Tuesday, May 31, 2016

Cyberlibel






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By: Oscar Franklin Tan
@inquirerdotnet
Philippine Daily Inquirer
12:08 AM May 30th, 2016

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Ironically, the #NonLibelousTweet campaign failed to emphasize that it cannot be libel to comment on public affairs in a democracy. It is not libel to comment on a matter of public interest or a public figure, someone who has voluntarily thrust himself into the limelight and attracts public discussion. On such topics, it is only libel if there is “actual malice,” if one knew statements were false or recklessly disregarded possible falsity. The bar is so high on such topics that even false or inaccurate statements are not libel, to make room for honest error.

A confidential disbarment case was filed against Ampatuan massacre lead defense lawyer Sigfrid Fortun for allegedly delaying the trial. In the 2013 Fortun case, Senior Associate Justice Antonio Carpio refused to punish media, including the Inquirer, for reporting this after another lawyer leaked it.

First, we are free to discuss matters of public interest, such as a shocking case’s conduct. Such matters are no less public if a private person is intertwined, voluntarily or not. Second, we are free to discuss public figures. Fortun was a key player in the high-profile case and, previously, in former president Joseph Estrada’s impeachment.

On Election Day, Robin Padilla posted a picture of a ballot shaded with a vote for incoming President Rodrigo Duterte. Miss Krizzy (@krizzy_kalerqui) tweeted: “This is a clear violation of election law. Throw him in jail!”

Taking Carpio’s lead, this is not libel. First, a democracy must discuss election violations on Election Day. Actors Kathryn Bernardo and Daniel Padilla were accused of such violation. Second, Padilla is a public figure, a celebrity who campaigned for Duterte all the way to Hong Kong.

Robin Padilla astoundingly filed a libel case with the National Bureau of Investigation. He argued he posted a sample ballot and his 1994 conviction for illegal possession of firearms disqualifies him from voting. This is irrelevant; discussing his alleged election violation is still not libel.

Sen. Ferdinand Marcos Jr. claimed that “numerous academicians” cited statistical irregularities in election results. Sen. Bam Aquino, a summa cum laude Ateneo management engineering graduate, countered that only two did. Contreras, a DLSU political science professor, and former Ateneo economics professor, Dave Yap, cried statistical irregularity from Facebook to mass media to an aborted University of the Philippines forum.

I doubt Contreras’ first assumption that election results were randomly transmitted. Certain regions transmitted first, and voting patterns per region are different. Arguments fall apart without this key randomness assumption, for reasons explained in the first week of a statistics class.

So many argued Contreras misapplied basic statistics. The Ateneo Mathematics Society launched a Facebook “crash course” on statistics on May 15. One hundred four scientists signed “Call for Responsible Data Science in National Discourse” on May 24.

UP physics professor Ian Vega reacted to this:

“[Contreras is] either slow, too proud or paid. Whatever the case, he’s a sorry excuse for an academic.”

The next day, Contreras publicly posted he would sue Vega for libel.

Rey Soriano posted after May 27’s canvass: “Academics like you… allowed falsities to gain currency by providing a semblance of ‘science’ to your madness.” Within half an hour, Contreras posted: “Another candidate for libel?”

Contreras posted on May 26 that “many people are now busy editing or even deleting their derogatory posts,” but he took pictures. “So the next question is who will be next,” he wrote. “I just hope your science will now be able to save you from jail.”

Academics are alarmed by these threats, including a Dec. 9, 2015, post where Contreras cited students “maligning” him on a website “Profs to Pick and Avoid.” He said if he sees a post “where you can be identified, then I promise you that I will make sure that DLSU will not only kick you out, but you will also land in jail.”

Vega and Soriano’s posts are not libel. First, Marcos and Aquino cited Contreras in the Senate. Any citizen may debate his credibility, even rudely, just as one is free to call Marcos or Aquino a sorry excuse for a senator or mad. Second, Contreras is a public figure. He so publicly pursued his accusations and previously sued Sen. Grace Poe over her citizenship.

The greatest evil is that Miss Krizzy and Vega actually deleted their original messages. Democracy dies when citizens hesitate to speak and cold silence replaces vibrant speech.

Our Constitution demands that speech be met with more speech. Cyberlibel is the weapon of the intellectual and moral coward, someone so bankrupt in the marketplace of ideas that he must dragoon law into silencing competitors. We must etch onto our culture that threatening libel is more despicable than posting “Game of Thrones” spoilers. We must make it socially unthinkable for someone to cry libel instead of simply replying— or for a prosecutor or judge not to immediately throw out a Facebook libel charge.

The next time you hesitate on Facebook, just cite Carpio. If he stares down the Chinese Navy with ancient maps, he can scare off internet trolls.

For more on libel’s limits, read “Articulating the Complete Philippine Right to Privacy,” 82(4) Phil., L.J. 78 (2008).

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React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

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