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. 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. 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. 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. 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. 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, 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. 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. 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 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. 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. 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. 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. (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. 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. 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. 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. 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. 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. 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. “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 ).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. 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. 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. 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. 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.