Libel and Onion Skin

This is not a legal forum. It is just a guy full of opinions trying to figure out how the Philippines works.

This whole episode about the libel provision of the Cybercrime Act is fascinating. Libel is one of those crimes that is extraordinarily difficult to prove because the prosecution must show intent to harm.
If you want a quick study on libel laws in the Philippines, please refer to this article, from which the following paragraph was extracted:Libel Laws of the Philippines,
  • Under Article 353 of the Revised Penal Code of the Philippines, libel is defined 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 discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.  [Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191 SCRA 61, 67]
Reader GabbyD challenged my thinking on libel a couple of days ago by stating the challenging question:
  • “oh, then you are against the core logic of libel — that words have REAL effects. “
It is a powerful challenge because I had previously acknowledged that words have effects, but are properly countered with words. A libel charge counters words with acts . . . like 12 years in jail or somesuch.
My response to GabbyD was, in part:
  • Words do have real effect, but sometimes words that person A finds negative are positive in a different context. I can call Senator Sotto a scoundrel, which he finds harmful, with the aim of encouraging other senators not to repeat his acts, or readers not to live according to his standards. So my words make him a personal sacrifice to a higher cause.
What is the point of free speech? It is that we ought to have the right to protest that with which we disagree, and not be punished for it. It envisions an open state where ideas put out in the public arena can help shape the values and institutions of democracy.
As I reflect on that, I would use a technology term and peg America as an “open-sourced” nation. Opinions are a part of the fabric that drives social values ever forward and upward.
The Philippines appears to want to be open-sourced, too, but some of the totalitarian players in government are having a hard time letting go of their own sensitivities, their own thin onion skin, to get there. I am quite confident that Senator Sotto does not have Thomas Jefferson’s grasp of what a government free of totalitarian influence would look like, and act like.
We live in a world of gray. Not black and white.
To protest something is always an attack on somebody or something, and it is hard to know who is right or wrong. People seeking complete independence for the Philippines protest American troops on Philippine soil. So America is thrown out of Clark and Subic. The result is that the Philippines is more vulnerable to intimidation by China 25 years later. And independence is more at risk. What is right or wrong is murky gray.
Believe me, during those arguments, a lot of people were attacked for their views. Even called treasonous.  Just like Senator Enrile and Senator Trillanes have both accused other loyal Filipinos of treason during the recent dust-up over Trillanes engagement with China.
  • Does Senator Trillanes really believe Foreign Affairs Secretary Del Rosario should be thrown into prison for life?
  • Does Senator Enrile, a rehabilitated coup plotter himself, really believe Senator Trillanes should be thrown into prison for life?
Words mean what the speaker intends, not what the hearer hears. The speaker means “you are hurting the Philippines”, the hearer hears “you want me in jail when I am innocent; that is malice.”
Libel is difficult to prove, but it doesn’t stop those who perceive an injury from  seeking redress and a few million pesos in the courts.
Libel does not mean words can’t be hurtful or offensive. But hurt is one thing and malice another. Hurtful words are often descriptions with a punch, nothing more than protests. Admirable qualities in light of what the Constitution says about free speech and freedom to assemble.
Libel is something different. Something deeper. Something more harmful and intentional.  It is the point where the intent upon uttering the words is damage, not argument. Libel would be if Senator Enrile knows Senator Trillanes is not treasonous, but claims he is with the intent that he would be thrown into jail. It would take a hypnotist or psychic to plumb Senator Enrile’s brain to find out what he really thinks.
Onion skin. Was it James Fallows of the Atlantic who coined this attribute of Filipinos in his commentary on the Philippines several years ago?  I referred to the Humpty Dumpty New World Dictionary on “onion skin” and came up with two definitions:
(1) a kind of paper that is so thin you can see through it; ideal for tracing, and
(2) a condition in which human emotions that are so sensitive that every perceived criticism is taken as deeply personal, rendering candid dialogue impossible.
Big egos, thin skins. Put the legal tool of “libel’ on the table in a culture of onion skin and suddenly the democratic premises of lawful protest and free speech stand at risk.  That’s where we are today, in the Philippines, in dealing with characters like Senator Sotto.
They are trying to shift the definition of words to the hearer rather than the speaker. The words hurt; they must be libelous.
No, not if the overriding aim was to protest perceived wrongful deeds or achieve some greater good. Like encourage other senators to be ethical.
It is important, in looking for tomorrow’s leaders, to find those who are confident of their own knowledge, and the limits of their own knowledge. Those who are open to contrary views without taking them personally.
I think the term “libel” should be stricken from all law books, and certainly from the Cybercrime Act. The word is itself a libel to the concept of free speech and right of protest. It is an intimidating word, seeking to suppress expression.
Look at the result. Actual injury. Not the use of words that are sometimes painful to an individual, but meant for good purpose.
Words can be countered with words. They need not be countered with jail time because someone with thin skin can’t stand the heat.
So yes, GabbyD, I believe words have REAL effects. Most of the time, well intended, even if spoken in anger. We should legislate to a standard of thick skin, able to withstand aggressive protest and rabid free speech. Not thin skin, crying and running to Mommy Law at every perceived slight.
15 Responses to “Libel and Onion Skin”
  1. Anonymous says:

    They say one has to separate a piece of banana from the bunch to delay rot. Libel implementing rules and regulations should synchronized with other bills on libel decriminalization.

  2. GabbyD says:

    i have zero objections to this. but:…"Put the legal tool of "libel' on the table in a culture of onion skin and suddenly the democratic premises of lawful protest and free speech stand at risk. "why? i think part of your point is: "Look at the result. Actual injury. "isnt that the purpose of a trial? of the judicial system? to determine if there is actual injury, malice, … and all the other elements are present?look at this another way: everyone has been complaining that libel is a tool to prevent people from making criticisms against public figures.fine. question: did that actually happen? did it prevent anything? we know alot about the accusations against the FG right? did libel stop journalists from doing their jobs? to make the argument work, you have to point to something concrete — what did libel actually do to prevent journalists from doing their jobs?

  3. andrew lim says:

    Joe,When Trillanes walked out while Enrile was talking, Enrile looked like Eastwood talking to an empty chair! HA HA HA HA HA

  4. Again, you seem to ask the tough questions. My objection is one of many from journalists and attorneys and human rights organizations opposed to the libel provision. The libel provision is 180 degrees opposite the drive for transparency and openness reflected in the Freedom of Information bill stalled in the legislature.Because of the outcry, I think the outcome will be that the cybercrime unit responsible for implementing the rules will not go out and look for libel cases, and will be very cautious in responding to complaints. And when a complaint is lodged, it had better be something other than an opinion or a verbal taunt. It had better be real damages. The something concrete you mention.So I agree with you. But, in the absence of the noise from the people, thugs might feel more inclined to use the provision to quiet those with whom they disagree, as has Senator Sotto with his strange threats against bloggers. I hope that, as distasteful as the libel provision is, to intimidate those who speak out, it will be pretty much uneventful. Unless the provision is challenged in court and done away with, on principle now or when a case arises.That depends a lot on how those with thin skin, like Senator Sotto, react to the loud complaints being made. The point of my article. There are a lot of thin skins about.I don't think bloggers or journalists will materially change what they do. And the loud noise they are making helps assure that is so.

  5. Ahahahaha, what a beautiful portrait of that event! They are both about the same age, too.

  6. The threat of libel (especially in how the Philippines defines it) cannot be gauged in tangible terms. Silence is absence. And unfortunately, what does not come out is never seen. Its damage to free speech and expression not only manifests in cases that have been prosecuted but more insidiously, in free speech that we have no opportunity to read or hear. The threat is enough to damage free speech. Even if the cybercrime unit that is created does not actively pursue libel cases, it does not make the threat disappear. Its silencing effect will always be there and we will never really know what was silenced – losing something we never had is always difficult to tell.

  7. Yes, and for the Philippines to break out as a progressive nation, it needs strong voices. I do think that the electronic media of twitter, facebook, blogging and even text messaging represent an aggregate voice that was not so loud even 5 years ago, and will become even louder in the future. So I think, if some voices fall off, silent, there are a lot more to emerge. And the bold will not be quieted.

  8. Free speech empowers. The internet is supposedly an enabler. Yet, what happens in a oligarchic society where power resides in a few hands, the medium sometimes only enables only those who are already in power. Presently, this is highlighted by the fact that online libel became a law while a Freedom of Information Act remains a bill.

  9. Yes, but I see no solutions but to keep the pressure on. You start to see cracks now and then, as Senator Santiago admits plagiarism is a crime and President Aquino is forced to explain why he does the things he does. The oligarchs have been a problem since Aguinaldo ruled the roost. What do you suggest as an alternative? I see the Philippines emerging from the dark and a part of the reason is public demands for accountability. I don't see that letting up.

  10. In every problem, there are cosmetic solutions and there are real solutions. Keeping pressure on requires focusing on real measures and not "for show" responses. The "Freedom of Information" act is a real solution – when information is made public, people can look, read, analyze and examine – libel becomes irrelevant. In these terms, the signing of the CyberCrimes Act and non passing of Freedom of Information show us vividly what is wrong. Claiming a straight path is a slogan, a cosmetic. Passing and signing a law that actually helps achieve that is a real solution. No praises for cosmetic solutions – to me, that is what meant by keeping the pressure on.

  11. Yes, I agree with that, acts are better than words, but I think slogans are rather a part of the path to real solutions. I'd rather hear them than the silence you voiced concern about.

  12. Anonymous says:

    Cybercrime law is necessary. Libel and forced lockdown included in current law unnecessarily.Johnny Lin

  13. Yes, you see it, I see it, most everyone sees it, the legislators don't. Weird, eh? It is astounding that the PRINCIPLE of freedom of expression escapes our leaders. They have to include intimidation in a law dealing mainly with sex.

  14. GabbyD says:

    i agree with you that onion skinnedness (?) is a problem, which can overload our already overloaded angela's blog, i put forth the following solution, while keeping libel as an offense (but not a "crime").1) delay all penalties until after the SC (or some higher court decides)2) make the malice standard a national standard, not a local standard. hence. local judges have to weigh the offense against some common, higher standard.let me now add another:3) decriminalize libel, but replace it with higher monetary penalties proportional to actual harm done.

  15. onion skinnedness, ha. Yes, hypersensitivity, too. Your outline makes excellent sense. If we had a committee and could act on it, I'd vote for it.

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