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THE TENSION BETWEEN FREE SPEECH ONLINE AND

DEFAMATION LAW

Atty. Ethelbert B. OuanoProfessor, USJR School of Law / CBSi Legal Consultant

We have not been so interconnected like this before…

The Internet has empowered individuals worldwide to seek and share information and presents unprecedented opportunities for communication and debate.

It has remarkably made the world smaller — making distance and territorial jurisdictions irrelevant.

The Internet also worsens the tension already seen offline between freedom of expression and other interests like the rights to reputation and privacy which are traditionally protected by defamation law.

CyberLibel is an inept “old media solution” to a new media problem.

Obviously, it is a solution incompatible with the problem.

Pre-Internet Doctrines will not solve our internet problems.

Equal Protection Clause ICCPR / UDHR and other International

Instruments The Human Rights Committee’s View on Alexander

Adonis Case (Alexander Adonis v. The Philippines, Communication No. 1815/2008, U.N. Doc. CCPR/C/103/D/1815/2008/Rev.1 (2012)

Excessive & Cruel Punishment

Legal Issues: (among others)

Unconstitutional or not, there is an urgent need to repeal our Libel Law.

LEGAL REPERCUSSIONS / INCOMPATIBILITIES

Filipinos become vulnerable to harsher libel cases compared to other internet users around the world which already decriminalized libel.

In the past, concepts of jurisdiction were limited by the physical reality of production and distribution. In contrast, the global nature of the Internet allows content to be posted in one jurisdiction but accessed in many others, each with a different defamation law. An individual posting content may not even be aware that the content has been accessed abroad, let alone aware that the content may be illegal where accessed.

IN FACEBOOK ALONE 30 MILLION FILIPINOS ARE EXPOSED TO THIS LEGAL RISK.

The law singled out out speech on the Internet. It discourages it’s use and dismissed the positive impact of the Internet on democratic participation and the ability it afforded to respond immediately to negative comments, instead our law sees it as a “potential a medium of virtually limitless defamation.”

THIS IS VERY UNFAIR!

Due to our harsher libel law, it is tantamount to promoting Libel Tourism.

Libel Tourism - persons offended by information in their home country—sometimes created by a fellow national—sue in another country with laws less protective of speech or more friendly to plaintiffs. Jurisdiction is claimed on theground that the challenged material is available via the Internet in the country where the suit is filed.

Restrictive measures must be appropriate to achieve their protective function, this is the Principle of Necessity.

The State should also consider local and international norms in determining whether a restriction is “necessary.”

What we are saying:

As a Human Rights Court it should step up in their review of the CyberLibel Law and should apply the strongest protections for free expression reading narrowly the exceptions to the principle for reputation and dignity.

We urge our Supreme Court