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.