CYBER LIBEL IS NOT A CRIME

MARLO CAMPANILLA·THURSDAY, FEBRUARY 14, 2019

In Disini vs. Secretary of Justice, G.R. No. 203335, February 11, 2014, the Supreme Court said an offender cannot
be prosecuted for libel under the Revised Penal Code and cyber libel under RA No. 10175 because of the rule on
double jeopardy. With due respect to the Supreme Court, cyber libel is not punishable under RA No. 10175.

Under Section 4(c)(4) of R.A. No. 10175, cybercrime punishable includes content–related offenses such as such
cyber libel, which is an unlawful or prohibited act of libel as defined in Article 355 of RPC committed through a
computer system or any other similar means which may be devised in the future.

The phrase “acts constitute the offense of cybercrime punishable under this Act” in Section 4(c)(4) of R.A. No.
10175 means that libel defined under Revised Penal Code committed through computer system is punishable as
cyber libel under R.A. No. 10175 and not under the Revised Penal Code. Unfortunately, Section 8 of R.A. No.
10175, the penal provision of the law, fails to provide a penalty for cyber libel under Section 4(c)(4). Thus, the
offender cannot be prosecuted for cyber libel under Sections 4 in relation to Section 8 of RA No. 10175. “Nullum
crimen, nulla poena sine lege” (There is no crime where there is no law punishing it).

For committing libel through the internet, one should be prosecuted for libel under the Revised Penal Code.

Under Article 355 of the Revised Penal Code, libel is a defamation committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any
similar means.

Television though not expressly mentioned in Article 355 easily qualifies under the general provision “or any
similar means.” (People v. Casten, CA–G.R. No. 07924–CR, December 13, 1974) Since nature of internet as a
means of publication is permanent, it should be considered as a means to commit libel. In Disini v. Secretary of
Justice, G.R. No. 203335, February 18, 2014, the Supreme Court said cyber libel is actually not a new crime since
Article 353, in relation to Article 355 of the Revised Penal Code, already punishes it. Online defamation constitutes
“similar means” for committing libel.

While the offender shall be prosecuted for libel under the Revised Penal Code, the qualifying circumstance of use of
information and communications technologies under Section 6 of R.A. No. 10175 shall be considered. With this
qualifying circumstance, the penalty for libel under Article 355 of the Code shall be increased one degree higher.

In case of libel through the internet, the proper charge is not cyber libel under RA No. 10175, but libel under the
Revised Penal Code with the qualifying circumstance of use of information and communications technologies under
R.A. No. 10175

Prospectivity

Under Article 21 of the Revised Penal Code, no felony shall be punishable by any penalty not prescribed by law
prior to its commission. Hence, the penalty for libel committed through the internet before the effectivity of RA No.
10175 shall be punished under the Revised Penal Code without increasing its penalty by one degree. Section 6 of
RA No. 10175 on qualifying circumstance of use of information and communications technologies shall not be
given a retroactive effect. To rule otherwise is to violate the constitutional provision on ex post facto law.

Prescription

Under Article 90 of the Revised Penal Code, the crime of libel shall prescribe in one year. In sum, the offended
party must file a complaint for libel with the prosecutor’s office for preliminary investigation within one year from
the time the offended party discovered the commission of libel. In People vs. Hon. Gines, G.R. No. 83463, May 27,
1991, the Supreme Court said that the prescriptive period of one year for libel shall commence to run from the day
the alleged libelous article was published.

There is a theory that libel published through the internet is a continuing crime as long as the defamatory statements
are accessible to the public through the internet. The publication of the libel in the internet is continuing, and thus,
the commission of libel is also continuing. Under this theory, the one-year prescriptive period for libel shall not run
as long as the libelous statements are still accessible to the public.

It is submitted however that this continuing publication theory will go against the essence of the rule on prescription,
and that is, to fix a reasonable period within which a criminal action can be instituted. This view will render the
crime of libel imprescriptible since it is of public knowledge that defamatory writings posted in the internet will be
accessible to the public even after several years have elapsed. Moreover, defamatory articles published in a
newspaper such as inquirer several years ago are still accessible to the public in the National Library; and yet, the
Supreme Court in People vs. Hon. Gines, G.R. No. 83463, May 27, 1991 did not consider the accessibility of the
defamation in the newspaper as a factor in determining when the prescriptive period will commence to run.