By EVANGELINE DE VERA
MALAYA
MALAYA
A SIMPLE “Like” or “Share” of a Facebook post, or a “Retweet” in Twitter, of a libelous statement is already an expression of an opinion, and this constitutes a violation of the controversial anti-cybercrime law, the government’s chief lawyer said yesterday.
At the continuation of the oral arguments at the Supreme Court, Solicitor General Francis Jardeleza confirmed for the first time that a netizen may be held criminally liable for committing such seemingly innocuous acts, even if the original idea or post did not come from him.
On questioning by Associate Justice Roberto Abad, the member-in-charge of the consolidated case, Jardeleza argued that RA 10175 treats approval of a post punishable as cyber-libel as a similar crime. He insisted that a “Like,” being an approval of an opinion, can cause as much damage as actually directly saying the harmful words.
“Yes, defamation is defamation, whether we communicate through an instrument or a megaphone, letters, person to person, tweets, Facebook or e-mail. How about the person in a viral explosion, what do we do? Is reputation not of value anymore? So this is gonna remain a question. Things can go viral (in the internet), but what about reputation?” Jardeleza said.
The OSG’s admission is contrary to previous pronouncements from proponents of the law in Congress as well as the Department of Justice, which is conducting a review of the law, that online libel does not clearly extend to Internet postings.
Abad said the OSG’s admission about the law, unless clarified, sends a chilling effect for those who “like” opinions which they did not author in the first place.
“If ‘liking’ a post considered libelous is also libelous, then this law is bad. It can have chilling effect for those of us who like opinions, which we didn’t author in the first place,” the magistrate, who admitted to having his own Facebook account, said.
For his part, Senior Associate Justice Antonio Carpio told Jardeleza that the libel provision under Section 4(c) of the law is derived from Section 354 of the Revised Penal Code, which has already been declared unconstitutional by the Court in previous rulings.
Carpio noted that Article 354 on libel cannot stand the scrutiny of constitutionality. He further cited as example a policeman asking a telephone company for a person’s traffic data.
“What if a law provides for penalty and suppresses at the same time? What if a policeman asks PLDT for your traffic data, is that constitutional? If it happens to you, would you raise the defense of privacy?”
Jardeleza said the SC, under its rulings, has not yet ruled on traffic data, “(but) I will say that it’s constitutional. I can’t argue privacy because the data being sought from PLDT is external data, therefore, that is not covered by privacy.”
He further said that even the US Congress gave statutory right to the government seeking to acquire traffic data of private individuals, but this can only be exercised if there is due cause.
Carpio and Associate Justice Teresita Leonardo-de Castro pointed out that the law did not provide for the definition of “due cause” and as to who will determine it.
“Unfortunately that’s one of my misgivings with this law. It is constitutional but my right should better be protected,” the OSG said.
However, Jardeleza agreed with petitioners, as stated in the OSG’s comment previously filed at the high court, that Section 19 of RA 10175, referring to the takedown provision in the law, should be stricken down for being unconstitutional. This provision empowers the DOJ to block or restrict access to computer data, or order the closure of a site found to be violating the law after finding probable cause, even without a court warrant.
The state counsel said Sec. 19 “impermissibly intrudes into speech,” and striking it down for unconstitutionality would be “a victory… to all of us who cherish freedom of speech.”
At the end of the oral arguments, Chief Justice Maria Lourdes Sereno directed the OSG and the petitioners to submit their written memoranda stating their additional arguments, after which the case will be deemed submitted for resolution.
On the request of the petitioners to extend the 120-day temporary restraining order issued by the Court against the implementation of the law, Sereno said: “We will address that (TRO) in due time, we will come to it in a timely manner.” The TRO will lapse February 6.
Likewise, lawyer Harry Roque, who asked for the extension, was given until today to submit an amended petition.
Four magistrates were absent during yesterday’s hearing: Associate Justices Presbitero Velasco Jr., Arturo Brion, Jose Catral-Mendoza, and Estela Perlas-Bernabe. Velasco, who was originally designated member-in-charge of the case, inhibited.
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