Decriminalizing Philippine Libel Laws?

I made reference to the move to decriminalize Philippine libel laws in “¿Para qué estáis en el gobierno?” and Republic Act 10175: Cybercrime Prevention Act of 2012. I use this opportunity to articulate my thoughts on the matter more extensively.


I. Current Libel Provisions
    A. Libel Provisions under Revised Penal Code (Act 3815)
    B. Libel Provision under the Cybercrime Prevention Law (Republic Act 10175)
II. The Legislative Proposal (House Bill 6391 and Senate Bill 3244)
III. Decriminalization of libel
    A. “Crime”
    B. Effect of decriminalization of libel
IV. Should we decriminalize libel completely?
    A. Agreement with the move to remove imprisonment as penalty
    B. Fine as a deterrent
    C. Absudity of decriminalizing libel but maintaining criminalization of slander
V. Other matters under HB 6391 and SB 3244


I. Current Libel Provisions

A. Libel Provisions under Revised Penal Code (Act 3815)

Libel is defined under Articles 353 of the Revised Penal Code, [1] to wit:

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.

The requirement of publicity in the definition of libel is provided under Article 354 thereof, to wit:

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 specific acts punishable by law, relevant to libel are outlined under Articles 355 to 357 thereof:

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 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. 356. Threatening to publish and offer to present such publication for a compensation. — The penalty of arresto mayor or a fine from 200 to 2,000 pesos, or both, shall be imposed upon any person who threatens another to publish a libel concerning him or the parents, spouse, child, or other members of the family of the latter or upon anyone who shall offer to prevent the publication of such libel for a compensation or money consideration.

Art. 357. Prohibited publication of acts referred to in the course of official proceedings. — The penalty of arresto mayor or a fine of from 20 to 2,000 pesos, or both, shall be imposed upon any reporter, editor or manager or a newspaper, daily or magazine, who shall publish facts connected with the private life of another and offensive to the honor, virtue and reputation of said person, even though said publication be made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned.

Those persons liable in committing libel, and the exception to the exceptions on privilege communications, are outlined in Articles 360 and 362 of the Revised Penal Code, to wit:

Art. 360. Persons responsible. — Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.

The criminal and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the court of first instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila, or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published: Provided, further, That the civil action shall be filed in the same court where the criminal action is filed and vice versa: Provided, furthermore, That the court where the criminal action or civil action for damages is first filed, shall acquire jurisdiction to the exclusion of other courts: And, provided, finally, That this amendment shall not apply to cases of written defamations, the civil and/or criminal actions which have been filed in court at the time of the effectivity of this law.

Preliminary investigation of criminal action for written defamations as provided for in the chapter shall be conducted by the provincial or city fiscal of the province or city, or by the municipal court of the city or capital of the province where such action may be instituted in accordance with the provisions of this article.

No criminal action for defamation which consists in the imputation of a crime which cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed by the offended party. (As amended by R.A. 1289, approved June 15, 1955, R.A. 4363, approved June 19, 1965).

Art. 362. Libelous remarks. — Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.

The defense of truth is allowed, under conditions, under Article 361 thereof:

Article 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

B. Libel Provision under the Cybercrime Prevention Law (Republic Act 10175)

Libel is extended through the use of Information and Communication Technology under Section 4(c)(4) of Republic Act 10175:

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(c) Content-related Offenses:

(4)Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

Whether Internet Libel should be interpreted to be considered as a separate cybercrime, inasmuch as there is an absence of penalty for the same under Section 8 of RA 10175, Section 6 thereof may provide additional penalties, akin to an aggravating circumstance, to wit:

Section 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

II. The Legislative Proposal (House Bill 6391 and Senate Bill 3244)

Section 1 of HB 6391 [3] provides that “Title 13, Chapter 1, Crimes against honor – libel – Title 13, Crimes against honor – libel, of the Revised Penal Code, RA No. 3815 Book 2, from 353 to Article 357 and from Article 360 to 364 shall be amended as to declare that libel is no longer considered a crime.”

On the other hand, Section 1 of SB 3244 [4] provides that “Articles 353 to 357 and Articles 360 to 362 of Chapter I, Title XIII, Book II of Act No. 3815 or the Revised Penal Code are hereby repealed thereby decriminalizing libel.”

III. Decriminalization of libel

A. “Crime”

To determine how libel will no longer be considered to be a crime, we need to define crime first. According to Henry Campbell Black, M.A. [5] “Crime” is defined as:

CRIME. A crime is an act committed or omitted, in violation of a public law, either forbidding or commanding it; a breach or violation of some public right or duty due to a whole community, considered as a community in its social aggregate capacity, as distinguished from a civil injury. Wilkins vs. U.S., 96 Fed. 837, 37 C. C. A. 588; Pounder v. Ashe, 36 Neb. 564, 54 N. W. 847; State v. Bishop, 7 Conn. 185; In re Bergin, 31 Wis. 386; State v. Brazier, 37 Ohio St. 78; People v. Williams, 24 Mich. 163, 9 Am. Rep. 119; In re Clark, 9 Wend. (N. Y.) 212. “Crime” and “misdemeanor,” properly speaking are synonymous terms; though in common usage “crime” is made to denote such offenses as are of a deeper and more atrocious dye. 4 Bl. Comm. 5.

Crimes are those wrongs which the government notices as injurious to the public, and punishes in what is called a “criminal proceeding,” in its own name. 1 Bish. Crim. Law, § 43.

A crime may be defined to be an act done in violation of those duties which an individual owes to the community, and for hte breach of which the law has provided that the offender shall make satisfaction to the public. Bell.

A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexd upon conviction, either of the following punishments: (1) Death; (2) imprisonment; (3) fine; (4) removal from office; or (5) disqualification to hold and enjoy any office of honor, trust, or profit in this state. Pen. Code Cal. § 15.

A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence. Code Ga. 1882, § 4292.

B. Effect of decriminalization of libel

The Revised Penal Code is a criminal statute. In light of Section 1 of HB 6391, what would be necessary to decriminalize libel would not be an amendment but repeal of the provisions on libel in the Revised Penal Code, so as to remove libel within the ambit of criminal prosecution. In this regard, Section 1 of SB 3244 is more straightforward.

If libel would be decriminalized as a result of these bills, emphasis now would be on Article 26 of the New Civil Code of the Philippines (Republic Act 386), for causes to pursue civil liability against an actor of acts akin to libel. Article 26 of Republic Act 386 provides:

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another’s residence:

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.

IV. Should we decriminalize libel completely?

HB 6391 and SB 3244 goes beyond current articulations on the impropriety of imposing the punishment of imprisonment for acts constituting libel. They repeal criminal libel completely.

A. Agreement with the move to remove imprisonment as penalty

I am in conformity with the move to remove clauses to impose imprisonment as a penalty under Articles 355 to 357. [6] Although Administrative Circular 8-2008 [7] already has provided for the preference of fine over imprisonment in penalizing libel under the Revised Penal Code, removing the imprisonment clauses would be more in conformity with the United Nations Human Rights Committee’s (UNHRC) declarations in Communication 1815/2008 [8], adopted 26 October 2011, in relation to Article 19 of the International Covenant on Civil and Political Rights [9] in which the Philippine is a signatory, to wit:

State parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.

B. Fine as a deterrent

The amount of fines provided under the Revised Penal Code appear unrealistic, considering their 1930 valuations in relation to 2012 value, as sufficient deterrent. [10]

C. Absudity of decriminalizing libel but maintaining criminalization of slander

Parenthetically, also, I find it strange that Articles 358 and 359 are not being pursued to be decriminalized similarly, since they remain within the concept of defamation.

Articles 358 and 359 of the Revised Penal Code provide:

Art. 358. Slander. — Oral defamation shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period if it is of a serious and insulting nature; otherwise the penalty shall be arresto menor or a fine not exceeding 200 pesos.

Art. 359. Slander by deed. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period or a fine ranging from 200 to 1,000 pesos shall be imposed upon any person who shall perform any act not included and punished in this title, which shall cast dishonor, discredit or contempt upon another person. If said act is not of a serious nature, the penalty shall be arresto menor or a fine not exceeding 200 pesos.

It would be strange that a written defamation would be outside of the ambit of criminal proceedings, but uttered defamation would not be.

Nevertheless, I have reservations on the move to completely remove criminal libel from Philippine statutes, following the import of the declaration provided above, as there may be extraordinary situations where State intervention is necessary “(a) [f]or respect of the rights or reputations of others; (b) [f]or the protection of national security or of public order (ordre public), or of public health or morals.” [11]. The complete decriminalization of libel will leave the State without right or power to intervene in extraordinary cases as the State cannot interfere in civil cases between individuals.

When severe imputations, online and offline, disturb national security and public order, for example, what would be the proper remedy? Would complete decriminalization militate against, or be dereliction of, the prime duty of the Government under the first sentence of Section 4, Article II, of the 1987 Constitution that “[t]he prime duty of the Government is to serve and protect the people”?

Would the move to decriminalize under the present context of HB 6391 and SB 3244, on a degree, be reckless?

V. Other matters under HB 6391 and SB 3244

Sections 2 and 3 of HB 6391, and its identical counterpart in Sections 2 and 3 of SB 3244, provides for the requirements for self-policing of practitioners of mass communication, and the membership to professional organizations before these practitioners of mass communication can practice their profession.

Sections 2 and 3 of HB 6391 provide:

Section 2. Self-policing of practitioners of mass communication — In view of the decriminalization of libel there is need for practitioners of mass communication to impose upon themselves utmost discipline in the practice of their profession. Professional organizations shall prescribe ethical standards as well as rules and regulations in the practice of theiir profession. Penalties for their erring members shall also be prescribed. Professional organizations must be registered with the Security and Exchange Commission (SEC).

Section 3. Membership to professional organizations — Practitioners of mass communication must be members of registered professional organizations. No mass media practitioner can practice his/her profession unless he/she is a member of a registered professional organization.

Sections 2 and 3 of SB 3244 provide:

Section 2. In view of the decriminalization of libel there is need for practitioners of mass communication to impose upon themselves utmost discipline in the practice of their profession. Professional organizations shall prescribe ethical standards as well as rules and regulations in the practice of theiir profession. Penalties for their erring members shall also be prescribed. Professional organizations must be registered with the Security and Exchange Commission (SEC).

Section 3. Practitioners of mass communication must be members of registered professional organizations. No mass media practitioner can practice his/her profession unless he/she is a member of a registered professional organization.

Whoever these “practitioners of mass communication” pertain to, the law is unclear about it. Absent clearer information, it would be premature for me to discuss this at length, especially such which is pertinent to valid exercise of police power in relation to freedom of expression (which may not only be confined to the more specific freedom of the press).


Endnotes

[1] Act 3815 Supreme Court. http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/28/20428; LawPhil. http://www.lawphil.net/statutes/acts/act_3815_1930.html; ChanRobles. http://www.chanrobles.com/revisedpenalcodeofthephilippines.htm

[2] Republic Act 10175. Official Gazette. http://www.gov.ph/2012/09/12/republic-act-no-10175/; LawPhil. http://www.lawphil.net/statutes/repacts/ra2012/ra_10175_2012.html

[3] Philippine House of Representatives (15th Congress) http://www.congress.gov.ph/download/basic_15/HB06391.pdf

[4] Philippine Senate. http://www.senate.gov.ph/lisdata/1380011646!.pdf

[5] Black, Henry. “A Law Dictionary containg Definitions of the terms and phrases of American and English Jurisprudence, Ancient and Modern…” The Lawbook Exchange Ltd. 1995, p. 299. http://books.google.com.ph/books?id=PNQgVoT2_aQC. Accessed 4 October 2012.

[6] I have articulated some thoughts on this at my Republic Act 10175: Cybercrime Prevention Act of 2012 article.

[7] Administrative Circular 8-2008. LawPhil. http://www.lawphil.net/courts/supreme/ac/ac_8_2008.html.

[8] Communication No. 1815/2008. Views adopted by the Committee at its 103rd session, 17 October to 4 November 2011. Human Rights Committee. United Nations Internation Convention on Civil and Political Rights. http://www.mediadefence.org/sites/default/files/uploads/Comm%201815%202008_lo%20res.pdf

[9] International Covenant on Civil and Political Rights. Office of the United Nations High Commissioner for Human Rights. http://www2.ohchr.org/english/law/ccpr.htm

[10] This aspect can be a separate topic altogether. (1) See anecdotal account on value: Lamurin, Jenny. “A Miracle?: The Stray Dog and The White-man Stranger”. http://jynzly.hubpages.com/hub/jynzly_hubpages_The-Stray-Dog-and-The-Whiteman-Stranger; (2) See 2:1 peso:dollar parity in the 1930’s: Nagano, Yoshiko. “The Philippine currency system during the American colonial period: Transformation from the Gold exchange standard to the Dollar exchange standard”; and (3) See 12.92:1 US inflation ratio as per The Inflation Calculator.

[11] Article 19(3) of the International Covenant on Civil and Political Rights provides:

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.


Note: Content rearranged 20 November 2012.

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3 responses to “Decriminalizing Philippine Libel Laws?

  1. Pingback: “¿Para qué estáis en el gobierno?” | Berne Guerrero

  2. Pingback: 15 January 2013 | Berne Guerrero

  3. Pingback: Philippines: Supreme Court considers challenges to Cybercrime law « Inforrm's Blog

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