Back to the Stone Age
When
the justices of the Supreme Court voted to declare constitutional
Republic Act No. 10175 or the Cybercrime Prevention Act, they exhibited
their ignorance on how modern technology operates as our main channel of
communication. Despite having completely revolutionized our system of
communications, in substance technology has remained protected by the
same mantle of freedom of expression, although given a wider audience
to express, and accorded the same degree of privacy should people
choose to send their message to a “friend” or as a private message.In that sense, the justices exhibited their stupidity in wrongly applying the law to a novel system that today serves as the pinnacle of man’s right to freely express his thoughts through that superhighway called the Internet. The decision was viewed as a desperate attempt to turn back the tide of civilization. The justices failed to recognize that such a step would require an insecure government to carry out police methods of screening potentially derogatory messages, which means that it would have to violate the sacred rights of its citizens.
Instead of positively welcoming the technology that revolutionized our freedom of expression and secured our privacy of communication in such breathtaking dimension, the Supreme Court allowed itself to be used as a tool to push civilization back to Stone Age. The miserable justices failed to comprehend that freedom of expression remains the cornerstone of individual liberty and the freedom to express one’s thought is a limitless privilege if confined within the range of privileged communication.
The justices failed to analyze that the same legal parameters and limitations on the principle of freedom of expression, and the right to privacy or privileged communication, apply to Internet users. Under Article 353 of the Revised Penal Code, the important element of the crime is publication of the imputation of a crime, or vice or defect, real or imaginary, or an imputation of any act, omission, condition, status or circumstances tending to cause dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Common sense will tell us that anybody who wants to impute must have in mind the publication of his message or article. That means, he has to use some kind of medium for the public to read and know his imputation, like using the newspapers, radio, television, pasting posters in public plazas, distributing handbills and manifestos for the purpose of allowing everybody to read his libelous article or message. While censorship is a prior restraint to freedom of expression, that legal principle cannot apply if the article or message is a private communication. Prior restraint cannot be resorted to by the government to internet users availing of their right to privilege communication without violating their right by prying open their private communications. That responsibility is on the sender, and not on the law enforcement agency, to filter whether his messages contain libelous remarks.
Whether or not the readers to whom the sender sent his message will agree with him is beside the point. What is important is it was specifically addressed by him to a particular person having in mind that what he wrote will be secured on the basis of his right to privileged communication. Even if the message contains libelous imputations, he remains protected for as long as the author sent his message to his “friends”.
Moreover, it is not the number of “friends” he furnished a copy to that is the issue. It is the fact that it was addressed to specific persons identified by him as “friends” and used the channel to privately communicate his message and/or comments.
On the other hand, freedom of expression only applies when the writer-sender purposely sought to publish his message to the public for them to know his sentiments or grievances. Publication is the boundary that delineates freedom of expression from privilege communications. Once the sender crosses the line to make known to the public his imputations without any qualifications, he opens himself to online libel. The act he committed amounts to publication. However, if one uses his Facebook or Twitter account to communicate to his selected or accepted friends, his communications with regard to them remains a privilege communication.
Unfortunately, that fuzzy demarcation line remains blurred to the justices. By giving their imprimatur to that highly questionable law, they practically exposed their ignorance about the novel system resulting in their wrong application of the law. Besides, there would be no case of online libel should the government read articles and messages transmitted through the internet without permission of the author, which this pretending-to-be honest government exactly intends to do. Such act of intercepting communications is considered a threat to freedom of expression for while no prior restraint is employed, it nonetheless violates the privacy of communication.
For the government to pry open messages without the consent of the author is to engage in espionage against its own people, and that makes that government a totalitarian or fascist government. In fact, the practice of the US National Security Agency (NSA) to pry open private internet communications is exactly the same issue raised by American whistleblower Edward Snowden. In cyber language, that criminal act of prying open private communications amounts to hacking, a threat this pretending-to-be-honest government wants to adapt.
Hence, it is right that those who might accidentally read his message, though not listed as “friend” and indicated therein “like” or made comments on his message, cannot be held liable. Equally, if the message in turn was sent to somebody not a “friend” of the sender, that cannot be made basis in making the author-sender liable for online libel, for it was shared without his consent.
rpkapunan@gmail.com
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