Criminalizing the “aiding or abetting” of online libel and prosecuting those who simply receive and react to defamatory social media posts will be difficult if the complexities of cyberspace are ignored in the formulation of a cyberlibel law, according to the Supreme Court.

In their Feb. 11 decision that was posted on the high court’s website on Friday, the majority justices demonstrated by analogy the difficulty of suing and penalizing all people who express their reactions via Facebook or Twitter by liking, sharing, commenting, “favoriting” or retweeting.

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The court last week struck down as unconstitutional the penalizing of people who aid or abet online libel, as provided under the controversial Republic Act 10175, or the Cybercrime Prevention Act of 2012.

Criminalizes online libel

However, the court, through the majority opinion written by Justice Roberto Abad, upheld online libel as a crime, although only the “original author” is to be penalized.

“Cyberlibel brings with it certain intricacies, unheard of when the Penal Code provisions on libel were enacted. The culture associated with Internet media is distinct from that of print,” the high court said.

The Internet encourages “a freewheeling, anything-goes writing style” and is different from print media in terms of quickness of the reader’s reaction to defamatory statements, it said.

Cyberlibel’s intricacies

In an analogy, the high court puts forward an imaginary netizen, Maria, who posted a statement on her WordPress blog that a certain married public official has an illicit affair with a movie star.

Linda, one of Maria’s friends, saw the post and commented online, “Yes, this is so true! They are so immoral.” Maria’s original post was then multiplied by her friends and the latter’s friends, and down the line to friends of friends and so forth.

Nena, who is a stranger to both Maria and Linda, came across the blog, found it interesting and shared the link to this apparently defamatory blog on her Twitter account. Nena’s “followers” then “retweet” the link to that blog site.

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Pamela, a Twitter user, stumbled upon a random person’s “retweet” of Nena’s original tweet and posted this on her Facebook account. Immediately, Pamela’s Facebook friends started “liking” and making comments on the the post. A lot of them even pressed the share button, resulting in the further spread of the original post into tens, hundreds, thousands and greater postings.

Aiding or abetting

To answer the question as to whether online actions such as liking, commenting or sharing a defamatory statement may be regarded as “aiding or abetting” online libel, the justices used yet another analogy.

If in the physical world, Nestor places on the office bulletin board a small poster that says, “Armand is a thief!,” he could certainly be charged with libel, according to the court.

However, if Roger, seeing the poster, writes on it, “I like this!,” that could not be libel since he did not author the poster, the justices said.

If Arthur, passing by and noticing the poster, writes on it, “Correct!,” would that be libel?

No, the justices said, for he merely expresses agreement with the statement on the poster.

“He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a crime,” the court said.

But suppose Nestor posts the blog, “Armand is a thief!” on a social networking site. Would a reader and his Friends or Followers, availing themselves of any of the “like,” “comment,” and “share” reactions, be guilty of aiding or abetting libel?

“[I]n the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?,” the justices asked.

Who will judge libel?

For the majority of justices, online reactions to a defamatory posts are “essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting.”

“Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding ‘friends’ or ‘followers’ in the criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting?” the justices asked.

Of course, the justices said, if the “comment” does not merely react to the original posting but creates an altogether new defamatory story against Armand like “He beats his wife and children,” then that should be considered an original posting published on the Internet.

The justices agreed that libel in cyberspace can stain a person’s image with just one click of the mouse and that “scurrilous statements” can spread and travel fast across the globe like bad news.

“Make no mistake, libel destroys reputations that society values,” the high court said. If allowed to cascade in the Internet, libel will destroy relationships and, under certain circumstances, generate enmity and tension between social or economic groups, races, or religions, exacerbating existing tensions, it said.

Common sense test

However, the legislators should also be careful when constructing a cyberlibel law that freedom of expression is not trampled on, they said.

“The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the legislature crafts a cyberlibel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their constitutionally guaranteed right to freedom of expression,” they said.

The terms “aiding or abetting” constitute a “broad sweep that generates a chilling effect on those who express themselves through cyberspace posts, comments and other messages,” they said.

“Who is to decide when to prosecute persons who boost the visibility of a posting on the Internet by liking it? Netizens are not given ‘fair notice’ or warning as to what is criminal conduct and what is lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another comment did not?” the justices asked.

In sum, the court recognized the differences between libel committed online and on print media so it applied the “tests of common sense and human experience” to determine whether one can actually abet or aid cyberlibel.

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