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LIBEL AND CYBER LIBEL

The crime of libel in the Philippines is defined and penalized under Article
353 (Definition of Libel), in relation to Article 355 (Libel by means of writings
or similar means) of the RPC.
Republic Act (RA) No. 10175, also known as the Cybercrime Prevention Act of
2012.
DEFINITION
Criminal libel - public and malicious imputation of a crime or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a
natural or juridical person, or to blacken the memory of one who is dead.

Online libel - the unlawful or prohibited acts of libel as defined in Article 355
of the Revised Penal Code, as amended, committed through a computer
system or any other similar means which may be devised in the future
(Section 4(c)(4) of RA 10175)

The crime is simply called “libel” under RA 10175.

To distinguish it from libel committed by traditional means, it is properly

called “online libel” (although it is sometimes referred to as cyber-libel,
internet libel, or electronic libel).

Online libel was challenged as unconstitutional. The Supreme Court,

however, concluded that online libel under RA 10175 is valid and not
unconstitutional, with the proviso that online libel does not cover those who
simply receive the post and react to it, i.e., those who pressed Like, Comment
and Share. (Disini, et al., vs. Secretary of Justice, G.R. No. 203335, 11
February 2014) However, if the “Comment” does not merely react to the
original posting but creates an altogether new defamatory story, then that
should be considered an original posting published on the internet.

3 Main Categories of Cybercrimes in the Cybercrime Prevention Act of 2012:

• (a) system-related offenses, i.e., illegal access, illegal interception, data

interference, system interference, misuse of devices, and cyber-
squatting;

• (b) computer-related offenses, i.e., forgery, fraud, and identity theft;

and

• (c) content-related offenses, i.e., cybersex, child pornography,

and libel.

It is interesting to note that the Implementing Rules and Regulations (IRR) of

RA 10175 provides a different mode of classifying cybercrimes, as follows:
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• Cybercrime Offenses under Section 4, also referred to as “core

cybercrime*.” The IRR follows the classifications of “Cybercrime
Offenses” under RA 10175, with the notable demotion of cyber-
squatting, cybersex, and libel as “Other cybercrimes”.

*CORE Cybercrimes:

A. Offenses against the confidentiality, integrity and availability of

computer data and systems – illegal access, illegal
interception, data
interference, system interference, misuse of devices
B. Computer-related Offenses – forgery, fraud, identity theft
C. Content-related Offenses – child pornography

• Other Cybercrimes under Section 5:

(a) cyber-squatting;
(b) cybersex;
(c) libel; and
(d) other offenses - aiding/abetting in the commission of cybercrime,
and attempt in the commission of cybercrime.

On the other hand, the Supreme Court’s Rule on Cybercrime Warrants (A.M.
No. 17-11-03-SC) classifies cybercrimes, for purposes of determining the
venue, in this manner:

• (a) Cybercrime Offenses under Section 4 of RA 10175 and Other

Offenses under Section 5 thereof; and

• (b) pursuant to Section 6 of RA 10175, all crimes defined and penalized

in other laws, if committed by, through, and with the use of Information
Communications Technology or ICT.

ELEMENTS/REQUISITES

For an imputation to be libelous under Art. 353 of the RPC, the following
requisites must be present:

(a) it must be defamatory;

(b) it must be malicious;
(c) it must be given publicity; and
(d) the victim must be identifiable.
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A fifth element or requisite is added under R.A. 10175 for online libel: the
act must be committed through a computer system or any other similar means
which may be devised in the future.

COMPUTER SYSTEM
- any device or group of interconnected or related devices, one or more
of which, pursuant to a program, performs automated processing of data. It
covers any type of device with data processing capabilities including, but not
limited to, computers and mobile phones. The device consisting of hardware
and software may include input, output and storage components which may
stand alone or be connected in a network or other similar devices. It also
includes computer data storage devices or media (RA 10175)
- any device or group of interconnected or related devices, one or more of
which, pursuant to a program, performs automated processing of data (A.M.
No. 17-11-03-SC)
Source: https://pnl-law.com/blog/online-libel-as-cybercrime-in-the-philippines-definition-
requisites-and-application-of-penalties/ (with edits by MCN)

APPLICABLE PENALTIES
SEC. 6. All crimes defined and penalized by the Revised Penal Code, as
amended, and special laws, if committed by, through and with the use of
information and communications technologies shall be covered by the
relevant provisions of this Act: Provided, That the penalty to be imposed shall
be one (1) degree higher than that provided for by the Revised Penal Code,
as amended, and special laws, as the case may be.
CASES
1. Jose Disini, Jr., et. al. vs. The Secretary of Justice, et. al., G.R. No. 203335,
18 February 2014

No aiding or abetting in the commission of cyber libel

Section 5 of the Cybercrime Law that punishes aiding or abetting

libel on the cyberspace is a nullity.

Section 51 with respect to Section 4(c)(4)2 is unconstitutional. Its

vagueness raises apprehension on the part of internet users because
of its obvious chilling effect on the freedom of expression, especially
since the crime of aiding or abetting ensnares all the actors in the
cyberspace front in a fuzzy way. What is more, as the petitioners point

1 SEC. 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of
the offenses enumerated in this Act shall be held liable.
2 (4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code,

as amended, committed through a computer system or any other similar means which may be devised
in the future.
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out, formal crimes such as libel are not punishable unless

consummated.

Charging the offender under the RPC and RA 10175 amounts to

double jeopardy

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

shall be without prejudice to any liability for violation of any provision
of the Revised Penal Code, as amended, or special laws.

With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the

published material on print, said to be libelous, is again posted online
or vice versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article 353 of the
Revised Penal Code and the other a violation of Section 4(c)(4)3 of R.A.
10175 involve essentially the same elements and are in fact one and
the same offense. Indeed, the OSG itself claims that online libel under
Section 4(c)(4) is not a new crime but is one already punished under
Article 353. Section 4(c)(4) merely establishes the computer system
as another means of publication. Charging the offender under both
laws would be a blatant violation of the proscription against double
jeopardy.

The same is true with child pornography committed online. Section

4(c)(2)4 merely expands the ACPA’s [Anti-Child Pornography Act of
2009] scope so as to include identical activities in cyberspace. As
previously discussed, ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical, digital, optical,
magnetic or any other means." Thus, charging the offender under
both Section 4(c)(2) and ACPA would likewise be tantamount to a
violation of the constitutional prohibition against double jeopardy.

2. Belen vs. People of the Philippines, G.R. No. 211120, 13 February 2017
Publication in libel
In claiming that he did not intend to expose the Omnibus Motion to
third persons, but only complied with the law on how service and
filing of pleadings should be done, petitioner conceded that the
defamatory statements in it were made known to someone other than
the person to whom it has been written. Despite the fact that the
motion was contained in sealed envelopes, it is not unreasonable to

3 Ibid.
4 (2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No.
9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That
the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.
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expect that persons other than the one defamed would be able to read
the defamatory statements in it, precisely because they were filed with
the OCP of San Pablo City and copy furnished to Nezer, the
respondent in the estafa complaint, and the Office of the Secretary of
Justice in Manila. Then being a lawyer, petitioner is well aware that
such motion is not a mere private communication, but forms part
of public record when filed with the government office. Inasmuch as
one is disputably presumed to intend the natural and probable
consequence of his act, petitioner cannot brush aside the logical
outcome of the filing and service of his Omnibus Motion.
Petitioner should bear in mind the rule that the pleadings should
contain but the plain and concise statements of material facts and
not the evidence by which they are to be proved. If the pleader goes
beyond the requirements of the statute, and alleges an irrelevant
matter which is libelous, he loses his privilege. The reason for this
is that without the requirement of relevancy, pleadings could be easily
diverted from their original aim to succinctly inform the court of the
issues in litigation and pervaded into a vehicle for airing charges
motivated by a personal rancor.
3. Manila Bulletin Publishing Corporation vs. Domingo, G.R. No. 170341, 5
July 2017
Malice in libel
The statements on the "lousy performance" and "mismanagement" of
Domingo are matters of public interest as these relate to his moral
conduct, his capacity to lead the DTI Region VIII employees, and to
manage and supervise the affairs of the office.
The absence of personal ill will of Batuigas against Domingo
disavows actual malice and buttresses the finding that Batuigas was
prompted by a legitimate or plausible motive in writing the articles. It
was pointed out that Batuigas characterized his writing akin to an
expose where he revealed anomalies and shenanigans in the
government in the hope that corruption might be minimized.
For sure, the words "lousy performance" and "mismanagement" had
caused hurt or embarrassment to Domingo and even to his family and
friends, but it must be emphasized that hurt or embarrassment
even if real, is not automatically equivalent to defamation; words
which are merely insulting are not actionable as libel or slander per
se, and mere words of general abuse however opprobrious, ill-
natured, or vexatious, whether written or spoken, do not constitute
bases for an action for defamation in the absence of an allegation for
special damages. If a writer in the course of temperate and legitimate
criticism falls into error as to some detail, or draws an incorrect
inference from the facts before him, and thus goes beyond the limits
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of strict truth, such inaccuracies will not cause judgment to go

against him, if the jury are satisfied, after reading the whole
publication, that it was written honestly, fairly, and with regard to
what truth and justice require. Domingo must remember that one of
the costs associated with participation in public affairs is an
attendant loss of privacy.
4. News article: For the third time, NBI loses complaint vs teacher who posted
on Twitter threats against Duterte (irrelevant portions deleted)
For the third time, law enforcers lost a complaint against a teacher
who had offered a bounty for killing President Rodrigo Duterte on
social media.

JT Leonardo Santos, acting Zambales prosecutor, said there was

insufficient evidence to pin down Ronnel Mas with sedition charges,
denying the National Bureau of Investigation’s motion seeking
reconsideration in an earlier decision to dismiss the case.

“It is not that a crime has not been committed that the case has been
dismissed. It is the insufficiency of evidence to prove that indeed the
respondent is the perpetrator of the crime,” Santos said, adding the
NBI can still file another complaint.

Santos was the same prosecutor who junked the NBI’s earlier
complaint in February for its failure to provide evidence that Mas
indeed posted the controversial tweet.

Last year, Mas was arrested without a warrant after law enforcement
agents cracked down on alleged online misinformation at the height
of the coronavirus disease (COVID-19) pandemic. Duterte, at that
time, received heavy backlash from the public for his sloppy response
to the public health crisis.

In his arrest, Mas allegedly confessed his crime to the media even
without any legal counsel present with him. State agents were
confident that this statement could be used to prosecute him easily.
But an Olongapo judge ruled this could not be admissible in court.

It prompted the NBI to re-file the complaint before the provincial

prosecutor, only to fail again.

In its latest motion, the justice department’s law enforcement arm

submitted a copy of the video of Mas’ confession along with an
affidavit from the person who extracted the confession from the
accused.

None of the additional evidence was authenticated, according to

Santos, violating the rules of evidence. He also pointed out that the
route the NBI has taken was “unprocedural”.
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“Instead of filing anew with sufficient evidence, including the said

affidavit, the complainant seeks to shortcut the proceedings by
introducing new evidence … Be that as it may, the introduction of
new evidence during a motion for reconsideration is not proper,”
Santos said, referring to a Supreme Court ruling.
June 29, 2021, 05:27 PM | By Beatrice Puente
https://news.tv5.com.ph/breaking/read/not-a rubber-stamp-for-the-third-time-nbi-loses-complaint-
vs-teacher-who-posted-on-twitter-threats-against-duterte

ORAL DEFAMATION
Oral defamation is a crime punishable under Section 94 of RA 10951,5 which
amended Article 358 of the RPC.
Art. 358, as ameded. Slander. - Oral defamation shall be punished by arresto
mayor in its maximum period to prisión correccional in its minimum period if
it is of a serious and insulting nature; otherwise the penalty shall be arresto
menor or a fine not exceeding Twenty thousand pesos (₱20,000).
DEFINITION
Oral Defamation or Slander is libel committed by oral (spoken) means, instead
of in writing. It is defined as "the speaking of base and defamatory words which
tend to prejudice another in his reputation, office, trade, business or means
of livelihood."6
ELEMENTS/REQUISITES
(1) there must be an imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, status or circumstances;
(2) made orally;
(3) publicly;
(4) and maliciously;
(5) directed to a natural or juridical person, or one who is dead;
(6) which tends to cause dishonor, discredit or contempt of the person
defamed.7
Grave/Serious or Slight Oral Defamation
Whether the offense committed is serious or slight oral defamation, depends
not only upon the sense and grammatical meaning of the utterances but also
upon the special circumstances of the case, like the social standing or the
advanced age of the offended party. "The gravity depends upon: (1) the
expressions used; (2) the personal relations of the accused and the offended

5 An Act Adjusting the Amount or the Value of Property and Damage on Which a Penalty is Based and
the Fines Imposed Under the Revised Penal Code, Amending for the Purpose Act No. 3815, Otherwise
Known as "The Revised Penal Code", as Amended.
6 De Leon vs. People, G.R. No. 212623, January 11, 2016, 779 SCRA 84.
7 Ibid.
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party; and (3) the special circumstances of the case, the antecedents or
relationship between the offended party and the offender, which may tend to
prove the intention of the offender at the time. In particular, it is a rule that
uttering defamatory words in the heat of anger, with some provocation
on the part of the offended party constitutes only a light felony."8
RED-TAGGING
DEFINITION

In his dissenting opinion in Zarate vs. Aquino III,9 Supreme Court Associate
Justice Marvic Leonen cited a 2011 journal article that defined red-baiting as:

the act of labelling, branding, naming and accusing individuals and/

or organizations of being left-leaning, subversives, communists or
terrorists (used as) a strategy...by State agents, particularly law
enforcement agencies and the military, against those perceived to be
‘threats’ or ‘enemies of the State’

Petitioners in the case had asked the court for a writ of amparo and writ of
habeas data – both aimed at protecting one’s right to life, liberty and security
– for allegedly being harassed after being tagged by the military as “communist
front organizations.”

While the court dismissed the petition, Leonen said the case involved red-
baiting.

House Bill No. 9437

Lawmakers from the House of Representatives have filed a bill seeking the
criminalization of red-tagging, saying the act poses a danger to people's
constitutional right to freedom of expression and right to political belief.

"Red-tagging should be criminalized for two simple reasons: it is committed

through the use of public funds, and it has an injurious and irreversible
impact on the victims," said House Bill No. 9437.

The bill was introduced by Reps. Carlos Zarate, Edcel Lagman, Jose Belmonte,
Pablo Ortega, Eufemia Cullamat, Ferdinant Gaite, Arlene Brosas, France
Castro, and Sarah Jane Elago.
Under the bill, any public official or employee who red tags a person shall be
punished with imprisonment or be fined, suffer perpetual disqualification to
hold public office, or face administrative cases.
By CNN Philippines Staff | Published May 25, 2021 4:13:59 PM
https://cnnphilippines.com/news/2021/5/25/hb9437-criminalize-red-tagging.html

8 Ibid.
9 G.R. No. 220028, November 10, 2015.
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Senate Bill No. 2121

Proposed "Act Defining and Penalizing Red-Tagging" seeks to criminalize red-

tagging and provide for penalties as deterrence "in order to fix the legal gaps,
address impunity and institutionalize a system of accountability."

Under the measure, the crime of red-tagging is defined as the act of labeling,
vilifying, branding, naming, accusing, harassing, persecuting, stereotyping,
or caricaturing individuals, groups, or organizations as state enemies, left-
leaning, subversives, communists, or terrorists as part of a counter-
insurgency or anti-terrorism strategy or program, by any state actor, such as
law enforcement agent, paramilitary, or military personnel.

"Any person found guilty of red-tagging shall be imprisoned for 10 years and
shall suffer the accessory penalty of perpetual absolute disqualification to
hold public office," according to the bill.

Press Release | March 25, 2021

http://legacy.senate.gov.ph/press_release/2021/0325_drilon1.asp

FREEDOM OF SPEECH
Section 4 Article III of the 1987 Constitution: No law shall be passed abridging
the freedom of speech, of expression or of the press, or the right of the people
to peaceably assemble and petition the government for redress of grievances.
But in the case of Ellen Tordesillas, et. al. vs. DILG Sec. Ronaldo Puno, et.
al.10 the Supreme Court reminded that, “such valued freedom is not absolute
and unfettered at all times and under all circumstances.11 The realities of life
in a complex society preclude an absolute exercise of the freedoms of speech
and of the press. They are not immune to regulation by the State in the exercise
of its police power.”12

Fake News

Under Article 154 of the RPC, as amended by RA 10951,13 any person who by
means of printing, lithography, or any other means of publication shall
publish or cause to be published as news any false news which may endanger
the public order, or cause damage to the interest or credit of the state shall
be imposed with the penalty of arresto mayor and a fine ranging from P40,000
to P200,000.

Circulating fake news through the internet is dealt with more heavily. Under
RA 10175 or the “Cybercrime Prevention Act of 2012,” a penalty one degree
higher than that provided by the RPC shall be imposed whenever the crimes
defined and penalized by the RPC are committed by, through, and with the
use of information and communications technologies.

10 G.R. No. 210088, October 01, 2018.

11 Philippine Journalists, Inc. (People's Journal) v. Thoenen, 513 Phil. 607 (2005).
12 ABS-CBN Broadcasting Corporation v. COMELEC, 380 Phil. 780, 793 (2000).
13 Supra, Note 5.
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For the purpose of promoting and protecting the collective interests of all
Filipinos in the time of the COVID-19 pandemic, Congress passed RA 11469
or the “Bayanihan to Heal as One Act,” which punishes individuals or groups
creating, perpetrating, or spreading false information regarding the COVID-
19 crisis on social media and other platforms, such information having no
valid or beneficial effect on the population, and are clearly geared to promote
chaos, panic anarchy, fear, or confusion.

However, neither the RPC nor the Bayanihan Law provides a definition of
what constitutes “fake news.” This determination is thus left to the
authorities, without a set of clear guidelines. In Disini v. Secretary of Justice,
G.R. No. 203335, Feb. 18, 2014, the Supreme Court enlightens on the effect
imposed by vague or overbroad laws on free speech: “a person who does not
know whether his speech constitutes a crime under an overbroad or vague
law may simply restrain himself from speaking in order to avoid being charged
of a crime. The overbroad or vague law thus chills him into silence.”

Source: https://www.conventuslaw.com/report/philippines-free-speech-vs-fake-news/ (with minor

edits by MCN)

LEGISLATIVE FRANCHISE

Section 11 of Article XII of the 1987 Constitution: No franchise, certificate,

or any other form of authorization for the operation of a public utility
shall be granted except to citizens of the Philippines or to corporations
or associations organized under the laws of the Philippines at least sixty
per centum of whose capital is owned by such citizens, nor shall such
franchise, certificate, or authorization be exclusive in character or for a
longer period than fifty years. Neither shall any such franchise or right
be granted except under the condition that it shall be subject to
amendment, alteration, or repeal by the Congress when the common
good so requires. The State shall encourage equity participation in public
utilities by the general public. The participation of foreign investors in the
governing body of any public utility enterprise shall be limited to their
proportionate share in its capital, and all the executive and managing officers
of such corporation or association must be citizens of the Philippines.
CASE
ABS-CBN Corporation vs. National Telecommunications Commission (NTC)
Issue: Whether or not the NTC gravely abused its discretion in issuing the
assailed CDO [Cease and Desist Order] against ABS-CBN.
Decision: In light of the supervening denial of the pending House bills for the
renewal of ABS-CBN's legislative franchise, the Court finds it appropriate
to dismiss this case on the ground of mootness.
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Highlights:
- A legislative franchise is both a pre-requisite and a continuing
requirement for broadcasting entities to broadcast their programs
through television and radio stations in the country.

- Broadcast and television stations are required to obtain a legislative

franchise, a requirement imposed by the Radio Control Act and affirmed
by our ruling in Associated Broadcasting. After securing their legislative
franchises, stations are required to obtain CPCs [Certificate of Public
Convenience] from the NTC before they can operate their radio or
television broadcasting systems. Such requirement while traceable also
to the Radio Control Act, currently finds its basis in E.O. No. 546, the law
establishing the NTC.

- The congressional deliberations on pending bills are not equivalent and

cannot take the place of a duly enacted law, which requires the entire
constitutional process for legislation to take its full course. Neither can it
be inferred from our Constitution and our present statutes that temporary
statutory privileges may be accorded to a franchise applicant pending
deliberation of a franchise grant or renewal. Indeed, it is only upon the
completion of the full law-making procedure in accordance with the
parameters prescribed by the Constitution can it be said that Congress
has granted a broadcasting entity the statutory privilege to so broadcast
its programs through its television and radio stations. Absent a valid
and subsisting legislative franchise embodied in a duly passed
law, no such statutory privilege, even if temporary, can be
enjoyed.