Is there Liability for Cyber Libel for Sharing, Commenting Retweeting, or Liking on Social Media?

Nincolas and De Vega Law Offices Article - Is there Liability for Cyber Libel for Sharing, Commenting Retweeting, or Liking on Social Media?

Will someone who posts, likes, or retweets a malicious or openly libelous post be liable for the crime of cyber libel? In the absence of express legislation, generally, the answer is no, but subject to exceptions mentioned below.

Cyber Conflicts from Sharing, Commenting, Retweeting, or Liking on Social Media

Now, more than ever, we see the relevance Republic Act No. 10175, also known as the Cyber Crime Prevention Act. With the increasing use of the internet and mobile devices, especially during the global COVID-19 pandemic, the Philippine government has seen a sharp increase in cybercrime cases, particularly in the number of cyber libel cases filed. Especially at a day and age where physical interaction is disrupted by government health and safety regulations preventing mass gatherings and non-essential travel, people have looked to social media applications such as Facebook, YouTube, Twitter, Instagram, Tiktok, and others. These social media apps have been the norm, to replace, albeit temporarily, much needed social interaction in a very social and close-knit Philippine society.

Of course, with socialization and social interaction, there is always bound to be some conflict. This is just how we human beings are wired. The political animal in all of us almost always takes over during social interactions. We are naturally inclined to take sides, agree, disagree, provide commentary, and cascade the information to other social groups, as part of our natural and human interaction.

Social interaction in these social media apps are no different than their bricks and mortar counterparts. As these new forms of social interaction become the norm, so too, are we equally inclined to like, share, retweet, and comment, on posts and discussions that we interact with. Obviously, the same conflicts arise from these new forms of social interaction.

Generally No Cyber Libel for Liking, Sharing, or Retweeting on Social Media

The Cybercrime Prevention Act of 2012, in relation to the Articles 353 and 355 of the Revised Penal Code, clearly identifies the author and the editor as the persons clearly liable for the crime of cyber libel:

“Art. 360. Persons responsible. — Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.

On the other hand, the Philippines follows the general principle enshrined in the Latin maxim NULLUM CRIMEN NULLA POENA SINE LEGE, which literally translates to “there is no crime when there is no law punishing it”. This legal principle was echoed as early as 1914 in the case decided by the Philippine Supreme Court, while the Philippines was still a commonwealth of the United States of America. Thus, in the case of United States vs. Taylor, G.R. L-9726, 08 December 1914, the Supreme Court, deciding a libel complaint filed against an “acting editor”, held:

“In the Philippine Islands there exist no crimes such as are known in the United States and England as common law crimes. No act constitutes a crime here unless it is made so by law. Libel is made a crime here by Act No. 277 of the United States Philippine Commission. Said Act (No. 277) not only defines the crime of libel and prescribes the particular conditions necessary to constitute it, but it also names the persons who may be guilty of such crime. In the present case the complaint alleges that the defendant was, at the time of the publication of said alleged article “the acting editor, proprietor, manager, printer, publisher, etc. etc. of a certain bilingual newspaper, etc., known as the ‘Manila Daily Bulletin,’ a paper of large circulation throughout the Philippine Islands, as well as in the United States and other countries.”

It will be noted that the complaint charges the defendant as “the acting editor, proprietor, manager, printer, and publisher.” From an examination of said Act No. 277, we find that section 6 provides that: “Every author, editor, or proprietor of any book, newspaper, or serial publication is chargeable with the publication of any words contained in any part of said book or number of each newspaper or serial as fully as if he were the author of the same.”

By an examination of said article, with reference to the persons who may be liable for the publication of a libel in a newspaper, we find that it only provides for a punishment of “the author, editor, or proprietor.” It would follow, therefore, that unless the proof shows that the defendant in the present case is the “author, editor, or proprietor” of the newspaper in which the libel was published, he can not be held liable.”

The US Supreme Court in 1914, dismissed the case because the person charged in the case was charged as “the acting editor, proprietor, manager, printer, and publisher” while the libel laws at that time (and to an extent, even at present), punishes the “author, editor, or proprietor of any book, newspaper, or serial publication”. As the law did not punish the “acting editor”, and in the absence of any law punishing a person acting in such capacity, there would be no crime committed.

At present, there is no law punishing persons who share, retweet, comment or like a libelous post. Thus, as it stands, the absence of a law punishing such class of social interaction generally negates liability for cyber libel.

Supreme Court Ruling on Liking, Sharing, Retweeting, or Commenting

The Supreme Court ruled that there must be a law expressly punishing the act, for those that share, retweet, like or comment on a libelous post, to be liable in the same manner as the original author. Thus, in the case of Disini, et al., vs. Secretary of Justice, G.R. No. 203335, 11 February 2014, the Supreme Court held:

In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.” [Emphasis and underscoring supplied.]

The Supreme Court, in the same case, entered into a casual discussion about this new genre of social interaction online:

“If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can react to the posting, clicking any of several buttons of preferences on the program’s screen such as “Like,” “Comment,” or “Share.” “Like” signifies that the reader likes the posting while “Comment” enables him to post online his feelings or views about the same, such as “This is great!” When a Facebook user “Shares” a posting, the original “posting” will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.”

A Case of ‘Retweeting’ and Liability for Cyber Libel

The Supreme Court even recognized other spheres of interaction online, aside from social media, and which includes micro-blogging sites like Twitter:

“Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send and read short text-based messages of up to 140 characters. These are known as “Tweets.” Microblogging is the practice of posting small pieces of digital content—which could be in the form of text, pictures, links, short videos, or other media—on the internet.”

Instead of friends, a Twitter user has “Followers,” those who subscribe to this particular user’s posts, enabling them to read the same, and “Following,” those whom this particular user is subscribed to, enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If a post is available to the public, any Twitter user can “Retweet” a given posting. Retweeting is just reposting or republishing another person’s tweet without the need of copying and pasting it.”

Can Liking, Sharing, or Retweeting an Openly Defamatory Post Become Cyber Libel?

The Supreme Court, in the case of Disini, et al., vs. Secretary of Justice, G.R. No. 203335, 11 February 2014, held that liking, sharing, or retweeting a libelous post would generally not be criminal in nature, and subject the person liking, sharing or retweeting to liability for the crime of cyber libel:

“One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online, “Yes, this is so true! They are so immoral.” Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s “Followers” then “Retweet” the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s “Retweet” of Nena’s original tweet and posts this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as “Liking” an openly defamatory statement, “Commenting” on it, or “Sharing” it with others, to be regarded as “aiding or abetting?” In libel in the physical world, if Nestor places on the office bulletin board a small poster that says, “Armand is a thief!” he could certainly be charged with libel. If Roger, seeing the poster, writes on it, “I like this!” that could not be libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it, “Correct!,” would that be libel? No, for he merely expresses agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a crime.

But suppose Nestor posts the blog, “Armand is a thief!” on a social networking site. Would a reader and his Friends or Followers, availing themselves of any of the “Like,” “Comment,” and “Share” reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding “Friends” or “Followers” in the criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their constitutionally-guaranteed right to freedom of expression.”

An Analysis of Cybercrime Liability for Sharing, Liking and Retweeting

There are two (2) primary reasons why the Supreme Court ruled that this class of interaction in social media will not give rise to liability for cyber libel. First, there is no law punishing such act, and in the absence of legislation expressly prohibiting such activity, there could be no crime.

Second, the laws on libel, under the Revised Penal Code, from which the Cybercrime Prevention Act of 2012 refers to, punishes only the author of the post, or editor in cases of magazines, newspapers, books or serialized publications. Clearly, the person liking, sharing or retweeting is not the author of the original post being shared, liked or retweeted.

The Supreme Court also held that these acts of liking, sharing, or retweeting an openly defamatory post are essentially knee-jerk reactions or sentiments of the users towards the post, and “who may think little or haphazardly or their response to the original posting”. They are merely reacting to the post or expressing their agreement with the statement of the original author. Quite clearly, they would not, in any way, be considered the author of the post that they are liking, sharing, retweeting or commenting on. The original author is and will always be, the originator or person who started it all.

In addition to the Supreme Court’s discussion, the elements of traditional libel would not be satisfied, if applied in the case of a person liking, sharing, or retweeting an openly defamatory post. The crime of libel, whether traditional or cyber libel, requires malice, which means a deliberate disregard for the truth and, more importantly, bad faith and an intention to harm the reputation of the person libeled.

While bad faith and an intention to harm to the reputation are not expressly part of the elements of the crime of traditional libel, given that the person accused can raise the defense of good faith, these qualities become evident and will be considered by the court in deciding a case. A bona fide defense of good faith raised by the accused and adequately proven in court, is exculpatory.

Thus, for example, if the original author of a post decries that a person defrauded him or her (i.e., “Juan is a thief and took my money!”) posting a picture of Juan captioned by such message, a person who would like that post with a thumbs up, plus one (+1), up-vote, and other permutations of liking a post, would not be liable for the crime of cyber liable, for the first and most obvious reason, he or she is not the author of the post.

A person who simply shares or retweets the same openly defamatory message would, in the same vein, not be liable for cyber libel, and for the same obvious reason – he or she is not the author of the post.

In all these instances, aside from not being the author of the post, they would also not be liable for the crime of cyber libel for two (2) additional reasons:

  1. They do not share the same criminal intent as that of the author of the defamatory post that they shared, liked, commented, or retweeted, and

There is no law expressly punishing the act of sharing, liking, commenting, or retweeting an openly defamatory post. NULLUM CRIMEN NULLA POENA SINE LEGE. There is no crime when there is no law punishing it.

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