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September 22, 2012

Delete this post! Online libel as continuing offense

Since we posted the news about the Anti-Cybercrime Law, a number of people have contacted and asked me questions regarding its implications to bloggers. Though I am not a lawyer, I’ve been a subject of a libel suit back in 2006 so experience has taught me well.

I went thru the old records of my case, including the transcripts of my cross-examinations and the affidavits from both sides.

Then, I encountered this phrase somewhere — libel online is a continuing offense — and it struck me. The premise is that unlike print or TV where, after the publication or broadcast, the offending materials go off-air (or thrown to the trash in the case of a newspaper) libel online is a continuing offense.

That means that for each day that a blog post containing a libelous statement is still up and viewable online, the crime is still being committed.

Therefore, it can be argued that a libelous blog post published in 2005 continues to offend the subject of the crime as long as that blog post is allowed to remain online.

However, the Constitution provides against ex post facto law (or retroactive law) which means a newly enacted law cannot punish an offense that was done prior to the enactment of the new law.

The 1987 Constitution of the Philippines categorically prohibits the passing of any ex post facto law. Article III (Bill of Rights), Section 22 specifically states: “No ex post facto law or bill of attainder shall be enacted.”

This means that a libelous blog post you made in 2005 cannot be used to sue you for a crime under a law that was enacted in 2012.

But there’s a counter-argument to that — yes, you cannot be sued for libel from an old blog post before September 12, 2012 (the day the law was signed by the President) but since that blog post still exists and online after September 12, the offense is considering ongoing (thus, the continuing offense theory).

In short, you can still be sued for libel. Well, that’s how I interpreted it (I am not a lawyer but feel free to chime in at the comments section if you are) based on the libel suit filed against me years ago.

This might also include blog comments, tweets, FB wall posts, forum posts, Yahoo! Answers post, Quora entries, FourSquare status updates, Tumblr re-blogs… and the list continues.

We’ve already received reports of people sending out take-down notices against old blog posts and the like. As early as this month, we’ve gotten news of blog posts being taken down, set to private or completely deleted because of threats of online libel. These reports might escalate in number as more and more people realize the power of this new law.

Anti-Cybercrime Law: What you can or cannot do?
Symantec on Anti-Cybercrime Law & Network Security
Supreme Court upholds Internet Libel of RA 10175

22 Responses to “Delete this post! Online libel as continuing offense”

  1. Abiel says:

    there goes our (online) freedom of expression!

  2. pong says:

    i hope the ones who sues against this law win in court.

    Pnoy why you have to sign this law?

  3. Jason Aganan says:

    The internet is the last bastion of freedom of expression. This law must be challenged in the supreme court.

  4. ceegii63
    Twitter: ceegii63
    says:

    and now the internet becomes less interesting

    • Mr A
      Twitter: solidad
      says:

      It doesn’t matter if you are behind a proxy. If you are a “pro-blogger” with a user base and well publicized persona. You will be served either way.

      Of course, blogs like anti-pinoy may not be affected if the authors are hiding under an alias.

  5. Darwin says:

    I guess the more interesting question would be… What about plausible deniability?

    If somebody filed a libel case against me about something I posted on Facebook, I could claim that my account was compromised and that it wasn’t me.

    One is considered innocent until proven guilty and the burden of proof lies with the accuser.

    Just a thought.

  6. bert-10 says:

    MGA PUTAPETENG NA-CORNERRR!

  7. Ivan says:

    Let us stop the overreaction and the paranoia! Libel is an accusation that is extremely hard to prove! If someone accuses you of libel, he has to prove that there was malice in whatever you said or wrote. In fact, i do not know anyone who has been found guilty of libel.

    • Ghosthunter says:

      Even if it is hard to be proven guilty of libel, the sheer thread of getting sued sometimes forces many people to silence. And getting sued can be an expensive process, requiring you to hire a lawyer to advise and represent you in court.

      Potential legal harassment against the online community.

    • Ethan says:

      Suing for libel isn’t so much about winning as it is making life highly inconvenient for the defendant. I as a plaintiff could very well know my case against you for libel will be dismissed, but the point here is to scare you enough to remove your libelous content online.

  8. jabroni says:

    libel their roody poo,candy-asses!

  9. Joza says:

    Umm don’t take this law so serious we live in Philippine,so nothing to worry!

    • Ghosthunter says:

      Laws like this cannot be ignored because people in power can use it to harass or even close down legit websites simply because some politico did not like a guy’s comment posted on that site.

      As much as this is the Philippines, the online community has to make sure laws that infringe the right to free speech should never see the light of day.

  10. aianonymous says:

    This law is actually subjective… which can be interpreted in many ways. Most specially in favor of the people who knows the law well.

  11. Blue says:

    It’s a dangerous law, specially with the insertion of a certain you know who. Onion skinned but inept politicians are raring to take advantage of this law. The best we can do is not elect these inept people into public office and elect those who will amend bias laws such as this.

  12. Ghosthunter says:

    People will just react to this by having an online alter-ego to counter such laws.

    You cannot serve a summons to someone who doesn’t exist.

  13. Yuja
    Twitter: yujatakeo
    says:

    And now we will all just shut up and just play games online that doesnt require saying a thing…

  14. perhaps this article from my lawyer friend can shed some light to this matter

    http://ryantanlaw.wordpress.com/2012/09/24/cyber-libel-why-controversial/

  15. shy says:

    i feel troubled that it this law will be used against the anti-epal campaign. running politicians could base any form of what-they-see-as-dirty tactics but honest exposure (e.g. placing their names on publicly funded publicity materials). this is terrible.

  16. WOW just what I was looking for. Came here by searching for hair removal

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Abe is the founder and Editor-in-Chief of YugaTech. You Can follow him on Twitter @abeolandres.

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