LEGAL IMPLICATIONS OF THE REMOVAL OF SECTIONS 190.1 AND 190.2 IN THE AMENDED LAW, REPUBLIC ACT NO. 10372, WITH REGARD TO THE IMPORTATION OF COPYRIGHTED MATERIALS

On February 28, 2013, Republic Act No. 10372 “An Act Amending Certain Provisions of Republic Act No. 8293, otherwise known as the ‘Intellectual Property Code of the Philippines’, And For Other Purposes” was signed into law. The enactment of this law has caused lots of controversies particularly the removal of Sections 190.1 and 190.2. The said sections pertain to the Importation for Personal Purposes. Some critics believe that the deletion of these two particular sections infringes the right to import copyrighted materials. Since it became a public concern, the government, on March 11, 2013, released on its official website http://www.gov.ph an info graphic to answer the question pertaining to the importation of copyrighted materials, among others. In the said website the question and the answer are posted as follow:

Am I still allowed to import books, DVDs, and CDs from abroad?

Yes. In fact, the amendments to the Intellectual Property Code have removed the original limitation of three copies when bringing legitimately acquired copies of copyrighted material into the country. Only the importation of pirated or infringed material is illegal. As long as they were legally purchased, you can bring as many copies you want, subject to Customs regulations.

Despite this explanation, many are still thinking that the removal of Sections 190.1 and 190.2 from the Intellectual Property Code creates not only a room for ambiguity as to the existence of the right to import copyrighted materials but also opens a door for extortion at the airport.

  

Under Republic Act No. 8293, the old rule provides:

Section 190. Importation for Personal Purposes. –

190.1. Notwithstanding the provision of Subsection 177.6, but subject to the limitation under the Subsection 185.2, the importation of a copy of a work by an individual for his personal purposes shall be permitted without the authorization of the author of, or other owner of copyright in, the work under the following circumstances:

(a) When copies of the work are not available in the Philippines and:

(i) Not more than one (1) copy at one time is imported for strictly individual use only; or

(ii) The importation is by authority of and for the use of the Philippine Government; or

(iii) The importation, consisting of not more than three (3) such copies or likenesses in any one invoice, is not for sale but for the use only of any religious, charitable, or educational society or institution duly incorporated or registered, or is for the encouragement of the fine arts, or for any state school, college, university, or free public library in the Philippines.

(b) When such copies form parts of libraries and personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That such copies do not exceed three (3).

 

190.2. Copies imported as allowed by this Section may not lawfully be used in any way to violate the rights of owner the copyright or annul or limit the protection secured by this Act, and such unlawful use shall be deemed an infringement and shall be punishable as such without prejudice to the proprietor’s right of action.

 

190.3. Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation of articles the importation of which is prohibited under this Section and under treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported.

 

Under the new law, Republic Act No. 10372 completely deleted Sections 190.1 and 190.2 but retained Section 190.3 with expanded coverage to include exportation as well. Section 190.3 remains the sole provision under Section 190 and it provides:

Section 190. Importation and Exportation of Infringing Materials. – Subject to the approval of the Secretary of Finance, the Commissioner of Customs is hereby empowered to make rules and regulations for preventing the importation or exportation of infringing articles prohibited under Part IV of this Act and under relevant treaties and conventions to which the Philippines may be a party and for seizing and condemning and disposing of the same in case they are discovered after they have been imported or before they are exported.

 

Comparing the old text of Republic Act No. 8293 from the new law under Republic Act No. 10372, I wonder if it is really wise to removed Sections 190.1 and 190.2 completely from the Intellectual Property Code to give more freedom and leeway (as claimed by the government) to import more copyrighted materials as opposed to the limited right to import bestowed by the old rule. The stipulation that the importation of copyrighted materials is for personal purpose/s was also nowhere to be found or missing in the new Section 190.

 

The explicit right provided by Sections 190.1 and 190.2 has been replaced by ambiguous enactment. It is truly confusing to rely on a law or a certain provision of the law which does not exist. The government claims that the removal of Sections 190.1 and 90.2 does not mean the removal of the right to import copyrighted materials or diminution of such right rather it should be interpreted to mean more freedom and the removal of the limitation set forth by the old provisions. The government is right in one thing – the removal of Sections 190.1 and 190.2 becomes subject to interpretation. Though this interpretation can be one way or the other since the law granting the right to import copyrighted materials becomes silent. The express and clear intent of the old provisions becomes hazy and equivocal.

 

The new Section 190 is entitled Importation and Exportation of Infringing Materials. The infringing materials referred to in this provision pertains to copyrighted materials only as enunciated in the said section, “infringing articles prohibited under Part IV of this Act.” It bothers me though that the Bureau of Customs through its Commissioner is tasked to make implementing rules and regulations to prevent the importation or exportation of infringing articles. Given this kind of authority, the Bureau of Customs is empowered to determine whether a particular copyrighted material is infringing or not. I wonder if the Bureau of Customs has the ability or better yet the manpower to determine if each and every material that pass through the airport infringes the Copyright Law.

  

Some believes that as far as the new law is concern all importation of copyrighted materials is illegal per se unless you can prove that it is not infringing the Copyright Law since there is no clear or explicit law to back up one’s claim that he/she has the right to import copyrighted material such as books, magazines, CDs, DVDs etc… from other countries.

 

The concept of importation for “personal purposes” has also been removed from Section 190. The government is of the opinion that the concept of “personal purposes” is already incorporated and part of the fair use provision under Section 185. But nowhere in the said section does it ever mention about importation for personal purposes. Under the old law, Republic Act No. 8293, the only provision that contains use of copyrighted materials for personal purpose is Section 212.1. But the new law, Republic Act No. 10372, deleted Section 212.1. Under the old law, one can import or bring home copyrighted material without being questioned at the airport for as long as it complies with the quantity requirement provided by law and also for as long as it is for personal purpose. However, the new law does not provide this kind of right since the concept of personal purpose has been deleted. In effect, one cannot bring home copyrighted material even for personal purpose unless it will be proven first that such material is not infringing the Copyright Law.

 

In the case of Tung Chin Hui v. Rodriguez, the Court ruled that in accordance with the well-settled rule of statutory construction that provisions of an old law that were not reproduce in the revision thereof covering the same subject are deemed repealed and discarded. The revised statute or code is in effect a legislative declaration that whatever is embraced in the new statute shall prevail and whatever is excluded therefrom shall be discarded. Simply put it, “whatever the law does not include, it excludes.” The contention of the government that by deleting Sections 190.1 and 190.2, they are in fact maximizing the use of the so-called “international exhaustion.” Thus, allowing importers of copyrighted materials to bring home in the country more than three (3) copies of such protected materials.

 

The term “international exhaustion” means that the first sale of a copy of a copyrighted work anywhere in the world results in the exhaustion of rights in that copy everywhere in the world. The exhaustion of intellectual property rights constitutes one of the limits of intellectual property rights. Rights being exhausted everywhere in the world means that rights are exhausted everywhere including in the domestic territory, and as such, it is pertinent to note that references to the loss of rights in the domestic territory do not de facto preclude the loss of rights in other territories.  Simply means that if a copyrighted material has been sold by the copyright owner or by others with the consent of the owner, the intellectual property right as to the protected material is said to be exhausted. It can no longer be exercised by the copyright owner. This limitation is also known as the “exhaustion doctrine” or “first sale doctrine”.

 

In an exclusive interview conducted by Ms. Raissa Robles, UP Law Professor Disini stated that by deleting Sections 190.1 and 190.2 it is in fact defeating the very purpose of removing said sections from the Intellectual Property Code. The removal of said sections, according to Professor Disini, would allow foreign copyright holders to prevent or stop cheaper imports of their products. Since the Bureau of Customs is empowered to create implementing rules and regulations with regard to importation of infringing materials in particular, they, in effect, have the power and authority to determine whether or not a material is infringing the Copyright Law.

 

With this kind of power, any foreign book publisher can just send a letter to the Bureau of Customs and claims that they (foreign book publisher) do not allow import of the protected material except through their exclusive distributor. If any citizen of the Philippines or any foreign traveller entering the Philippine territory brought in with them a copy of the protected material legally acquired at a cheaper price but not within the distribution channel provided by the foreign book publisher, said act is already regarded as a violation of the license of the foreign book publisher. From the standpoint of the Bureau of Customs, the said copyrighted material infringes upon the Copyright Law since it violates the license of the foreign book publisher. Regardless whether the protected material is legal or not, it is still considered an infringing material.

 

Whereas, in the old law, Republic Act No. 8293, by virtue of the explicit and unequivocal right provided by Sections 190.1 and 190.2 and the use of the concept of “personal purpose”, any individual can bring home with them a copy of a legally acquired protected material without being questioned at the airport. It was also noted by Professor Disini in the said interview that the Philippines already allows parallel importation even without removing Sections 190.1 and 190.2. This is the reason why importation of used books for local resale is allowed in our country. The amended law, however, will allow foreign copyright owners to prevent or stop the importation of books labelled in a “used books” simply by sending a letter to the Bureau of Customs. This cannot be prevented unless “the Secretary of Finance will ensure that parallel importation will be preserved.”

 

Before the enactment of Republic Act No. 10372, some critics were already saying that by deleting Sections 190.1 and 190.2, it would thereby create confusion and worst it will open the door for exploitation of some scrupulous Customs officers. On December 03, 2014, the Bureau of Customs issued Customs Memorandum Circular No. 142-2014. According to this Circular, the Office of the Commissioner has received complaints about importers being charged duties and taxes on imported books, in violation of the Agreement on the Importation of Educational, Scientific, and Cultural Materials signed by the President in 1952, the National Internal Revenue Code, Section 109 (R), and DOF Department Order 57-2011. Complaints flooded the Office of the Bureau of Customs alleging that the deletion of Sections 190.1 and 190.2 and the removal of the concept of “personal purpose” gave rise to this kind of scenario. Some Customs Officers imposed duties and taxes to materials that are not supposed to be taxed by reason of a clear provisions mandated by law granting such exemptions.

 

Under Section 109, paragraph C it provides: “Importation of personal and household effects belonging to the residents of the Philippines returning from abroad and non-resident citizens coming to resettle in the Philippines: Provided, That such goods are exempt from customs duties under the Tariff and Customs Code of the Philippines.” On the other hand, Section 109, paragraph R provides: “Sale, importation, printing or publication of books and any newspaper, magazine, review or bulletin which appears at regular intervals with fixed prices for subscription and sale and which is not devoted principally to the publication of paid advertisements.” The amended law allegedly has created confusion and gave rise to all the complaints received by the Bureau of Customs with regard to wrongful imposition of duties and taxes. Department of Finance Department Order No. 57-2011 defines personal effects or personal use as “those embracing all articles of personalty not considered as merchandise, including books.” The provision with regard to importation for personal purpose or the personal purpose provision no longer exists under the amended law, Republic Act No. 10372. In effect, any person importing copyrighted material like books for example can no longer claim exemption for payment of duties and taxes by virtue of the “personal purpose” concept because under the eyes of the law there is no more personal use or personal purpose right granted by the old law, Republic Act No. 8293. There is no more distinction between personal purpose and those involving other purposes such as but not limited to scientific, educational, cultural, research and alike. But the contention of the government that said personal purpose concept is still present in the amended law under the fair use provision. Nowhere in Section 185 does it ever mention about the concept of importation for personal purpose. Under a well-settled legal maxim, “Ubi lex non distinguit nec nos distinguere debemus,” it provides that “When the law does not distinguish, we must not distinguish.”

 

In conclusion, the author of this blog believes that the contention of the government that by deleting Sections 190.1 and 190.2 and the concept “personal purpose”, they are actually removing the limit of three (3) copies and thereby maximizing the use of “international exhaustion” is misplaced and out of bound. I would like to end this blog by posting a question, “how can the government sustains and maximizes such privilege when no law provides the basic right – Importation for Personal Purpose?”

 

 

 

 

 

REFERENCES

  1. AGPALO, R.E. (2009). STATUTORY CONSTRUCTION. MANILA: REX BOOK STORE.
  2. (2009). THE NATIONAL INTERNAL REVENUE CODE OF THE PHILIPPINES. MANILA: REX BOOK STORE.
  3. LEE, G.G., JR. (2000). HANDBOOK OF LEGAL MAXIMS. QUEZON CITY: CENTRAL PROFESSIONAL BOOKS, INC.
  4. SALAO, E.C. (2012). ESSENTIALS OF INTELLECTUAL PROPERTY LAW. MANILA: REX BOOK STORE.
  5. TUNG CHIN HUI vs. RODRIGUEZ, 340 SCRA 765 (2000).
  6. http://en.wikipedia.org/wiki/WIPO_Copyright_Treaty
  7. http://kapeo.blogspot.com/2013/05/was-malacanang-correct-in-its.html
  8. https://ralphpobre.wordpress.com/2013/03/26/amendments-to-the-intellectual-property-law/
  9. http://www.fnslaw.com.ph/PDF%20Files/2013/BBL-COPYRIGHT%20IP%20AMENDMENTS.pdf
  10. http://attyatwork.com/importation-for-personal-use-under-the-amended-intellectual-property-code/
  11. http://raissarobles.com/2013/02/14/the-legislative-history-of-amendments-to-the-intellectual-property-code-ra-8293/
  12. http://raissarobles.com/2013/02/16/amended-ip-code-disadvantageous-to-students-teachers-researchers-says-copyright-expert-lawyer-ping-peria/comment-page-1/#comment-99699
  13. http://customs.gov.ph/wp-content/uploads/2014/12/CMC-No.-142-2014-Imports-of-Books.pdf
  14. http://www.gov.ph/downloads/2011/12dec/20111212-DOF-DO-57-2011-BSA.pdf
  15. http://www.gov.ph/downloads/2011/12dec/20111212-DOF-DO-57-2011-BSA.pdf
  16. http://www.wipo.int/edocs/mdocs/sme/en/atrip_gva_99/atrip_gva_99_6.pdf
  17. http://www.wipo.int/sme/en/ip_business/export/international_exhaustion.htm
  18. http://copyright.lawmatters.in/2011/02/what-is-international-exhaustion.html

LEGAL IMPLICATIONS OF THE WRITINGS BEING MADE IN ARELLANO LAW SECRET FILES

Freedom of speech is not an absolute freedom. It does not give a person the right to say or do things that are injurious to other and to the society. Although, in a theoretical sense, it is absolute for one is capable of thinking, speaking and writing his ideas on his own and without interference from others. However, this right is balanced against the right of others. It is always subject to some regulation by the State in order that it may not be detrimental to the right of others and the community or society.

The way of expressing one’s thought evolved over the years. In this day and age, expression of one’s ideas comes so easily through the use of social networking site like Facebook. Gaining popularity in the past few years is the so-called “Secret Files” page.

By accident, I have come across this page when I was browsing the net. I have no idea that sooner or later I will have to write a blog about this so-called “Secret Files” page that is becoming more popular these days. For the purpose of this project the discussion would be limited to the writings being made in Arellano Law Secret Files.

Before I can fully discuss the legal implications of the writings being made in Arellano Law Secret Files, I got curious how this “Secret Files” page works. According to my research, the page works as confessional spaces where students would post just about anything that they could think of whether it be about their school experiences or adventures, their secret crushes, their affections toward another student, their distaste for a certain student or sometimes even professor or school administrator or personnel, and even intimate details like their sexual experiences. This “Secret Files” page works like a typical Facebook page but with an added feature. Those who would like to share something clandestinely would have to fill up an anonymous Google form that will be recorded into the Google docs. In the Google form, you have to provide the secret that you want to share, the alias or pseudonym that you want to use, and your batch year. These are the minimum requirements. The administrator or the one who maintains the “Secret Files” page would post the secret or the story of the anonymous sender. From there, subscribers of the page can either like the page or comment or they can do both. The more steamy and personal the issue/s becomes the more subscribers would likely be glued to the topic. By nature, secret has a way of arousing one’s curious mind. It tickles our imagination.

Arellano Law “Secret Files” page gives students an avenue to express their thoughts or ideas without having to worry that their identity would be revealed. Anonymity gives a person certain courage and affirmation that he or she is not alone in those adventures, struggles, or experiences and that there are other individuals out there somewhere having the same situation. Students can come out freely in the open without compromising their reputation. A student can indulge in a risk-free fantasy without being mindful of any social repercussions. Everyone of us has our own story to tell whether it is ordinary or our most kept secret. The fact remains that we are entitled to share or express it at our own discretion. After all, it is enshrined in our Constitution. However, the Constitutional guarantee of freedom of speech and expression is not without a limit.

Article 19 of the Civil Code provides:

“Every person must, in the exercise of his right and in the performance of his duties, act with justice, giver everyone his due, and observe honesty and good faith.”

Also, this Constitutional guarantee of freedom of speech and expression is subject to State’s regulation under the most all-encompassing Police Power of the State. It is my humble opinion that these safeguards prevent the abuse and misuse of such right. One can express his own thoughts and share it with others for a person is the master of his own mind. This however should not infringe the rights of others. A person who exercises his right does not give him the right to injure or violate others. Justice must be upheld at least in a legal sense.

The emergence of new technology prompted our laws to evolve as well. The writings in the Arellano Law “Secret Files” may not have some social repercussions but in my humble opinion it may be subject to legal repercussions depending on the kind of writing/s being made.

In the case of Disini vs. The Secretary of Justice, the Supreme Court of the Philippines upheld the constitutionality of a key provision in the controversial Republic Act No. 10175 or The Cybercrime Prevention Act particularly the contentious provision that punishes online libel. The Supreme Court stated that the provision on online libel merely incorporates what had been provided for in the Revised Penal Code. The Supreme Court further states that under the Cybercrime Act only the author of the offending online article is liable.

Subscribers of the Arellano Law “Secret Files” may post whatever they want to share for as long as it is not intended to harm or injure the reputation of another through their writings which tend to ridicule or scorn others. The writing being posted in the “Secret Files” page does not always pertains to the author: his school adventures, his secret crushes, his most kept secret, and other personal experiences that the author wants to share; the writings can also be about other people or entity whether a fellow student, a professor, a school personnel or the school system itself.

The Arellano Law “Secret Files” page allows the students to share not only their well-kept secrets, their most hidden desires or fantasies but also their needs, wants, aspirations, and motivations. The topic a student can share in the “Secret Files” is quite vast since it is a judgment-free space that allows the students to express themselves freely and without any hesitation of being weighed or measured by the standards of the society. The anonymity of the author of the writing creates a borderless world where subscribers of the page may interact with one another without any labels or status. They may be persons we know and see every day or a complete stranger whom we shared a common interest.

As what I have read on the postings in the Arellano Law “Secret Files” page, most of the writings partake in the form of an opinion or a product of one’s creative imagination. If a person posts something about his personal experience or ordeal in the ever so famous enrolment procedures in Arellano University School of Law, would he be liable for the crime of online libel as provided for in Section 4 (c) (4) of Republic Act No. 10175?

No, he should not be held liable because by so doing it will constitute curtailment of his freedom of speech and expression as guaranteed by the Philippine Constitution under Section 4, Article 3. It is his own perception based on his personal experience.

The Revised Penal Code provision on libel provides:

“Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

The elements of libel are:

(a) The allegation of a discreditable act or condition concerning another;

(b) Publication of the charge;

(c) Identity of the person defamed; and

(d) Existence of malice.

In the given example, if the student rants about his ordeal in the enrolment procedure, he is merely stating a fact based on his own perception. The said act of the author is merely expressing his resentment against the particular enrolment system that is being implemented. For a statement to become libellous, the elements of libel must all be present. Libel must be malicious to constitute as a crime. The defendant knows that what he or she is writing is false, or has reckless regard of whether it is in fact true or false, because of the intent to dishonour, discredit, or contempt a person’s or an entity’s reputation.  Moreover, the law further provides that when the offended party is a private individual, as a defense, the accused must show that he has justifiable reason for the defamatory statement even if it was in fact true. It is important to note that for truth to be a valid defense, the accused must show good motive and justifiable ends in making the statement otherwise it will not exonerate him from the crime of libel.

Another post in the Arellano Law “Secret Files” caught my attention. The author of a post wrote something about a certain individual who in his personal knowledge was allegedly cheating during a midterm examination in a particular subject. The details given by the author was so vivid and detailed that no other individual would match the description given except the “real” person being depicted and described in the writing. The description of the person allegedly cheating was strikingly right on! Most if not all would have guessed that person allegedly cheating.  Is this kind of post constitutes a crime of online libel as penalized by Section 4 (c) (4) of Republic Act No. 10175?

Yes, because libel by definition is the malicious imputation of any act tending to cause dishonour, discredit or injure a person’s reputation. Generally, it is defamation in its very essence. It is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published “with fault”, meaning as a result of malice or negligence. There is malice when the author of the imputation is prompted by personal ill-will or spite and speaks not in response to duty by merely to injure the reputation of the person who claims to have been defamed.

The act of the author in the given example is the very evil that the law is trying to penalize. Regardless of the fact that what is written may be true or not, if all the elements of libel are present, the author of the post who wrote a ‘libellous statement’ should be held accountable under the R.A. No. 10175. Moreover, the first paragraph of Article 354 of the Revised Penal Code provides that “Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown except those provided for by law.”

The Supreme Court states, in the case of Disini vs. The Secretary of Justice, that libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. The law does not provide protection to injurious act in the guise of a right enshrined in the Constitution. Everyone is entitled to enjoy his freedom of speech and expression but its exercise carries with it special duties and responsibilities. This Constitutionally guaranteed freedom of speech and expression is not absolute. It is subject to certain restrictions as may be necessary and as may be provided by law. It is always subject to some regulation by the State in order that it may not be injurious to the right of others and the community or society.

Under the online libel law, only the original author of the offending online post or article will be held liable. If a subscriber of the Arellano Law “Secret Files” page liked, shared, or reacted to a particular libellous statement, under the interpretation made by the Supreme Court in the case of Disini vs. The Secretary of Justice, online libel law will not punish such person. It does not fall under “aiding or abetting” cyber libel. Liking, sharing, or commenting to a potentially libellous statement are merely expression of one’s sentiment who, unlike the original author, may have acted without thinking carefully the consequences of their actions. On the other hand, the act of the original author in writing and posting a potentially libellous statement is the product of a careful and well-thought action of the author. Those who liked, shared, or reacted to a statement that may later be deemed libellous are merely expressing their feeling or opinion in response to a post that might have caught their attention or affected their emotions.

However, the Supreme Court made a distinction between the original post and commenting and sharing an original post but in a way creates an altogether new story as if it was an original post. If a person merely liked, shared, or reacted to a potentially libellous original post, under the online libel law, he will not be held liable. Example: if a subscriber of the Arellano Law “Secret Files” posted something like this, “Miss AUSL Idol 2016 is a cheater” and subscribers of the “Secret Files” pages merely liked or shared the post or even commented – Correct!; he will not be punished under the online libel law for he merely expresses his opinion or sentiments.

But if a person aside from liking, sharing, or commenting to an original post containing allegedly a libellous statement, created an altogether new story by adding new post or a new comment, such person will be held liable under the online libel law because such posting is considered to be original. Example: If aside from the above scenario, a subscriber of the Arellano Law “Secret Files” does not merely like, share, or react to the original posting but added a potentially libellous statement like “Miss AUSL Idol 2016 is a cheater, liar, and a thief” thereby creating a new defamatory story such posting is considered to be original. Hence, the author of this new post or comment will be held liable for the crime of online libel.

The Supreme Court held that the context of the provision in the law with regard to aiding or abetting cyber libel is unconstitutional and null and void as it encroaches on the Constitutional guaranteed freedom of speech for it generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages.

In case a subscriber of the Arellano Law “Secret Files” page is found guilty of crime online libel, the penalty imposed by the law is one degree higher compared with print libel under the Revised Penal Code. Under the Revised Penal Code, libel carries a penalty of prision correccional in its minimum (6 months and 1 day) and medium periods (2 years, 4 months, and 1 day to 4 years and 2 months). Under the Cyber Crime Prevention Act, the penalty for online libel carries a 2-fold increase in the maximum penalty – that is from 4 years and 2 months to 8 years as aptly pointed out by Chief Justice Maria Lourdes Sereno in her concurring and dissenting separate opinion in the case of Disini vs. The Secretary of Justice.

The rationale for the higher degree of penalty for Cyber Crime or online libel for that matter is that through the use of modern technology, the commission of these crimes like online libel affects more victims because of its accessibility thus causing far greater damage and harm to potential victims.

If in case a subscriber of the Arellano Law “Secret Files” page has already been convicted for the crime of online libel under Republic Act No. 10175 or the Cyber Crime Prevention Act, he will no longer be charged for libel under the Revised Penal Code. The Supreme Court held that published material posted online and on print are essentially identical materials and cannot be the subject of two separate libels.

Similar to print libel, posting an alleged libellous statement, not only punishes the actor for the crime committed but also entitles the victim to claim for damages. Although there is no hard-and-fast rule in determining what would be a fair and reasonable amount of moral damages, the same should not be palpably and scandalously excessive. Moral damages are not intended to impose a penalty to the wrongdoer, neither to enrich the claimant at the expense of the defendant. Moral damages enable the claimant to find some cure for the moral anguish and distress he has undergone by reason of the defamatory and damaging statements which the wrongdoer wrote. In the case of Philippine Journalists, Inc. (People’s Journal) vs. Thoenen, citing Guevarra vs. Almario, the Supreme Court noted that the damages in a libel case must depend upon the facts of the particular case and the sound discretion of the Court.

Those administrators who created and maintains the “Secret Files” page may not be punished or face the same penalty imposed upon the author of the potentially libellous statements, but they can be held civilly liable for damages under the Civil Code which provides:

Article 2205. Damages may be recovered:

xxx

2) For injury to the plaintiff’s business standing or commercial credit.

Postings made in the Arellano Law “Secret Files” page may be potentially injurious to the reputation of the school especially if the nature of the page runs counter to the very core values that the school board is trying to promote and impart to its students. If the page maintained by the administrator of the Arellano Law “Secret Files” has become an avenue for subscribers to violate the rights of others in the guise of the Constitutionally guaranteed freedom of speech and expression, the administrator of such page must be held accountable for one cannot exercises his right at the expense of another. A person’s right is balance with the right of another. However, imposing civil liability against the administrator of the “Secret Files” page is like finding a needle in a haystack. They can always contend that they only represent the voice of the students and making them accountable for civil damages would be like curtailing their freedom of speech and expression.

Internet providers and content providers will not be held liable for the crime of online libel. In the case of Disini vs. The Secretary of Justice, the Supreme Court observes that the provision on online libel suffers from vagueness and over-breadth and may threaten the Constitutional right of free speech. “A governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invalidating the area of protected freedoms.” Moreover, the Court states that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider and cannot be held civilly liable for any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene…whether or not such material is constitutionally protected.

In my journey of making this blog, I know now the legal significance of Republic Act No. 10175 particularly Section 4 (c) (4) which pertains to the crime of online libel. I fully understand the meaning of freedom of speech and expression not being an absolute right. One must know how to balance his rights as against the rights of another. Cliché as it may seem, but a person must follow a simple golden rule that is, “Knowing Before Speaking.” We have to be mindful of our words and actions for a word may be interpreted in many different ways.

To end, “What is freedom of expression? Without the freedom to offend, it ceases to exist.”

– Salman Rushdie

 

REFERENCES

  1. De Leon, Hector S. (2005). 1987 Philippine Constitution. Manila: Rex Printing Company, Inc.
  2. Reyes, L. B. (2008). The Revised Penal Code (17th Edition ed., Vol. I). Manila: Rex Printing Company, Inc.
  3. The Civil Code of the Philippines (2011 Edition). Manila: Rex Printing Company, Inc.
  4. Disini vs. The Secretary of Justice, G.R. No. 203335, February 11, 2014.
  5. Philippine Journalists, Inc. (People’s Journal) v. Thoenen, 513 Phil. 607, 625 (2005).
  6. Guevarra v. Almario, 56 Phil. 477 (1932).
  7. http://www.gov.ph/2012/09/12/republic-act-no-10175/.
  8. https://docs.google.com/forms/d/1too0KgDfI_Yn6-2FI-3AW-91urAwnMUs-CIrKQe5_dI/viewform.
  9. http://futurelawyertobe.blogspot.com/2014_03_01_archive.html.
  10. http://www.rappler.com/life-and-style/technology/136-viral/44935-university-secret-files.
  11. http://en.wikipedia.org/wiki/Internet_forum.
  12. http://en.wikipedia.org/wiki/Social_networking_service#Social_network_hosting_service.
  13. http://asianjournal.com/editorial/what-you-need-to-know-about-online-libel-in-ph-cybercrime-law/.
  14. http://www.philstar.com/headlines/2014/02/19/1292003/internet-libel-cyber-crime-law-constitutional.
  15. http://www.rappler.com/newsbreak/52027-making-sense-online-libel.
  16. http://www.gmanetwork.com/news/story/348945/scitech/technology/internet-libel-in-cybercrime-law-constitutional-sc.
  17. https://www.ifex.org/philippines/2014/02/20/libel_clause/.
  18. http://www.abogadomo.com/law-professor/law-professor-archives/libel-laws-of-the-philippines.
  19. http://www.lawphil.net/judjuris/juri2014/feb2014/gr_203335_2014.html.
  20. https://www.eff.org/issues/bloggers/legal/liability/defamation.