Belo the Belt: Limitations on Lawyers’ Language on Social Media

Ricardo E. Escanlar III and Frezel E. Ocampo

LLB 3C

INTRODUCTION

Rule 7.03 of the Code of Professional Responsibility states that “A lawyer shall
not engage in conduct that adversely reflects on his fitness to practice law, nor shall he
whether in public or private life, behave in a scandalous manner to the discredit of the
legal profession.1” Meanwhile, Rule 8.01 states that “A lawyer shall not, in his
professional dealings, use language which is abusive, offensive or otherwise improper. 2”
Considering that the CPR was crafted back in 1988, the coverage of these provisions
may not be as well-defined in today’s setting where social media has increasingly
magnified the actions of everyone that distinction between private and public life has
been blurred. This is even more critical as the technology and the frequency of social
media use has already outpaced established legal practices 3, and are highlighting issues
inherent in older ethical rules and creating dilemmas for lawyers 4. Also, many young
lawyers grew up with internet access and spent most of their college and law school
years using social media sites5, and thus cannot be easily expected to easily be weaned
off the habit of using them.

Lawyers, being held to a higher moral and professional standard than most
others, may find themselves vulnerable to violation of this rule and other pertinent rules
of the CPR if the distinction is not clearly delineated. This is because they “may be
disciplined even for any conduct committed in their private capacity, as long as their
misconduct reflects their want of probity or good demeanor, a good character being an
essential qualification for the admission to the practice of law and for continuance of
such privilege. When the Code of Professional Responsibility or the Rules of Court
speaks of conduct or misconduct, the reference is not confined to one's behaviour
exhibited in connection with the performance of lawyers' professional duties, but also
covers any misconduct, which-albeit unrelated to the actual practice of their profession-
would show them to be unfit for the office and unworthy of the privileges which their
license and the law invest in them." 6, as the Supreme Court stated in a case filed
against the late Senator Miriam Defensor-Santiago.

According to University of Pennsylvania Law School professor Cynthia Dahl,

“Social media has and will continue to make relationships, including legal relationships,
more collaborative and social. However the use of social media can also adversely affect
a lawyer's ethical obligations and professional responsibilities” 7. Thus, constant,

1
Code of Professional Responsibility, Rule 7.03
2
Code of Professional Responsibility, Rule 8.01
3
Steven C. Bennett, Ethics of Lawyer Social Networking, 73 ALB. L. REV. 113, 118- 19 (2009).
4
Lackey, Michael E. Jr. and Minta, Joseph P. (2012) "Lawyers and Social Media: The Legal Ethics of
Tweeting, Facebooking and Blogging," Touro Law Review: Vol. 28: No. 1, Article 7.
5
Id.
6
Pobre v. Defensor-Santiago, 613 Phil. 352, 364-365 (2009).
7
Nicola A. Boothe-Perry, Friends of Justice: Does Social Media Impact the Public Perception of the Justice
System? 35 Pace L. Rev. 72 (2014)

1
unfiltered and unchecked use of social media could affect the lawyers’ capacity to abide
by the requirements and obligations set forth by the Code of Professional Responsibility.

This paper will analyze cases where the Court has attempted to define
unacceptable language- whether by lawyers or non-lawyers- in social media. As social
media is a recent phenomenon and there is very scant mention of it in jurisprudence,
the coverage of the analysis of this paper will thus include cases which involved non-
lawyers. It will also look at famous instances where social media was used by lawyers
to voice out their opinions on certain matters. It will further examine if the standards
for conduct, language and etiquette put forth in these cases are reasonable, consistent,
and the measures lawyers need to adapt in order to uphold these standards. This paper
will also speculate on the possible evolution of the legal profession’s ethical guidelines
due to the advent of social media, any possible beneficial and necessary additions to
the rules which may aid lawyers and the public, and what issues the Court may be
presented with in the future.

SOCIAL MEDIA- THE TIE WHICH BINDS US?

Technology has developed faster ways for people to communicate and express
their thoughts to their friends and to the public. Unlike before when exchanges of ideas
between people from opposite parts of the globe took days via correspondence,
thoughts from anyone can now be seen and spread by millions instantly online,
particularly via social media platforms such as Facebook, Twitter, Linkedin and
Instagram. While previously, news was sourced from traditional sources of media and
consumed by readers like a one-way avenue of information, consumers nowadays have
themselves the power to spread their opinions to everyone, creating a more engaged
and interactive dynamic.

Social media is defined by the Merriam-Webster Dictionary as “forms of

electronic communication (as websites for social networking and microblogging)
through which users create online communities to share information, ideas, personal
messages, and other content (as videos)”8.

The Philippines now leads the world in time spent on social media, according to
management platform Hootsuite and United Kingdom-based consultancy We Are Social
Ltd., with an average of 4 hours and 17 minutes per day spent by a person on social
media sites such as Facebook, Snapchat and Twitter, using data as recent as January
20179. There is now an estimated 39.8 million Facebook users in the country in 2016,
up from 35.3 million in 201510, due in part to it being offered free of charge to
Philippine smartphone users since October 31, 201311.
PROMINENT FILIPINO LAWYERS ON SOCIAL MEDIA

8
https://www.merriam-webster.com/dictionary/social%20media (last visited 18 March 2017)
9
http://technology.inquirer.net/58090/ph-worlds-no-1-terms-time-spent-social-media (last visited 24
March 2017)
10
https://www.statista.com/statistics/490455/number-of-philippines-facebook-users/ (last visited 22
March 2017)
11
http://mashable.com/2013/11/01/facebook-philippines/#sGThQeRp2sqQ (last visited 24 March 2017)

2
 Social media use has permeated through most sections of Philippine society, and
the legal profession is no exception. Perhaps one of the most notable lawyers on social
media is Supreme Court Justice Marvic Leonen, who has become known to utilize his
Twitter account, @marvicleonen 12 in order to voice out his opinions about certain legal
and political issues.

On one occasion, he posted a series of tweets over the weekend to speak up on

the spate of extrajudicial killings and on the plan to show a sex video in a congressional
hearing, posting, "Kung hindi tayo kikilos, sino ang kikilos? Kung hindi ngayon, kailan
pa? (If we don't take action, who will? If not now, when?)" on his Twitter account
@marvicleonen on Sunday, October 2, 2016, quoting the battlecry of anti-Marcos
activists during Martial Law13.

Because of this, certain people on social media criticized Leonen following his
tweets on laws related to pressing issues, including extrajudicial killings of drug
suspects, which led him to post that “Laws are legible. They are not, in the words of a
critical follower, ‘crypted.’ Neither should it be faulted for ‘bias’,” as probable response
to comments of some Twitter users against his posts14.

Aside from Justice Leonen, some known lawyers who use Twitter include former
Estrada impeachment trial defense lawyer Raymond Fortun (via his Twitter handle
@raymond42n15), Supreme Court spokesperson Theodore Te (@TedTe 16), Kabayan
party-list Representative Harry Roque (@attyharryroque 17), former Solicitor General
Florin Hilbay (@fthilbay18), and Ferdinand Topacio (@FSTopacio 19). The Supreme Court
also has an official Twitter account (@SCPh_PIO20).

Fortun, in a Facebook post on November 19, 2015, threatened to take budget

airline Cebu Pacific to court after it canceled his flight from Ho Chi Minh City, Vietnam to
Manila without any warning. “CebPac did not even have the professionalism to provide
for temporary shelter and for meals until they provide for a return flight,” he wrote. His
post gained more than 26,000 likes and 7,000 shares, with many of the comments
praising the lawyer for standing up against the airline 21. His threat apparently worked,
as Cebu Pacific contacted him, and his wife and two children got to fly back to Manila
on November 2022.

FIRED BECAUSE OF FACEBOOK

12
https://twitter.com/marvicleonen
13
http://www.rappler.com/nation/148034-supreme-court-marvic-leonen-extrajudicial-killings-de-lima-
video (last visited 24 March 2017)
14
http://www.philstar.com:8080/headlines/2016/10/04/1630166/trolls-hit-sc-justice-over-tweets (last
visited 24 March 2017)
15
https://twitter.com/raymond42n
16
https://twitter.com/TedTe
17
https://twitter.com/attyharryroque
18
https://twitter.com/fthilbay
19
https://twitter.com/FSTopacio
20
https://twitter.com/SCPh_PIO
21
http://www.rappler.com/move-ph/113397-raymond-fortun-sue-cebu-pacific (last visited 24 March
2017)
22
https://www.facebook.com/raymond.fortun/posts/10153326138292057 (last visited 24 March 2017)

3
 While posting on social media can lead to redress of injustices such as in the
case of Fortun, it is not always the case; it may leave people, especially those with little
social or economic clout, to possible loss of employment. As posts are generally
accessible to the public, the poster may not be able to control the audience of the post.
The poster may not be aware that the posts could be considered tacky or inappropriate.
Furthermore, the poster has little, if any, control over how the post may be viewed or
interpreted by the reader. Thus, certain posts on social media may be viewed as
controversial, offensive or even immoral. This may then lead to calls from people for
the deletion of the post in question, or even for the poster to be fired from his or her
job. In fact, there have already been instances in the Philippines or involving Filipinos
abroad where social media posts had led to a person’s dismissal from employment.

On August 2012, fifteen nurses were terminated from the Taguig-Pateros City
District Hospital for “liking” a Facebook post criticizing the purchase of a CT-scan
machine by hospital management last July 13, 2012 23. On January 2015, Singapore’s
Tan Tock Seng Hospital (TTSH) dismissed a Filipino nurse, Ello Ed Mundsel Bello, whose
Facebook comments calling Singaporeans "loosers" (losers), and "praying that disators
(disasters) will strike Singapore” surfaced, angering many online 24. On May 2015, a
business process outsourcing company based in Taguig fired a Thai national, Kosin
Prasertsri, who drew heavy criticism on social media for his racially-offensive comments
against Filipinos on Facebook.25

LOVE HURTS: THE “ILOVEYOU” VIRUS AND THE HISTORY OF CYBERLAWS IN

THE PHILIPPINES

While social media controversies and legal issues have been a relatively new
cyberspace phenomenon, cybercrimes- and the need for laws against them- were
already a hot topic less than two decades ago. According to Geronimo L. Sy,
Department of Justice Office of Cybercrime Head, “Any discussion of cybercrime in the
Philippines starts with reference to the ‘I Love You’ (sic) virus unleashed globally in
200026.” Also known as “The Love Bug”, ILOVEYOU, LoveLetter or VBS/LoveLet, it
spread itself via email using the subject line “ILOVEYOU” and the words “Kindly check
the attached LOVELETTER coming from me” as its subject 27. In all, about 45 million
Windows PCs were thought to have been hit on 4-5 May 2000 28, with an estimated $5.5
billion to $8.7 billion in damages and ten percent of all Internet-connected computers
affected29.  Onel de Guzman, a student of AMA Computer College, was quickly identified

23
http://www.philstar.com/headlines/2012/10/09/857601/15-nurses-fired-liking-criticism-vs-hospital (last
visited 25 March 2017)
24
http://www.straitstimes.com/singapore/tan-tock-seng-hospital-fires-filipino-nurse-who-made-offensive-
comments-on-facebook (last visited 25March 2017)
25
http://news.abs-cbn.com/nation/05/05/15/thai-who-called-pinoys-pignoys-fired-job (last visited 25
March 2017)
26
Sy, Geronimo L. A Short History of the Development of Cybercrime Legislation in the Philippines, 2000
to 2015
27
https://nakedsecurity.sophos.com/2009/05/04/memories-love-bug-worm/ (last visited 12 May 2017)

28
http://www.bbc.com/news/10095957 (last visited 12 May 2017)
29
http://www.catalogs.com/info/travel-vacations/top-10-worst-computer-viruses.html (last visited 12 May
2017)

4
as the potential creator of the virus 30. However, despite evidence mounting against the
suspect, the NBI (National Bureau of Investigation) were unable to take action 31 as
there was no law yet which specifically punished cybercrimes. Thus, in June 2000,
because of the international infamy that the ILOVEYOU virus brought, the legislature
passed the first “cybercrime law”, RA 8792 (Electronic Commerce Act of 2000) 32.
Nonetheless, as the law could not be applied retroactively, de Guzman was not
convicted33.

After RA 8792 was made into law, the Rules on Electronic Evidence (REE) were
promulgated by the Supreme Court in 2001 to implement it in the courts 34. The REE
shall apply whenever an electronic data message is offered or used in evidence 35, and
shall apply to all civil actions and proceedings, as well as quasi-judicial and
administrative cases36, which would later be expanded to criminal cases in 2002 by A.M.
No. 01-7-01-SC37, and applied in jurisprudence by the case of Pp. vs. Enojas38. The REE
then defines an “Electronic data message” as information generated, sent, received or
stored by electronic, optical or similar means39. 

Aware of the limited scope of the cybercrime provisions in RA 8792, work on

developing a more comprehensive Cybercrime Bill began in 2001 40. After a decade, the
Cybercrime Prevention Act (CPA) of 2012 was signed into law on 12 September 2012
and came into force on 3 October 201241.

DISINI ET AL. VS. THE SECRETARY OF JUSTICE, ET AL., CYBERCRIME

PREVENTION AND CONSTITUTIONAL RIGHTS IN CYBERSPACE

Considering the increasing importance of the Internet in everyday lives of the

Filipinos, it was perhaps expected that any law regulating its access would be under
public scrutiny, even if its purpose would be to ensure the prevention of proliferation of
criminal activity.

Disini was a consolidated petition which aimed to declare several provisions of CPA
unconstitutional and void42. The petitioners claimed that the means adopted by the
cybercrime law for regulating undesirable cyberspace activities violate certain of their
constitutional rights43. The government asserted that the law merely seeks to

30
https://motherboard.vice.com/en_us/article/love-bug-the-virus-that-hit-50-million-people-turns-15 (last
visited 12 May 2017)
31
https://nakedsecurity.sophos.com/2009/05/04/memories-love-bug-worm/ (last visited 12 May 2017)
32
Sy, Geronimo L. A Short History of the Development of Cybercrime Legislation in the Philippines, 2000
to 2015
33
https://nakedsecurity.sophos.com/2009/05/04/memories-love-bug-worm/ (last visited 12 May 2017)
34
http://www.accralaw.com/publications/are-social-media-posts-admissible-evidence (last visited 12 May
2017)
35
Rules on Electronic Evidence, Rule 1, Section 1
36
Rules on Electronic Evidence, Rule 1, Section 2
37
A.M. No. 01-7-01-SC
38
G.R. No. 204894, 10 March 2014
39
Rules on Electronic Evidence, Rule 2, Section 1(g)
40
Sy, Geronimo L. A Short History of the Development of Cybercrime Legislation in the Philippines, 2000
to 2015
41
Id.
42
G.R. No. 203335, 21 February 2014
43
Id.

5
reasonably put order into cyberspace activities, punish wrongdoings, and prevent
hurtful attacks on the system44.

The constitutionality of some of the sections of the CPA was questioned, among
which were Section 4(c)(4) on Libel 45 and Section 5 on Aiding or Abetting and Attempt
in the Commission of Cybercrimes. The libel provision of the cybercrime law reads: “The
unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code,
as amended, committed through a computer system or any other similar means which
may be devised in the future.46” Petitioners lament that libel provisions of the penal
code and, in effect, the libel provisions of the cybercrime law carry with them the
requirement of “presumed malice” even when the latest jurisprudence already replaces
it with the higher standard of “actual malice” as a basis for conviction, and that inferring
“presumed malice” from the accused’s defamatory statement by virtue of Article 354 of
the penal code infringes on his constitutionally guaranteed freedom of expression 47. The
Court ruled that libel is not a constitutionally protected speech and that the government
has an obligation to protect private individuals from defamation, and that Section 4(c)
(4) merely affirmed that online defamation constitutes “similar means” for committing
libel48.

On the other hand, Section 5 stated that “The following acts shall also constitute
an offense: (a) Aiding or Abetting in the Commission of Cybercrime. – Any person who
willfully abets or aids in the commission of any of the offenses enumerated in this Act
shall be held liable. (b) Attempt in the Commission of Cybercrime. — Any person who
willfully attempts to commit any of the offenses enumerated in this Act shall be held
liable.” Petitioners assailed the constitutionality of Section 5 that renders criminally
liable any person who willfully abets or aids in the commission or attempts to commit
any of the offenses enumerated as cybercrimes, as it suffers from overbreadth, creating
a chilling and deterrent effect on protected expression49.

The Court agreed, saying that the idea of “aiding or abetting” wrongdoings
online threatens the heretofore popular and unchallenged dogmas of cyberspace use 50.
To explain its reasoning, it cited Facebook and Twitter as examples. Is clicking “Like,”
“Comment,” or “Share” on Facebook considered as “aiding or abetting”? Is retweeting
something on Twitter tantamount to “aiding or abetting”?

The Court further asked, “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?51”

44
Id.
45
Id.
46
Id.
47
Id.
48
Id.
49
Id.
50
Id.
51
Id.

6
 As the law failed to properly appreciate the unique circumstances governing
internet speech, it would create an environment where online users would be scared to
use their constitutionally-guaranteed rights to freedom of expression online for fear of
penal consequences. Thus, the Court ruled that “the terms ‘aiding or abetting’
constitute broad sweep that generates chilling effect on those who express themselves
through cyberspace posts, comments, and other messages 52”. Thus, it decided that
Section 5 with respect to Section 4(c)(4) is unconstitutional, as “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. 53” It can be inferred that only the original
poster may be punished for libel, and not those who liked, commented, shared or
retweeted the libellous post.

Three justices expressed their dissenting and concurring opinions. Chief Justice
Maria Lourdes Sereno expressed her dissent from the ponencia’s upholding of Section 6
of the CPA as not unconstitutional in all its applications. Section 6 increases the penalty
libel from a range of “six months and one day to four years and two months”
imprisonment to a range of “six years and one day to 10 years” imprisonment 54, and
also metes out deprivation of (1) any public office the offender may hold, (2) the right
to vote and be voted to public office, and (3) retirement pay and pension 55. She found
Section 6 to be “unconstitutional insofar as it applies to cyberlibel because of its ‘chilling
effect.56’”, as the harsh penalties would deter people from exercising their rights to
freedom of expression online.

Justice Antonio T. Carpio voted “to declare unconstitutional Article 354 of the
RPC (the requirement for publicity) as far as it applies to public officers and public
figures.” This article presumes the existence of malice in every defamatory imputation,
thus making it ipso facto punishable, “even if it be true, if no good intention and
justifiable motive for making it is shown… 57” Furthermore, he opined that as “Section
4(c)(4) of the CPA “impliedly re-adopts Article 354 without qualification, giving rise to a
clear and direct conflict between the re-adopted Article 354 and the Free Speech Clause
based on prevailing jurisprudence. It now becomes imperative for this Court to strike
down Article 354, insofar as it applies to public officers and public figures. 58”

Justice Leonen, meanwhile, was of the opinion that “the constitution requires
that libel as presently contained in the Revised Penal Code and as re-enacted in the
(CPA) be struck down as infringing upon the guarantee of freedom of expression
provided in Article III, Section 4 of our Constitution. 59” Thus, he viewed Article 354 of
the RPC and Section 4(c)(4) of the CPA as unconstitutional not just with respect to
public officers and public figures, but as a whole.

52
Id.
53
Id.
54
http://opinion.inquirer.net/72658/the-dissents (last visited 13 May 2017)
55
Id.
56
G.R. No. 203335, 21 February 2014 (Sereno, opinion)
57
http://opinion.inquirer.net/72658/the-dissents (last visited 13 May 2017)
58
G.R. No. 203335, 21 February 2014 (Carpio, opinion)
59
G.R. No. 203335, 21 February 2014 (Leonen, opinion)

7
 In an article for the Philippine Daily Inquirer, former Chief Justice summarized his
thoughts on the dissents, saying that “(1) libel should be decriminalized as held by J
Leonen; or (2) at the very least, Art. 354 of the RPC should be declared unconstitutional
as opined by J Carpio; and, (3) the higher penalty for online libel should be declared
unconstitutional, as detailed by CJ Sereno.60

VIVARES VS. ST. THERESA’S COLLEGE AND INFORMATIONAL PRIVACY ON

SOCIAL MEDIA

After Disini, a case involving the use of social media reached the Supreme Court.
Vivares vs. St. Theresa’s College 61 involved two minors who were graduating high
school students at St. Theresa's College (STC), Cebu City. Sometime in January 2012,
they took pictures of themselves in their undergarments, drinking hard liquor and
smoking cigarettes. These pictures were then uploaded by another minor on her
Facebook profile. A computer teacher at STC’s high school department learned from her
students that some seniors at STC posted such pictures online. The photos were then
reported to STC’s Discipline-in-Charge for appropriate action, and STC eventually barred
them from joining the commencement exercises. The Plaintiffs filed a writ of habeas
data alleging an invasion of their children’s privacy by the Defendant. The RTC
dismissed the petition as petitioners failed to prove the existence of an actual or
threatened violation of the minors’ right to privacy. The Court then ruled that no right
to informational privacy was violated, as photos are viewable by “friends only” remain
to be outside the confines of the zones of privacy, as:
(1) Facebook “allows the world to be more open and connected by giving its
users the tools to interact and share in any conceivable way;”
(2) A good number of Facebook users “befriend” other users who are total
strangers;
(3) The sheer number of “Friends” one user has, usually by the hundreds; and
(4) A user’s Facebook friend can “share” the former’s post, or “tag” others who
are not Facebook friends with the former, despite its being visible only to his or
her own Facebook friends62.

SAN GASPAR-GITO VS. YU AND THE EXCLUSIONARY RULE ON SOCIAL MEDIA

In this case, the Court dealt with another complaint which involved inappropriate
actions on Facebook, and was the first case in which the Court had to determine
whether a member of the legal profession’s actions on social media was inappropriate.
San Gaspar-Gito vs. Yu was part of consolidated administrative proceedings against
respondent Judge Eliza B. Yu, for gross misconduct, gross ignorance of the law, gross
insubordination, oppression, and conduct unbecoming of a judge 63.

This administrative matter started from the Letter-Complaint of Judge Emily L.

San Gaspar-Gito of MeTC Branch 20, 139 whereby the latter imputed to Judge Yu

60
http://opinion.inquirer.net/72658/the-dissents (last visited 13 May 2017)
61
G.R. No. 202666, 29 September 2014
62
Id.
63
AM. Nos. MTJ-12-1813; 12-1-09-MeTC; MTJ-13-1836; MTJ-12-1815; OCA IPI Nos.11-2398-MTJ; 11-
2399-MTJ; 11-2378-MTJ;12-2456-MTJ and A.M. No. MTJ-13-1821, 22 November 2016.

8
conduct unbecoming of a judge for constantly sending alarming messages with sexual
undertones via Facebook and electronic mail, such as “ dear ems, i sent your meal stub
at your yahoo account to honor you this national heroes day. it's good you gave me an
idea of your preferred sexual position, there's no need to study that 69, you'll get it
from me spontaneously ... that's easy, pulled down your underwear, and eat what's in
between your thighs ... but you have to pay me $10 first . . . He He He!take care and
see you later. ..”64 In her defense, Judge Yu accused Judge San Gaspar-Gito with
dishonesty and violation of the right to privacy, that the messages were confidential
and thus inadmissible as evidence as defined under the exclusionary rule 65.

The Court ruled that Judge Yu's reliance on the exclusionary rule was misplaced,
as the messages sent by her to Judge San Gaspar-Gita were already owned by the
latter and required no consent of Judge Yu as the writer 66. The Court also ruled that the
messages contained sexual insinuations that were not reflective of conduct that was to
be expected of a member of the Judiciary 67. She was deemed to have violated Rules
1.02, 6.02 and 11.03 of the Code of Professional Responsibility, and the Court found
her “GUILTY of GROSS INSUBORDINATION; GROSS IGNORANCE OF THE LAW; GROSS
MISCONDUCT; GRAVE ABUSE OF AUTHORITY; OPPRESSION; and CONDUCT
UNBECOMING OF A JUDICIAL OFFICIAL; and, ACCORDINGLY, DISMISSES her from the
service EFFECTIVE IMMEDIATELY,68” and “is directed to show cause in writing within
ten (10) days from notice why she should not be disbarred for violation of the Lawyer's
Oath, the Code of Professional Responsibility, and the Canons of Professional Ethics. 69”

On March 14, 2017, the Court resolved Yu's Motion for Reconsideration with
Explanation for the Show Cause Order 70. In her motion, the respondent repeatedly
denied committing all the administrative offenses for which she was held guilty, and
insists on the absence of proof to support the findings against her 71. In particular, she
asserted that the presentation of the messages without her consent as the sender was
covered by the exclusionary rule, and that the allegations against her were hearsay 72.

The Court denied Yu’s motion, stating that “gross misconduct, violation of the
Lawyer's Oath, and willful disobedience of any lawful order by the Court constitute
grounds to disbar an attorney 73,” and found her to have “committed all of these
grounds for disbarment, warranting her immediate disbarment as a consequence 74.”

BELO-HENARES VS. GUEVARRA – A REITERATION OF VIVARES, AND

FREEDOM OF EXPRESSION ON SOCIAL MEDIA

64
Id.
65
Id.
66
Id.
67
Id.
68
Id.
69
Id.
70
AM. Nos. MTJ-12-1813; 12-1-09-MeTC; MTJ-13-1836; MTJ-12-1815; OCA IPI Nos.11-2398-MTJ; 11-
2399-MTJ; 11-2378-MTJ;12-2456-MTJ and A.M. No. MTJ-13-1821, 14 March 2017.
71
Id.
72
Id.
73
Id.
74
Id.

9
 The guidelines set on Vivares were important, as they were cited again in a case
decided by the Supreme Court wherein a lawyer was suspended over remarks on social
media made against an opponent in an ongoing suit. The case of Belo-Henares vs.
Guevarra, penned just last December 2016, was the first which stemmed primarily from
offensive posts on Facebook, and discussed in detail a lawyer’s obligations and
responsibilities in social media.

The complainant, Vicki Belo-Henares, is one of the most well-known cosmetic

surgeons in the country, with many celebrity clients. Meanwhile, Guevarra is a lawyer
who gained a reputation for championing activist causes.

In this case, Guevarra was serving as counsel of Josefina "Josie" Norcio, who
filed criminal cases against complainant for an allegedly botched surgical procedure on
her buttocks in 2002 and 2005, allegedly causing an infection and making her ill in
200975. Belo-Henares filed a disbarment complaint wherein she alleged that Guevarra
wrote a series of posts on his Facebook account, with messages like “Argee Guevarra:
Anyone care to sponsor T-shirts bearing this slogan? - BOYCOTT BELO! FLAWLESS
RECKLESS! BELAT ESSENTIALS!76”, calling the complainant insulting and demeaning
names such as "quack doctor," "Reyna ng Kaplastikan," "Reyna ng Payola," and "Reyna
ng Kapalpakan,", and insinuating that she committed bribery 77. The complaint further
alleged that “respondent posted remarks on his Facebook account that were intended
to destroy and ruin BMGI's medical personnel, as well as the entire medical practice of
around 300 employees for no fair or justifiable cause.” 78

In his defense, Guevarra claimed that: first, the posts in question were private
remarks on his private account on Facebook, only to be seen by his circle of friends;
second, that the posts were in the exercise of his freedom of speech; third, that the
remarks were not vulgar and obscene, nor made to provoke public hatred against
complainant; fourth, that Belo-Henares was a public figure who is subject of fair
comment79. In August 2013, the Integrated Bar of the Philippines’ Commission on Bar
Discipline (CBD), recommended that the Guevarra be suspended for one year, and the
Board of Governors of the Bar eventually reduced the suspension to six months upon
appeal80.

The Court ruled that the defense was untenable, using the guidelines set forth in
Vivares, saying that restricting the privacy of one's Facebook posts to "Friends" does
not guarantee absolute protection from the prying eyes of another user who does not
belong to one's circle of friends81.

The Court also rejected the defences of exercise of his freedom of speech and
expression, as the right of freedom of expression was not intended to broadcast lies or

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A.C. No. 11394, 1 December 2016
76
Id.
77
Id.
78
Id.
79
Id.
80
Id.
81
Id.

10
half-truths, insult others, destroy their name or reputation or bring them into
disrepute82. It thus found Guevarra to have violated Rules 7.03, 8.01 and 19.01 of the
Code of Professional Responsibility, stating that “By posting the subject remarks on
Facebook directed at complainant and BMGI (Belo Medical Group, Inc.), respondent
disregarded the fact that, as a lawyer, he is bound to observe proper decorum at all
times, be it in his public or private life. He overlooked the fact that he must behave in a
manner befitting of an officer of the court, that is, respectful, firm, and decent. Instead,
he acted inappropriately and rudely; he used words unbecoming of an officer of the
law, and conducted himself in an aggressive way by hurling insults and maligning
complainant's and BMGI's reputation”, and suspended him from the practice of law for
one year83.

ONLINE AND SOCIAL MEDIA POSTS AS EVIDENCE

In the case of Fortun vs. Quinsayas, the Court ruled that online posting in a
news website is already publication, with regards to the confidential nature of
disbarment proceedings84. Will there be a distinction, however, between posting on a
traditional news website and posting on social media?

In Bonifacio v. RTC of Makati , the Court ruled that “The same measure (in print
libel) cannot be reasonably expected when it pertains to defamatory material appearing
on a website on the internet as there would be no way of determining the situs of its
printing and first publication.85” It decided, however, not on the basis of whether or not
online libel was committed, or is a crime, but on insufficiency of the allegations in the
Amended Information to vest jurisdiction in Makati, where the libellous material was
first accessed by the offended party. Also, it must be asked, do e-groups and internet
forums (where the material was found) fall within the ambit of social media, or should
they only be classified under the general heading of “online material”?

Atty. Francisco Ed. Lim, a professor at the Ateneo Law School, discussed in
length the admissibility of social media posts in court. He presents a hypothetical
scenario: “Consider, for example, a Facebook post by Mr. Y that reads: “Senator X is a
crook. He stole millions of taxpayers’ money from the PDAF. He is a certified thief. He
deserves all the public humiliation that he is now getting. 86” Lim submits that this post
is admissible in evidence not only in a civil case but also in a criminal case, and that the
Facebook post in question is considered a document pursuant to the functional
equivalence and non-discrimination principles under RA 8792 and the Rules on
Electronic Evidence (REE)87.

He further states that “Under these principles, an electronic document is

considered the functional equivalent of a paper-based document and should not be
82
Id.
83
Id.
84
G.R. No. 194578, 13 February 2013
85
G.R. No. 184800, 5 May 2010 
86
http://www.accralaw.com/publications/are-social-media-posts-admissible-evidence (last visited 13 May
2017)
87
Id.

11
discriminated against as evidence solely on the ground that it is not in the standard
paper form. In fact, Section 12 of the ECA expressly provides that “nothing in the
application of the rules of evidence shall deny admissibility of an electronic data
message or electronic document on the sole ground that it is in electronic form, or on
the ground that it is not the standard form. 88”

However, considering that the decision in Disini came after the creation of the
REE, which of these principles apply with regards to social media? Are social media
posts to be dealt with the same harshness as ones made in print, or should they be
given some leeway given how online culture works? Even more importantly, which
standard applies to lawyers?

A TREND TOWARDS SELF-REGULATION?

The rulings on San Gaspar-Gito vs. Yu and Belo-Henares vs. Guevarra dealt with
different situations and cited different rules of the Code of Professional Responsibilty
that the lawyers violated in their irresponsible language in social media. However, there
appears to be a common trend- if it could be called as that in only 2 rulings- of the
Court deciding that the damage done by inappropriate language and etiquette on social
media towards the legal or judicial profession outweighs the Constitutionally-guaranteed
rights to free speech, expression, privacy and protection against illegal search.

One reason could be that the Court acknowledges the lack of current specific
guidelines governing social media use for lawyers in general, thus the apparent policy
of being “hands-off” and relying on lawyers themselves to self-regulate.

Another explanation is that the Courts trust lawyers, as learned and rational
individuals, to be prudent in their actions and to “think before they press the send
button”, so to speak. In Belo-Henares vs. Guevarra, the Court opined that Guevarra
“disregarded the fact that, as a lawyer, he is bound to observe proper decorum at all
times, be it in his public or private life 89” in posting malicious remarks on Facebook
towards Belo-Henares and BMGI, perhaps implying that the respondent, after going
through law school, taking and passing the Bar, and reciting the Lawyer’s Oath, is
expected to behave properly and in a manner befitting his profession, without need for
the Courts, the laws or any rules to remind him to do so. In San Gaspar-Gito vs. Yu, the
Court was expectedly even harsher, as the actions by Yu as a judge towards her fellow
member of the judiciary was downright inexcusable.

BETTER SAFE THAN SORRY, AVOID SOCIAL MEDIA ENTIRELY?

Seeing as how the Court has so far decided in cases involving lawyers and their
language and etiquette on social media, one might think that the safest route to
maintaining your integrity as a lawyer, and your status as a member of the Bar, is to
minimize or even avoid using social media. This is especially true considering that the
REE, in principle, states that electronic evidence should be given as much weight as
paper evidence. After all, given that Belo-Henares quoted the ruling on Pobre vs.

88
Id.
89
A.C. No. 11394, 1 December 2016

12
Defensor-Santiago that "Lawyers may be disciplined even for any conduct committed in
their private capacity, as long as their misconduct reflects their want of probity or good
demeanor, a good character being an essential qualification for the admission to the
practice of law and for continuance of such privilege 90”, is it even worth exposing any
part of your life for public scrutiny and criticism for possible risk of losing your
profession? While Disini decided that liking, sharing, commenting and retweeting would
not be considered “aiding and abetting” in libel, would this lenient approach also be
applied to lawyers, given that they are held to a higher moral standard?

A lawyer friend of one of the authors of this paper has decided to go the
cautious route, limiting his posts on social media to “stick(ing) to bible verses, non-
partisan comments and sports affiliations without engaging in any confrontation 91”. He
has consciously made an effort to stay away from engaging on discussions and debates
on contentious current issues, such as the closure of 23 mining firms and the
cancellation of 75 Mineral Production Sharing Agreements by Department of
Environment and Natural Resources (DENR) Secretary Regina Lopez, despite also being
a mining engineer by profession.

His dilemma, perhaps, highlights why lawyers should not avoid social media
entirely. Canon 5 of the Code of Professional Responsibility states that “a lawyer shall
keep abreast of legal developments, participate in continuing legal education programs,
support efforts to achieve high standards in law schools as well as in the practical
training of law students and assist in disseminating the law and jurisprudence 92.” As
social media now is the most accessible and popular avenue for the public to be
informed, the best way for lawyers to fulfil their obligations towards the public in
educating them of the law is via engaging with them on social media. This is especially
critical in these times when even supposed progressive and pro-democracy advocates
have championed the wanton disregard for due process committed by certain Cabinet
members of this country.

BALANCING BETWEEN BASHFULNESS AND BOORISHNESS

The question, then, would be how to balance the obligation to inform the public
and at the same time make sure that in doing so, no ethics issues are being violated?
What if, in a post intended to explain a certain legal process, his language was deemed
by someone to be offensive, and as such, a disbarment case was filed against him?
What are the thresholds for language, if any? And if there are none, would it be of
great help if they were established?

An answer may be found in looking closely at the decision in Belo-Henares. In

the said case, it should be noted that Guevarra was punished because of his posts
related to a case he was handling during that time. He may have gotten a lesser
punishment, or even no punishment at all, had his comments not been connected to an
adversary of an ongoing case. He would not have been found to be guilty of failing to
90
Pobre v. Defensor-Santiago, 613 Phil. 352, 364-365 (2009).
91
https://www.facebook.com/lahingpinoyforthewin/posts/10155137980019932?
comment_id=10155138032274932&reply_comment_id=10155138064259932&comment_tracking=%7B
%22tn%22%3A%22R1%22%7D&pnref=story (last visited 27 March 2017)
92
Code of Professional Responsibility, Canon 5

13
abide by Rule 8.01 as there were no “professional dealings” involved. However, if his
language was found to be abusive, then he might still be found liable under Rule 7.03
for “(behaving) in a scandalous manner to the discredit of the legal profession” even if
his remarks were directed to a random commenter and not against an adversary.

MANY QUESTIONS STILL UNANSWERED

So, to paraphrase the old philosophical question of "If a tree falls in a forest and
no one is around to hear it, does it make a sound”, if a lawyer posts something
offensive on social media and no one sees it, is it a legal ethics violation? If we go by
the Pobre threshold, is it all a matter of someone finding an offensive post? Would this
not lead into the possible scenario of someone with a personal vendetta against a
lawyer scrounging through his Facebook feed and finding something potentially
incriminating that could be cause for disbarment?

If a lawyer posts “Shit!” on his Facebook account, set to be visible to only his
Facebook friends, addressed to no one in particular, is that offensive language
potentially ruinous to the reputation of the legal profession? What if he posts “Shit!”
instead to a Facebook messenger chatbox comprising of his former law school
classmates, is that still offensive language? What if he posts a video on YouTube
wearing a shirt with “Shit!” written on it, is that still offensive language? Where do we
draw the line? And we have not even started discussing about posting poop emojis.

Also, regarding privacy- is it proper for the Court to base its privacy thresholds
on what a private corporation has designated? Especially since, in Belo-Henares, the
Court ratiocinated that “restricting the privacy of one's Facebook posts to "Friends" does
not guarantee absolute protection from the prying eyes of another user who does not
belong to one's circle of friends. The user's own Facebook friend can share said content
or tag his or her own Facebook friend thereto, regardless of whether the user tagged
by the latter is Facebook friends or not with the former. Also, when the post is shared
or when a person is tagged, the respective Facebook friends of the person who shared
the post or who was tagged can view the post, the privacy setting of which was set at
"Friends." Under the circumstances, therefore, respondent's claim of violation of right to
privacy is negated.93” What, then, would happen if Facebook installed or altered its
privacy settings for “Friends”, and increased the privacy settings for such a designation?
Can the Court be trusted to keep up to date with the changing settings of social media
apps and websites? Should these arbitrary privacy settings be valued higher over the
Constitutional guarantees of free speech and privacy? Also, what, then, if an account
was hacked, and private messages were discovered that were offensive- can the lawyer
invoke his right to privacy and right to be protected from illegal searches, contrary to
the rulings against Guevarra and Yu?

There are still so many questions, so many hypothetical scenarios, and we are
just scratching the surface in terms of social media litigation. Given how important
social media is now to the lives of many Filipinos, including Filipino lawyers, a spike in
jurisprudence involving social media can only be expected, and perhaps to be

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A.C. No. 11394, 1 December 2016

14
anticipated. Who knows, in the not-so-distant future, we might have disbarment cases
involving a lawyer posting inappropriate pictures on Snapchat, or a lawyer posting a
video inciting hatred against Muslims on YouTube, or a lawyer caught on Instagram
partying in Boracay when he was supposed to be appearing in court. Can the Code of
Professional Responsibility adequately answer the legal ethics dilemmas presented in
any of these scenarios? Again, the idealistic, Puritanical approach would be to simply
“know the Lawyer’s Oath by heart, and apply it in gray areas as a rule of thumb”, but
would that be enough, especially in today’s political climate where heated words and
conflicts in ideology are to be expected?

Perhaps, then, a proactive approach could be the solution in anticipation to the

avalanche of social media-related jurisprudence which might arrive given the rapid
change in society. Much like the Rules on Electronic Evidence and the Rules on DNA
Evidence were made in order to suit the times, a “Rules on Social Media Evidence”
might have to be crafted. It should be remembered that the Rules on Electronic
Evidence were largely a reaction from the “ILOVEYOU” virus case, and did not yet take
into account social media. The Internet, at that time, was in a “Web 1.0” stage where
content creators were few, with the vast majority of users simply acting as consumers
of content94. However, nowadays, any participant can be a content creator in “Web
2.0”95, meaning that anyone can voice their opinion and share it to a large audience. 
Thus, creating specific rules for social media evidence could be helpful not just to
regular cases but also to administrative cases involving lawyers.

CONCLUSION

Social media has its set of advantages and disadvantages for the practicing
lawyer. On one hand, it allows legal practitioners to have a tool to keep abreast with
the pulse of the nation, and it is helpful for communication and exchange of
information. On the downside, it leaves the lawyer vulnerable to possible violations of
the Code of Professional Responsibility.

Social media has become irreplaceable for those who vouch for its importance,
and inescapable for those who decry its evils. While it would be easy to advise lawyers
to simply avoid social media at all costs considering the risks involved, --- since some
clients also use certain features of social media to communicate with their lawyers, and
vice versa.

As social media use among lawyers continues to grow, it could only be surmised
that situations such as those in Belo-Henares vs. Guevarra and San Gaspar-Gito vs. Yu
would only be replicated and jurisprudence would be further enriched by such apparent
violations of the CPR on social media.
A good rule of thumb, albeit cliché, is to “think before you click” or “ponder before you
post”- would this post, in any way, endanger my privilege of practicing law? So far,
jurisprudence has decided that the right to free expression and the right to privacy
cannot be used as defences for what are deemed as CPR violations.

94
http://firstmonday.org/ojs/index.php/fm/article/view/2125/1972 (last viewed 13 May 2017)
95
Id.

15
 Social media has become a powerful tool for people to express their opinion on
certain pressing matters in society, and lawyers, given their place in society, are looked
upon, or even expected, to render their opinions on such. Thus, for lawyers to avoid
giving their voices on social media entirely would create a void in the public conscience.

Seeing that social media will only grow and not go away, it is perhaps prudent
for rules, or clearer guidelines for social media use to be adapted by the Courts, seeing
that the Code of Professional Responsibility may not adequately encompass the actions.
Such rules will not only be beneficial for lawyers as they have a better idea of what they
are and are not allowed to say or do on social media, and at the same time help the
legal profession maintain its integrity.

Until such guidelines are made and implemented, however, it is up for lawyers
themselves to find the balance between reclusiveness and recklessness in today’s
connected world, and while finding that balance, continue abiding by the provisions of
the Code of Professional Responsibility, the Lawyer’s Oath, and their own personal
moral compass. As Justice Leonen himself tweeted, “Discharge your chosen profession
with nobility and passion. It will be worth it. #servethepeople 96”

REFERENCES

Laws and Rules

- Code of Professional Responsibility

- Rules on Electronic Evidence

Papers

- Steven C. Bennett, Ethics of Lawyer Social Networking, 73 ALB. L. REV. 113, 118- 19
(2009).
- Lackey, Michael E. Jr. and Minta, Joseph P. (2012) "Lawyers and Social Media: The
Legal Ethics of Tweeting, Facebooking and Blogging," Touro Law Review: Vol. 28: No.
1, Article 7.
- Nicola A. Boothe-Perry, Friends of Justice: Does Social Media Impact the Public
Perception of the Justice System? 35 Pace L. Rev. 72 (2014)
- Sy, Geronimo L. A Short History of the Development of Cybercrime Legislation in the
Philippines, 2000 to 2015

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https://twitter.com/marvicleonen/status/826819560296771584

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Jurisprudence
- Pobre v. Defensor-Santiago, 613 Phil. 352, 364-365 (2009).
- G.R. No. 202666, 29 September 2014
- A.C. No. 11394, 1 December 2016
- AM. Nos. MTJ-12-1813; 12-1-09-MeTC; MTJ-13-1836; MTJ-12-1815; OCA IPI Nos.11-
2398-MTJ; 11-2399-MTJ; 11-2378-MTJ;12-2456-MTJ and A.M. No. MTJ-13-1821, 22
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- G.R. No. 203335, 21 February 2014
- G.R. No. 194578, 13 February 2013
- G.R. No. 184800, 5 May 2010
- G.R. No. 204894, 10 March 2014
- A.M. No. 01-7-01-SC 

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