When the Supreme Court decided to uphold the anti-cybercrime law, netizens were fast to decry the decision as an erosion of our fundamental right to free speech and paving the way for online martial rule. This issue assumes much relevance at a time when we celebrate the 28th year anniversary of the EDSA People Power Revolution that toppled the Marcos dictatorship.
Those who lived through the Martial Law years know that they could only criticize Marcos and the government in hushed tones, lest they be the target of the dreaded ASSO (Arrest, Search and Seizure Order) by the state’s security forces. This could mean being incarcerated without charges or worse, joining the ranks of the desaparecidos or those who disappeared and never to be heard from again.
The 1986 People Power revolution ended this garrison state and with it came the restoration of our cherished freedoms, particularly our freedom of speech and expression which is now enshrined in Article 3, Section 4 of the Constitution. It prohibits Congress from making any law abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
The advent of modern technology even expanded the exercise of this freedom by providing us the medium of the cyberspace where we can vent our frustrations with the government and its officials or cast our criticisms and disgusts. Imagine if tweeter or facebook were already existing during the time of Marcos. The authorities would probably be spending countless hours tracking emails, tweets and status updates adverse to Marcos and his cohorts.
One only needs to read the papers, listen to the radio, watch the TV, surf the internet, browse facebook or read tweets to see that our freedom of speech is still very much intact – and we no longer have to criticize the government in bated breath. 28 years later we can still speak freely against the government and our public officials without fear of punishment.
And what about the anti-cybercrime law that punishes online libel? Did it not remove or downgrade our free speech right with the connivance of the Supreme Court? There is so much misinformation circulating the web about this. Freedom of speech is not absolute. The state can legitimately prohibit speech that is libelous, obscene, incites lawlessness, or is in the nature of fighting words (those that by their very utterance inflict injury, incite lawlessness, hatred or violence). These are unprotected speeches that the state may validly regulate.
Libel, which is the utterance of defamatory words that destroy or injure another’s character or reputation, has always been punished even before the enactment of the anti-cybercrime law. What the anti-cybercrime law merely did is recognize the internet as a means by which libel may be committed or as a medium where defamatory words can be published. If a statement is libelous when made on a newspaper, radio or television or when uttered orally, it does not become less libelous when made on the internet.
The anti-cybercrime law does not punish protected speech. By importing the definition of libel under the Revised Penal Code, the jurisprudence outlining the acts punishable when the defamatory remarks are made against a private individual and when made against a public official or figure are also imported. Thus, speech critical of a public official or figure, even if defamatory, remains protected if made without malice and, therefore, cannot be punished as libel.
Those who say that the anti-cybercrime law will stifle free speech are clearly making false and misleading statements. The criticism of official conduct, condemnation of malfeasance in public office or denunciation of any wrongdoing by our public officials remain part of our protected speech and nowhere under the anti-cybercrime law, or in the Supreme Court’s decision, has this been made a punishable act.