'Thinking Pinoy' indictment no win for free speech, advocates warn

MANILA, Philippines — "Thinking Pinoy" blogger Rey Joseph Nieto's indictment for libel, while a moment of schadenfreude for many on social media, is a step backward for freedom of expression advocates who believe that libel should not be a crime.

Sen. Antonio Trillanes IV, who filed the complaint against Nieto for a post repeating a claim that US President Donald Trump had referred to the opposition senator as a "Little Narco," said the indictment should serve as a warning to bloggers supportive of the Duterte administration whom he said peddle lies. 

He said: "Their activities reflect the kind of administration that they support. Sooner or later, they will all be accountable for their actions."

Nieto, in a post, said that he cannot comment on the resolution yet. "Most likely, a motion for reconsideration based on the lack of notice shall be filed, though I leave it to my lawyers to decide the best course of action," he said.

The remark, attributed to Trump without proof, also appeared in newspaper columns, including two that Philstar.com has since taken down.

READ: 'No Trump mention of Trillanes'

Aside from damages of P2 million as well as lawyer's fees, Trillanes wants Nieto — who has targeted members of the political opposition and individual journalists in his posts— jailed.

The criminal penalty for libel under the Revised Penal Code is imprisonment for from six months to six years and, under the Cybercrime Prevention Act, online libel carries a punishment a degree higher.  

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'Criminal libel archaic, anathema to free expression'

ICT civil rights advocacy group Democracy.Net.PH said that although freedom of speech is not absolute, "Nieto's indictment for libel underscores the need for reforms in the way we require responsibility from those with larger voices in the public arena."

The group, which supports the decriminalization of libel, added: "Criminal libel is an archaic and ineffective law that is anathema to free expression."

The increased penalties in the Cybercrime Prevention Act, law professor and Democracy.Net.PH co-founder Oli Reyes said, bucks the trend of liberalizing libel and imposing only fines instead of prison time. He said the "law increases without sensible reason the penalty for libel if committed online to a potential prison term of between 6-10 years."

"Such a penalty for expression, even if defamatory, is very excessive and creates a chilling effect to the exercise of free speech in this country. The evil sought to be punished by our defamation laws could very well be addressed in a civil action for damages, as is the universal standard," he said.

He pointed out that the Supreme Court had promulgated a resolution in 2008 declaring the "emergent rule of preference for the imposition of fine only rather than imprisonment in libel cases under the circumstances therein specified."

The Philippine Internet Freedom Association had warned last November that libel complaints against bloggers — Trillanes also filed a complaint against Presidential Communications Assistant Secretary Margaux Uson while Sen. Vicente Sotto III, now senate president, filed a case against Edward Angelo Dayao of Facebook page "Silent No More PH" — threaten free speech.

"Whether for or against the administration or the opposition, comment on public officials and public figures should be unfettered. That is the essence of the right to free speech," lawyer Marnie Tonson of the PIFA said then at a forum on the state of freedom of expression in Southeast Asia.

READ: Suits by sensitive senators threaten free speech

"Of course there will be unjust accusations, but in the free market of ideas the answer to false accusations cannot be less speech but more speech that leads to the truth. Prior restraint on public comment is the anathema of a democratic society," he also said, pointing out that public officials "must be continually critiqued for the public good."

'Criminalization of speech incompatible with freedom of expression'

Lawyer Gilbert Andres, chairman of the Advocates for Freedom of Expression Coalition-Southeast Asia, said in the same forum in November that "criminalization of speech is incompatible with the right to freedom of expression." AFEC-SEA has 12 affiliate NGOs in six countries in Southeast Asia.

He said: "In the Philippine Constitution, it doesn't really differentiate whether it is really false information, whether it's propaganda. Free speech, freedom of expression is protected."

The Pasay City prosecutor's resolution on the Trillanes complaint acknowledged that Trillanes is a public figure and should not be "onion-skinned," but also pointed out that that "should not be an excuse for anyone to make baseless lies and make up stories against any public official, especially so when there is no good intention or justifiable motive for doing so."

Reyes said the language in the Revised Penal Code contradicts the "actual malice standard," which requires a finding that "the accused had published the defamatory
material knowing it was false or acted with reckless disregard whether the news was true or false."

Relying on "good intention and justifiable motive" leads to a dangerous ambiguity, he said.

"Political motivations may be deemed as good or bad, depending on one's politics. The purpose of some political speech is to criticize the reputation of a political figure, to diminish the effectiveness of that person as a leader of influence. That may be deemed as a bad or dishonorable intention, yet it should be a fair motive, with the boundary crossed if the writer proceeds with 'actual malice', as we currently understand it," he also said.

As early as 2012, the United Nations Human Rights Committee had called out the punishment for libel under the Philippines' Revised Penal Code for being excessive and for being contrary to the International Covenant on Civil and Political Rights, to which the Philippines is a signatory.

"[T]he application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty," the committee is quoted as saying in an analysis piece by the Center for Media Freedom and Responsibility, which is part of a campaign to decriminalize libel.

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The UNHRC also said states should not criminalize libel or defamation and then fail to try the case expeditiously. "[S]uch a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others."

The UNHRC made the statement after petitioners — including Harry Roque, who is now presidential spokesman — asked it to look into the case of Alexander Adonis, a broadcaster who was jailed for close to two years after being tried in absentia over a libel case filed by a Davao City congressman. 

RELATED: Roque opposes bill penalizing fake news purveyors

Pierre Tito Galla, an engineer and co-founder of Democracy.Net.PH, said in a personal Facebook post that "just because you do not like the fellow does not mean freedom of expression advocates should not oppose this action in keeping with the thrusts to decriminalize libel."