Disini v. Secretary of Justice (2014): Cybercrime Law and Online Libel

After RA 10175 was enacted in 2012, many groups and individuals filed petitions in the Supreme Court. They included lawyers, journalists, bloggers, students, legislators and civic groups. The Court consolidated their petitions with the lead case filed by Jose Jesus M. Disini, Jr. and others.

The petitioners said many parts of the law violated free speech, privacy, due process and the rule against double jeopardy. They also attacked the libel provisions of the Revised Penal Code, which the cybercrime law adopts. While the cases were pending, the Court stopped the government from implementing the law.

The main question was whether the challenged provisions of RA 10175 are constitutional. For ordinary users, the most important ones were:

• Section 4(c)(4), which punishes libel committed through a computer system;
• Section 5, which punishes aiding or abetting a cybercrime;
• Section 6, which raises the penalty by one degree for crimes committed through information and communications technology;
• Section 7, which allows prosecution under both RA 10175 and the Revised Penal Code; and
• Sections 12 and 19, on real-time collection of traffic data and on blocking access to computer data.

The Court decided each provision separately.

• The libel articles stay. The Court upheld Articles 353, 354, 361 and 362 of the Revised Penal Code. It listed the elements of libel: an allegation of a discreditable act or condition about another person, publication of the charge, identity of the person defamed, and malice.
• Malice and public figures. Under Article 354, malice is presumed from a defamatory statement about a private person. But the Court said the laws imply a stricter standard of malice when the offended party is a public official or public figure. Then the prosecution must prove actual malice: that the statement was made knowing it was false, or with reckless disregard of whether it was false.
• Truth as a defense. The Court noted that Article 361 allows truth as a defense when the statement was made with good motives and for justifiable ends.
• Online libel, but only for the author. The Court said cyber libel is not a new crime. Section 4(c)(4) only confirms that a computer system is one more way of publishing libel. It declared the section "VALID and CONSTITUTIONAL with respect to the original author of the post", but void as to others who simply receive the post and react to it.
• No aiding or abetting for online libel. Reactions like Like, Comment and Share are often quick, unthinking responses. Punishing them as "aiding or abetting" would chill free speech and leave users without fair warning of what is a crime. So Section 5 is void as applied to online libel, child pornography and unsolicited commercial messages. It stays valid for offenses like illegal access, data interference and identity theft. The Court added that a comment that tells a new defamatory story of its own is an original posting, and its author can be liable.
• Higher penalty upheld. Section 6 is valid. Crimes committed through technology can hide the offender and reach more victims, which justifies a penalty one degree higher.
• No double charge. The same material cannot be charged as both libel under Article 353 and online libel under Section 4(c)(4). They are the same offense, so a double charge would violate the rule against double jeopardy. The same is true for online child pornography. For other crimes, the Court left the use of Section 7 to be decided in actual cases.
• Three provisions struck down. The Court voided Section 4(c)(3) on unsolicited commercial communications. It voided Section 12, because the power to collect traffic data in real time was too broad and threatened privacy. It voided Section 19, because it let the Department of Justice block access to computer data without a court warrant, against free speech and the right against unreasonable searches and seizures.

Online libel under Section 4(c)(4) of RA 10175 is constitutional only as to the original author of the post, not as to those who merely receive and react to it; aiding or abetting does not apply to online libel; the same material cannot be prosecuted as both libel under the Revised Penal Code and cyber libel; and Section 6, which raises the penalty by one degree for crimes committed through information and communications technology, is valid.

Disini is the starting point for any question about cyber libel in the Philippines. It answers the most common worry, which is whether liking or commenting on a post can lead to a case. A simple reaction is not cyber libel. Writing the post, or writing a comment that makes a new defamatory claim, can be.

Illustration (invented names): Liza writes a public Facebook post claiming, without proof, that her former landlord, Dante, is a thief who kept her deposit. Carlo likes it, and Paolo comments only the word grabe. Under Disini, Carlo and Paolo are not liable for cyber libel just for reacting. If Paolo had written his own new accusation against Dante, his comment would be treated as an original post. Liza, as the author, may face a cyber libel complaint, and she may raise the defenses the law allows, such as truth published with good motives and for justifiable ends.

The ruling does not say how long a person has to file a cyber libel complaint, or which court hears it. For those questions, see cyber libel and Facebook posts and libel vs cyber libel. For the rule on truth, see is truth a defense in libel?, and for the definition, see Article 353 of the Revised Penal Code.

The decision is very long, with many separate opinions. Read the full text on the Supreme Court E-Library (link in the sources below) before relying on any part of it.