UNDER the first amendment of the US Constitution, bloggers enjoy protection from libel suits in the exercise of journalism that serve the public interest.
This is the gist of an op-ed article published in USA Today on January 24. It reports that a federal appellate court has handed down a landmark decision that says blogs enjoy the same First Amendment (free speech and freedom of the press) protection from libel suits as traditional news media.
The decision is certain to impact the draconian online libel provisions of the Cybercrime Prevention Act and the Supreme Court’s ruling that the provisions are constitutional.
The US first amendment and our 1987 Constitution affirm freedom of the press in remarkably similar language that Congress may not pass a law abridging this freedom. US and Philippine jurisprudence march to the same drummer.
The article was written by Ken Paulson, president of the First Amendment Center of the United States. He reported:
“A website that castigates others as ‘evil doers’ and ‘thugs’ has exactly the same First Amendment protection as USA Today and the New York Times—and that’s a good thing . . .
“At issue [in the landmark case]were the blog posts of Crystal Cox, who accused Bend, Oregon attorney Kevin Padrick and his firm Obsidian Finance Group of misconduct in connection with his role as a trustee in a bankruptcy case. A jury awarded the plaintiffs $2.5 million in damages.
“But the US Court of Appeals for the Ninth Circuit saw things differently, deciding that Cox’s allegations were matters of public interest and to sue her successfully, Padrick would have to prove her negligence—the same standard that applies when news media are sued.
“The protections of the First Amendment do not turn on whether the defendant was a trained journalist,” Judge Andrew Hurwitz wrote. “While the Supreme Court has previously observed that the lines between traditional news media and native web content have become blurred, this makes the first time that federal appellate court has essentially said that journalists and bloggers are one and the same when it comes to the First Amendment.”
The shield applies only to online communication vested with public interest; it does not protect all communications from libel suits. Aggrieved parties can still sue for libel when they are defamed online.
Online material subject to libel law
On this point, the authors of the book, The Law of Journalism and Mass Communication—Robert Trager, Joseph Russomanno, and Susan Dente Oss—are most instructive and conclusive. They write:
“libel law applies to material that is transmitted online, just as with all other forms of communication. More specifically, this principle applies not merely to traditional media organizations, such as newspapers, that have an online presence; anyone who uses the Internet can be held responsible for libelous content that is transmitted.
“Information on the Internet can be just as libelous as anything on paper, film, tape or in a broadcast—perhaps even more so given the speed at which Internet messages travel and the distances they cover. Generally, the same principles apply in terms of the plaintiff’s case and the protections available to defendants.”
Those who get giddy about using the Internet are cautioned that the web will not achieve its great potential in the “marketplace of ideas,” if it is not subjected to the civilizing influence of the law like all other social discourse.
Cyber law and SC decision need review
When bloggers and social media are recognized as members of the fourth estate, the Black Tuesday protesters clearly have strong grounds for seeking to reverse the online libel provisions of the Cybercrime Prevention Act, and the High Court’s ruling on their constitutionality.
If ever Congress rushed the passage of a law with grave national and social implications, and without comprehensive research and adequate debate, it did so in passing the Cybercrime Prevention Act.
If ever the Supreme Court failed to comprehensively review arguments pro and con regarding a specific law, it did so in its review of the Cybercrime Act.
These two issues—of haste in passage and inadequate review—are two reasons why both Congress and the High Court should take a long hard look at their handiwork.
Another important reason for taking a second look is the fact that Congress and the High Court are dealing here with a new communications technology, which they are not conversant with and which is changing even as we contend over the matter.
There’s a revealing US Supreme court decision—Reno vs. ACLU—where the court held that the Internet has complete first amendment protection. Significantly, the case arose from a congressional attempt to limit sexual expression—the Communications Decency Act.
Justice John Paul Stevens, writing for the court majority, emphasized the wide variety of communication taking place on the Internet and the number of places—homes, and universities and cafes—where Internet access is available.
The court said: “The Internet is a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers and buyers. Any person or organization with a computer connected to the Internet can publish information.”
Cyberspace and anonymous communication
Equally important to consider during the review of the law and the SC ruling is the fact that a major hallmark of cyberspace is anonymous communication. The ability to speak anonymously obviously appeals to a lot of people. But it can also lead to a lot of defamatory posts online.
How will libel law tackle cases where the defendant is anonymous? How does a libel victim secure redress when his attacker is unknown?
The justice system is confronted by a dilemma here: the wish to protect anonymous speech collides with the imperative of holding people accountable for libelous expression.
To resolve this dilemma, some US judges have allowed “John Doe“ lawsuits to proceed in which the identity of the defendant was not determined. Knowing that Internet addresses and user names can be traced, plaintiffs file John Doe claims and then compel the Internet system provider (ISP) to disclose the identity of the anonymous poster.
Even works of fiction have been subjected to libel litigation in the US. In one example, the publisher and author of Primary Colors, a novel based on the Clinton presidency, were sued by a library site adviser who claimed she was a character portrayed in the book. The adviser thought she had been defamed because the character, who resembled her, was portrayed as a promiscuous woman. The case was dismissed.
Consensus on decriminalizing libel
Paradoxically, it’s good all around that this online libel controversy has arisen the way it has and at this time in our country. I can cite two reasons why:
First, many legislators in both houses of Congress, as well as many citizen groups, have arrived at the view that this is definitely the time to expunge the criminalization of libel from the Revised Penal Code.
They intend to remove the draconian libel provision and its harsh penalties from the Cybercrime Act.
Even the Department of Justice is signing up.
Second, the online libel controversy has forced many Filipinos, lawyers as well as laymen, to study the issue of libel, and to consider how the all-powerful Internet has impacted our public life
The issue is too important to leave wholly in the hands of lawyers and the government.
Public officials, notably the Administration, have a vested interest in keeping the law as is, because of its chilling effect on bloggers.
There is no question that social media has emerged in our country as a powerful force for journalism. At a time when traditional media are either conscripts of the administration or independent, social media is a vital source of news and opinion. The fight against the pork barrel would not have been won without the loud contribution from social media. The fight against the Disbursement Acceleration Program (DAP) will similarly need this noise machine
Finally, and perhaps more significant, at a time when the political opposition is missing and timid to speak in Congress and the public arena, the Internet and social media sites provide a platform on which the people can have a voice in how the country is governed and how national problems are addressed and resolved.