‘Liking’ and ‘sharing’ critical posts not considered cyber libel — but there’s a catch

You should think before you click
There’s ‘fine line’ between freedom of expression and libelous remarks
But pressing ‘comment’ button is different

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It is tricky to navigate the waters of social media, as many users do not understand the boundaries between what is appropriate or inappropriate, as well as legal or illegal.

This ignorance is the reason why several netizens have gotten in a lot of trouble with their posts - causing rifts among families and friends and ruining well-earned reputations. Worse, some have even been charged with cyber libel and are now dealing with lengthy and expensive court battles just because they couldn't resist airing their dirty laundry on social media.

What is cyber libel?

So what is cyber libel and what makes a netizen liable for it? Kelly Martin-Balictar, Manila Regional Trial Court judge, explained to the Manila Bulletin that it is a "malicious imputation to a person" through the use of a computer or other similar means.

She added that cyber libel is no different from libel, only that the former imposes a higher penalty because of the medium used to commit the crime. "Use of technology allows a person to hide his identity, and that's why cyber libel has a higher penalty," she said.

But what about those netizens who simply liked and shared a libelous post? Are they just as guilty as the author for affirming what he or she posted? The Supreme Court's decision on Cybercrime Law dated February 18, 2014, commonly referred to as the Disini ruling, provides an answer.

"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," the decision stated.

Martin-Balictar agreed, explaining there is "wisdom" in punishing only the original authors and not those who liked and shared the post.

"People browse social media during their lull time or during times they relax or take a break from their rigorous schedule," she said. "Most of the time, people press the like or share button irrespective of the content of the article, by the mere fact that the person who uploaded it is someone they know or someone they admire. ‘Liking’ and ‘sharing’ are robotic acts of people when browsing social media. So it’s not far-fetched that liking or sharing the article had no element of malice."

However, the Disini ruling warned that a netizen pressing the "Comment" button is a bit different, since it creates an "altogether new defamatory story."

The ruling cited an example. If a person posts, "Armand is a thief!" on social media, and another person comments and adds, "He beats his wife and children," then the comment should be considered as an original posting on the Internet.

This is why Martin-Balictar advised netizens to exercise restraint in criticizing people and airing negative views against someone on websites such as Facebook and Twitter, since there is a "fine line" between freedom of expression and libelous remarks.

Malice may still be proven

Before netizens get too complacent with liking and sharing posts, Dennis Manicad, a lawyer, warned that there are ways people can still be held liable for cyber libel because of that action.

"SC did not say that the act of liking and sharing posts is spared from libel law," he said. "It says liking and sharing are not libel by themselves and therefore the pertinent provision of the Cybercrime Prevention Act (CPA) was declared unconstitutional."

In order for a person to be convicted of cyber libel, there are four elements that need to be proven - the allegation of a discreditable act or condition concerning another, the publication of the charge, the identity of the person defamed, and the existence of malice.

So if a person's malice can be proven through the acts of liking and sharing posts, Manicad said he or she can be found guilty of cyber libel.

He painted a picture: "If you, for example, share a disparaging article everyday or to several people regularly, the pattern may already establish malice and bad faith. The SC ruling on the matter therefore may be abused."

But in the absence of malice, Manicad said that sharing and liking posts is not libel.

As for making posts or comments, Manicad said that freedom of speech is guaranteed by the constitution. When it comes to public government concerns, he said that the right is given much more leeway.

"So generally, criticisms on official conducts are almost immune from libel or criminal prosecution unless it is so badly abused," he said. "Supreme Court has said that government officials should not be onion-skinned and attacks on them are fair game."

On the other hand, personal attacks on another person are subjected to general laws like cyber libel so netizens should take great care not to abuse their right to post opinions on social media.

"The caveat for the perpetrator is that there is proof of publication and also there is practically no turning back. So we should always think before we click," he said.

What do netizens think?

Nald Ong, a general manager, enjoys browsing Facebook during his downtime and often presses the "Like" button on the photos and posts made by his family and friends.

Whenever he sees incriminating posts, he usually just ignores it and resists making any derogatory remarks against people or government institutions. However, Ong believes the buck should be passed on to moderators of social media platforms when it comes to libelous posts.

"If there are libelous posts, Facebook, Twitter, or Instagram should have filtered it. If you have to sue someone, you have to sue the source," he said.

Ong added that people don't necessarily agree on the whole content of a post whenever they press the "Like" button. For example, if a netizen accuses the government of being corrupt and hurls curse words against government officials in a Facebook post, Ong said this person's friends and followers might "like" the post because they agree that the government institution is corrupt, but not necessarily agree that the official deserves to be cursed at.

"If that is not allowed, then the government needs to be stricter with social media," he simply said.

JB E. Sarmiento, a graduate school student from the University of Santo Tomas (UST), believes that netizens need to remember their boundaries and moral obligations whenever they are tempted to create an incriminating post or react to one.

More often than not, Sarmiento said that netizens are reacting to libelous posts based on "spur of the moment" feelings, and they do not know that this is wrong. For this reason, he said that "people joining the bandwagon through sharing or commenting on a particular post should not be considered an 'aiding accessory.'"

Despite this, Sarmiento said that people should avoid reacting to posts based only on their current mood. "People must consider their moral responsibility and legal obligation before taking any action. While the truth might set them free, they must think more than twice before they click," he said.

On the other hand, Sarmiento said that authors of libelous posts need to be held accountable. "Whoever started the fire should acknowledge his action and take full responsibility for it," he stressed.