Media law final exams today. 1pm exam, finished, examinees have left the room and spread the word, so the 1pm questions are now public. Here’s one of the bonus questions:
For 5 points! (Drumroll…)
66-71) Blogger JLo complained during a press con on the Cybercrime Law that her daughter would not be able to “rant” anymore in Facebook and Twitter whenever she is served “undercooked” or “overcooked” hamburger in Jollibee or McDonald’s because “it would be punishable as libel” under the Cybercrime Prevention Act of 2012. What would you advise JLo, based on your background in media law? Explain.
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i’ll be incommunicado until I’ve submitted the grades. Well, actually, I could still be reached but I won’t reply unless… close po ba tayo? ka-text ko po ba kayo, hindi po, salamat.
For that interregnum, will just be blogposting the amusing answers to the bonus questions starting tomorrow; maybe one a day.
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For this particular question, since there is no particular jurisprudence with exactly the same facts, there are no right and wrong answers; but the examiner is looking for the following: 1)What are the subjects of fair comment? [We took up at least nine (many!) subjects of fair comment, with one of them being so broad as to cover any matter of public interest; and 2)what the criteria for fair comment? Those comments are not libelous. Just state the relevant category and you’ll get the full points.] 3) If the examinee includes the following discussion, he/she will get wild applause from me: When is a so-called “rant”, “joke” etc. (a “like” in FB or a “he-he-he” after a re-tweet) covered by the fair-comment-rule and therefore not libelous? (broad category too; you’ll be happy if you know your media law) Abanganthe sagot! (Watch out for the answers!)
Libel is always content-based, it is not medium-based.
(Palakpakan! applause! big smile! confetti! balloons!)
notes on decriminalizing libel if thru the SC route
(for those who are choosing the Supreme Court route to decriminalize libel, that is, if you must choose this route for the decriminalization campaign)
Even the Supreme Court through then Chief Justice Puno thinks the penalty provision of the libel law is too harsh, hence the Supreme Court circular advising judges not to impose jail time as punishment but to mete out fines instead. So far, this is being followed by judges. This circular however is not law, it is advisory in character.
In other words, as everyone knows, the Supreme Court cannot legislate. Policy questions (whether or not libel should be decriminalized) should be addressed by the legislature. If the Supreme Court thinks the subject matter is a policy issue, it would shirk from ruling.
Some suggestions: Those who want to decriminalize libel through the Supreme Court route might want to take note of the following: The Supreme Court has to be convinced that the opinion/ report of the United Nations Human Rights Committee (UNHRC) itself (October 2011) – of the Philippine libel law prison provision being too severe and in contravention of Section 19 of the International Covenant on Civil and Political Rights — has the status of law, and not merely persuasive in character. If this could be shown, then those who chose the Supreme Court route might succeed in transforming libel decriminalization from a policy issue to a legal issue. Section 19 of the International Covenant on Civil and Political Rights (ICCPR) is a restatement of the free-speech-clause. The ICPR has the status of law, i.e., it is a binding international convention. Does the UNCHR opinion itself have the status of law? You’ll need the Supreme Court to: either agree with the UNHRC opinion, and to adopt it, (that our Philippine libel law is in contravention of Section 19 of the ICPR), or to consider the UNHRC report itself as law.
Tedious? Yes.
Also, since the online libel provision of the Cybercrime Prevention Act (Chapter II, Section 4, (c) (4) Libel,) is somehow a restatement of Art. 355 of the Revised Penal Code except for the last clause, the Supreme Court will say: “Well, you are in effect questioning the constitutionality of Art. 355 itself, upon which the online libel provision is based, the latter being merely a restatement… aren’t you?” And when you answer yes, the Supreme Court will say, then why did you not plead that? You want us to in effect strike down Art. 355 of the Revised Penal Code itself as unconstitutional, based on the ICCPR – replead this, attach a certified copy, then come back here.
Technical? Yes. Acrobatic-technical.
There are several provisions of the Cybercrime Prevention Act that are, “on their faces” (“on its face”), unconstitutional. (to be continued poito)
