Tuesday, October 2, 2012

A pestering relic

There was a Vicente Sotto in the Philippine Senate long before his namesake incumbent Senator Vicente “Tito” Sotto III rose to fame. Actually, they are related by blood. The former movie personality and now a staunch opponent of the Reproductive Health (RH) Bill pending in Congress is the grandson of the older Senator Vicente Sotto.
The older Senator Sotto was the main author of the Press Freedom Law (now known as the Sotto Law, Republic Act No. 53) which protects journalists from being compelled to name their news sources. Earlier in life, the older Sotto was a spirited and unwavering advocate of national independence from American rule and published the first newspaper in Cebu by a Philippine citizen. When the newspaper was suspended by the American military governor, it did not stop Senator Sotto from publishing another one for which he was later put to prison. Upon his release, he would publish another newspaper, and this time, he was found guilty of treason by the American colonial government. Even during his exile, the undaunted older Sotto would continue his fight for independence by publishing the Philippine Republic, an English-Spanish fortnightly based in Hong Kong, and later a weekly journal called The Independent.
One would think the grandson would follow in the footsteps of his illustrious ancestor. But Tito Sotto, the younger, took a different path. Admitting to CBS News that he was one of the two senators who inserted the online libel provision in the newly-passed Cybercrime Prevention Act of 2012, Senator Sotto believed it was necessary and it would not cause any additional harm.
Senator Vicente "Tito" Sotto III, outspoken opponent of the Reproductive Health Bill in
Congress and alleged to have inserted the online libel provisions in the newly enacted
Cybercrime Prevention Act. Click link
to view "Sotto: Plagiarism Not Crime in the Philippines."
His critics, however, say this wasn’t so. Sotto is suspected of having an axe to grind against bloggers and those who use Facebook or Twitter accounts to post critical comments against public officials. Before the much-ballyhooed anti-cybercrime law was passed, Sotto, who is also the Senate Majority Leader, made a privileged speech attacking the proposed RH Bill. In speaking against the bill, Sotto shared his intimate and personal experience with the dangers and side effects of birth control devices.
Sotto’s critics on the Internet pounced on him with accusations of plagiarism, that he copied portions of his speech from a U.S. blogger and from the speeches of the late U.S. Senator Robert Kennedy. Senator Sotto thought he was a victim of cyber-bullying by bloggers and Facebook and Twitter users who were taking advantage of the unregulated Internet in insulting and defaming his character. He claims that the libel clause in Cybercrime Prevention Act was not intended to abridge free speech, but only to protect ordinary people who are “victims of online attacks, character assassination and the like from people who do not observe the standards of journalism.”
Other than blood, the two Sottos of the Philippine Senate obviously have no kinship to each other. The older Sotto took a bolder and more principled position in favour of free speech while the younger opted restraint instead.
The younger Sotto did not realize the full implications of plagiarism, particularly to copyright infringements in cyberspace, such as copying the works of bloggers without their consent. Perhaps, Senator Sotto and the rest of the lawmakers who drafted the Cybercrime Prevention Act need to refresh themselves of the Budapest Convention, which the Council of Europe adopted in 2001. This Convention became the only binding international instrument designed specifically to combat cybercrime. It serves as the guideline for developing comprehensive national legislation against cybercrime and deals with crimes committed via the Internet and other computer networks, such as hacking, phishing, spamming, and more particularly with infringements of copyright, computer-related fraud, child pornography and violations of network security.
Recognizing the growing menace of cybercrimes, the Budapest Convention is also being used in fostering international cooperation among its members in the apprehension of computer crimes. It has been supplemented by an Additional Protocol in 2003 which makes any publication of racist and xenophobic propaganda through computer networks a criminal offence. One of the reasons in adopting the Additional Protocol was to recognize freedom of expression as a basic condition for the development of every human being and as a foundation of democratic society. It wasn’t meant to criminalize online or Internet libel. After all, its members and other non-member countries (like Canada, Japan, the United States and the Republic of South Africa) that have signed up to the convention are all liberal democracies where libel is no longer a criminal offence. In these states, libel or defamation is a civil wrong that can be remedied by damages, not by imprisonment.

In a related event, the United Nations Human Rights Committee has also called on the Philippine government to decriminalize libel in the case of a Davao City radio journalist who was convicted of libel in 2007 under the country’s Revised Penal Code and was imprisoned for two years. According to the UN committee decision, the Philippines violated article 19 on the right to freedom of expression and opinion of the International Covenant on Civil and Political Rights. The existing Philippine libel law as contained in the Revised Penal Code has its roots from the Sedition Act of 1901 that punished those who would advocate Philippine independence and free speech during the American colonial period.
Instead of decriminalizing libel and following the practice in advanced democratic states of treating defamatory libel as a civil matter, the online libel criminal provisions in the Cybercrime Prevention Act have even strengthened libel law.
It is worse now because a person can be prosecuted for libel under the Revised Penal Code and libel under the Cybercrime Prevention Act, which is contrary to the 1987 Constitution that assures protection against double jeopardy. According to College of Law Professor Harry Roque of the University of the Philippines, the new anti-cyber crime law even increases the penalty of cyber-libel one degree higher than ordinary libel.
Professor Roque, who is also a blogger, wrote in
“This means that electronic libel is now punished with imprisonment from 6 years and one day to up to 12 years, while those convicted for ordinary libel under the RPC are subject to imprisonment only from 6 months and one day to four years and two months. And because parole, a means by which a convict may be spared from actual imprisonment may be granted only to those sentenced to serve a prison term for no more than 6 months and one day, anyone convicted for cyber libel will inevitably serve a prison term.”
The inclusion of online libel in the new anti-cybercrime law has diminished the objectives of the Budapest Convention, the template for anti-cybercrime legislation, and made a mockery of the Philippines’ accession to international instruments that recognize the fundamental right of individuals to freedom of expression.
Various individuals and groups are now challenging the constitutionality of the new Cybercrime Prevention Act. In addition to the “chilling effect” of the new law on free speech, opposition to the anti-cybercrime law also raises violation of the sanctions against double jeopardy and the right against unreasonable searches and seizure insofar as it gives unwarranted authority to the police and the National Bureau of Investigation to engage in wholesale surveillance of all cellular, data, mobile, internet and computer communications.
Brad Adams, Asia Director of Human rights Watch said: “Anybody using popular social networks or who publishes online is now at risk of a long prison term should a reader – including government officials – bring a libel charge. Allegedly libelous speech, online or offline, should be handled as a private civil matter, not a crime.”
In fact, the civil court is the best recourse for Senator Tito Sotto if he felt aggrieved or unnecessarily harassed by the deluge of criticisms against him in the blogosphere. There are appropriate and adequate civil remedies available against defamatory libel, including monetary damages. Perhaps, it is also about high time for the Philippine government to decriminalize libel as part of its maturation as a democratic society that allows its members to fully exercise their right of free speech without the threat of criminal prosecution. The time is now to get rid of this worthless relic from the past.

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