THIS issue comes out on Christmas morning and while it is always standard fare for column writers to declare a ceasefire from commenting on issues, we cannot take an exception this time especially in the light of a recent occurrence happening close to home.
I refer to the conviction of this paper’s editor Frank Cimatu of the offense of cyber libel from a complaint filed by a former high-ranking official of the Duterte administration, himself a former journalist and editor. At the outset, I should state that I have not read the complaint nor the indictment, not even Frank’s rejoinder, nor the court’s decision. What I know is what I read from reports or casual conversations with colleagues.
Also, what I needed to say by way of a commentary on the implication of the case was said in a previously written column to the effect that if the subject Facebook post was written by anyone other than Frank (a private citizen, not a media personality not even a public figure), say a neighbor who is increasingly frustrated by how his living conditions is glaringly disparate from that of a public official earning P21-M (regardless if it was earned in good faith and over a course of time, not six months) against his meager take-home pay, its emotional effect is enough to trigger an outburst.
Frank clearly had an emotional outburst. I can only imagine that he was trying to vent his ire with tools available at his disposal which happened to be a keyboard. That pivotal keyboard stroke started all these legal troubles for him. But you see, that “personal” outburst did not even show up in this paper. In the traditional definition of libel, the material in question must be published and printed for it to be deemed libelous. In that situation, it is possible that even the publisher (newspaper, magazine and the like) would be included in the charges. But this is social media. And in this age of social media, cyber libel contemplates each account that creates content as its own publisher.
One of the forces that drove the creation of the cyber libel law is the need to regulate social media. We know that since its inception the public has been clamoring for the establishment of a system or systems to regulate this and other related organisms created in cyberspace. Thus, as the effect and impact of social media usage are felt and continues to be felt, the demand is not far behind for these regulatory measures to be put in place.
Self-regulation has been a course of action established to moderate social media use, specifically to curtail its abuses. Hate speech, cyberbullying, discrimination, inciting to destabilize social institutions, conspiracy theories, and bigoted statements are among the instances that forced the owners and executives of social media platforms to monitor uploaded and shared content bearing these tell-tale signs of toxicity. We know that one infamous social media user, Donald Trump, was banned on Twitter for posting all of these vitriols that led to the January 6, 2021 attack on the United States Capitol in Washington, DC.
The issue is that these “bans” are not permanent. With the change in management comes changes in company policies. Take the case of new Twitter owner and CEO Elon Musk who just reinstated the account of Donald Trump, which gives rise to the likelihood that Trump will return to his old venomous ways with his restored platform.
I suppose regulatory measures, and for this matter, the law, will always play “catch-up” with new technology and novel systems. For instance, the 18-month investigation on the January 6 “insurrection” undertaken by the Select Committee of the US House Representatives is not only undertaken to determine the root cause of the attack and to identify those who are culpable but also to establish, if any, the role of social media in organizing the mob that stormed the US Capitol.
An investigation of this nature is always “in aid of legislation” such that if a law would be crafted following the conclusion of the probe, I anticipate that a form of social media regulation might be included in its provisions. Similarly, but no less important, cryptocurrency is also being sought for regulation. The recent case of Sam Bankman-Fried, founder of the failed cryptocurrency FTX who was arrested for allegedly defrauding depositors who, after Bankman-Fried filed for bankruptcy, can no longer access their funds. While it has been reported that charges against him are for violations of US Securities laws, the specifics are not clear considering that there have been no rules governing the operation of cryptocurrency given that this is a form of exchange that is only now being litigated under “traditional” laws.
So, to go back to Frank, I hate to think that he might be caught in the unpalatable situation of being a legal “guinea pig” as the law continues to determine what really constitutes the “crime” of cyber libel. It is true that the elements of cyberlibel are prescribed but this is a mere spinoff or an offshoot of libel as defined under the Revised Penal Code. The purview is so narrow that the cyber libel statute still requires much rigor in construction and interpretation.
Frank believes the accusations hurled against him are simply not true, but he does this against the backdrop of the Constitutional right to free speech and expression. Also, it is being done amidst the clamor to decriminalize libel which likewise draws the question if libel is decriminalized, will it lower the bar of evidence so much that it is easier to convict an accused in a civil case?
I know that these points are off the positions established by BCBC, NUJP, Baguio Writers Group, KMCC, BAYAN, Movement Against Tyranny, and others. Notwithstanding the validity of these sentiments, the law, sadly, will always follow the beat of its own drum. From the beginning, Frank chose to stand his ground under the law. Unfortunately, losing this round means he still has a long way to go. I have no doubt he would be resolute in this crusade.