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Libel for Bloggers: Liability Arising from Blog Comments
Topics: Criminal Law, Blawgging 101 | By Atty. Fred | April 14, 2008
We see the explosion of e-groups, blogs, message boards and other fora wherein people share facts, views and opinions in cyberspace. If we consider the huge amount of content written by and about almost everyone in the internet, it is only logical to expect the increasing number of libel cases filed against bloggers.
Internet Libel or e-Libel
At the outset, let us be clear that there is no separate crime known as “internet libel” or “e-libel”. These terms are used simply to refer to libel relating to the internet. Defamation, which includes slander and libel, means injuring a person’s character, fame or reputation through false and malicious statements.
Oral defamation is called slander. Libel, on the other hand, is defamation committed by “means of writing, printing, lithography, engraving, radio, phonograph, painting or theatrical or cinematographic exhibition, or any similar means.” Defamatory statements made on television is libel, even if TV is not a medium expressly enumerated. TV is subsumed in “any similar means,” just like any writings made on the internet.
Also, for a person to be liable for libel, the following elements must be shown to exist: (1) the allegation of a discreditable act or condition concerning another; (2) publication of the charge; (3) identity of the person defamed; and (4) existence of malice. “Publication,” which is one of the requisites, is defined as the “communication of the defamatory matter to some third person or persons.” The internet, while not yet in existence when the law on libel was passed, is a means of communicating. The blogger “publishes” the post or article. Consistent with the fact that radio, theatrical and cinematographic exhibition had spilled over to the internet, other internet writings and publications, including blogs, would fall under “any similar means” of publication
In sum, notwithstanding the assertion of some, including those discussed in the article of Dave Llorito (End of Pinoy blogger’s age of innocence?), there is internet libel or e-libel.
Liability for Blog Comments
Whether e-libel is contemplated under existing laws is no longer the issue. The bigger issue is this: when someone posts a comment in another’s blog and such comment is libelous, is the owner of the blog liable for libel? Let’s weed out two related issues before proceeding. First, if the comment belongs to the blog owner (for instance, as a reply to some other comments in the article), there’s no doubt that the author, who happens to be the blog owner, is liable. This is consistent with the fact that a blogger could be wearing to hats, so to speak.
According to the Electronic Frontier Foundation (EFF):
Bloggers can be both a provider and a user of interactive computer services. Bloggers are users when they create and edit blogs through a service provider, and they are providers to the extent that they allow third parties to add comments or other material to their blogs.
Second, the webhost is generally not liable. Under the Electronic Commerce Act of 2000 (RA 8792), the service provider is not liable so long as it “does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent, that the making, publication, dissemination or distribution of such material is unlawful or infringes any rights subsisting in or in relation to such material,” among others things.
Liability for Blog Comments in the United States
According to the EFF, the “vast weight of authority has held that Section 230 [Communications Decency Act] precludes liability for an intermediary’s distribution of defamation” and that “courts have repeatedly rejected attempts to limit the reach of Section 230 to ‘traditional’ Internet service providers, instead treating many diverse entities as interactive computer service providers.” Section 230 defines “interactive computer service” as:
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
The definition of “provider” is broad enough to include a blogger, so long as he/she is not wearing the second hat — as a user or author.
Liability for Blog Comments in the Philippines
In Philippine jurisdiction, Section 5 (j) of the Electronic Commerce Act of 2000 defines a “service provider” as:
(i) On-line services or network access, or the operator of facilities therefor, including entities offering the transmission, routing, or providing of connections for online communications, digital or otherwise, between or among points specified by a user, of electronic documents of the user’s choosing; or
(ii) The necessary technical means by which electronic documents of an originator may be stored and made accessible to a designated or undesignated third party;
A blog could be considered as a “necessary technical means” by which electronic documents (the law uses the term “electronic document” interchangeably with “electronic data message”) are stored and made accessible to undesignated parties, encompassing all internet users that may access the blog. In other words, a blogger may be considered as a “service provider.”
At this point, it is important to make a distinction between a moderated and unmoderated comment component of a blog. A moderated comment means that before a comment is published or posted, a moderator approves it first. An unmoderated comment section exists when a comment is automatically published when the author submits it. If a comment is moderated, then it could be assumed that the moderator was able to read the comment first before approving it. The mere fact that the blog owner removes certain comments does not classify a blog’s comment section as “moderated,” as such action is necessary with the proliferation of spam comments, which are similar to another internet nuisance, spam e-mails.
Notwithstanding such distinction (which may prove crucial in future cases), it is suggested that certain standards should be followed because when it comes to blog comments, among others, there are no established rules in the Philippines relating to e-libel. When a newspaper publishes a comment/letter to the editor that is libelous, there is no issue that the responsible officers of the newspaper are liable. Not so with blogs, wherein we cannot apply the traditional concept of a publisher of a newspaper or periodical. Here are the suggested standards:
1. Anyone who feels aggrieved with a comment posted in a blog must demand from the blog owner that the offending comment be removed or deleted. This could be done through the blog’s “Contact Us” feature or through a comment.
2. If the blog owner refuses to remove the objectionable comment, then he/she could be included in the suit for libel, when proper. In such event, the blog owner, even if he/she is not the author of the comment, could not claim that he/she “does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent, that the making, publication, dissemination or distribution of such material is unlawful or infringes any rights subsisting in or in relation to such material.”
Of course, contrary arguments could be made, but the discussions above are more consistent with freedom of speech and expression. It is true that freedom of speech is not a license to commit libel, but a blog owner should not be made liable for comments made by other persons, unless that blog owner is fully apprised of the offensive nature of the questioned comment. To hold otherwise would have the effect of stifling the robust exchange of ideas. These, however, are still subject to interpretation by the courts. Until such interpretation is given or until the E-Commerce Law is amended (or a new law enacted) to make it more explicit, bloggers should be mindful of the comments in their blogs.
* This is not a legal advice and should not be considered as such. Please see the Terms.
Related posts:
Legal Support for the Child and R.A. 9262 by Atty. Fred on July 3rd, 2007
SC issues Guidelines for Imposition of Libel Penalties by Atty. Fred on January 31st, 2008
Plagiarism and Intellectual Piracy by Atty. Fred on November 15th, 2006
No such thing as FRUSTRATED theft by Atty. Fred on July 26th, 2007
Blawggers, Hazing and Fraternities by Atty. Fred on September 4th, 2007
April 15th, 2008 at 11:37 pm
a really good post. it’s very informative. thanks to this. i think all bloggers should read this.
April 16th, 2008 at 1:40 pm
donG, you’re welcome, and thanks for the kind words. Do spread the word.
April 16th, 2008 at 3:13 pm
E-libel, eh? I frequent a number of message boards and blogs, and flaming and trolling, which usually results to uttering defamatory statements, are very common. Well, the websites hosting those message bards/blogs have moderators, but it is impossible to track each and every posts/comments. Anyway, I don’t foresee that many people filing cases of Libel based on e-libel except those involving “big” people in the society. The others, usually, will just do a counter-libel via a reply or will just ignore it.
Btw, nice blog entry there Atty. Fred. i’m very interested with the E-Commece Law (any other laws affecting internet life/transaction?)… [although we did not to discuss it well in the law school] coz I have a very active internet life.
April 19th, 2008 at 5:42 pm
Dear Atty. Fred,
I’m from UP Law Batch 2005, and I found your article both though-provoking and perfectly-timed. Having gone through several blogs, I think that sometimes, that truly libelous statements come from the comments section. I hope a case is brought to test your theory, because God knows we need to impose law and order in the blogosphere.
Thanks!
April 19th, 2008 at 7:40 pm
@Alpha_Mike, you’re correct, libelous statements are everywhere. If you get a peso for every libelous matter written in the internet, you’ll be a millionaire by now. By the way, with your expressed interest in e-commerce, I guess we’ll cross paths every so often. When it happens, kindly let me know that it’s Alpha_Mike I’m talking to.
@alexi, thank you for the kind words. There are test cases already: (1) I read in the news that a criminal complaint was thrown out by the Investigating Prosecutor, allegedly on the ground that there’s no libel arising from emails; (2) Officers of the Parents Enabling Parents or PEP were sued for libel arising from a comment on their blog; (3) We’ve handled a libel case for comments in a forum. How’s practice, by the way?
April 20th, 2008 at 5:44 pm
I heard about PEP and I know that the libel case has been dismissed as well. Practice has been good, Atty. Fred, I’ve been doing litigation mostly, not bad for a girl, who’s almost always underestimated in court
April 20th, 2008 at 6:45 pm
Based on this article, would Brian Gorrell be liable for libel, with respect to his posts and the comments in those posts? If DJ Montano files a case against Gorrell, would Montano succeed? Curious, that’s all. Thanks.
April 21st, 2008 at 11:09 pm
thank you very much for this post atty fred, I’ve learned a lot. It’ nice to be informed of the applicability of the penal code’s laws in the internet world. Indeed, it is high time to amend the electronic evidence law to cater the latest advancements of the cyberspace.
April 23rd, 2008 at 2:08 am
I think that according to attorneys, and according to highly thin skinned clients with lots of money, “libel is everywhere”. I highly disagree. Libel has many many elements, including that the statement is a false statement of fact, that material harm to a person’s reputation can be presumed, that the writer had malice as a motive when they wrote the statement, and other requirements.
I think libel is rare, compared to much speech on the internet which is anything from flame speech to rhetorical hyperbole, all of which is free speech. Many people on the internet don’t know libel law. The internet has only been around 15 years. Also, many people that press libel cases want the world to think their reputation has been measurably harmed by some person’s opinion, it has not. Also, most people in the world are good, not bad, and they are using the internet to expose some person’s wrongdoing of a personal nature. However, because it is wrongdoing it is then a matter of public concern.
Clogging the court system and dragging innocent people through court for years is unconscionable, yet that’s exactly what some attorneys and their clients would do, in this climate of uncertain law about internet libel.
I say state your opinion as an opinion, state your fact as fact, and if someone slaps you with a lawsuit, use the anti-SLAPP “special motion to strike” to cause the plaintiffs to show that they will prevail in their case. In the US most states have passed anti-SLAPP measures. Check your jurisdiction to see if these are applicable. Stop the thieves that would sue you for calling them a thief. And of course, don’t maliciously, falsely accuse anyone, but then most people wouldn’t even dream of it.
Demand your rights from these people that would use the libel law as a codgel to bully people, when the internet should be the great equalizer of between the haves and the have nots, to share the truth.
April 30th, 2008 at 7:23 am
i dont think blogs can be a subject of libel… unlike other publications, blogs are selective.. you will not be able to read a blog unless you choose to… this is contrary to a newspaper, where a reader has no reasonable expectation on what to read.
blogs are characterized by its writer who more oftern than not, has a personality of his own whom the reader has some reasonable expectation…
bottom line, blogs are not the publication referred to in the crime of libel….
April 30th, 2008 at 11:15 am
@Author, thank you for your opinion. You’re correct that there’s such a thing as free speech, but this is not a right without boundaries. Free speech has limitations and one repercussion when the line is crossed is libel. You’re also correct that many people on the internet don’t know libel law, but this does not make the law inapplicable. I also agree with you that dragging innocent people to court, clogging court dockets in the process, is unconscionable. Just like journalists, if there are important matters that must be disclosed, then by all means do so. Then stand your ground, knowing fully well that the people covered by the expose will use every weapon — rightly or wrongly — to silence you.
@goimon, you raised a very interesting point, specially the “selective” part. Let’s say, for the sake of discussion that a letter exists, and such letter contains libelous matters against person B. Let’s also assume that the author of the letter, person A, has a “personality of his own whom the reader has some reasonable expectation,” and that person C is fully aware of such “personality”. If A sends the letter directly to B and the letter is sealed, perhaps you’d agree that there’s no libel. If A, however, sends the unsealed letter through a messenger, person C, and that messenger reads that letter with its libelous contents, then you’d also agree that libel is present. If a blog, or a radio/TV talk show for instance, has a reputation of hitting people below the belt, would that mean that there’s no libel? Just for the sake of discussion. Thanks.
April 30th, 2008 at 12:06 pm
radio/tv talk show will not constitute libel. if i recall, one element of libel is publication.
April 30th, 2008 at 1:31 pm
Thanks for making the distinction explicit, hollowpoint. It’s oral defamation or slander, with this point: in libel or slander, the “personality” of the accused or the “reasonable expectation” is not an excuse.
April 30th, 2008 at 7:58 pm
@atty fred… the key here is publication or broadcast… i dont think these are present in blogs…its as if you deliberately left your diary in a mall…
maybe another arguement would be, blogs are a special case…. the publication element is still questionable… being lazy about it… construe criminal laws in favor of the accused hehehehehe
April 30th, 2008 at 8:05 pm
another arguement is that, tv radio and papers have an element of intentional dissemination of information. thats publication… but in blogs, i dont think that intent can be presumed.
another arguement is that tv radio and papers have a dergee of influence which is not present in blogs…
dami pa ako arguements… tinatamad lang ako hehehe
May 2nd, 2008 at 4:05 pm
Goimon, may I suggest that you state the other arguments to enrich the discussion.
Would you agree that there’s a distinction between a diary and a blog? A diary is meant to be private. It’s supposed to be for the consumption only of the author and is hidden even from other members of the family. On the other hand, blogs are out in the open, generally intended to be read by anyone who cares to read the contents. if you lock your blog and configure it in such a way that only you could access it, then perhaps that would be akin to a diary.
Publication is already defined by the Supreme Court. It’s the “communication of the defamatory matter to some third person or persons.” It doesn’t matter if the intended audience is one (except when it’s the subject person), or two or millions.
May 2nd, 2008 at 6:00 pm
@hollowpoint
Correct me please if I am mistaken but I think that in the case of Filipinas Broadcasting Network, Inc., vs. Ago Medical and Educational Center-Bicol Christian College of Medicine, (Amec-Bccm) and Angelita F. Ago (G.R. No. 141994. January 17, 2005), the SC upheld the decision of CA which held FBN liable for libel.
May 2nd, 2008 at 8:31 pm
@porous
if you read the footnote number 23 on that case,
“Should be difamaci?n as stated in Lu Chu Sing and Lu Tian Chiong v. Lu Tiong Gui, 76 Phil. 669 (1946).”
May 2nd, 2008 at 8:32 pm
@porous
you might have missed the footnote number 23 in the said case.
May 2nd, 2008 at 11:57 pm
@atty fred….
Publication is already defined by the Supreme Court. It’s the “communication of the defamatory matter to some third person or persons.” It doesn’t matter if the intended audience is one (except when it’s the subject person), or two or millions—
this is what i mean when i said that there is no publication in blogs… simply put blogs are online diaries… by the definition of a diary alone, there is no intent to give out information.. the fact that the entry was writing in the net is irrevelant. mere possibility of others reading the blog is not enough to satisfy criminal intent beyond a reasonble doubt… blogs being libelous has so many loopholes that the mere concept is contrary to principles of criminal law
May 3rd, 2008 at 10:39 am
Thanks for that
May 3rd, 2008 at 10:48 am
@goimon
Could it be interpreted that under said footnote, difamacion is used in the generic sense, that is, to cover all forms of defamacion?
Also, does it mean that by the said footnote, the ruling in this case cannot be used as legal precedent for supporting a conviction for libel in broadcasts?
May 3rd, 2008 at 10:52 am
@goimon
Isn’t it that by posting a blog entry, the author specifically wants others to read said entry?
May 3rd, 2008 at 10:55 am
sorry. one of the comments should be for hollowpoint not goimon. mea culpa.
May 3rd, 2008 at 11:26 am
@pourus: in reality, yes…but in paper you cannot assume that the blog author wants to publish his blog because of the medium he used… criminal law is always construed in favor of the accused… he may have that intention to publish but legally, we cannot assume this
May 3rd, 2008 at 11:37 am
@pourus: it only shows that the title or the caption is not as important as the body. they may say libel but when the case was presented it was not such but defamation, still the court will not turn its back to decide the case.
May 3rd, 2008 at 11:17 pm
@nevermind
I’m sorry but I did not squarely understand what you mean. What do you mean by the title or caption is not as important as the body?
My initial point on this matter is that my understanding of the RPC provisions on libel is that it can be committed not just in writing but also through radio and tv broadcast as stated in Article 355 of the RPC.
On the other hand, my use of this case was mistaken.
May 8th, 2008 at 4:27 am
Goimon, you said that “simply put blogs are online diaries”. Ahh, there you go. Our exchanges boil down to this definition. It’s true that there a many persons and institutions that refer to blogs, or web logs, as an online diary. In certain respects this is correct. Blogs could serve as platforms on which daily events are written. Blogs are presented in a chronological manner. Just like diaries.
But the similarities don’t go far from there. Traditional newspapers, for instance, now use blogs as a tool for reporting. Individuals have blogs to share their thoughts. These are not “diaries” in the traditional sense. Perhaps one of the reasons why there’s an explosion of blogs is the fact that it’s a very convenient way of sharing one’s thoughts. Blogs are meant to be read, which is why one of the distinguishing features of blogs is the comment section, where others are expected to post comments (although this feature is turned off in some blogs). In fact, if you could show me at least 5 bloggers you know whose blogs are SOLELY for their own individual consumption (off limits to and can’t be accessed by everyone else, just like a diary), I would seriously consider revising my opinion.
On the other hand, intent could be shown by overt acts. Before a blog entry is posted and seen by others, the author presses a button which is labeled “Publish” or something to that effect. Every blogger, even a newbie, knows that. It’s impossible for a post to be published unless the author chose to publish it (except, perhaps, when someone else pressed the “Publish” button without the knowledge and consent of the author, but that’s a matter of defense and, besides, that could also mean that the third person who pressed the button already read the content — and that’s publication).
May 8th, 2008 at 9:12 pm
@atty fred: yes, in reality blogs are meant for public consumption… but in criminal law, this simply must not be presumed…. the core issue to ponder upon is whether or not blogs satisfy the requirement of publication for the prosecution of libel to flourish..
i say no… the difference of blogs and its closest relative, the PAPER, is that in a newspaper, there is the intent to give information… i still advocate that this is not true in blogs, atleast by definition… yes i know in reality, bloggers are people who want to broadcast their thoughts to the whole world since they have no friends to talk to… but by the nature of a blog, in tradition, definition and everything in between, blogs are fairly private in nature….
questions to help this arguement would be
1. are blogs, by nature, intended to give out reliable information for public consumption?
2. are blogs readily accessible to anybody, even the uninclined?
the answers are no and the requirement of publication would be wanting….
what is publication by the way? i found this simple definition “Communication of information to the public.”
like i said before, blogs does not satisfy this definition… a blogger could simply say that he wrote his blog in the net and did not care who will read it… that simple explanation would take out publication from the table.
May 13th, 2008 at 9:53 am
@goimon
“but in criminal law, this simply must not be presumed”
It is not presumed. It is obvious.
May 13th, 2008 at 5:52 pm
@pourus: its obvious but in paper it should not be presumed… this is criminal law… any doubt would make it a non crime
May 13th, 2008 at 7:34 pm
@goimon
How about on a case-to-case basis, let’s say, on multiply. Before a blog gets published, there is a button labeled “Save & Publish.” Also there are option fields/buttons/circles labeled “Everyone”, “Network,” etc. If the user checked the option “Everyone” then clicked “Save & Publish,” could in not be reasonably concluded that the author wanted to have his blog published?
May 13th, 2008 at 9:55 pm
hindi pa rin sya pwede i consider na publication… hindi ka pwede mag lagay ng bagong cathegory ng publication to make a crime expand… remember the principle of PRO REO?… kaya nga marami ang nag sasabi na idaan sa congress kung gusto nila isama sa libel ang blogs
May 16th, 2008 at 9:33 am
thank you for this informative post as journalists consider a great deal of libel - they need to have every source of information stored and tracked and made sure they’re correct etc. to avoid their paper’s company get into libel court cases. But then bloggers- how do they have the resources to do all these- it still, reminds them to try to be accurate when they inform. But when they only give opinions though, why not try to hint when you accuse some celeb, for exmaple, then to write down the whole name? does this help?
May 16th, 2008 at 9:39 pm
hi fred! This is an interesting, informative article. Do you mind if I copy and post this article in my blog? I will acknowledge you, of course.
Thanks!
Gay
May 19th, 2008 at 6:43 am
libel- how can you avoid it when so many bloggers and people with no names just leave terrible comments and everything on internet? Unless those comments create great loss of money and commercial interests and can be proven it’s the comments that caused those impacts will those filing a law suit approach work. It’s hard.
May 20th, 2008 at 10:26 pm
I just hope bloggers will be responsible enough when writing an article. I myself became a victim of a blogger who happens to be the HR Officer (yes, HR Officer) of my previous company. She labelled me as “the other woman” because she found out that my bf is not yet annuled. She didnt mention my name but her description of me was so accurate she even described my clothes (color, design etc) perfectly. I found out the blog through our officemate who read the blog, she called me coz she was able to identify that it was me because of the “accurate” description. I reported this matter to the management but ended up resigning coz the HR Manager, the employees first line of defense acted as the lawyer of the blogger.
I am a blogger myself and it hurts me to see people using their “personal journal” to ruin someone while I work a lot in helping the tourism industry through my own little way….through my blog.
I consulted a lawyer and I’m looking forward to see resolution, I just want this malicious accusation be removed from the net, I just want to uphold my dignity and that of my loving mother.
May 20th, 2008 at 11:05 pm
isnt blogging kinda tacky…? i mean.. who is really interested in the feelings of others? maybe unless theblog is informative and somewhat useful
June 25th, 2008 at 1:02 pm
Atty Fred, given that a blog can be regarded as a publication. How can they prove the identity of the writer of the said blog? Especially if the bloggers are located elsewhere (outside the Philippines). Is the picture (for mulitply, facebook and FS) and name in the said blogspot sufficient enough to accuse someone of libel? How about the law on jurisdiction? What if the said blogspot was done in a country where there is no law on libel,and was read in a country such as the Philippines? How then will this progress?
June 25th, 2008 at 1:09 pm
This topic made me ponder on a certain scenario, what if Person B will intentionally create a multiply and make it look as if it was from Person A, and then post defamatory remarks against himself so that it will look like Person A was the one who posted it? Then Person B will sue Person A for libel. If you are Person A, how can you defend yourself?