When Commenting in Social Media becomes Cyber Libel

Nicolas and De Vega Law Offices Article - When Commenting in Social Media becomes Cyber Libel

As a general rule, commenting in social media will not give rise to liability for cyber libel. This includes sharing, retweeting and other permutations where a comment or annotation may be inserted alongside a post that is either forwarded or responded to by a person who has read an openly defamatory post. This general rule presupposes that the post being commented to is libelous in itself. Thus, the perception is that the person who sent a comment is in league with the author of the original and openly defamatory post.

However, the Supreme Court already clarified that, as a general rule, commenting will not give rise to liability for cyber liable. The question that now behooves an answer is this: when can one be liable for cyber liable for merely posting a comment in social media?

Generally, Commenting is not Cyber Libel

As a general rule, commenting does not give rise to liability for the crime of cyber libel.

This is because a person who merely comments on such post would, generally speaking, not be liable for cyber libel, and for the same obvious reason – he or she is not the author of the post.

The Revised Penal Code, which is the basis for punishing cyber libel under Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act of 2012 , only punishes the following for libel (and ultimately, cyber lyber under R.A. 10175) the author of a post or the editor or business manager of the publication containing the libelous material:

“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.

Therefore, in relation to the crime of cyber libel, you have two (2) sets of persons that are expressly made liable for the crime of cyber libel:

  1. The author of the libelous post, which includes the person who shall publish, exhibit or cause the publication of the libelous post. The person who created the libelous post would fall under this category.
  2. The editor or business manager, in case the libelous post is contained in a book, pamphlet, newspaper, magazine or serial publication.

Since the person commenting on an openly defamatory post is neither the author nor the editor, he or she cannot be made liable under the law.

In addition, the person posting a general comment or reaction does not share the same criminal intent as that of the author of the defamatory post that he or she posted a comment on. Comments such as “I agree” or “That’s so true” or “He is really bad” have been classified by the Supreme Court in Disini, et al., vs. Secretary of Justice, G.R. No. 203335, 11 February 2014, merely an expression of agreement with the statement of the original author of the post, or an “essentially knee-jerk sentiment of [the] reader who may think little or haphazardly of their response to the original posting”.

Finally, since there is no law expressly punishing the act of commenting on an openly defamatory post, it cannot be considered a criminal act. Certainly, such act is not punished under the Revised Penal Code provisions punishing traditional libel. NULLUM CRIMEN NULLA POENA SINE LEGE. There is no crime when there is no law punishing it.

But as you may all know, if there is a general rule, there must be an exception.

The exception is, where the comment transcends, or goes beyond the ambit of the original defamatory post, and in itself is libelous, then commenting may give rise to criminal liability for the crime of cyber libel. In such case, the comment does not remain a comment, but becomes an original post. Moreover, the person making a comment becomes the author himself. He is the author of the post that he made. His comment is now treated as an original post because his comment transcended into something else. His liability is separated from the liability for cyber libel of the author of the original post.

The Supreme Court, in the case of Disini, et al., vs. Secretary of Justice, G.R. No. 203335, 11 February 2014, stated, by way of example, that if a person named Nestor posts in his bulletin board “Armand is a thief!”, his liability for libel is quite clear. If another person, Arthur notices the post and comments “Correct!”, he would not be liable for libel for two reasons – he is not author of the post, and he merely express agreement with the statement of the poster/original author. The same concepts may be expanded toward cyber libel, such that, only Nestor would be liable for cyber libel and a million other “Arthurs” that express mere agreement with that statement would not be subject to liability.

Commenting can Become Cyber Libel If the Comment Adds New and Libelous Material

However, hypothetically, what if Arthur comments “Correct!” on the post of Nestor, and then adds further “Armand is not only a thief, he is a fraudster. He defrauded many people already and took their money”, will Arthur still be spared from liability for cyber libel?

Evaluating the statement of Arthur “Correct!” ANDArmand is not only a thief, he is a fraudster. He defrauded many people already and took their money”, evidently, Arthur’s statement is no longer a haphazard knee-jerk sentiment, nor an expression of agreement to the statement of the author Nestor. The implication of Armand as a “fraudster” who “defrauded many people already and took their money” is beyond the malicious imputation of Nestor. To that extent, Arthur authored an original post, implicated Armand in the commission of a crime beyond what Nestor claimed was done. Arthur’s post, by itself, if evaluated, will be found to satisfy the elements of the crime of cyber libel because:

a. He imputed a crime of fraud against Armand

b. The imputation must be made publicly, since he commented on an already public post of Nestor

c. The imputation was clearly malicious and posted with the intention of publicizing the supposed fraudulent character and activities of Armand

d. The imputation was directed at Armand and was clearly identifiable.

e. The imputation clearly causes the dishonor, discredit or contempt of the person defamed, which is Armand

f. The imputation was done through the use of a computer system, since it was a comment to a post originally made by Nestor in social media. 

We have yet to see a ruling from the Supreme Court discussing this other case of “commenting” which may subject a person to liability for cyber libel. Nevertheless, the previous discussions of the Supreme Court on both traditional and cyber libel are quite clear, such that we can expect this hypothetical scenario to be the ruling of the Supreme Court, when an actual case is brought before the High Court.

About Nicolas and De Vega Law Offices

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