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THE SOCIAL MEDIA AND THE

ACADEMIC COMMUNITY:
A LEGAL PERSPECTIVE
DEFINITION OF SOCIAL MEDIA:

The “social” part: refers to interacting with other people by sharing


information with them and receiving information from them.
The “media” part: refers to an instrument of communication, like the
internet. TV, radio, TV and newspapers are traditional forms of media.

Social Media--- web-based communication tools that enable people to


interact with each other by both sharing and consuming information.
EXAMPLES OF SOCIAL MEDIA:

Facebook
Twitter
Instagram
Snapshots
CYBERSPACE:

Access virtual libraries and encyclopedias


Post billboard-like notices or messages, including pictures
and videos
Advertise and promote goods and make purchases and
payments
Inquire and do business with institutional entities
Communicate in writing or by voice with any person through
email address or telephone
CYBERSPACE:
But the system has no means to filter out a number of persons of ill
will who would want to use cyberspace technology for mischiefs and
crimes:
 ruin the reputation of another
 bully another by posting defamatory statements
theft by hacking into back accounts or credit card
defrauding through false representations
trafficking in sex
exposing to pornography guileless children
GOVERNMENT’S RESPONSE:

CYBERCRIME PREVENTION ACT OF 2012


(R.A. 10175; enacted on Sept. 12, 2012)

The cybercrime law aims to regular access


to and use of the cyberspace and imposes
penalties for violations.
PUNISHABLE ACTS:

A) Offenses Against Confidentiality, Integrity and Availability of


Computer Data and Systems:

1. Illegal Access
2. Illegal Interception
3. Data Interference
4. System Interference
5. Misuse of Devises
6. Cyber-squatting
PUNISHABLE ACTS:

B) Computer-related Offenses:
1. Computer-related Forgery
2. Computer-related Fraud
3. Computer-related Identity Theft
PUNISHABLE ACTS:

C) Content-related Offenses:

1. Cyber Sex
2. Child Pornography (R.A. 9775, Anti-child Pornography
Act of 2009)
3. Unsolicited Commercial Communications
4. Libel
PUNISHABLE ACTS:

Other Offenses:

a) Aiding or Abetting in the Commission of Cybercrime


b) Attempt in the Commission of Cybercrime
ONLINE LIBEL:

The world’s first-known libel case on Facebook


was filed in Europe in July 2008, by British
businessman Matthew Firsht against his former
school friend, Grant Raphael who alleged the
former as a gay. Firsht won and awarded
damages for the libel case and breach of
privacy.
ONLINE LIBEL:

In the Philippines, the first libel case on Facebook


was filed by celebrity cosmetic surgeon–Dr. Vicky
Belo against writer-lawyer-activist Atty. Argee
Guevarra who imputed on Belo as the “Reyna ng
Kaplastikan, Reyna ng Kapalpakan” referring to
the alleged malpractice of the Belo clinics. (Note: The
case was dismissed after the judge trying the case ruled
that there was no libel on the internet yet. However, several
similar cases have been pending in several courts
nationwide.)
Also in the news were the controversial shout-
outs of Film Director and Actress Gina Alajar
on her Facebook making some negative
comments against young starlet–Krista Ranillo
over the alleged affair of the young star with
boxing icon Manny Pacquiao. Read in one of
the shout-outs of Alajar’s account: “If I am
Jinkee Pacquiao, I will not give up Manny.
“Krista Ranillo is not at all worth it!”
REASON WHY DEFAMATION IS PUNISHED

The enjoyment of a private reputation is as much a


constitutional right as the possession of life, liberty or property.
It is one of those rights necessary to human society that
underlie the whole scheme of civilization. The law recognizes
the value of such reputation and imposes upon him who
attacks it, by slanderous words or libelous publication, the
liability to make full compensation for the damages done.
(Worcester vs. Ocampo, 22 Phil. 42)
ONLINE LIBEL:

LIBEL– THE UNLAWFUL OR PROHIBITED ACTS


OF LIBEL AS DEFINED IN ARTICLE 355 OF THE
REVISED PENAL CODE, AS AMENDED,
THROUGH A COMPUTER SYSTEM OR ANY
OTHER SIMILAR MEANS WHICH MAY BE
DEVISED IN THE FUTURE [Section 4(c)(4), R.A.
10175].
ART. 355. LIBEL MEANS BY WRITINGS OR
SIMILAR MEANS. —

A libel committed by means of writing, printing,


lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or any
similar means, shall be punished by prision correccional
in its minimum and medium periods (6 months and 1 day
to 4 years and 2months) or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which
may be brought by the offended party.
Art. 353. Definition of libel. — A libel is public and
malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one
who is dead.
ELEMENTS OF LIBEL:
1. That there must be an imputation of a crime, or of a vice, or defect, real or
imaginary, or any act, omission, condition, status or circumstances.
Examples:
Imputation of a criminal act- bigamist, thief, influence peddler
Imputation of a vice or act- lascivious and immoral habits
Imputation of an act or omission- did not pay the dentist
Imputation of condition, status or circumstances- bastard, leper, coward, vile soul,
dirty-sucker, savage, hog who always look towards the ground, mangkukulam.
Note:
Imputation of criminal intention is not libelous
Expression of an opinion is not libelous
WHAT THE WRITER MEANT IS IMMATERIAL

It is not the intention of the writer or speaker or the


understanding of the reader or hearer by which the
actionable quality of the words is to be determined, but the
meaning of the words in fact conveyed on the minds of
persons of reasonable understanding, discretion and
candor, taking into consideration the surrounding
circumstances which were known to the hearer or reader
(People vs. Encarnacion, CA 48 ).G 1817)
ELEMENTS OF LIBEL:
2. That the imputation must be made publicly.

Publication is the communication of defamatory matter to some third


person or persons (People vs. Atencio, CA-GR Nos 11351-R to 11353-
R).
-- There is publication of defamatory letter not shown to be sealed
when sent to the addressee.
---- The communication of a libelous matter to the person defamed
alone does not amount to publication, for that cannot injure his
reputation. A man’s reputation is the estimate in which others hold
him; not the good opinion which he has of himself (People vs. Atencio)
ELEMENTS OF LIBEL:
3. That it must be malicious.

MALICE IN LAW– is presumed from a defamatory imputation.


Proof of malice is not required, because it is presumed to exist
from the defamatory imputation (Art. 354, 1ST Paragraph, Revised
Penal Code).
MALICE IN FACT-- may be shown by proof of ill will, hatred, or
purpose to injure.
Art. 354. Requirement for publicity. — Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the


performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not
of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise
of their functions.
The presumption of malice is rebutted if it is shown that:
1. the defamatory imputation is true;
2. it is published with good intention; and
3. there is justifiable motive for making it.
Example:
A person telling his brother that an applicant for security guard in the latter’s
store is a thief, who was previously convicted of theft.
Malice is not presumed in the following privileged communications:

1. A private communication made by any person to another in the


performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not
of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise
of their functions.

The prosecution must prove malice in fact to convict the accused on charge
of libel involving privileged communications.
Performance of legal duty– Administrator of the estate of a deceased
person filing a written objection to a certain claim of a person, in which
written objection the administrator made some statements which reflected
upon the virtue, honor and reputation of the claimant.
Performance of a moral duty– Complaint made in good faith agaist a priest
to his ecclesiastical superior for alleged drunkenness, taking indecent
liberties of women.
Performance of a social duty– Complaint made in good faith against a
teacher addressed to the principal of the school.
Difference Between Libeling a Public Official and Libeling a Private
Individual?

For libel to hold water in case of public officials or figures, the Court said the
“higher standard of actual malice” must be satisfied to attain conviction.
The burden lies with the offended party or the prosecution. “Society’s
interest and the maintenance of good governance demand full
discussion of public affairs.”
On the other hand, when the offended party is a private individual, malice is
presumed in the offending article, with the burden of showing otherwise being
on the accused.
ELEMENTS OF LIBEL:
4. That the imputation must be directed at a natural or
juridical person, or one who is dead;

-- Identification of the offended party is required


-- Defamation directed at a group of persons is not actionable, unless
the statements are all-embracing or sufficiently specific for the victim to
be identifiable
ELEMENTS OF LIBEL:

5. That the imputation must tend to cause dishonor,


discredit or contempt upon the offended party.
WHO ARE CRIMINALLY RESPONSIBLE FOR
LIBEL?

1. The person who publishes, exhibits or causes


the publication or exhibition of any defamation in
writing or similar means.
2. The author or editor of a book or pamphlet.
3. The editor or business manager of a daily
newspaper magazine or serial publication (Art.
360, RPC).
DISINI VS SECRETARY OF JUSTICE
(G.R. NO. 203335, FEB. 11, 2014)

Petitioners challenged the constitutionality of the


Cybercrime Prevention Act of 2012:
1. Freedom of speech and expression
2. Freedom of the press
3. Right to due process
4. Right to privacy and correspondence
5. Legality of Libel
6. Vagueness and ambiguity of certain provisions
WOMAN FROM CEBU: FIRST TO BE CHARGED WITH ONLINE LIBEL
UNDER CYBERCRIME LAW
POSTED ON SEPTEMBER 20, 2014 BY FRANCESCA N

CEBU, Philippines – A woman from Cebu who


allegedly maligned a single mother in a social
networking site was the first person to be
charged before the Cebu City Regional Trial
Court (RTC) for violating Republic Act (RA) No.
10175 otherwise known as the Cybercrime
Prevention Act of 2012.
SUNSTAR:
Atara (not her real name) was indicted by the Cebu City Prosecutor’s
Office after it found probable cause that she committed libel in relation
to RA 10175.
Bail was set at Php 20,000 for Atara who posted libelous messages
against a certain Vangie in the latter’s Facebook account. The
accused also called Vangie names like “cheap.”
When Atara threatened Vangie that she will post the libelous
statements on Facebook, Vangie deactivated her account. But Atara
continued to malign Vangie.
When Vangie reactivated her Facebook account, she then was able to
read the accused’s accusations against her.
LIBELOUS WORDS
According to Vangie, Atara posted the following statements
against her: “This the counterfeiter, forger and a thief. A lot of
cases will be coming out soon from Cebu. Beware of this
woman!”
Vangie then took pictures of the messages and included them
in her complaint.
“(She) clearly does not have any purpose in doing the acts I am
complaining of against her except to malign my name, my
person, and my business standing,” said Vangie.
The High Court in the case of Disini Jr. et al. vs. The
Secretary of Justice upheld the Internet libel provision
but limited it to the author of the libelous statement and
clarified that only authors of libelous materials are
covered by the Cybercrime Law and not those who
merely received or reacted to it.
The Supreme Court said that the new law “merely
incorporates” what had been stated in the Revised
Penal Code.
The Supreme Court also upheld the constitutionality of an
increased penalty for online libel, specifically, one degree
higher than for printed or 'paper' libel.
1. A person convicted of online libel shall be imposed a penalty
of imprisonment ranging from SIX YEARS ONE DAY TO 10
YEARS (N.B. Printed libel has a penalty of 6 months and 1day
to 4 years and 2 months or a fine ranging from 200 to 6,000
pesos, or both
2.He CANNOT apply for probation.
3. The prescriptive period for the offense increased to 10
years.
Article 90 of RPC- The crime of libel or other similar offenses
prescribe in one year.
SUPREME COURT
ADMINISTRATIVE CIRCULAR NO. 08-2008:
GUIDELINES IN THE OBSERVANCE OF A RULE OF
PREFERENCE IN THE IMPOSITION OF PENALTIES IN
LIBEL CASES.

In this Circular, penalty of Fine is preferred.

Q: Does it apply to online libel?


A: No.
REASON FOR A HIGHER PENALTY FOR
ONLINE LIBEL:

According to the Supreme Court, there exists a


substantial distinction between crimes committed
through the use of information and communications
technology and similar crimes committed using other
means. In cybercrime, the offender often evades
identification and is able to reach far more
victims or cause greater harm. The distinction
creates a basis for higher penalties for cybercrimes.
DISINI JR. ET AL. VS. THE SECRETARY OF JUSTICE

1. One day, Maria posts on her internet account the statement


that a Juan, a married public official has an illicit affair with a
movie star.
2. Linda, one of Maria’s friends who sees this post, comments
online, "Yes, this is so true! They are so immoral." Maria’s
original post is then multiplied by her friends and the latter’s
friends, and down the line to friends of friends almost ad
infinitum.
3. Nena, who is a stranger to both Maria and Linda, comes
across this blog, finds it interesting and so shares the link to
this apparently defamatory blog on her Twitter account.
Nena’s "Followers" then "Retweet" the link to that blog site.
DISINI JR. ET AL. VS. THE SECRETARY OF JUSTICE

4. Pamela, a Twitter user, stumbles upon a random


person’s "Retweet" of Nena’s original tweet and
posts this on her Facebook account. Immediately,
Pamela’s Facebook Friends start Liking and making
Comments on the assailed posting. A lot of them
even press the Share button, resulting in the further
spread of the original posting into tens, hundreds,
thousands, and greater postings.
DISINI JR. ET AL. VS. THE SECRETARY OF JUSTICE

The question is: Are online postings such


as "Liking" an openly defamatory
statement, "Commenting" on it, or
"Sharing" it with others, to be regarded
as "aiding or abetting?"
DISINI JR. ET AL. VS. THE SECRETARY OF JUSTICE

In libel in the physical world, if Nestor places on the


office bulletin board a small poster that says, "Armand
is a thief!," he could certainly be charged with libel.
If Roger, seeing the poster, writes on it, "I like this!,"
that could not be libel since he did not author the
poster.
If Arthur, passing by and noticing the poster, writes on
it, "Correct!," would that be libel? No, for he merely
expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear
if aiding or abetting libel in the physical world is a
crime.
DISINI JR. ET AL. VS. THE SECRETARY OF JUSTICE

But suppose Nestor posts the blog, "Armand


is a thief!" on a social networking site. Would
a reader and his Friends or Followers,
availing themselves of any of the "Like,"
"Comment," and "Share" reactions, be guilty
of aiding or abetting libel?
SECTION 5 . OTHER OFFENSES
(a) Aiding or abetting in the commission of cybercrime---
Any person who willfully abets or aids in the commission of
any of the offenses enumerated in this Act shall be held
liable.
The Supreme Court has declared this provision as null and
void as it “encroaches on freedom of speech” for it
“generates a chilling effect on those who express
themselves through cyberspace posts, comments and other
messages.”
DISINI JR. ET AL. VS. THE SECRETARY OF JUSTICE

Except for the original author of the assailed


statement, the rest (those who pressed Like,
Comment and Share) are essentially knee-jerk
sentiments of readers who may think little or
haphazardly of their response to the original posting.
Will they be liable for aiding or abetting? And,
considering the inherent impossibility of joining
hundreds or thousands of responding "Friends" or
"Followers" in the criminal charge to be filed in court,
who will make a choice as to who should go to jail for
the outbreak of the challenged posting?
DISINI JR. ET AL. VS. THE SECRETARY OF JUSTICE

However, if the "Comment" does not merely react to the


original posting but creates an “altogether new
defamatory story” against Armand like "He beats his
wife and children," then that should be considered an
“original posting” published on the internet. Both the
penal code and the cybercrime law clearly punish
authors of defamatory publications.
WHO ARE LIABLE FOR ONLINE LIBLE?

The Supreme Court held that only the author


of the offending online article is liable.

Internet service providers and content


providers like Globe, Smart, Sun Cellular,
Google, Facebook, Twitter and Internet Café
are not liable.
DISINI JR. ET AL. VS. THE SECRETARY OF JUSTICE

General Rule: No Violation of the Right Against


Double Jeopardy.

Sec. 7. Liability under Other Laws. — A prosecution


under this Act shall be without prejudice to any
liability for violation of any provision of the Revised
Penal Code, as amended, or special laws.
DISINI JR. ET AL. VS. THE SECRETARY OF JUSTICE

Exception: Online Libel.

There should be no question that if the published material


on print, said to be libelous, is again posted online or vice
versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article
353 of the Revised Penal Code and the other a violation of
Section 4(c)(4) of R.A. 10175 involve essentially the same
elements and are in fact one and the same offense.
Charging the offender under both laws would be a blatant
violation of the proscription against double jeopardy.
THANK YOU!