1. School administrators forum DACS Training center June 1-2, 2017
THE SOCIAL MEDIA AND THE ACADEMIC COMMUNITY:
A LEGAL PERSPECTIVE
ATTY. ROGELIO G. LARGO
President, IBP-Davao City Chapter

2. Definition of social media:
The “social” part: refers to interacting with other people by sharing information with them and receiving information from them.
The “media” part: refers to an instrument of communication, like the internet. TV, radio, TV and newspapers are traditional forms of media.
Social Media--- web-based communication tools that enable people to interact with each other by both sharing and consuming information.

3. examples of social media:
Facebook
Twitter
Instagram
Snapshots

4. cyberspace:
Access virtual libraries and encyclopedias
Post billboard-like notices or messages, including pictures and videos
Advertise and promote goods and make purchases and payments
Inquire and do business with institutional entities
Communicate in writing or by voice with any person through address or telephone

5. cyberspace:
But the system has no means to filter out a number of persons of ill will who would want to use cyberspace technology for mischiefs and crimes:
ruin the reputation of another
bully another by posting defamatory statements
theft by hacking into back accounts or credit card
defrauding through false representations
trafficking in sex
exposing to pornography guileless children

6. Government’s response:
CYBERCRIME PREVENTION ACT OF 2012
(R.A ; enacted on Sept. 12, 2012)
The cybercrime law aims to regular access to and use of the cyberspace and imposes penalties for violations.

7. PUNISHABLE ACTS:
Offenses Against Confidentiality, Integrity and Availability of Computer Data and Systems:
Illegal Access
Illegal Interception
Data Interference
System Interference
Misuse of Devises
Cyber-squatting

8. B) Computer-related Offenses:
PUNISHABLE ACTS:
B) Computer-related Offenses:
Computer-related Forgery
Computer-related Fraud
Computer-related Identity Theft

9. C) Content-related Offenses:
PUNISHABLE ACTS:
C) Content-related Offenses:
Cyber Sex
Child Pornography (R.A. 9775, Anti-child Pornography Act of 2009)
Unsolicited Commercial Communications
Libel

10. Other Offenses: PUNISHABLE ACTS:
Aiding or Abetting in the Commission of Cybercrime
Attempt in the Commission of Cybercrime

11. online libel:
The world’s first-known libel case on Facebook was filed in Europe in July 2008,  by British businessman Matthew Firsht against his former school friend, Grant Raphael who alleged the former as a gay. Firsht won and awarded damages for the libel case and  breach of privacy.

12. Online libel:
In the Philippines, the first libel case on Facebook was filed by celebrity cosmetic surgeon–Dr. Vicky Belo against writer-lawyer-activist Atty. Argee Guevarra who imputed  on Belo as the “Reyna ng Kaplastikan, Reyna ng Kapalpakan” referring to the alleged malpractice of the Belo clinics. (Note: The case was dismissed after the judge trying the case ruled that there was no libel on the internet yet. However, several similar cases have been pending in several courts nationwide.)

15. Also in the news were the controversial shout- outs of Film Director and Actress Gina Alajar on her Facebook making some negative comments against young starlet–Krista Ranillo over the alleged affair of the young star with boxing icon Manny Pacquiao. Read in one of the shout-outs of Alajar’s account: “If I am Jinkee Pacquiao, I will not give up Manny. “Krista Ranillo is not at all worth it!”

16. REASON WHY DEFAMATION IS PUNISHED
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 civilization. The law recognizes the value of such reputation and imposes upon him who attacks it, by slanderous words or libelous publication, the liability to make full compensation for the damages done. (Worcester vs. Ocampo, 22 Phil. 42)

17. ONLINE LIBEL:
LIBEL– THE UNLAWFUL OR PROHIBITED ACTS OF LIBEL AS DEFINED IN ARTICLE 355 OF THE REVISED PENAL CODE, AS AMENDED, THROUGH A COMPUTER SYSTEM OR ANY OTHER SIMILAR MEANS WHICH MAY BE DEVISED IN THE FUTURE [Section 4(c)(4), R.A ].

18. 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, or any similar means, shall be punished by prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2months) 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.

19. Art. 353. Definition of libel
Art Definition of libel. — A libel is 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.

20. ELEMENTS OF LIBEL:
1. That there must be an imputation of a crime, or of a vice, or defect, real or imaginary, or any act, omission, condition, status or circumstances.
Examples:
Imputation of a criminal act- bigamist, thief, influence peddler
Imputation of a vice or act- lascivious and immoral habits
Imputation of an act or omission- did not pay the dentist
Imputation of condition, status or circumstances- bastard, leper, coward, vile soul, dirty-sucker, savage, hog who always look towards the ground, mangkukulam.
Note:
Imputation of criminal intention is not libelous
Expression of an opinion is not libelous

21. What the WRITER meant IS IMMATERIAL
It is not the intention of the writer or speaker or the understanding of the reader or hearer by which the actionable quality of the words is to be determined, but the meaning of the words in fact conveyed on the minds of persons of reasonable understanding, discretion and candor, taking into consideration the surrounding circumstances which were known to the hearer or reader (People vs. Encarnacion, CA 48 ).G 1817)

22. ELEMENTS OF LIBEL: 2. That the imputation must be made publicly.
Publication is the communication of defamatory matter to some third person or persons (People vs. Atencio, CA-GR Nos R to R).
-- There is publication of defamatory letter not shown to be sealed when sent to the addressee.
---- The communication of a libelous matter to the person defamed alone does not amount to publication, for that cannot injure his reputation. A man’s reputation is the estimate in which others hold him; not the good opinion which he has of himself (People vs. Atencio)

23. ELEMENTS OF LIBEL: 3. That it must be malicious.
MALICE IN LAW– is presumed from a defamatory imputation. Proof of malice is not required, because it is presumed to exist from the defamatory imputation (Art. 354, 1ST Paragraph, Revised Penal Code).
MALICE IN FACT-- may be shown by proof of ill will, hatred, or purpose to injure.

24. Art. 354. Requirement for publicity
Art Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
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.

25. The presumption of malice is rebutted if it is shown that:
1. the defamatory imputation is true;
2. it is published with good intention; and
3. there is justifiable motive for making it.
Example:
A person telling his brother that an applicant for security guard in the latter’s store is a thief, who was previously convicted of theft.

26. Malice is not presumed in the following privileged communications:
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.
The prosecution must prove malice in fact to convict the accused on charge of libel involving privileged communications.

27. Performance of legal duty– Administrator of the estate of a deceased person filing a written objection to a certain claim of a person, in which written objection the administrator made some statements which reflected upon the virtue, honor and reputation of the claimant.
Performance of a moral duty– Complaint made in good faith agaist a priest to his ecclesiastical superior for alleged drunkenness, taking indecent liberties of women.
Performance of a social duty– Complaint made in good faith against a teacher addressed to the principal of the school.

28. Difference Between Libeling a Public Official and Libeling a Private Individual?
For libel to hold water in case of public officials or figures, the Court said the “higher standard of actual malice” must be satisfied to attain conviction. The burden lies with the offended party or the prosecution. “Society’s interest and the maintenance of good governance demand full discussion of public affairs.”
On the other hand, when the offended party is a private individual, malice is presumed in the offending article, with the burden of showing otherwise being on the accused.

29. ELEMENTS OF LIBEL:
4. That the imputation must be directed at a natural or juridical person, or one who is dead;
-- Identification of the offended party is required
-- Defamation directed at a group of persons is not actionable, unless the statements are all-embracing or sufficiently specific for the victim to be identifiable

30. ELEMENTS OF LIBEL:
5. That the imputation must tend to cause dishonor, discredit or contempt upon the offended party.

31. WHO ARE CRIMINALLY RESPONSIBLE FOR LIBEL?
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 (Art , RPC).

32. Disini vs secretary of justice (g.r. no. 203335, feb. 11, 2014)
Petitioners challenged the constitutionality of the Cybercrime Prevention Act of 2012:
Freedom of speech and expression
Freedom of the press
Right to due process
Right to privacy and correspondence
Legality of Libel
Vagueness and ambiguity of certain provisions

34. Woman from Cebu: First to be charged with online libel under Cybercrime law Posted on September 20, 2014 by Francesca N
CEBU, Philippines – A woman from Cebu who allegedly maligned a single mother in a social networking site was the first person to be charged before the Cebu City Regional Trial Court (RTC) for violating Republic Act (RA) No otherwise known as the Cybercrime Prevention Act of 2012.

35. Sunstar:
Atara (not her real name) was indicted by the Cebu City Prosecutor’s Office after it found probable cause that she committed libel in relation to RA
Bail was set at Php 20,000 for Atara who posted libelous messages against a certain Vangie in the latter’s Facebook account. The accused also called Vangie names like “cheap.”
When Atara threatened Vangie that she will post the libelous statements on Facebook, Vangie deactivated her account. But Atara continued to malign Vangie.
When Vangie reactivated her Facebook account, she then was able to read the accused’s accusations against her.

36. LIBELOUS WORDS
According to Vangie, Atara posted the following statements against her: “This the counterfeiter, forger and a thief. A lot of cases will be coming out soon from Cebu. Beware of this woman!”
Vangie then took pictures of the messages and included them in her complaint.
“(She) clearly does not have any purpose in doing the acts I am complaining of against her except to malign my name, my person, and my business standing,” said Vangie.

37. The High Court in the case of Disini Jr. et al. vs
The High Court in the case of Disini Jr. et al. vs. The Secretary of Justice upheld the Internet libel provision but limited it to the author of the libelous statement and clarified that only authors of libelous materials are covered by the Cybercrime Law and not those who merely received or reacted to it.
The Supreme Court said that the new law “merely incorporates” what had been stated in the Revised Penal Code.

38. The Supreme Court also upheld the constitutionality of an increased penalty for online libel, specifically, one degree higher than for printed or 'paper' libel.
1. A person convicted of online libel shall be imposed a penalty of imprisonment ranging from SIX YEARS ONE DAY TO 10 YEARS (N.B. Printed libel has a penalty of 6 months and 1day to 4 years and 2 months or a fine ranging from 200 to 6,000 pesos, or both
2.He CANNOT apply for probation.
3. The prescriptive period for the offense increased to 10 years.
Article 90 of RPC- The crime of libel or other similar offenses prescribe in one year.

39. ADMINISTRATIVE CIRCULAR NO. 08-2008:
SUPREME COURT
ADMINISTRATIVE CIRCULAR NO :
GUIDELINES IN THE OBSERVANCE OF A RULE OF PREFERENCE IN THE IMPOSITION OF PENALTIES IN LIBEL CASES.
In this Circular, penalty of Fine is preferred.
Q: Does it apply to online libel?
A: No.

40. Reason for a higher penalty for online libel:
According to the Supreme Court, there exists a substantial distinction between crimes committed through the use of information and communications technology and similar crimes committed using other means. In cybercrime, the offender often evades identification and is able to reach far more victims or cause greater harm. The distinction creates a basis for higher penalties for cybercrimes.

41. Disini Jr. et al. vs. The Secretary of Justice
One day, Maria posts on her internet account the statement that a Juan, a married public official has an illicit affair with a movie star.
Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to friends of friends almost ad infinitum.
Nena, who is a stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to that blog site.

42. Disini Jr. et al. vs. The Secretary of Justice
4. Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens, hundreds, thousands, and greater postings.

43. Disini Jr. et al. vs. The Secretary of Justice
The question is: Are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or "Sharing" it with others, to be regarded as "aiding or abetting?"

44. Disini Jr. et al. vs. The Secretary of Justice
In libel in the physical world, if Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel.
If Roger, seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster.
If Arthur, passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a crime.

45. Disini Jr. et al. vs. The Secretary of Justice
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or abetting libel?

46. Section 5 . Other Offenses
(a) Aiding or abetting in the commission of cybercrime--- Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.
The Supreme Court has declared this provision as null and void as it “encroaches on freedom of speech” for it “generates a chilling effect on those who express themselves through cyberspace posts, comments and other messages.”

47. Disini Jr. et al. vs. The Secretary of Justice
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?

48. Disini Jr. et al. vs. The Secretary of Justice
However, 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.

49. WHO ARE LIABLE FOR ONLINE LIBLE?
The Supreme Court held that only the author of the offending online article is liable.
Internet service providers and content providers like Globe, Smart, Sun Cellular, Google, Facebook, Twitter and Internet Café are not liable.

50. Disini Jr. et al. vs. The Secretary of Justice
General Rule: No Violation of the Right Against Double Jeopardy.
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

51. Disini Jr. et al. vs. The Secretary of Justice
Exception: Online Libel.
There should be no question that if the published material on print, said to be libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A involve essentially the same elements and are in fact one and the same offense. Charging the offender under both laws would be a blatant violation of the proscription against double jeopardy.

52. THANK YOU!