SC: Not crime to share, like libelous post on social media

Criminalizing the “aiding or abetting” of online libel and prosecuting those who simply receive and react to defamatory social media posts will be difficult if the complexities of cyberspace are ignored in the formulation of a cyberlibel law, according to the Supreme Court.

In their Feb. 11 decision that was posted on the high court’s website on Friday, the majority justices demonstrated by analogy the difficulty of suing and penalizing all people who express their reactions via Facebook or Twitter by liking, sharing, commenting, “favoriting” or retweeting.

SOURCE: Aning (2014). Sharing, liking are not cyberlibel, Supreme Court shows why. By: Jerome Aning - Reporter. @JeromeAningINQ. Philippine Daily Inquirer. 03:49 AM February 23, 2014. Read more: Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can react to the posting, clicking any of several buttons of preferences on the program’s screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post online his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original "posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the practice of posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or other media—on the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this particular user’s posts, enabling them to read the same, and "Following," those whom this particular user is subscribed to, enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given posting. Retweeting is just reposting or republishing another person’s tweet without the need of copying and pasting it.

Now, suppose Maria (a blogger) maintains a blog on (blog service provider). She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their constitutionally-guaranteed right to freedom of expression.

Section 5 with respect to Section 4(c)(4) 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 out, formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the freedom of expression. (G.R. No. 203335. February 11, 2014)