But mere 'like' is OK, says Solicitor General Francis Jardeleza

MANILA, Philippines (UPDATED) - Merely liking a defamatory tweet will not constitute cyber libel under Republic Act No. 10175 or the Cybercrime Prevention Act, but reposting or retweeting it may send you to prison.

Solicitor General Francis Jardeleza made the clarification to reporters at the end of oral arguments at the Supreme Court (SC) on Tuesday.

"Ang [cyber] libel, yung i-republish mo, pwedeng may tama yun, republish -- you share or you retweet. Kung 'like' yun, may depensa ka na opinyon ko lang yun na maganda. 'I like,'" he said.

However, his statement was completely different in front of SC magistrates who grilled him on whether the crackdown on Internet crimes also covers mere approval of other people's opinion.

"A 'like' is an approval of opinion. The approval of the opinion 'Jones is a liar' can cause as much damage as actually saying 'Jones is a liar,'" Jardeleza told the high court.

Associate Justice Roberto Abad, who will write the decision on the case, called the law "bad."

“If ‘liking’ a post considered libelous is also libelous, then this law is bad. It can have chilling effect for those of us who like opinions, which we didn’t author in the first place,” he said.

The 68-year-old high court magistrate said he also has a Facebook account.

Other justices questioned the constitutionality of online libel provision in Section 4 (c) of the cybercrime law.

Carpio: Law on libel unconstitutional

Senior Justice Antonio Carpio said previous Supreme Court rulings have already declared unconstitutional the libel provision in Section 354 of Revised Penal Code, where Section 4 (c) of the cybercrime law was taken.

"Article 354 on libel cannot stand scrutiny of constitutionality," Carpio told Jardeleza.

Associate Justice Marvic Leonen, the latest appointee of President Benigno Aquino to the high court, agreed with Carpio.

"Jurisprudence on actual malice has amended the Revised Penal Code. Why is it in the cybercrime law, libel repeats Article 355 and not the jurisprudence? The libel of 1932 is not the libel we know today," Leonen told Jardeleza.

Jardeleza, meanwhile, said it would be "up to the court" to declare unconstitutional the online libel provision in the cybercrime law.

'Strike down take-down clause'

The Solicitor General earlier admitted that the cybercrime law's Section 19, more notoriously known as the "takedown clause," is unconstitutional.

The clause allows the Department of Justice to block access to computer data or websites even without a warrant issued by a court.

“We humbly submit that Section 19 be struck down as it impermissibly intrudes into free speech. We too believe in freedom of speech and expression,” he said.

Jardeleza also admitted during the interpellation that Section 12 of the law that allows real-time collection of traffic data also without court review as "hardly constitutional."

He said "due cause" should first be present.

"Traffic data can be acquired if there is due cause, which is a function of the executive (branch). Rights will be better protected with judicial intervention," Jardeleza said.

Double jeopardy

Jardeleza also told the high court that the Cybercrime Prevention Act does not spell out a different set of penalties for libel committed in cyberspace, rather, it directs that the offense be penalized a degree higher than what is provided for under the Revised Penal Code.

However, the justices pointed out that Section 7 of the assailed law does not contain the Solicitor General's view as it states that "[a] prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws."

The justices stressed that Section 7 thus allows double jeopardy on the part of the accused.

Questions were also raised by the magistrates in connection with the vagueness of certain provisions of the law, including what constitutes "due cause" for a cyber offence, with some justices pointing out that this may be subject to abuse on the part of law enforcement agents.

Jardeleza, however, maintains that apart from the Department of Justice's "takedown powers" over websites, the rest of the provisions of the law should be upheld as legal by the high court.

The case was submitted for resolution after the end of the 2-part oral arguments that also included the side of the 15 groups that have filed petitions against the law. -- with reports from Ina Reformina, ABS-CBN News

* Download and Listen to the audio recording of oral arguments by the Office of the Solicitor General on the cybercrime law, as recorded and shared online by the Supreme Court on January 29, 2013.