where
theremark was originally made (the "source" of the delict); and secondly the place where the
remark is "published " ie,where it is made public and has an impact on the reputation of the
person defamed (the "target" of the delict). Case-law from the European Court of Justice
interpreting the Brussels Convention - notably the recent referral to the ECJfrom the House of
Lords in the case of Shevill v Presse Alliance S.A.15- seems clearly to establish that
eitherinterpretation is a valid alternative for the purposes of fixing jurisdiction. Thus in our
scenario, notwithstanding the factthat both the pursuer and defender are Scots, there is
jurisdiction in both Scotland and England. Where there is bothpublication, and a reputation to be
affected in England, the pursuer may well wish to think about suing in England,where the
damages award will almost certainly be higher than in Scotland. This is legitimate forum
shopping, but one
13. 13. important caveat must be made; another matter clarified in Shevill is that if the action is
raised in England on this kindof basis, damages can only be sought in respect of damage caused
to the reputation in that jurisdiction. To sue fordamage caused by the defamatory statement in
every jurisdiction where it was published - which could be everycountry where the newsgroup
was read in the case of a global celebrity with a matching reputation - the action mustbe raised in
the courts of the domicile of the defender (in this example, Scotland). It should also be noted that
forumnon conveniens is still a possible plea in actions involving intra-UK jurisdiction only16,
although not actions betweenparties from different states party to the Brussels Convention17.The
logical next question in this scenario is what law will govern the action. Actions for defamation
are still subject tothe common law requirement of "double actionability", ie, the requirement that
there must be a successful cause ofaction under both the lex loci delicti (the law of the place of
the delict) and the lex fori (the law of the forum) before theaction can be succeed18. In the
example chosen, both the lex fori and the lex loci delictiare English law - so doubleactionability
is not a problem. (This is on the assumption - as seems likely but is not wholly clear - that for
 thepurposes of choice of law, the place of the delict is also the place where damage is caused to
the reputation of thevictim, ie, the "target" jurisdiction19.) But the rule of double actionability can
have invidious effects for the pursuer orplaintiff where two legal systems are involved, and the
law differs between them. Let us vary our scenario a little:The person defamed is a public figure,
eg, a media celebrity, originally an American national, but who hasestablished his principal home
in Scotland. Both pursuer and defender are resident and domiciled in Scotland. Thedefamatory
comment, as before, is published in a Usenet newsgroup readable in many countries including
Scotland,England and the United States. The principal harm done to the pursuers reputation is in
the United States.Will the action by the celebrity succeed if raised in Scotland? There is
jurisdiction to sue in the place of the defendersdomicile - Scotland -for the whole damage caused
to the pursuers reputation in all countries. To successfully sue fordamages in respect of the
damage to the reputation in the US, there must however be a successful cause of actionunder both
Scots and US law.20. In the US, it is effectively a successful defence to an action for libel that the
pursueror plaintiff is a "public figure."21 In such cases according to US law, the burden is put on
the pursuer to show by clearand convincing evidence that the defender made the comments with
actual malice. In Scots law, by contrast, suchmalice is presumed. It is quite possible then that
although the action would succeed under Scots law, the pursuermay fail as a result of the double
delict rule - an example of US law controlling the result of an action between twoScots
domiciliaries. The only possible line of attack for the pursuer in this example lies in the approach
taken in thecases of Boys v Chaplin22 and Red Sea Insurance Co Ltd v Bouyges S.A & Others23
in which the House of Lordsand the Court of Appeal, respectively, chose to approve the
possibility that in appropriate circumstances the doubleactionability rule might be displaced in
favour of a "proper law" approach. In a case of the kind above, there mightconceivably be a
conclusion that the "centre of gravity" of the action was in Scotland and that Scots law should
bethe proper law.Finally it is important to remember that winning the action is only half the
battle. Where the defender in anInternet libel case lives abroad, the judgement will still need to be
recognised and enforced by the courts ofthe defenders residence (unless he is foolish enough to
leave major assets in the pursuers country ofresidence). Many countries may choose not to so
recognise, either because they have no clear mechanismsin place for recognition of foreign
decrees, or because the legal basis of the judgement runs againstprinciples of their own legal
system, eg, an over-riding constitutional preference for freedom of expression.Such problems
have arisen even in respect of judgements for libel obtained in the English courts
whereenforcement was then sought against a U.S. defender. 24
14. 14. Liability of Internet Service ProvidersThe key role of ISPs such as CompuServe, Demon at al
is to provide access to the Internet for their subscribers. Thisaccess includes allowing subscribers
both to read and write to Usenet newsgroups; and to surf the Web. ISPs alsosometimes host
"local" discussion fora - newsgroups accessible only by their own paid up subscribers and
nottherefore part of the general Usenet - and almost invariably agree to act as physical hosts to
Web pages set up bytheir subscribers (generally to a maximum storage of a few megabytes). In all
these cases, the ISP runs the risk ofbeing regarded as the publisher of libellous remarks,
originated by another person, but published by them in one ofthese forums. As noted above, it is
clear in principle that in both Scotland and England25, any repetition or re-publication of a
defamatory statement is in itself actionable. Action is possible against all intervening persons who
areresponsible for repeating, publishing or otherwise circulating the defamation. The person
 defamed may thus choosewhether to sue the original defamer, or the repeat publisher, or both -
and in many cases, will be best advised to suethe party with the deepest pockets, usually the ISP,
rather than the original author. But as a practical issue, far toomuch material passes through
Usenet newsgroups alone at any one time for an ISP to physically scrutinise it all inadvance of
publication, and it is generally impossible to exclude any particular message in a newsgroup, only
thewhole newsgroup. ISPs thus have almost no control over much of the material they are
"publishing". Software doesexist to search for and block access to material of an offensive or
pornographic nature on the Internet26, but it is oflittle use in relation to defamation, where there
are no specific words or images which can be predicted as attractinglegal risk. As we have seen,
someones reputation may be savaged as easily in an amateur poetry forum as anewsgroup on
bestiality or sexual fantasies. This adds up to a liability time-bomb for ISPs, which could
seriouslyaffect their ability to operate commercially, unless defences of some kind are made
available to them. In both the US,the UK, and elsewhere, ISPs have tried to claim that they
should be exempted from liability on the basis of conceptsof innocent dissemination - essentially
claiming that have no effective control over the material they re-distribute, andthus should not be
held legally liable in respect of it as publishers. To some extent this argument rest on whetherISPs
are seen as more akin to conventional hard copy publishers, or TV and radio broadcasters - who
have controlover what they publish, and a corresponding duty to check that the material they
publish is not defamatory - orwhether they should be seen as more like "common carriers" such
as the phone company - who are seen as "merepassive conduits" for information, with no
effective control over it, and who are thus usually not held liable forwhatever material they carry.
Somewhere between the two a third analogy can be drawn, to news-stands orbookstores - persons
who are responsible for distributing large quantities of potentially defamatory material and
havesome chance to examine it, but who cannot reasonably be expected to check it all in detail if
they are to stay inbusiness27.Two widely discussed US cases28 have failed to settle in detail the
issue of whether ISPs should have the benefit ofan innocent dissemination defence.29 In Cubby v
CompuServe30, CompuServe were sued in respect of a messageappearing in a local forum hosted
by them, called "Rumorville USA". CompuServe had employed a third partyspecifically to edit
and control the content of this forum. The third party posted the information on the Internet once
itwas edited, with no intervening opportunity for CompuServe to review the material prior to
publication. CompuServeargued that they were merely a distributor of the information, not a
publisher, and should therefore not be held liable.The New York District Court agreed, holding
that CompuServe was here acting in a way akin to a news-stand, bookstore or public library, and
that to hold it to a higher standard of liability than these distributors, would place
unduerestrictions on the free flow of electronic information.But in Stratton Oakmont Inc v
Prodigy Services31, the decision went the opposite way. On similar facts, Prodigy wassued in
respect of comments posted to a local discussion forum it hosted. Again , Prodigy had employed
persons
15. 15. known as "board leaders" to monitor and edit the content of the forum and had empowered
these board leaders toremove material, although only after it was posted. The crucial difference
from the CompuServe case (such as therewas) was that Prodigy had explicitly marketed itself as
"a family oriented computer network", which as part of its"value added" services, would control
and prevent the publication of inappropriate messages. This seems to havebeen enough to lead the
court to regard Prodigy as the publisher of the libels in question, rather than as a meredistributor,
 and accordingly they were held liable.The most unfortunate aspect of the Prodigy and
CompuServe decisions is that the ratio that can most easily beextracted from the two contrasting
results is that to avoid liability, an ISP should do as little as possible to monitor andedit the
content of the messages or other material it carries. This, it can be argued, will make it seem more
like anews-stand, and less like a publisher. Such a "head in the sand" approach is an extremely
unhelpful message forimprovement of Internet services, where as any user will know, one of the
key problems for real commercial use isthe huge volume of unedited, disorganised, misleading
and often offensive text that has to be worked through toreach any useful information. What the
Internet needs is more editorial control by ISPs, not less.More unfortunately still, these "head in
sand" aspects of the Prodigy decision seem to be reinforced by the newlegislation on defamation
which came into force throughout the UK in September 1996, and had as one of its explicitaims
the clarification of the defence of innocent dissemination for Internet providers in both England
and Scotland32.Section 1(1) of the Defamation Act 1996 provides that:"In defamation
proceedings a person has a defence if he shows that -(a) he was not the author, editor or publisher
of the statement complained of,(b) he took reasonable care in relation to its publication, and(c) he
did not know, and had no reason to believe, that what he did caused or contributed to the
publication of adefamatory statement."Although this section is an improvement over the
vagueness of the pre- existing common law, its phrasing still leavesmuch to be desired from the
viewpoint of ISP liability. The defence of proving "reasonable care" provided by s 1(1)(b)is only
available to persons who are not "publishers" according to s 1(1)(a). A "publisher" is defined in s
1(2) as acommercial publisher, ie, a person whose business is issuing material to the public. This
would certainly seem toexclude non-commercial hosts such as universities, but to embrace
commercial ISPs. Furthermore, if an ISPmonitors or edits content, as both Prodigy and
CompuServe did, it is also likely to be regarded as an "editor" as thisis defined as including any
person "having editorial or equivalent responsibility for the content of the statement or
thedecision to publish it." However s 1(3) goes on to state that"A person shall not be considered
the author, editor or publisher of a statement if he is only involved …(c)in … operating or
providing any equipment, system or service by means of which the statement is retrieved,copied,
distributed or made available in electronic form;…[or](e) as the operator of or provider of access
to a communications system by means of which the statement istransmitted, or made available,
by a person over whom he has no effective control." [parts omitted and emphasisadded]It is clear
that section 1(3)(e) was intended by Parliament to be the umbrellaunder which ISPs could
shelterthemselves from liability33. But this sub-section is problematic in that it seems to require,
in a style rather reminiscent
16. 16. of the Prodigy decision, that to get the benefit of the s 1(1) defence, the ISP must only provide
Internet access, andnot do anything else - not, for example, exercise editorial control or spot-
check content - for if they do, it would seemthey will be exercising "effective control" over the
maker of the defamatory statement. Yet it seems unlikely that anISP which neither monitors nor
edits can succeed in proving, as s 1(1)(b) requires, that it took "reasonable care" toprevent the
publication of the defamatory statement. There is thus an inherent catch 22.One possible escape
might lie in claiming that an ISP which edits content is only exercising effective control over
thedefamatory statement, not the person who makes the statement. Another approach might be to
seek exemption frompublisher/editor status under s 1(2)(c) rather than 1(2)(e), which although
less apparently descriptive of an ISP doesnot contain any "hands off" requirement.If either of
 these arguments is accepted, what must an ISP do to be seen to exercise reasonable care? Section
1(5)provides that a court should have regard to the nature or circumstances of the publication, and
in particular to the"extent of the responsibility of the defender for the content of the statement." In
relation to a Usenet newsgroup, forexample, where very large amounts of material arrive by the
hour from all over the globe, and the system operatorhas almost no control except to censor the
entire newsgroup, this would, one hopes, be very little responsibility at all.It is noteworthy that
both the CompuServe and Prodigy cases involved local rather than Usenet discussion fora,where
the ISPs had at least a reasonable chance of keeping an eye on the material complained of.Finally
if all attempt at claiming a s1(1) defence fails, an ISP may wish to avail itself under ss 2 and 3 of
an offer tomake amends. If such an offer is accepted, further proceedings against the offending
party are barred. ISPs are in aparticularly good position to offer "a suitable correction" of the
statement complained of and to publish it, as requiredby s 2(4)(b), far and wide, since they can at
almost no cost distribute the apology to the whole of the Internet.Although ss 2 and 3 may be of
practical use, it seems there are no panaceas to be found in s 1 of the 1996 Act. Evenif the
interpretation of s 1(1) does run favourably to ISPs, the Act will, of course, only operate to relieve
an ISP ofliability where the litigation in question is governed by the law of England or Scotland.
If Demon, for example, is suedin France by a French resident for a statement posted in a Demon
local newsgroup, then the defence in s 1(1) willonly be relevant if UK law is the governing law of
the cause, which is more than likely not to be the case. However itis not, of course, just the 1996
Act which lacks extraterritorial reach, but the whole of UK defamation law. In the endthe
simplest solution for ISPs afraid of being sued in the UK may be to physically locate their
business overseas, in ajurisdiction with less exorbitant libel damages than England, and where
foreign decrees for damages are not easilyenforced.Solutions?Before considering what solutions
there are to the problems identified above in relation to Internet libel, it is worthasking if there is
really a need for anything more than legal inertia. In the last five or six years of frenetic
Internetexpansion, after all, there have been only a handful of Internet libel cases receiving
international attention. It issubmitted however that these cases are merely the tip of the iceberg.
Because of the uncertainty of the law oninnocent dissemination, and the scale of potential risk, it
is likely that far more Internet libel cases have been settledout of court or by apology, than have
ever even made it to the stage of serving a writ34. This artificial hiatus will nothowever last
forever, especially as commercial enterprise on the Web becomes more prevalent. In the US,
anartificial has been applied to Internet libel cases by the introduction of the Communications
Decency Act 1996 (CDA),which provided criminal sanctions for Internet operators who
published offensive material on the net, but also granted(in s 230(c)) immunities from liability to
ISPs who publish objectionable material. In Zeran v America Online Inc.35,
17. 17. the Eastern Virginia District Court found that the existence of the CDA pre-empted the right
of the court to hear anaction for libel and failure to remove a offending statement brought against
America Online. Imposition of commonlaw liability on AOL would have frustrated the objective
of s 230(c), which was to encourage ISPs to put in placemonitoring and blocking controls so as to
restrict circulation on the Internet of offensive material. Accordingly theaction was struck out.
Although the CDA has been partially struck down36 as in breach of the constitutional right
offreedom of speech, the provision referred to in Zeran remains in force and has been upheld in
subsequent libellitigation37.In the UK there are signs that Internet libel is not only becoming
more prominent, but that the risk of suit isbeing spread even wider than the original author and
 the ISP or host site. In July 1997, we have seen notonly the Western Provident case already
discussed, but also the Jimmy Hill case. This concerned a Web siteknown as the "Tartan Army"
which posted information about the Scotland football team, and was sponsoredby the brewers
Scottish Courage38. The site contained a forum where fans could directly post their viewsabout
"the beautiful game". Unfortunately one of the main topics of discussion was Jimmy Hill, the
sportsbroadcaster, and various obscene, rude and defamatory comments and jokes were posted
about him in a variety oflanguages. The most interesting point about the case, perhaps is that Mr
Hill chose not to sue the Web site ownersthemselves, nor their ISP, but instead Scottish Courage,
the sponsor.39 This is a worrying precedent for othersponsors and advertisers on the Web, who
have next to no control over what is displayed in proximity to their name,and might seriously
impede commercial exploitation of the Web.So what steps can be taken to reduce the risks to ISPs
and other parties of being sued for Internet libel? As we havediscussed above, national legislation
such as the Defamation Act 1996 is of little use when attempting to regulate,and provide defences
in respect of, transnational Internet libel. Self help solutions are possible, such as theimposition
by contract of an indemnity against possible legal liability arising out of the acts of any person
whosubscribes to an ISP. Such "shrink wrap clauses in cyberspace"40 are however of limited
utility: first, they will besubject (whatever the proper law of the contract is) to mandatory
consumer protection rules such as the UK UnfairContract Terms Act 1977 and the EC Directive
on Unfair Terms in Consumer Contracts; secondly, they are likely tomake informed consumers
simply turn to another ISP in what is an increasingly competitive market for Internetservices41;
thirdly, and most importantly they will not provide relief where an ISP is sued in respect of a
defamatorystatement made by a non-subscriber but published by the ISP.Most legal (as opposed
to "net lawyer") commentators accept that in this field, as in others such as breach ofcopyright,
trademark infringement, obscenity and pornography on the net, single nation legislative strategies
arepointless and that the way forward is by multilateral agreement leading to an international
convention42. Certainly aninternational agreement on defences of innocent dissemination would
be of use both to ISPs and to individuals, aswould an agreement to harmonise or clarify the rules
of international private law in relation to transnational torts. Thecrucial question, however, is
whether there is sufficient political imperative to push such an international agreementinto being.
Not only do such agreements require abandonment of national sovereignty on matters of acute
localinterest such as definitions of obscenity, but there is increasing agreement in the computer
industry and amongpoliticians and businessmen that over-regulation of the Internet at this early
stage of its commercial developmentmay be harmful. Furthermore external regulation runs
counter to the deep-rooted anti-regulatory culture of"traditional" Internet users and may prove to
be unenforceable43.An alternative approach is international co-operation on voluntary or self-
regulatory approaches to control ofoffensive material. Following the downfall of the CDA, it
appears that the US government is leaning towards a regimeof industry and private sector
regulation in relation to harmful content, rather than state regulation which runs the risk
18. 18. of being embarrassingly felled as in breach of constitutional rights and freedoms44. A similar
development can beperceived in Europe, in the Green Paper recently released by the European
Commission on illegal and harmfulcontent on the Internet45. As the European Commission
recognises therein, defamatory material on the Internet isjust one small part of a wider problem,
which is how to control the spread of material on the Internet whose content iseither harmful or
actively illegal - for example, material (pictures as well as text) which is criminally
 obscene,blasphemous, liable to incite racial hatred, illegally copied or altered in breach of
intellectual property rights, etc. Thesolution tentatively espoused in principle by the EC to this
deluge of unwanted material is self-regulation by Internetcontent providers in the form inter alia
of voluntary subjection to a ratings scheme. One such scheme is PICS(Platform for Internet
Content Selection) which was launched in May 1996 by the WWW Consortium and provides
ascheme of so-called "neutral labelling" rather like that used to describe films in TV magazines.
The idea is that ratherthan imposing censure or censorship on Internet service providers from
without, consumersmay themselves recognise and screen out content that offends them. A Web
site, for example, may label itself usingPICS "tags", as containing adult content, bad language
and nudity. This will of course instantly up its hit rate! But itwill also allow parents to tag it as
"not to be accessed at any cost" by their children. Although such ratings schemesmay conceivably
be a partial answer to the problem of pornography on the Internet, it has to be said they can do
littleto reduce the risk of - and liability for - on-line defamation - which almost by definition may
occur where you leastexpect it. However there does seem to be a common appreciation
discernible in the recent pronouncements of theClinton administration and the EU that making
ISPs liable for harmful content outwith their control is unfruitful. TheBonn Declaration of 8 July
1997 puts it this way: "…third party content hosting services should not be expected toexercise
prior control on content which they have no reason to believe is illegal"46. Given the political
will behind thissentiment, it would not be surprising if before long we may see an international
solution at least to the problem ofservice provider liability for Internet libel, if not a cessation of
the phenomenon itself. That awaits a sea-change ineither human nature or Internet culture, neither
of which seem alterable by legislative will alone.http://www-cs-
faculty.stanford.edu/~eroberts/cs181/projects/defamation-and-the-
internet/sections/precedent/cases.htmlInternet Libel for Bloggers and Online WritersBYATTY.
FRED– SEPTEMBER 23, 2010POSTED IN: INTERNET & TECHNOLOGY0diggDoes the law
on libel cover the internet? This issue persists because there are varied opinions and there’s
nodefinitive ruling made by the Supreme Court. None yet, anyway, because the Supreme Court
can only decide casesthat reach its doors. Until that day comes, let’s continue the lively
discussion on internet libel.We’ve touched this subject in a previous post (see Libel for Bloggers:
Liability Arising from Blog Comments).The post primarily relates to comments on a blog and
assumes the existence of internet libel. The pointsmade by community members, however, refer
to the primordial question on whether libel covers theinternet. It’s only fair that we have a
separate post to have a more focused discussion.At this point, let me thank those who argued well
and bravely to defend their point of view. Some of theprevious discussions are incorporated in
this post. The purpose is to bring these points to the
19. 19. “marketplace of ideas”. Attack the issues, not the author of the comments. Any unsound
argumentshould wither from the barrage of more logical ones. Everyone is encouraged to raise a
point or fact-check the arguments. Let’s proceed.What is libel?Libel is covered by the Revised
Penal Code and defined in Article 353 as “a public and malicious imputationof a crime, or of a
vice or defect, real or imaginary, or any act or omission, condition, status, orcircumstance tending
to cause the dishonor, discredit, or contempt of a natural or juridical person or toblacken the
memory of one who is dead.”Let us be clear that there’s no separate crime known as “internet
libel” or “e-libel”. These terms areused for convenience, to refer to libel relating to the
internet.Why is there no internet libel?The argument supporting the non-existence of internet libel
 makes a lot of sense. The internet emergedduring the last quarter of the 20th century, while blogs
started much later. The term “blog”, coined byPeter Merholz (peterme.com) in 1999, is a
shortened version of “weblog”, a term coined in 1997 by JornBarger (source: TheHuffington Post
Guide to Blogging [2008]).The Revised Penal Code was approved on 8 December 1930 and came
into effect on 1 January 1932. It isa basic principle that criminal laws are strictly construed in
favor of the accused. It is also a basicprinciple that you cannot punish what is not prohibited. It’s
impossible for the drafters of the RevisedPenal Code to have remotely imagined blogs and the
internet in general. Ergo, internet libel is beyondthe scope of the Revised Penal Code, including
its provisions on libel. However, we will show that this isnot necessarily correct.Publication as an
element of libelFor a person to be liable for libel, the following elements must be shown to exist:
(1) the allegation of adiscreditable act or condition concerning another; (2) publication of the
charge; (3) identity of theperson defamed; and (4) existence of malice.“Publication,” which is one
of the requisites, is defined as the “communication of the defamatory matterto some third person
or persons.”The element is publication. Hot the material is “published” determines the
exactclassification. Defamation, which includes slander and libel, means injuring a person’s
character, fame orreputation through false and malicious statements. Oral defamation is called
slander. Libel, on the otherhand, is defamation committed by “means of writing, printing,
lithography, engraving, radio,phonograph, painting or theatrical or cinematographic exhibition, or
any similar means.”It could be argued that blogs and the internet are not included in the initial
enumeration — “writing,printing, lithography, engraving, radio, phonograph, painting or
theatrical or cinematographicexhibition.” There is, however, a catch-all phrase — “or any similar
means.”
20. 20. The television is not expressly included in the enumeration, but defamatory statements made
on TV isstill libel. While the earlier forms of TV already existed prior to the 1930′s, the time the
Revised PenalCode took effect, the blog/internet is definitely a means of communication and
publication. Blog postsare in writing. It could be subsumed in “any similar means.”Besides, even
the radio, and theatrical and cinematographic exhibitions have spilled over to theinternet. You can
now listen to radio or watch TV, live, through the internet. Any libelouspronouncements is not
diminished by that fact.In a recent case (Bonifacio vs. RTC of Makati, Br. 149, G.R. No. 184800,
5 May 2010), the Supreme Courtdealt with internet libel. The SC noted, in relation to the rules on
where libel may be filed:The same measure cannot be reasonably expected when it pertains to
defamatory material appearingon a website on the internet as there would be no way of
determining the situs of its printing and firstpublication.The case, as pointed out by Atty. Janjan
Perez below, does not categorically deal on the issue onwhether internet libel exists. The SC
quashed the information because the case for internet libel wasfiled in the wrong venue, which, in
criminal cases, means the court has no jurisdiction. While we couldconclude that it’s a tacit
acknowledgment of the existence of internet libel, this issue is not the ratio ofthe case.Blogs and
other internet publicationsWikipedia defines a blog is “a website, usually maintained by an
individual, with regular entries ofcommentary, descriptions of events, or other material such as
graphics orvideo.” Technorati distinguishes a website from a blog in this manner: “A weblog is a
website that is updatedfrequently, most often displaying its material in journal-like chronological
dated entries or posts. Mostblogs allow readers to post comments to your the post, and link from
their blog to your posts using thepermalink URL or address. In a blog, the content can be
published and syndicated separate from theformatting using an RSS feed. Readers can then
 subscribe to the feed to automatically receive updates.”The definition cited by the Supreme Court
is that appearing in wikipedia (visited 24 March 2010):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. Entries are commonly displayed inreverse-chronological order
and many blogs provide commentary or news on a particular subject.An interesting argument was
advanced by Goimon, who said that “blogs are online diaries”. Diaries aremeant to be private, not
to be read by anyone other than the author. If we extend this statement, with adiary there is no
intent to communicate the contents to a third person. There is, therefore, nopublication. There is
no libel without publication.It’s true that a blog is sometimes called an online diary. In certain
respects this is correct. A blog couldserve as a platform to record daily events, presented in a
chronological manner, just like a diary. But the
21. 21. similarities don’t go far from there. Every blogger, even a newbie, knows that before a blog
entry isposted and seen by others, the author presses a button which is labeled “publish” or
something similar.If the author intends the online diary as private, then he/she should fix the
settings accordingly so noone else can read it. Otherwise, it’s very much public in character.A
blog cannot be boxed as an online private diary. Traditional newspapers, for instance, now use
blogsas a tool for reporting. Individuals have blogs to share their thoughts. These are not “diaries”
in thetraditional sense. Perhaps one of the reasons why there’s an explosion of blogs is the fact
that it’s a veryconvenient way of sharing one’s thoughts. Blogs are meant to be read, which is
why one of thedistinguishing features of blogs is the comment section, where others are expected
to post comments(although this feature is turned off in some blogs).The power, and curse, of the
internetThe internet has been labeled as a tool of democratization. A single person can take on a
hugeinstitution which just a computer, an internet connection, and a cause (or even without a
cause). Theinternet provides instantaneous and worldwide exposure to one’s ideas and works. But
freedom is notabsolute. It has its limitations. Libel is one of those limitations.Related
Posts:Anatomy of an Internet Libel CaseLibel for Bloggers: Liability Arising from Blog
Comments“Jollibee scandal” video: Libel?Decriminalize libel?Internet Sources and Legal Blogs
in Court Decisionshttp://attyatwork.com/internet-libel-for-bloggers-and-online-
writers/http://www.reputationhelper.com/defamation-and-anonymity-
online/http://attyatwork.com/sc-issues-guidelines-for-omposition-of-libel-penalties/Whereas in
the case of Ramon vs CA provides that when the imputation is defamatory, as in this case,
theprosecution need not prove malice on the part of the defendant (malice in fact), for the law
already presumes that thedefendant’s imputation is malicious (malice in law). The burden is on
the side of the defendant to show goodintention and justifiable motive in order to overcome the
legal inference of malice.While the court provides in Lacsa v. Intermediate Appellate Court, 161
SCRA 427 citing U.S. v. OConnell, 37Phil. 767, “words calculated to induce suspicion are
sometimes more effective to destroy reputation than falsecharges directly made. Ironical and
metaphorical language is a favored vehicle for slander. A charge is sufficient ifthe words are
calculated to induce the hearers to suppose and understand that the person or persons against
whom
22. 22. they were uttered were guilty of certain offenses, or are sufficient to impeach their honesty,
virtue, or reputation, or tohold the person or persons up to public ridicule. . . . ”In a case decided
by the High Court of Australia involving defamation committed through the internet, it ruled
that:“The appellant’s submission that publication occurs, or should henceforth be held to occur
 relevantly at one place,the place where the matter is provided, or first published, cannot withstand
any reasonable test of certainty andfairness. If it were accepted, publishers would be free to
manipulate the uploading and location of data so as toinsulate themselves from liability in
Australia, or elsewhere: for example, by using a web server in a “defamation freejurisdiction” or,
one in which the defamation laws are tilted decidedly towards defendants.”Correlation of internet
with libelThe world moves on a fast paced environment whereby several tools, machines, systems
or methods of organizationwere inexistent in the past but are now readily available for use. One
of the greatest discoveries and innovation iswhat we call the Internet. It is defined as a network of
interlinked computer networking worldwide, which is accessibleto the general public. People
from the remotest parts of the globe are now able to connect to the rest of the world, dotrade and
update themselves with what is happening in other parts of the world. The internet has positively
andnegatively influenced all facets of life hence attesting to the importance of this media of
relaying information. Butwhile the internet is becoming one of the most efficient mode of
communication, it posses certain risks to users suchas internet scams, exploitation by
unscrupulous individuals and the most common nowadays is libel in the internet. The law is clear
and unambiguous in pointing out on how libel can be committed, to wit: “A libel committedby
means of writing, printing, lithography engraving, radio, phonograph, painting, theatrical
exhibition,cinematographic exhibition, or any similar means….” It is true that internet is not
specified in the said provisionhowever it can be presented in the catch-all phrase under “xxx or
any other similar means xxx.”Glimpse of its historyIt is interesting to know the comparison of the
history involving the creation of The Revised Penal Code and theInternet which could give a
patent idea vis-à-vis to the intention of the framers. The former was created in 1930 whilethe
latter was in 1960. Surely, the framers wasn’t able to foretell the creation and discovery of the
internet but it canbe clearly determined that the provision does not limit it to the list or types of
the approach specified. This can beascertained by the presence of “xxx or any other similar means
xxx” which tends to expand rather than constrict itsjurisdiction.Elements of LibelIn view of all
the elements of libel, the attendance of any of those four (4) elements may be sufficient to hold
anyperson who performs any act constituted in any of the following manner provided for under
Article 355 of the RevisedPenal Code in relation to Article 353 of the same article and
communicates the same to at least a third party whomay identify the person of whom the libellous
article injures may be held liable for the crime of libel. In relation to U.S. vs. Sotto and Kunkle
vs. Cablenews-American, if through the publication in different partsof the libellous articles the
entirety of the material produces the effect of being identifiable at least to a third person,the third
element for identification is complied with. The identification however must not be to a group or
class exceptwhen the statement is so sweeping or all-embracing as to apply to every individual in
that group or class.It was held in one Supreme Court decision that defamatory words having been
made in a television program wasconsidered to be libel as contemplated by Article 355 of the
Revised Penal Code. While the medium of television isnot expressly mentioned among the means
specified in the law, it easily qualifies under the general provision “or anyother similar means.”
The libel must be given publicity, circulated or publicized. Postings in a forum, messageboard or
blog can certainly be considered as publication.
23. 23. On the other hand, to satisfy the element of identifiability, it must be shown that at least a
third person or astranger was able to identify him as the object of the defamatory statement. In the
case of Corpus vs. Cuaderno, Sr.(16 SCRA 807) the Supreme Court ruled that “in order to
maintain a libel suit, it is essential that the victim beidentifiable although it is not necessary that
he be named”.Legal BasisIt’s legal basis is that anything on Facebook is in writing and it is online
therefore it’s “public”. If the shoutout andother statements on Facebook is a malicious imputation
then it will cause “dishonor”. If the subject of theimputation is named then it is ”specific”. If the
statement stays for a while and not removed even the attention of thedoer is called “repetitive”.
The current trends of high technology, such as internet mails, chats, web posts and blogposts, fax
machines, text messages or short messaging through cellular phones may be referred to as
“similarmeans” of writing because they contain letters. Since on-line is considered to be written
material, on-line defamationis considered to be libel. ConclusionWhile it is true that the Supreme
Court has no established jurisdiction to the said matter, this case will be given itsdue course in the
long run. Internet has become a means of communication and may be considered
publicationwhich can be used as evidence in the crime of libel against its author. There is an
increase of defamation cases withthe use of social media sites such as Facebook, Tweeter,
Friendster and Multiply as a medium. Such is the speed atwhich information travels through
social networks that one unchecked comment can spread into the mainstreammedia within
minutes, which can cause irreparable damage to the subject who has been wronged. To rule
otherwisewould allow unscrupulous individuals to abuse others resulting to mental anguish,
serious anxiety, besmirchedreputation, wounded feelings, moral shock and social humiliation.
The internet has been labeled as a tool of democratization. The internet provides instantaneous
andworldwide exposure to one’s ideas and works. But freedom is not absolute. It has its
limitations. Libel is one of thoselimitations.