Libel in the Blogosphere

and Social Media, and the

Inadequacy of Philippine
Libel Law in Cyberspace

Marie Arcie Anne M. Sercado*

2002-30342
16 February 2012

Reputation, reputation, reputation!

Oh, I have lost my reputation!
I have lost the immortal part of myself,
And what remains is bestial.

-William Shakespeare
Othello, Act II
Scene III

Good name in man and woman, dear my lord,

Is the immediate jewel of their souls.
Who steals my purse, steals trash; ‘tis something,
Nothing,
‘Twas mine, ‘tis his, and has been slave to thousands.
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.

-William Shakespeare
Othello, Act III
Scene III

*The author has a Bachelor of Arts degree in Journalism from the University of the Philippines Diliman, and a 5 th Year
Evening Student at the University of the Philippines College of Law. She is also an Information Officer III at the
Supreme Court Public Information Office.
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 I. INTRODUCTION

Last year, an Antipolo City court junked the libel case filed by a prominent Filipino
dermatologist against a lawyer.1 Considered as the Philippines’ first Facebook libel case,2 Antipolo City
Regional Trial Court Judge Mary Josephine Lazaro said Internet libel cannot be prosecuted because
of jurisdictional constraints.3 Prior to the decision of such court, the Department of Justice ruled
that there is no such crime as Internet libel, thus preventing prosecutors from entertaining such
complaints.4

In the complaint, it was alleged that the lawyer posted critical comments against the
company of the dermatologist on his Facebook page in September 2009. Specifically, the lawyer was
said to have referred to the dermatologist as “Reyna ng Kaplastikan, Reyna ng Kapalpakan,” meaning
Queen of False Pretenses, Queen of Incompetence, and to have called for a boycott on all the
dermatologist’s clinics.5

After the dismissal of the libel case, counsel for the sued lawyer said that the decision is a
“small step forward in making Facebook one of the freest forums for the nearly 20 million Filipino
Facebook users to exercise their right to free speech and expression.”6 They also accused the
dermatologist of spending money on “misleading, if not false advertisements,” and behaving “as
though she is Chief Censor of Cyberspace who can control and suppress critical thought and
opinion.”7

The ruling of the lower court in the instant case does not come as a surprise as the
Philippines’ present libel law, namely the Revised Penal Code, does not contain any reference to libel

1 Julien Merced C. Matabuena. ‘Belo case against lawyer dismissed’ Available

http://www.mb.com.ph/node/328580/belo-ca. January 9, 2012.
2 Karen Flores. ‘Court junks PH’s first Facebook libel case” Available http://www.abs-
cbnnews.com/lifestyle/07/26/11/court-junks-phs-first-facebook-libel-case. January 9, 2012.
3 Id.
4 Id.
5 Id.
6 Id.
7 Id.

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committed by means of the Internet. Moreover, applicable jurisprudence, which can be used as a
guide by lower court judges in ruling on such cases, is scarce.

Owing to its history of being conquered by foreigners and of martial law, the Filipino people
puts high premium upon the freedom of expression. For fear of being silenced again, the right to
free speech is heavily protected and secured, and the freedom of expression enjoys an exalted place
in the hierarchy of constitutional rights. The 1987 Constitution even provides that, “no law shall be
passed abridging the freedom of speech, of expression, or of the press, or of the right of the people
peaceably to assemble and petition the government for redress of grievances.”8 To offer more
perspective, it is widely-known that the Philippine mass media is considered the freest in Asia.

Despite this apparent inclination towards encouraging free expression among Filipino
citizens, there is a clear need to amend the present libel law so that the gap in the law can finally be
filled. In the advent of more advanced technology and the existence of an evolving world wide web,
the number of libel cases, such as the aforementioned case of the dermatologist and the lawyer, will
most likely skyrocket. Clearly, a mechanism must be created so that these complaints can be
sufficiently addressed instead of being outright dismissed.

To prove the abovementioned premise, this paper aims to highlight the inadequacy of the
Philippine libel law by pointing out the specific issues and problems in the applicability of the
present law in cyberspace. This paper will also present the experiences of foreign governments in
dealing with such issues, and the solutions they utilized to cope up with the times. This paper aspires
to catalyze the amendment of the present Philippine libel law, and to offer more solutions to address
the law’s insufficiency. Although much legal discussion has already dealt with the crime of libel,
there are very few authorities on internet libel, and there is a relative paucity of literature and
commentary on the topic. This paper hopes to set off discourse by drawing a clear picture of the
state of the law on internet libel in the Philippines.

8 CONST., art. III, sec. 4.

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 II. LIBEL IN PHILIPPINE LAW

A. Revised Penal Code

Libel is defined in the Revised Penal Code as a “public and malicious imputation of a crime, or
of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending
to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead.”9 In the case of Worcester v. Ocampo,10 the Court explained the reason
why defamation is punished, and said “the enjoyment of a private reputation is as much a
constitutional right as the possession of life, liberty or property. It is one of those rights necessary to
human society that underlie the whole scheme of human civilization.”

Defamation is the proper term for libel as used in the Code.11 The Spanish text uses the term
“defamacion” which is translated as libel in the English text.12

The elements of defamation are:

1. That there must be an imputation of a crime, of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance.
2. That the imputation must be made publicly.
3. That it must be malicious.
4. That the imputation must be directed at a natural or juridical person, or one who is dead.
5. That the imputation must tend to cause the dishonor, discredit, or contempt of the person
defamed.13

Subsumed under “crimes against honor,” the crime of defamation must be published.14 The
Code further states that “every defamatory imputation is presumed to be malicious, even if it be true,

9 REV. PEN. CODE, art. 353.

10 GR No. L-5932, February 27, 1912.
11 II L. REYES, THE REVISED PENAL CODE CRIMINAL LAW 939 (16TH ed., 2006).
12 Id.
13 Id. at 940.
14 REV. PEN. CODE, art. 354(1).

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if no good intention and justifiable motive for making it is shown.”15 Thus, the element of malice in
crime is already presumed in every defamatory imputation. Such presumption is known as malice in
law. Nevertheless, the aforementioned rule has its exceptions, which are the following:

1. A private communication made by any person to another in the performance

of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks,
of any judicial, legislative or other official proceedings which are not of confidential nature,
or of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.16

The aforementioned exceptions are the so-called privileged communications. The

prosecution must prove malice in fact to convict the accused on a charge of libel involving a privileged
communication.17

Further, the Code only recognizes libel that is committed by means of “writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic
exhibition, or any similar means.”18

The persons liable for libel are “any person who shall publish, exhibit, or cause the
publication or exhibition of any defamation in writing or by similar means.”19 The Code further states
that “the author or editor of a book or pamphlet, or the editor or business manager of a daily
newspaper, magazine or serial publication, shall be responsible for the defamations contained
therein to the same extent as if he were the author thereof.”20

As to venue, the criminal and civil action for damages in cases of written defamations should
be filed simultaneously or separately with the Regional Trial Court (RTC) of the province or city
where the libelous article is printed and first published, or where any of the offended parties actually

15 REV. PEN. CODE, art. 354(1).

16 REV. PEN. CODE, art. 354.
17 Supra note 11 at 951.
18 REV. PEN. CODE, art. 355.
19 REV. PEN. CODE, art. 360(1).
20 REV. PEN. CODE, art. 360(2).

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resides at the commission of the offense.21 However, where one of the offended parties is a public
officer whose office is in the city of Manila at the time of the commission of the offense, the action
shall be filed in the RTC of the city of Manila or of the city or province where the libelous article is
printed and first published.22 In case such public officer does not hold office in the city of Manila,
the action shall be filed in the RTC of the province or city where he held office at the time of the
commission of the offense or where the libelous article is printed and first published.23 The court,
where the criminal action or civil action for damages is first filed, shall acquire jurisdiction to the
exclusion of other courts.24

On the other hand, preliminary investigation of criminal action for written defamations shall
be conducted by the provincial or city prosecutor of the province or city where such action may be
instituted.25

B. Recent Jurisprudence

To give readers an overview on how the Philippine Supreme Court decides libel cases, a
survey of recent jurisprudence is in order.

The imputations must be derogatory.

In the case of Lopez v. People,26 the Supreme Court acquitted petitioner Aberasturi, who was
convicted of libel by the lower court for creating the phrase “CADIZ FOREVER, BADING AND
SAGAY NEVER” in a billboard in Cadiz City, Negros Occidental. The private respondent Salvador
Escalante, Jr. was then the mayor of Cadiz City, and has the nickname “Bading.” The latter alleged
that the imputation in the billboard maligned his character, and portrayed him as a puppet of Sagay
City, another city in the province of Negros Occidental.

21 REV. PEN. CODE, art. 360(3).

22 REV. PEN. CODE, art. 360(3).
23 REV. PEN. CODE, art. 360(3).
24 REV. PEN. CODE, art. 360(3).
25 REV. PEN. CODE, art. 360(3).
26 GR No. 172203, February 14, 2011.

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 However, the Court disagreed with the findings of the lower and appellate courts that the
aforementioned phrase tends to induce suspicion on private respondent’s character as mayor of
Cadiz City. The Court held that “there are no derogatory imputations of a crime, vice or defect or
any act, omission, condition, status or circumstance tending, directly or indirectly, to cause his
dishonor. Neither does the phrase in its entirety, employ any unpleasant language or somewhat
harsh and uncalled for that would result on private respondent’s integrity.”27

The Court explained:

Obviously, the controversial word ‘NEVER’ used by petitioner was plain and simple. In its
ordinary sense, the word did not cast aspersion upon private respondent’s integrity and
reputation much less convey the idea that he was guilty of any offense. Simply worded as it was
with nary a notion of corruption and dishonesty in government service, it is our considered view
to appropriately consider it as mere epithet or personal reaction on private respondent’s
performance of official duty and not purposely designed to malign and besmirch his reputation
and dignity more so to deprive him of public confidence.28

The libel case must be filed in the proper venue.

In the case of Chavez v. CA,29 the Information for libel did not indicate that the libelous
articles were printed or first published in Manila, or that petitioner resided in Manila at the time of
the publication of the articles but the case was filed in a Manila trial court. The Supreme Court ruled
that the Information was defective on its face, and struck it down. The Court cited Macasaet v.
People,30 which stated that since the place of printing and first publication or the place of residence at
the time are "matters deal[ing] with the fundamental issue of the court's jurisdiction, Article 360 of
the Revised Penal Code, as amended, mandates that either one of these statements must be alleged
in the information itself and the absence of both from the very face of the information renders the
latter fatally defective."31

27 GR No. 172203, February 14, 2011.

28 GR No. 172203, February 14, 2011.
29 GR No. 125813, February 6, 2007.
30 GR No. 156747, February 23, 2005.
31 GR No. 172203, February 14, 2011.

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 Also in the case of Bonifacio v. RTC Makati,32 the High Court tackled the issue of venue of a
libel case wherein the subject defamatory material appeared on a website on the Internet, and the
complainant filed the case in Makati City where the website was accessed. The Court directed the
RTC of Makati City to quash the amended libel Information, and to dismiss the case due to the
insufficiency of allegations in the Information to vest jurisdiction in it.

The Court explained:

If the circumstances as to where the libel was printed and first published are used by the
offended party as basis for the venue in the criminal action, the Information must allege with
particularity where the defamatory article was printed and first published, as evidenced or
supported by, for instance, the address of their editorial or business offices in the case of
newspapers, magazines or serial publications. This pre-condition becomes necessary in order to
forestall any inclination to harass.33

The Court said that the abovementioned measure 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.34

“To credit Gimenez’s (complainant’s) premise of equating his first access to the defamatory
article on petitioners’ website in Makati with ‘printing and first publication’ would spawn the very ills
that the amendment to Article 360 of the RPC sought to discourage and prevent. It hardly requires
much imagination to see the chaos that would ensue in situations where the website’s author or
writer, a blogger or anyone who posts messages therein could be sued for libel anywhere in the
Philippines that the private complainant may have allegedly accessed the offending website,” the
Court held.35

32 GR No. 184800, May 5, 2010.

33 GR No. 184800, May 5, 2010.
34 GR No. 184800, May 5, 2010.
35 GR No. 184800, May 5, 2010.

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 The Court also stressed that “to hold that the Amended Information sufficiently vested
jurisdiction in the courts of Makati simply because the defamatory article was accessed therein would
open the floodgates to the libel suit being filed in all other locations where the pepcoalition website is
likewise accessed or capable of being accessed.”36

There must be malice in fact or in law.

In the case of Villanueva v. PDI,37 the Supreme Court affirmed the dismissal of a libel
complaint against respondent Philippine Daily Inquirer (PDI) for publishing that petitioner Hector
G. Villanueva was disqualified by the Commission on Elections as one of the mayoralty candidates
in Bais, Negros Oriental during the May 11, 1992 elections. The publication was done a day before
the elections. Villanueva was eventually defeated, and alleged that his loss was due to the published
story. The story was soon found out to be untrue, and PDI political section editor Carlos Hidalgo
claimed that he merely got the story from a press release.

In agreeing with the appellate court in on the complaint’s dismissal, the Court said that it
found no conclusive showing that the published articles in question were written with knowledge
that these were false or in reckless disregard of what was false or not.38

The Court added that:

Nevertheless, even assuming that the contents of the articles turned out to be false, mere
error, inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and debate. Consistent with
good faith and reasonable care, the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the choice of language. There must be some
room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and
tolerance can they courageously and effectively function as critical agencies in our democracy. 39
(Emphasis supplied)

36 GR No. 184800, May 5, 2010.

37 GR No. 164437, May 15, 2009.
38 GR No. 164437, May 15, 2009.
39 GR No. 164437, May 15, 2009.

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 In the case of FBNI v. AMEC-BCCM,40 two radio broadcasters exposed various alleged
complaints from students, teachers, and parents against a medical college, which suggest that the
college is a money-making institution where physically and morally unfit teachers abound. Claiming
that the broadcasts were defamatory, the college and its officials filed a complaint for damages
against the broadcasting network and the broadcasters. The trial court and the appellate court found
the broadcasting network and the broadcasters liable for libel.

Upon appeal to the High Court, the broadcasting network contended that the broadcasts are
not malicious, and the broadcasters were plainly impelled by their civic duty to air the students’
gripes. It alleges that there is no evidence that ill will or spite motivated the two reporters in making
the broadcasts. And since there is no malice, there is no libel, the network insisted.

However, the Supreme Court held that every defamatory imputation is presumed malicious,
and that the two broadcasters failed to show adequately their good intention and justifiable motive
in airing the supposed gripes of the students.41

The Court explained:

As hosts of a documentary or public affairs program, Rima and Alegre should have
presented the public issues "free from inaccurate and misleading information." Hearing the
students’ alleged complaints a month before the exposé, they had sufficient time to verify their
sources and information. However, Rima and Alegre hardly made a thorough investigation
of the students’ alleged gripes. Neither did they inquire about nor confirm the purported
irregularities in AMEC from the Department of Education, Culture and Sports. Alegre testified
that he merely went to AMEC to verify his report from an alleged AMEC official who refused to
disclose any information. Alegre simply relied on the words of the students "because they were
many and not because there is proof that what they are saying is true." This plainly shows Rima
and Alegre’s reckless disregard of whether their report was true or not.42 (Emphasis supplied)

The Court also found that the broadcasts were not the result of straight reporting.43 The
Court noted that some courts in the United States apply the privilege of “neutral reportage” in libel

40 GR No. 141994, January 17, 2005.

41 GR No. 141994, January 17, 2005.
42 GR No. 141994, January 17, 2005.
43 GR No. 141994, January 17, 2005.

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cases involving matters of public interest or public figures.44 Under this privilege, a republisher who
accurately and disinterestedly reports certain defamatory statements made against public figures is
shielded from liability, regardless of the republisher’s subjective awareness of the truth or falsity of
the accusation.45 However, the Court held that the broadcasters cannot invoke the privilege of
neutral reportage because unfounded comments abound in the broadcasts, and there is no existing
controversy involving the medical college when the broadcasts were made.46

The victim must be identifiable.

In the case of Diaz v. People,47 the High Court acquitted newspaper columnist Ogie Diaz of
the crime of libel because the complainant or alleged victim is not identifiable from the contents of
the libelous article. The complainant alleged that the column of Diaz meant to convey false and
malicious imputations that the former is a sexual pervert, and possesses lascivious and immoral
habits. However, the Court said that in order to maintain a libel suit, it is essential that the victim be
identifiable although it is not necessary that the person be named.48 The Court found that the article,
while referring to a “Miss S,” does not give a sufficient description or other indications which
identify “Miss S,” and fails to show that “Miss S” and the complainant are one and the same
person.49

In the case of MVRS Publications v. Islamic Da’Wah Council of the Philippines,50 the Supreme
Court affirmed the dismissal of complaint for libel filed by a local federation of more than 70
Muslim religious organizations and individual Muslims. The subject of the complaint is an article
published in a daily tabloid. The complaint alleged that the libellous statement was insulting and
damaging to the Muslims, and that the words alluding to the pig as the God of the Muslims was not
only published out of sheer ignorance but with intent to hurt the feelings, cast insult, and disparage
the Muslims and Islam.51

44 GR No. 141994, January 17, 2005.

45 GR No. 141994, January 17, 2005.
46 GR No. 141994, January 17, 2005.
47 GR No. 159787, May 25, 2007.
48 GR No. 159787, May 25, 2007.
49 GR No. 159787, May 25, 2007.
50 GR No. 135306, January 28, 2003.
51 GR No. 135306, January 28, 2003.

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 The Court held that there was no fairly identifiable person who was allegedly injured by the
tabloid article.52 The Court said, “Since the persons allegedly defamed could not be identifiable,
private respondents have no individual causes of action; hence, they cannot sue for a class allegedly
disparaged. Private respondents must have a cause of action in common with the class to which they
belong to in order for the case to prosper.”53

The defense of privileged communication.

In the case of Alcantara v. Ponce,54 petitioner Alcantara filed a complaint for libel against
respondent Ponce with the Makati Prosecutor’s Office in connection with a “newsletter” that was
supposedly used as an annex to a sur-rejoinder filed by the respondent in an estafa case between
them. The trial court ruled that the absence of the essential element of publicity precluded the
commission of the crime of libel.55 The Court of Appeals subsequently ruled that the trial court
judge had not committed grave abuse of discretion for granting the withdrawal of the Information
for libel against respondent Ponce.56 Nevertheless, the Court affirmed the appellate court, and held
that since the newsletter was presented during the preliminary investigation, it was vested with a
privileged character.57 Being of absolute privileged character, the material is not actionable.

The Court explained:

While Philippine law is silent on the question of whether the doctrine of absolute privilege
extends to statements made in preliminary investigations or other proceedings preparatory to the
actual trial, the U.S. case of Borg v. Boas makes a categorical declaration of the existence of such
protection:

It is hornbook learning that the actions and utterances in judicial proceedings so far as the
actual participants therein are concerned and preliminary steps leading to judicial action of
an official nature have been given absolute privilege. Of particular interest are proceedings
leading up to prosecutions or attempted prosecutions for crime xxx [A] written charge or
information filed with the prosecutor or the court is not libelous although proved to be false and

52 GR No. 135306, January 28, 2003.

53 GR No. 135306, January 28, 2003.
54 GR No. 156183, February 28, 2007.
55 GR No. 156183, February 28, 2007.
56 GR No. 156183, February 28, 2007.
57 GR No. 156183, February 28, 2007.

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 unfounded. Furthermore, the information given to a prosecutor by a private person for the
purpose of initiating a prosecution is protected by the same cloak of immunity and cannot be
used as a basis for an action for defamation.58 (Emphasis supplied)

In the case of Binay v. Secretary of Justice,59 an article was published regarding the alleged
extravagant lifestyle of the family of then Makati City Mayor Jejomar C. Binay in a local tabloid. One
of the paragraphs stated that Binay’s minor daughter is accustomed to buying expensive lingerie.
Based on this, a complaint for libel was filed against the tabloid’s publisher and writer.

The respondents argued that the paragraph constitutes privileged communication because it
was a fair comment on the fitness of Binay to run for public office, particularly on his lifestyle and
that of his family.60 As such, they said that malice cannot be presumed, and it is now petitioner’s
burden to prove malice in fact.61

The Supreme Court disagreed with the respondents and said:

To qualify under the first category of a conditionally or qualifiedly privileged

communication, paragraph 25 must fulfill the following elements: (1) the person who made the
communication had a legal, moral, or social duty to make the communication, or at least, had an
interest to protect, which interest may either be his own or of the one to whom it is made; (2) the
communication is addressed to an officer or a board, or superior, having some interest or duty in
the matter, and who has the power to furnish the protection sought; and (3) the statements in the
communication are made in good faith and without malice.62

Thus, the Court said that “Whichever way we view it, we cannot discern a legal, moral, or
social duty in publishing Joanna's status as an adopted daughter. Neither is there any public interest
respecting her purchases of panties worth P1,000.00. Whether she indeed bought those panties is
not something that the public can afford any protection against. With this backdrop, it is obvious
that private respondents' only motive in inserting paragraph 25 in the subject article is to embarrass
Joanna before the reading public.”63 Since the defense of privileged communication is untenable, the

58 GR No. 156183, February 28, 2007.

59 GR No. 170643, September 8, 2006.
60 GR No. 170643, September 8, 2006.
61 GR No. 170643, September 8, 2006.
62 GR No. 170643, September 8, 2006.
63 GR No. 170643, September 8, 2006.

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Court ordered the city prosecutor to continue and proceed with the case for libel against the
respondents.

III. THE INTERNET REVOLUTION

A. The Internet

The Internet is a network of computer networks.64 The very name Internet comes from the
concept of inter-networking, where multiple computer networks are joined together.65

The Internet is, at its core, a medium of instantaneous, long-distance communication.66 For
the first time, it brings mass communication to the masses: anyone with a computer and an Internet
connection can utilize its potential.67 It facilitates communication in any combination of writing,
sounds, and pictures.68 It knows no geographical boundaries: any Internet user can communicate
globally, with a potentially limitless audience.69

In the book The Law of Defamation and the Internet, author Matthew Collins wrote:

As the Internet makes instantaneous global communication available to so many people,

it has the potential to create new communities united by common interest, rather than
geography. It is a medium which celebrates and encourages free speech and the exchange of
ideas.70

Despite the distinct advantage that the Internet provides for communication, the Internet
also has the potential to increase dramatically the incidence of multi-jurisdictional defamation.
Defamatory material published via the Internet may have an audience of thousands or millions. 71

64 G. FERRERA, CYBERLAW: TEXT AND CASES 3 (2001).

65 Id.
66 M. COLLINS, THE LAW OF DEFAMATION AND THE INTERNET 3 (2001).
67 Id.
68 Id.
69 Id.
70 Id.
71 Id.

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That material might have a devastating impact on the defamed person’s reputation and give rise to a
justifiable desire for vindication.72

B. The Emergence of Blogs and Social Media

In the year 2000, electronic mail or “e-mail” is the most used Internet facility.73 Fast forward
to today, the Internet is not used primarily for e-mail anymore. Forums for defamatory speech—
blogs, social networks, consumer gripe websites, and news website comment sections—have
proliferated across the Internet.74 Anonymous speech is common, and the anonymity of virtual
speech or relative anonymity when compared to speech in the “real” world emboldens bloggers and
the posters.75 Online archives give even casual comments a long shelf-life, and search engines make
Internet speech easy to find.76

Merriam-Webster defines blog, short for “weblog,” as “a Website that contains an online
personal journal with reflections, comments, and often hyperlinks provided by the writer.”The
blogosphere, which is the term for the collection of all blogs on the Internet, is made up of more
than 60 million individual blogs, and the number is growing daily.77 There are approximately 50,000
to 70,000 blogs launched every day, with 29,100 updates every hour.78 Global blogging networks
have also emerged, carrying blogs on specific trends, gadgets, and technologies written by writers all
over the world. In fact, blogs have become so popular that Merriam-Webster chose “blog” as the
word of the year for 2004.

In the article “Libel in the Blogosphere and Social Media: Thoughts on Reaching Adolescence,”79 author
Hannah Metcalfe noted that in the United States, there is now so much litigation relating to internet-
based defamation that law practices and legal blogs penned by “social media lawyers” have sprung

72 Id.
73 Id.
74 H. Metcalfe, Libel in the Blogosphere and Social Media: Thoughts on Reaching Adolescence, 5 Charleston L. Rev. 481. (2011).
75 Id.
76 Id.
77 Tanuja Singh. ‘Blogging: A New Play in Your Marketing Game Plan’ Available
http://ebiz.bm.nsysu.edu.tw/2009/m964012010/references/blogging%20-
%20a%20new%20play%20in%20your%20marketing%20game%20play.pdf
78 Id.
79 Supra note 66.

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up across the country. Metcalfe also noted that the “blogosphere” itself has changed radically in the
last five years, which is equivalent to “thirty-five years in Internet time.”80

In describing the blogosphere, she said:

In fact, the cyber landscape of the so-called blogosphere has changed so dramatically
one might argue the name “blogosphere” is no longer an apt description for the online world
that pervades our homes, offices, cars, televisions, gaming consoles, phones, and mobile devices.
This shift has been shown in the rise of social media sites like Facebook, the advent of micro-
blogging services such as Twitter and Tumblr, and the opening of the “corporate blogging”
floodgates. While traditional blogs may have reigned supreme in 2006, Facebook now dominates
as a one-stop site for social interaction. Twitter, which allows messages of no more than 140
characters, has only furthered the upheaval.81

In the year 2011, there were over 500 million active users of Facebook, and people spent over
700 billion minutes per month on Facebook.82 The average Facebook user creates ninety pieces of
content each month, and there are more than 30 billion pieces of content, including blog posts,
photos, and news stories, shared each month.83 Twitter, a relative newcomer compared to Facebook,
has 175 million registered users as of September 14, 2010, and 95 million messages or “tweets” are
written per day.84

Furthermore, in the United States, Metcalfe pointed out that as of late, corporate America
has embraced blogging and social media as a way to engage their customers and market their
products and services.85 She mentioned that big companies such as Walmart, Coca-Cola, and Kraft
Foods all have Facebook pages while Chevrolet, Bank of America, and Pfizer are all on Twitter.86 However,
Metcalfe predicted that in these companies’ rush to join on the social media bandwagon, they may

80 Id.
81 Id.
82 Id.
83 Id.
84 Id.
85 Id.
86 Id.

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leaves themselves—and their significant corporate checkbooks—exposed to potential social media-
related libel claims.87

Evidently, blogging and social media are now vital marketing tools. Though it is true that
blogs are conceptually similar to other channels like print, video, audio, and so on, the interactivity
inherent in blogs allows for a higher level of connectedness with the customer.88 In that sense, blogs
have a better ability to manage customer relations, facilitate internal collaboration, aid knowledge
management, improve media relations, and test new ideas for products and services.89 Because of
this advantage, blogs and social media are now being used by almost all businesses in promoting
their products and services.

In essence, cyberspace has expanded exponentially, and there are now more channels for
defamation in the Internet. Metcalfe predicts that in the coming five years, more libel cases will
undoubtedly be brought against the users of social media and micro-blogging sites as the number of
users continue to grow largely and the financial interests and wherewithal of the companies and
individuals involved increases.90 Metcalfe also found basis for this prediction on the premise that
social media users do not share the discipline of the traditional journalist or blogger,91 making them
more susceptible to committing defamation. This prediction also finds basis in the fact that with the
proliferation of forums and social networks, users can easily and conveniently post their comments
or messages on these platforms. These comments and messages, by all means, are potentially
libelous.

87 Id.
88 H. Metcalfe, Libel in the Blogosphere and Social Media: Thoughts on Reaching Adolescence, 5 Charleston L. Rev. 481. (2011).
89 Id.
90 Id.
91 Id.

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IV. PROBLEMS AND ISSUES IN THE APPLICABILITY OF PHILIPPINE LIBEL LAW
IN CYBERSPACE

A. Means that libel may be committed

As aforementioned, the Revised Penal Code only recognizes libel that is committed by means
of “writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means.”92

In interpreting such provision, the principle of ejusdem generis, which is Latin for “of the same
kind,” is useful. The legal maxim posits that where a law lists specific classes of persons or things
and then refers to them in general, the general statement only applies to the same kind of persons or
things specifically listed. Following this principle, the crime of libel can only be committed by means
limited to those of a similar nature with those particularly enumerated, namely writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, and cinematographic
exhibition. These methods are clearly traditional, and are in no way similar or analogous to
publication in the Internet, which is a recent technological development.

Moreover, these enumerated means have a common characteristic, namely, their permanent
nature as a means of publication.93 Corollarily, publishing through the Internet cannot be considered
to have a permanent nature as a post can be deleted anytime by the person who created the post or
the website’s administrator.

Given these premises, it is clear that the present libel law does not recognize publication
through the Internet as a means by which the crime of libel can be committed. In fact, Department
of Justice (DOJ) Secretary Raul M. Gonzalez categorically ruled in a resolution deciding a petition
for review that the crime of “internet libel” is non-existent.94 As of this article’s writing, such
resolution has not been overturned at the DOJ yet, and prosecutors have no choice but to abide by
such ruling, and accordingly refuse to investigate “internet libel” cases.

92 REV. PEN. CODE, art. 355.

93 II L. REYES, THE REVISED PENAL CODE CRIMINAL LAW 951 (16TH ed., 2006).
94 Criminal Case Nos. 06-873 – 885, June 20, 2007.

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B. Who’s liable?

As provided by the Revised Penal Code, the persons responsible for libel are:

1. The person who publishes, exhibits or causes the publication or exhibition of any defamation
in writing or similar means.

2. The author or editor of a book or pamphlet.

3. The editor or business manager of a daily newspaper magazine or serial publication.95

(Emphasis supplied)

In the enumeration above, no mention is made of online editors and business managers of
blogs or websites which operate like newspapers, magazines, and serial publications. This is
problematic since there is no direct provision in law which makes such persons liable. As such, even
if they are to blame in part for the online publication of the libelous material, they may escape
criminal liability, and emerge unscathed. As gatekeepers of the material that is being published,
online editors and business managers should also be subjected to liability when the published
material violates the law, considering it is their responsibility to sift through the material and approve
what gets to be published.

Another person who must be held liable for online defamation are the people who post
comments on blogs and social media posts but unfortunately, the enumeration of the Code does not
include them mainly because of the traditional character of the provision. This is a clear predicament
because these individuals, who may be guilty of libel, will come out unscathed, and justice will not be
served.

In addition, no mention is also made of the liability of internet service providers, which are
the providers of the online services or network access or the operator of facilities including entities
offering the transmission, routing, or providing of connections for online communications.96 These
service providers enable the posting of content on the Internet.

95 Supra note 93 at 983.

96 Rep. Act No. 8792 (2000), sec.5(i).
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 Nevertheless, despite being left out of the Revised Penal Code, the liability of internet service
providers can be sourced from Republic Act No. 8792 or the Electronic Commerce Act. Under this
special law, a party or person acting as a service provider incurs no civil or criminal liability in the
making, publication, dissemination, or distribution of libelous material provided that:

1. The service provider does not have actual knowledge, or is not aware of the facts or
circumstances from which it is apparent, that the making, publication, dissemination or
distribution of each material is unlawful or infringes any rights subsisting in or in relation to such
material;

2. The service provider does not knowingly receive a financial benefit directly attributable to the
unlawful or infringing activity; and

3. The service provider does not directly commit any infringement or other unlawful act and
does not cause another person or party to commit any infringement or other unlawful act and/or
does not benefit financially from the infringing activity or unlawful act or another person or
party.97

Thus, a service provider is not liable for libelous material if he has no actual knowledge of
the libel, does not benefit financially from it, or does not directly commit the crime or induce
someone to do so. However, once the service provider gains actual knowledge of the libel, he or she
must warn the user, and take the libelous material down if the user does nothing about it. These acts
show that the service provider does not condone the crime, and as such, will not be held liable for it.

Despite this development, the difficulty in making the service provider liable lies in proving
actual knowledge of the libel. Proof of such knowledge may be hard to acquire, making it hard for
complainants to make service providers accountable.

Moreover, almost six years ago, the City Prosecutor of Pasig dismissed a libel complaint
against a service provider.98 The service provider was the alleged server or host of an internet forum
where the alleged libelous comments had been made. The Investigating Prosecutor dismissed the
case, and reasoned that in addition to the fact that the service provider is a juridical entity that may

97Rep. Act No. 8792 (2000), sec.30(b).

98Fred Pamaos. ‘Anatomy of an Internet Libel Case’ Available http://jlp-law.com/blog/anatomy-of-an-internet-libel-
case-part-4/
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not properly be prosecuted for libel, it is merely the web-hosting company rather than the owner of
the website.99 The resolution also stated that the complainant presented no credible proof to support
its claim that the service provider is the owner of the website.100 The resolution further stated that
being merely the “host” or “server,” the service provider may not be held liable for libel since it has
no authority to modify or alter the content in the site that it is hosting.101 Furthermore, the
Prosecutor stated that “With worldwide web concerned, the traditional concept of publishers of a
newspaper or periodical cannot apply insofar as liability for libel in the setting up, ownership,
management and supervision of an Internet site, web log [blog] or forum is concerned. Hence, any
liability for libelous statements or remarks that may be coursed through or communicated through
the websites that it is hosting will solely devolve on the part of the authors.”102

As such, given this precedent in the preliminary investigation aspect, making service
providers liable for online libel is made even more difficult.

C. Jurisdiction

The Revised Penal Code provides that the criminal and civil action for damages in cases of
written defamations should be filed simultaneously or separately with the Regional Trial Court
(RTC) of the province or city where the libelous article is printed and first published, or where any
of the offended parties actually resides at the commission of the offense.103

In the abovementioned case of Bonifacio v. RTC Makati,104 the Supreme Court held that a
Makati City RTC did not have jurisdiction to hear a libel case because the complainant filed the case
therein on the basis that he first accessed the online article in Makati City. The Court said that “to
credit Gimenez’s (complainant’s) premise of equating his first access to the defamatory article on
petitioners’ website in Makati with ‘printing and first publication’ would spawn the very ills that the
amendment to Article 360 of the RPC sought to discourage and prevent. It hardly requires much
imagination to see the chaos that would ensue in situations where the website’s author or writer, a

99 Id.
100 Id.
101 Id.

102 Id.

103 REV. PEN. CODE, art. 360(3).

104 GR No. 184800, May 5, 2010.

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blogger or anyone who posts messages therein could be sued for libel anywhere in the Philippines
that the private complainant may have allegedly accessed the offending website.”105 The Court also
stressed that “to hold that the Amended Information sufficiently vested jurisdiction in the courts of
Makati simply because the defamatory article was accessed therein would open the floodgates to the
libel suit being filed in all other locations where the pepcoalition website is likewise accessed or capable
of being accessed.”106

As such, in choosing which court the offended party may file an internet libel case in, the
application of the venue “where the libelous article is printed and first published” is somewhat
impossible. The High Court even ruled that such measure 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.107 Apparently, there is a gap in the law on
the application of the situs of printing and first publication to internet libel cases, making it
unfeasible for an offended party to utilize such situs in selecting which court to file the case in.

Thus, in internet libel cases, it would appear that an offended party can only file cases in the
RTC of the province or city where he or she actually resides at the commission of the offense. This
becomes particularly problematic when the offended party moves away from his or her former
residence to an area that is considerably far. Pursuing a case in the court of his residence becomes an
inconvenience for the litigant, and this limited choice of court does not effectively promote the
judiciary’s mission of increasing the people’s access to justice.

D. The Requirement of Publicity or Publication

One of the elements of libel is that the imputation must be made publicly. This requirement
may be hard to show in a libel case against a blogger or one who maintains a blog, which is an online
journal consisting of discrete entries, since blogs are actually static and readers visit the website
instead of blogs circulating their journals. In essence, the blogger simply allows his site to be visited,
and makes little effort, if none, in bringing his blog’s content to the public. As such, it will be
difficult to prove publication.

105 GR No. 184800, May 5, 2010.

106 GR No. 184800, May 5, 2010.
107 GR No. 184800, May 5, 2010.

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 Moreover, the statements made by a blogger may be considered as privileged
communication if the statement is only made for the intended audience of a blogger. If the posts
were specifically made by a blogger “to another in the performance of any legal, moral or social
duty,”108 or as a fair and true report of any official proceedings which are not confidential, or of any
statement delivered in said proceedings, or “of any other act performed by public officers in the
exercise of their functions,”109 then such posts may be protected by privilege, and may not be
considered libelous.

E. Prescription

According to the Revised Penal Code, the crime of libel shall prescribe in one year.110 The
period of prescription commences to run from the day on which the crime is discovered by the
offended party, the authorities or their agents.111 Hence, the one year-period commences to run
when the offended party or his agents came to know of the derogatory imputations published by the
offender. In libel committed by means of the Internet, the period starts to run on the day the
offended party or his agents read or accessed the defamatory article online.

In a 1988 case, the Philippine Supreme Court stated that the “multiple publication” rule is
followed in the Philippines.112 The Court said, “We follow the "multiple publication" rule in the
Philippines. Thus, in the cases of Montinola v. Montalvo (34 Phil. 662, [1916]) and United States v.
Sotto (36 Phil. 389 9171), this Court ruled that each and every publication of the same libel
constitutes a distinct offense. Stated more succinctly for purposes of ascertaining jurisdiction under
Art. 360 of the Revised Penal Code, as amended, every time the same written matter is
communicated such communication is considered a distinct and separate publication of the libel.”113

108 REV. PEN. CODE, art. 354.

109 REV. PEN. CODE, art. 354.
110 REV. PEN. CODE, art. 90(4).
111 II L. REYES, THE REVISED PENAL CODE CRIMINAL LAW 860 (16TH ed., 2006).
112 Soriano v. IAC, GR No. 72383, November 9, 1988.

113 Soriano v. IAC, GR No. 72383, November 9, 1988.

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 The Court explained:

The common law as to causes of action for tort arising out of a single publication was to
the effect that each communication of a written or printed matter was a distinct and
separate publication of a libel contained therein, giving rise to a separate cause of action.
This rule ('multiple publication' rule) is still followed in several American jurisdictions, and seems
to be favored by the American Law Institute. Other jurisdictions have adopted the 'single
publication' rule which originated in New York, under which any single integrated publication,
such as one edition of a newspaper, book, or magazine, or one broadcast, is treated as a unit,
giving rise to only one cause of action, regardless of the number of times it is exposed to
different people. . .(50 Am. Jur. 2d 659 cited in Time, Inc. v. Reyes)" (39 SCRA 301, 313
[1971])114 (Emphasis supplied)

In an article entitled “The Modernization of English Libel Laws and Online Publication”115 written
by Brid Jordan, the author wrote that “the effect of the multiple publication rule on Internet
publication is that a new cause of action accrues with each hit on a Web page, potentially giving rise
to a separate cause of action with its own 12-month limitation period running from the time at
which the material is accessed.” As a result, publishers may be liable for defamatory material
accessed via their online archive however long after initial publication the material is accessed and
whether or not proceedings have already been brought in relation to the initial publication.116 This is
also the case with offline archive material but the accessibility of online archives means that the
potential for claims is much greater in respect of material accessed offline.117

Given this established doctrine of multiple publication in the Philippines, every time an
online article is assessed or communicated, such communication is considered a distinct and separate
publication of libel, and a fresh one year-period starts whenever a person reads the online material
that is alleged to be defamatory. This creates problems for online writers because they can be
prosecuted for libel for material that has been written years ago, considering that online material is
usually stored in archives that can be accessed anytime and anywhere. In essence, the liability of
online writers becomes limitless, and the essence and effect of prescription are rendered nugatory.

114 Soriano v. IAC, GR No. 72383, November 9, 1988.

115 B. Jordan, The Modernization of English Libel Laws and Online Publication, 14 NO. 7 J. Internet L. 3 (2011).
116 Id.
117 Id.

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 In connection with this dilemma, the New York Court of Appeals in 2002 said that the
application of the “multiple publication rule to communications distributed via mass media would
permit a multiplicity of actions, leading to the potential harassment and excessive liability, and
draining of judicial resources.”118 Further, the court, in rejecting the multiple publication rule, was
influenced by the need to protect publishers from “the endless retriggering of the statute of
limitations, multiplicity of suits and harassment of defendants” as a consequence of such rule, which
it feared would inevitably have a “serious inhibitory effect on the open, pervasive dissemination of
information over the Internet.”119

V. RECOMMENDATIONS

A. Amending the Libel Provisions of the Revised Penal Code

As aforementioned, the present libel law of the Philippines does not recognize publication
through the Internet as a means by which the crime of libel can be committed. Given this void in
the law, the pertinent libel provisions must be duly amended.

Fortunately, just last year, Senator Manny Villar introduced Senate Bill No. 2668 entitled
“An Act Amending Article 355 of Act No. 3815, otherwise known as the Revised Penal Code of the Philippines,
as amended.” The Bill seeks to amend Article 355 of the Code to read as follows:

Art. 355. Libel means by writings or similar means. - A libel committed by means of writing,
printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, ELECTRONIC MEDIA SUCH AS BUT NOT LIMITED TO
THE INTERNET, or any similar means, shall be punished by prision correccional in its
minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to
the civil action which may be brought by the offended party.120 (Emphasis supplied)

In the explanatory note to the Bill, Senator Villar said that “the tremendous potential of the
Internet has proved to be unimaginable for the Phiippines. It has bridged information gaps and has
opened infinite possibilities to people located even in the remotest area in the country.” However,

118 3 No. 87 [2002] NY Int. 88.

119 3 No. 87 [2002] NY Int. 88.
120 Senate Bill No. 2668.

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he added that opportunities brought about by this electronic era “has cast a shadow of problems,
one of which is the birth of the ‘electronic libel’ or e-libel.”

Senator Villar explained that “unscrupulous individuals have found and exploited with
immunity a new avenue to defame another—through the use of the electronic media (i.e. blogs,
Facebook or Twitter, etc.). This is brought about by the uncertainty in the Philippine laws on libel
which arguably did not include publication through electronic means.” In closing, the senator
stressed that the Bill is meant to “remove any doubt in the interpretation of the laws and ensure that
no tables are unturned.”

As of writing, the Bill is now pending at the level of the committees on Public Information
and Mass Media, Constitutional Amendments, and Revision of Codes and Laws in the 15 th
Congress. Aggressive lobbying must be done so that this Bill will finally see the light of the day, and
accordingly fill the huge gap in the law. This Bill must be passed in order to categorically state that
there is such a crime as libel committed by means of the Internet.

Moreover, the provisions in the Code which state the persons liable for libel must also be
amended to include third parties who add statements in another’s online publication. These third
parties are the so-called commentators, who may sometimes be anonymous. The online writer or
blogger should not be made to answer criminally for such comments unless he or she actively
selected those third-party statements for publication or if he or she qualifies as a “publisher.”

In the article entitled “The New Journalism? Why Traditional Defamation Laws Should Apply to
Internet Blogs”121 by Melissa Troiano, the writer explained such scenario and wrote:

For example, if a blogger actively chooses to publish a third-party message that is either
sent to the blogger or that the blogger republishes from another source, then the blogger would
be strictly responsible for ensuring that the message is not defamatory. This is consistent with
traditional defamation laws that hold those who act as publishers strictly liable for defamatory
comments that they publish because of the editorial control they possess over content. Likewise,
if a blogger maintains a comment section that allows viewers to submit a message for posting,

121 M. Troiano, The New Journalism? Why Traditional Defamation Laws Should Apply to Internet Blogs, 55 Am. U. L. Rev. 1447.
Page 26 of 37
 but that first allows the blogger to review the message before publication, then that blogger also
acts as a traditional publisher by actively choosing to either allow or disallow the message.122

On the other hand, a blogger who allows third parties to automatically post defamatory
statements on the blogger’s comment section without review would be liable as a distributor if a
court found that the blogger either knew of or had reason to know of the defamatory statements. 123
In such case, the blogger would not be liable for the supposed libel, and only the individuals who
made the defamatory statements can be prosecuted.

The aforementioned parameters in the criminal liability of third-party commentators online

should also be considered in amending the law or creating a new one. Further, online editors and
business managers of blogs or websites which operate like newspapers, magazines, and serial
publications should also be included in the list of persons who may be held liable for online
defamation.

Considering that the Code took effect in 1932, it is high time that it is amended to catch up to
technology. As an alternative to amendment, legislators may also create a defamation law that will
supersede the libel provisions of the Code, a law which should be comprehensive and updated.

B. Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material

In the United States, a similar principle regarding the liability of service providers for online
defamation exists. In the case of Cubby, Inc. v. Compuserve, Inc., the court had to decide whether the
service provider exerted enough control over, or had knowledge of or reason to know, the contents
of allegedly defamatory statements posted on one of its bulletin boards. 124 The service provider,
Compuserve, argues that, based on the undisputed facts, it was a distributor of the online newsletter, as
opposed to a publisher of its statements.125 It further argued that it cannot be held liable because it
neither knew nor had reason to know of the allegedly defamatory statements.126

122 Id.
123 Id.
124 776 F. Supp. 135 (S.D. N. Y. 1991).

125 G. FERRERA, CYBERLAW: TEXT AND CASES 254 (2001).

126 Id.

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 Holding that Compuserve could not be held liable for posting the alleged defamatory
statement, the court stated:

While CompuServe may decline to carry a given publication altogether, in reality, once it
does decide to carry a publication, it will have little or no editorial control over that
publication's contents. This is especially so when CompuServe carries the publication as part
of a forum that is managed by a company unrelated to CompuServe.……CompuServe has no
more editorial control over such a publication than does a public library, book store, or
newsstand, and it would be no more feasible for CompuServe to examine every publication it
carries for potentially defamatory statements than it would be for any other distributor to do
so.127 (Emphasis supplied)

On the other hand, there is a more recent US case which dealt with a service provider that
was held liable for defamatory statements posted on its bulletin boards, notwithstanding the fact that
the control it exerted over content was intended to improve its services and keep them free of
harmful and objectionable material.128 This is the case of Stratton Oakmont, Inc. v. PRODIGY Services
Company.129 In this case, PRODIGY Services Company is the owner and operator, among other
things, of a computer network where at least two million subscribers communicate with each other
and the general subscriber population on PRODIGY’s bulletin boards.130 At issue is the “Money
Talk” bulletin board, which is apparently the leading and most widely read financial computer
bulletin board in the United States.131 Created in 1990, PRODIGY promoted itself as an online
service that monitored and exercised editorial control over the content of messages posted on its
bulletin boards, likening itself to a newspaper.132

Sometime in 1994, statements about the plaintiffs that were allegedly libelous were posted on
one of PRODIGY’s bulletin boards. The plaintiffs commenced an action against PRODIGY, and
the unidentified poster of the statements.

127 776 F. Supp. 135 (S.D. N. Y. 1991).

128 Supra note 125 at 255.
129 1995 NY Misc. LEXIS 229, 1995 WL 323710 NY Sup. Ct. (May 24, 1995).

130 Supra note 125 at 255.

131 Id.
132 1995 NY Misc. LEXIS 229, 1995 WL 323710 NY Sup. Ct. (May 24, 1995).

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 The main issue posed to the court in this case is whether PRODIGY may be considered a
publisher of the statements or if it exercised sufficient control over its computer bulletin boards.133
PRODIGY argued that its former policy of manually reviewing all messages prior to posting was
changed “long before the messages complained of by Plaintiffs were posted.”134 However, the court
noted that no documentation or detailed explanation of such a change, and the dissemination of
news of such a change, has been submitted.135

The court found that PRODIGY implemented control over the content of its computer
bulletin boards through its automatic software screening program, and specific guidelines which its
hired board leaders or managers are required to enforce.136 The court said that by actively utilizing
technology and manpower to delete notes from its computer bulletin boards on the basis of
offensiveness and bad taste, PRODIGY is clearly making decisions as to content, and such decisions
constitute editorial control.137 Given these premises, the court ruled that PRODIGY is a publisher,
and liable for the defamation.

The doctrine in Cubby is similar to the aforementioned Philippine precedent138 in the

preliminary investigation aspect. Both cases proclaim that a service provider, which makes no effort
to check the contents of what is transmitted on its services, could escape liability as a publisher of
libelous material. Also, the two cases, as well as in Stratton, indicate that control over content is the
key issue in holding a service provider liable for allowing the publication of defamatory statements
on the Internet.

In the Philippines, service providers are merely providers of the technical means by which
electronic documents of an originator may be stored and made accessible. They rarely exercise
control over the content of their hosted websites, and thus, the possibility of making them liable for

133 1995 NY Misc. LEXIS 229, 1995 WL 323710 NY Sup. Ct. (May 24, 1995).
134 1995 NY Misc. LEXIS 229, 1995 WL 323710 NY Sup. Ct. (May 24, 1995).
135 1995 NY Misc. LEXIS 229, 1995 WL 323710 NY Sup. Ct. (May 24, 1995).

136 1995 NY Misc. LEXIS 229, 1995 WL 323710 NY Sup. Ct. (May 24, 1995).

137 1995 NY Misc. LEXIS 229, 1995 WL 323710 NY Sup. Ct. (May 24, 1995).

138Fred Pamaos. ‘Anatomy of an Internet Libel Case’ Available http://jlp-law.com/blog/anatomy-of-an-internet-libel-

case-part-4/
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allegedly libelous content is practically zero. Given the above parameters, no service provider may
ever be found liable for libel in the Philippines.

Considering the unfeasibility of suing internet service providers for libel in the Philippines,
prosecution against them in cases of this kind should not be pursued anymore. The provision in RA
8792 laying down their liability should also be repealed, and in its stead, protection for service
providers who block and filter devices, and screen offensive material should be placed. This
protection will enthuse service providers to look out for potentially libelous material, and will
likewise lead to the decrease of libel cases being filed. Such protection will also protect Filipinos,
especially the youth, from being exposed to obscene and harassing material online.

Inspiration may be sourced from the US Communications Decency Act of 1996. Section 230 of
the said Act provides that “no provider or user of an interactive computer service shall be treated as
a publisher or speaker of any information provided by another information content provider.”139
Further, section 230 eliminates potential civil liability where a provider or user takes a good faith,
voluntary action to restrict access to or availability of material that the provider or user considers to
be obscene, harassing, or otherwise objectionable, whether or not the material is constitutionally-
protected.140 The effect of these provisions is to protect a service provider from being classified as a
publisher, particularly in cases where it attempts to exercise even a modicum of control over
content.141

C. Application of the Case of Dow Jones v. Gutnick

In an article entitled “Prepare to Earn More Frequent Flyer Miles: The Far-Reaching Grip of Internet
142
Law” written by Katherine Marchetti, the author mentioned that a December 2002 opinion from
the High Court of Australia revolutionized internet jurisdictional law. Such case is the Dow Jones v.
Gutnick.143 The case involved a libel case against Dow Jones, Inc. by Joseph Gutnick, a colorful

139 US CDA 47 USC Section 230(c)(1).

140 G. FERRERA, CYBERLAW: TEXT AND CASES 258 (2001).
141 Id.

142 K. Marchetti, Prepare to Earn More Frequent Flyer Miles: The Far-Reaching Grip of Internet Law, 73 Def. Couns. J. 282.
143 [2002] HCA 56.

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international businessman who took the media giant to task over some less than favorable
comments written about him in an online publication.144 Though the article was downloaded by only
a small number of viewers, the court found that the situs of the tort, the publication, occurred in
Victoria, Australia.145 The court concluded that it did in fact have jurisdiction, and it forced Dow
Jones and its attorneys to defend the suit half-way around the world.146 The headquarters of Dow
Jones is in New York, USA, and their servers are in New Jersey, USA.

The suit was brought in response to an article entitled “Unholy Gains” which referred to
Gutnick as a “money-launderer.”147 Complainant Gutnick conducted his business in several
countries but spent “much of his social and business life” in Australia.148 He also lives in Victoria,
Australia, and has his business headquarters there.149 He claimed damage to his reputation in
Victoria, and therefore brought suit there.

The first issue tackled by the Gutnick court was where the publication took place,
considering that in libel law, the place of the commission of the tort is the place of publication.
Gutnick argued that the “publication” of the libel occurred when the article was downloaded by
viewers in Victoria. Dow Jones, on the other hand, contended that the “publication” occurred where
the company maintained their servers in New Jersey.150 Dow Jones even said that if publication were
viewed as the place of downloading, “a publisher would be bound to take account of the law of
every country on earth, for there were no boundaries where a publisher could effectively draw to
prevent anyone, anywhere, downloading the information it put on its web server.”151

In crafting its decision, the court noted that the tort of defamation is a “tort concerned with
damage of reputation and it is that damage which founds the cause of the action.”152 The court held
that this damage or publication occurred when a publication is comprehended by the reader, and

144 G. FERRERA, CYBERLAW: TEXT AND CASES 254 (2001).

145 Id.
146 Id.

147 [2002] HCA 56.

148 [2002] HCA 56.

149 [2002] HCA 56.

150 [2002] HCA 56.

151 [2002] HCA 56.

152 [2002] HCA 56.

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thus, the “publication” occurred in Victoria when the articles were downloaded, and read by various
viewers.153

The court explained:

In defamation, the same considerations that require rejection of locating the tort by
reference only to the publisher's conduct, lead to the conclusion that, ordinarily, defamation is to
be located at the place where the damage to reputation occurs. Ordinarily that will be where
the material which is alleged to be defamatory is available in comprehensible form assuming, of
course, that the person defamed has in that place a reputation which is thereby damaged. It is
only when the material is in comprehensible form that the damage to reputation is done and it is
damage to reputation which is the principal focus of defamation, not any quality of the
defendant's conduct. In the case of material on the World Wide Web, it is not available in
comprehensible form until downloaded on to the computer of a person who has used a web
browser to pull the material from the web server. It is where that person downloads the
material that the damage to reputation may be done. Ordinarily then, that will be the
place where the tort of defamation is committed.154 (Emphasis supplied)

The court thus held that the place where the damage to reputation occurred was in Victoria,
Australia, and the case was properly filed there. Nevertheless, the High Court of Australia sought to
give some “recompense” to Dow Jones and its predictive discontent at potentially being dragged
into court in every country from “Afghanistan to Zimbabwe.”155 The court noted that the
reputational damage required to bring the suit will only be possible in venues where the plaintiff
actually has a reputation, thereby limiting potential court venues to a very small number of
countries.156 At present, the Gutnick case has received no recognizable negative treatment,
presumably indicating that this method of obtaining jurisdiction is the way of the future. 157 The
doctrine has also, almost subtly, been incorporated into case law in two of the largest internet

153 [2002] HCA 56.

154 [2002] HCA 56.
155 K. Marchetti, Prepare to Earn More Frequent Flyer Miles: The Far-Reaching Grip of Internet Law, 73 Def. Couns. J. 282.

156 Id.
157 Id.

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jurisdictions in the world, England and the USA.158 Accordingly, recognition of this case speaks to
the likelihood that courts in both jurisdictions will enforce judgments entered by Australian or other
foreign courts in these matters.159

In deciding on jurisdiction, Philippine courts should apply the doctrines introduced by the
Gutnick case so that an offended party will not have a limited choice of court. In laying down one of
the doctrines, the High Court of Australia stated that “it is where that person downloads the
material that the damage to reputation may be done. Ordinarily then, that will be the place where the
tort of defamation is committed.”160

On the basis of this doctrine, the ruling in Bonifacio v. RTC Makati161 should be overturned
because a libel suit may properly be pursued in the court of the locality where the online article or
material was accessed or downloaded by the people who know or recognize him. This broadens the
choice of the offended party because not only can he file cases in the RTC of the province or city
where he or she actually resides at the commission of the offense, he can also file the case in the
RTC of the province or city where the online article or material was accessed or downloaded by a
third party, provided that the offended party has established a reputation in that locality.

Moreover, in addressing the gap in Philippine law in the application of the situs of “printing
and first publication” to internet libel cases, Philippine courts should also take note that the court in
the Gutnick case said that the damage of reputation or “publication” occurred when a publication is
comprehended by the reader.162 Applying this ruling, Philippine courts, where internet libel cases are
filed, should interpret the provision in the law of the situs of “printing and first publication” as to
refer to where the articles were downloaded, and read by viewers. Moreover, proper legislation,
which will reflect the essence of this interpretation, must be initiated so that such modern
interpretation will be backed by a solid legal authority.

158 Id.
159 Id.
160 [2002] HCA 56.

161 GR No. 184800, May 5, 2010.

162 [2002] HCA 56.

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 In addition, the ruling in the Gutnick case, that “publication” occurred when a publication is
comprehended by the reader, should also be applied in proving the element of publication in libel.
The mere act of a reader in accessing the online material should be considered as “publication”
because it is through this access that the imputation is made publicly or relayed to a third person.

D. Application of the Single Publication Rule

To put the principle of prescription in effect when it comes to internet libel, the “single
publication” rule, instead of the “multiple publication” rule must be applied in the Philippines. A
“single publication” rule provides that a cause of action accrues when material is first published not
when it is read or subsequently accessed online, sold, or a copy otherwise provided to a reader.163
Such rule has already been applied to Internet publications by the New York Court of Apeals in
Firth v. State of New York164 in 2002.

Author Brid Jordan explained:

In the case of an Internet publication, the single publication rule deems

publication to be when the material is first uploaded onto the Internet. This would mean
that instead of the limitation period running from the time the allegedly defamatory material is
accessed, it would run from the date of first publication, even if copies of the material continue
to be made and be published years later and a claimant would be limited to bringing only
one action in relation to a particular defamatory publication in this jurisdiction.165
(Emphasis supplied)

Jordan also said that “the introduction of a single publication rule for all media, including
print, online and broadcast, would ‘provide clarity and prevent the possibility of open-ended
liability.’”166 He added that it would protect publishers from a multiplicity of suits and go some way
to addressing the “chilling effect” and “menace” of Internet libel.167 A further advantage of a single

163 B. Jordan, The Modernization of English Libel Laws and Online Publication, 14 NO. 7 J. Internet L. 3 (2011).
164 3 No. 87 [2002] NY Int. 88.
165 Supra note 163.

166 Id.
167 Id.

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publication rule coupled with a deemed publication date is that it provides an ascertainable date
against which knowledge, intent, and the public interest can be assessed or “fixed for the purposes
of determining the availability and application of common libel defenses.168

Inspiration can be sourced from the Irish Defamation Act of 2009,169 which provides that “a
person has one cause of action only in respect of a multiple publication” but a court may grant leave
to bring more than one action in respect of a multiple publication “where it considers that the
interests of justice so require.”

In order for a single publication rule to work in practice, it will be necessary to introduce a
“deemed date of publication,” which would determine the commencement of the limitation period
for each class or category of publication.170 In doing this, Jordan explained:

In each case, deemed publication must involve some positive action by the publisher (as
opposed to the current passive role played by a publisher when material is accessed on its Web
site)…..For online publication, the deemed publication date should be the date on which the
material is first uploaded or made available via the Internet, as is the position in most US
states today. When any content is retransmitted in a different format, or is modified or changed
in a material way, such as to change its meaning or context as opposed to a mere change in its
presentation, then the modified version must be properly considered to be a new
publication that triggers the start of a fresh limitation period.171 (Emphasis supplied)

The application of the single publication rule in the Philippine jurisdiction will solve the
problem of online writers having a ceaseless liability. With this rule in place, the one year-period of
prescription will commence to run on the day their article is first uploaded or made available via the
Internet, regardless of whether or not the person who is potentially defamed in the article or his
agents have read it. Consequently, the essence of prescription in internet libel cases is not lost as
there will come a time that liability for a potentially libelous Internet article, which is perpetually
available through online archives, will be extinguished.

168 Id.
169 Ireland Defamation Act 2009, Number 31 of 2009.
170 Supra note 163.
171 Id.

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 VI. CONCLUSION

Online defamation highlights the conflict between the rights of individuals to speak freely,
and the need of individuals to protect their reputation. In the years to come, there is no doubt that
the Internet will persist in expanding its reach technologically, socially, and economically. Even
today, it is hard to find a person not at least somewhat versed in Internet parlance. Consequently,
with this extraordinary expansion, the problem of Internet defamation will continue to affect
societies all over the world, and the number of offenses will definitely skyrocket. Furthermore, with
the consistent changes in the Internet’s breadth and scope as a medium of communication, including
changes to its regulatory structure, selecting the best practices for regulating this novel online
jurisdiction becomes tricky. This dilemma becomes even more intricate as the integration of
cyberspace and computer technology into our lives accelerates.

In the Philippines, the most effective solution for this problem is to create a special law for
defamation, which categorically identifies online defamation and meticulously incorporates the
recommendations made in this article. Since this defamation law will be comprehensive and will
address all the inadequacies of the present libel law in the country, judges, lawyers, and litigants,
including the netizens of the entire Internet community, will be able to grasp a systematic
understanding of what online defamation is.

This defamation law should also be able to enumerate all the persons liable for online
defamation, considering that with the present law, numerous offenders may not be prosecuted. With
its tremendous potential as a medium of communication, the Internet should not be a refuge from
liability, and should instead be a medium that will not tolerate defamatory content. In addition, this
proposed defamation law should also state a precisely-defined online defamation offense so that
confusion on what it really is would finally be alleviated. The definite existence of this crime is
required to ensure that people who use the Internet would know of it, and accordingly avoid
publishing maliciously-introduced falsehoods and distortions. Clear-cut standards or elements
should also be put into place.

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 Moreover, prosecutors and judges should not shy away from the task of clarifying and ruling
how the Internet and technology interact with the law. And in performing these tasks, they should
be able to do so with consistency, accuracy, and precision. They should also embrace the notion of
cyberspace as a new jurisdiction, and the vast legal possibilities in the blogosphere and social media.
To establish a more wide-ranging approach, cooperation of the Internet industry and international
efforts at harmonization of defamation laws are also imperative.

Indeed, the astonishing growth of the Internet provides numerous opportunities to commit
online defamation, and enlarges the damage potential of an individual. Traditional defamation
requires active solicitation of an audience but online defamation caused the lowering of the standard
to mere proliferation of information. Nowadays, the Internet is an environment where free speech
flourishes but it also provides tremendous opportunities for abuse. As our world becomes more
information-sensitive and technology-dependent, it is definitely high time that regulation towards
this end is excellently crafted. Certainly, this kind of change is required to ensure that the present
legal inadequacy does not lead to the demise of our valued rights, and to the fall of the
communication aspect of cyberspace.

– o0o –

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