Since the Supreme Court declared cyber-libel constitutional, social media and the Internet have become rife with libel scares and threats. It truly is like waiting for another shoe to drop as we wait in fear of the sensitive and defensive government official who’s out to make a point.
But what we rarely discuss vis-a-vis cyber-libel is how it can be used by private individuals (i.e., non-politicians) who are faced with Internet opinion and comment sections out-of-control. I’ve fallen victim to libelous and defamatory assertions on the comment section of this space online; I’ve learned to ignore these because half the time these come from anonymous users, and most of the other half are trolls.
There was also a time when I would engage in discussions on Facebook comment threads, until I proved for myself that in this country filled with sacred cows, putting up a status is about wanting to gain some support for one’s opinion. It’s not at all an invitation to engage in intelligent exchange.
Critiquing the private individual
The Supreme Court decision declaring constitutional the cyber-libel provision of the Cybercrime Prevention Act of 2012 makes a distinction between the private individual and public official as offended party in a libel case.
“Since the penal code and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter standard of ‘malice’ to convict the author of a defamatory statement where the offended party is a public figure. …. But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement” (page 23).
This distinction is one that is supposed to appease government critics because look! government officials will have a harder time proving malice! But that bit about private individuals is scary too, where a private party can incite fear in anyone who puts up a Facebook status or blog entry that offends. Too, one is reminded that in the greater scheme of things, only those who have cash to spend will be predisposed to speak of filing libel cases. The rest of us who suffer bullying and namecalling online, where we are named and our credibility put into question, we just suffer in silence.
That in itself is an injustice, isn’t it?
Who will you sue?
The problem is more complex than the Supreme Court deciding that only an original post on Facebook or anywhere on the Internet can be deemed libelous. It problematizes “aiding and abetting” and declares it unconstitutional in relation to online libel. “The terms ‘aiding or abetting’ constitute a broad sweep that generates a chilling effect on those who express themselves through cyberspace posts, comments, and other messages.” (page 29).
“Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding ‘Friends’ or ‘Followers’ in the criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting?” (page 28)
Here what the Supreme Court actually problematizes is the sharing and re-sharing – the outbreak – of a defamatory Facebook status or tweet or blog entry. And the decision is that there’s no way to decide who among those who shared an original posting would go to jail, and so no one will. And while the Supreme Court decision mentions that those who pressed Like Comment Share “are essentially knee-jerk sentiments of readers,” it also asserts that a comment can be an “altogether defamatory story.”
Using the example of Nestor posting a blog entry entitled “Armand is a thief!” the Supreme Court says: “Of course, if the ‘Comment’ does not merely react to the original posting but creates an altogether new defamatory story against Armand like ‘He beats his wife and children,’ then that should be considered an original posting published on the Internet. Both the penal code and the cybercrime law clearly punish authors of defamatory publications” (page 30).
The publishing space, the anonymous author
But what the Supreme Court fails to consider in this decision to declare cyber-libel constitutional is how comment threads can get out of hand, and there are no hard and fast rules about how to deal with these. So yes, a comment can be defamatory, and someone can sue that commenter for libel. But what of anonymous authorship? Too often, the more hurtful and malicious comments in fact come from nameless and faceless users of social media and the Internet. Too often, there is no running after these people, and the question does become: will it be worth it to trace these users, if it were at all possible?
And what of instances where a blog entry is critical but not at all malicious or defamatory, but some comments after it are so? Is the owner of a given Facebook or Twitter account, the owner of a blog, the one responsible for the comments that appear about a posting? If yes, then that’s tantamount to saying that we are all censors, that we must be responsible for another person’s thoughts when it becomes part of the virtual space of our Facebook walls and Twitter feeds and blog comments threads. If yes, then we are being told to sacrifice the democracy that these spaces are imbued with, because we must police information in some way or other, our responsibilities stretched to impose rules upon another’s opinion.
It seems we are sacrificing what might be the last frontier of real and unquestionable free space. And the question is: for what?