Is online libel or cyberlibel committed before 3 October 2012, the effectivity date of the Cybercrime Prevention Act, a crime?
The answer is yes. Online libel or cyberlibel committed before 3 October 2012 was already punishable as a crime under Article 353, in relation to Article 355, of the Revised Penal Code. This notwithstanding the statement in the recent case of Peñalosa v. Ocampo[1] that online libel is punishable only under the Cybercrime Prevention Act.
Libel under the Revised Penal Code
Article 353 of the Revised Penal Code defines libel as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”
Article 355 provides for the means of committing libel.
“Art. 355. Libel by means of writings or similar means. – A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prisión correccional in its minimum and medium periods or a fine ranging from Forty thousand pesos (₱40,000) to One million two hundred thousand pesos (₱1,200,000), or both, in addition to the civil action which may be brought by the offended party.” [Emphasis added]
Commenting on this provision, Justice Florenz Regalado writes that because of its pervasiveness and reach, television programs and broadcasts are a means of committing libel which are embraced within the phrase “any similar means,” notwithstanding that TV was not yet in existence at the time of the passage of the law penalizing libel.[2] This view may well be applied to internet posts which have as much or broader reach than television. Justice Arturo Brion writes that libel committed through the internet or a computer system could already be included under Article 355 through the phrase “any similar means.”[3]
Cybercrime Prevention Act of 2012
On 3 October 2012, the Cybercrime Prevention Act of 2012 (CPA) came into effect. Section 4(c)(4) of the CPA defines what is commonly referred to as cyberlibel:
“SEC. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this act.
“…
“(c) Content-related offenses.
“…
“(4) Libel. – The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any similar means which may be devised in the future.”
In relation to the prescribed penalty, Section 6 of the CPA reads as follows:
“Section 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.”
The Supreme Court has held that cyberlibel or online libel is not a new crime, but essentially the old crime of libel found in the 1930 Revised Penal Code and transposed to operate in cyberspace. Section 4(c)(4) of the CPA does not redefine libel or create a new crime. The CPA, through Section 6, merely makes the commission of libel through the internet a specific aggravating circumstance that raises by one degree the penalty corresponding to libel.[4]
In other words, the CPA did not create a new crime of cyberlibel nor did it even provide for a new mode of committing libel; it simply specified that libel committed online or through a computer system is deserving of a higher penalty because of the broad reach of the internet.
Peñalosa v. Ocampo (2023)
In Peñalosa v. Ocampo, G.R. No. 230299, 26 April 2023, the Supreme Court stated that an accused who had made an allegedly libelous Facebook post may be prosecuted only under the CPA, not under Article 355 of the Revised Penal Code, and that since the Facebook post was made in 2011, a year before the Cybercrime Prevention Act took effect, there was no crime committed because online libel was criminalized only in 2012.
A perusal of Peñalosa reveals however that this statement was only obiter. In Peñalosa, the accused was charged before the RTC with having made a libelous Facebook post in 2011. The trial court granted the prosecution’s motion to withdraw the information and dismissed the criminal case holding that there was no crime of online libel prior to the effectivity of the CPA. The private complainant then filed a petition for certiorari with the Court of Appeals to set aside the dismissal order. The CA granted the petition holding that online libel is punishable under Article 355 of the Revised Penal Code and remanded the case to the RTC for the prosecution of the accused. The accused then appealed the CA’s decision to the Supreme Court.
The ratio decidendi of Peñalosa is that the proper remedy from the RTC’s dismissal of the case was an appeal since the dismissal order was a final order, and that the proper party to bring the appeal was the People not the private complainant. Since no proper and timely appeal was taken from the dismissal order, the dismissal became final and unappealable and may no longer be reviewed by the CA.[5]
The Court in Peñalosa was well aware of the doctrine laid down in Disini:
“It is true that in Disini v. Secretary of Justice, the majority of this Court said that ‘cyber libel is. . . not a new crime’; hence, an allegedly libelous Facebook post made before the enactment of the Cybercrime Prevention Act can be prosecuted under the libel provisions of the Revised Penal Code.
“But even then, the error respondent attributes to the withdrawal of the information is at best, an error of judgment or ‘one in which the court may commit in the exercise of its jurisdiction.’ Such errors may only be remedied through appeal, a remedy which, as discussed in part II, cannot be brought by the private offended party like respondent.” [Emphases supplied]
The Supreme Court in Peñalosa declined to lock horns with the Disini doctrine, knowing that such doctrine cannot be modified or reversed except by the Court sitting en banc,[6] and rightly anchored its ruling on the ratio. This is evident from the use of the phrase, “[b]ut even then” followed by the invocation of the ratio.
In fine, the prevailing case law is that online libel or cyberlibel committed before the effectivity of the CPA remains to be a crime under Article 355 of the Revised Penal Code. Of course, the higher penalty provided for in the CPA may not be imposed.
-oOo-
[1] G.R. No. 230299, 26 April 2023 (2nd Division).
[2] FLORENZ D. REGALADO, CRIMINAL LAW CONSPECTUS 808-809 (4th ed., 2009), citing People v. Casten, CA-G.R. No. 07424-CR, 13 December 1974; 2 LUIS B. REYES, THE REVISED PENAL CODE 948 (12th rev. ed., 1981).
[3] Concurring opinion in Disini v. Secretary of Justice, G.R. No. 20335, e.b., 18 February 2014.
[4] Disini v. Secretary of Justice, 723 SCRA 109, 128 (res.) (2014). The holding that the CPA does not provide for a new crime of cyberlibel is the basis for the ruling that Section 7 of the CPA (which provides that prosecution thereunder is without prejudice to any liability for violation of the Revised Penal Code or any special law) is a violation of the proscription against double jeopardy insofar as libel is concerned. To prosecute a person for libel under Art. 355 of the RPC and for cyberlibel under the CPA based on the same libelous material is to prosecute him for twice for the same offense.
[5] Unfortunately, what grabbed the headlines was the obiter rather than the prosaic ratio. Almost all the news agencies trumpeted the decision as “ONLINE LIBEL PUNISHABLE ONLY UNDER CYBERCRIME LAW – SC.”
[6] No doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc (Sec. 4[3], Art. VIII, Constitution).
