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The irony of free cyber-speech

The Philippine Senate is an odd place. It is populated by former military men who led rebellions against two former presidents, including the mother of the present occupant of the Malacañang presidential palace, President Benigo S. Aquino, III. The august chamber is led by a career bureaucrat and politician who helped overthrow martial law dictator Ferdinand E. Marcos, whose son was elected to the Senate—in the same 2010 election that elevated Mr. Aquino to the presidency—by the disgraced former president’s followers and his political progeny.

Senator Ferdinand M. “Bongbong” Marcos, Jr.’s father threw Mr. Aquino’s father in jail, and is widely believed to be—directly or indirectly—responsible for his assassination. The president’s mother, the late former president Corazon C. Aquino, came to power in the aftermath of her husband’s assassination, partly as the result of the coup co-led by Senate President Juan Ponce Enrile, who was her husband’s jailer and also worked to undermine her administration.

The ironies don’t end there, but are too exhaustive to belabor. Yet there’s never enough irony. In the run up to the 40th anniversary of the declaration of martial law by the senior Mr. Marcos last week, Philippine Senator Vicente Sotto III defended his last-minute insertion of a criminal libel clause into an anti-cybercrime bill that extends coverage of the Philippines’ antiquated and internationally disparaged libel law.

That law is frequently used by politicians—and the occasional Supreme Court Justice—to silence critics. According to Senate records, Mr. Sotto inserted the clause and quickly moved to close the period for individual amendments—a period where unpopular amendments are tacked onto otherwise generally popular legislation. The Senate approved the legislation on second reading moments later with no objections.

Mr. Sotto was able to sneak in the regressive clause because the legislation as originally conceived was urgently supported by investors in the Philippines’ fast-growing IT-BPO and other industries. President and CEO of the Business Processing Association of the Philippines Benedict Hernandez said last week that, “The Cybercrime Prevention Act will help us sustain and enhance investor confidence and strengthen our position as one of the world’s top locations for high-value IT-BPO services.”

Mr. Hernandez certainly wasn’t was referring to criminal liability for expressing opinions online, however.

Only one senator—Teofisto “TG” Guingona—voted against the measure on third and final reading. Mr. Guingona said Mr. Sotto’s clause will gag the general public, especially in online social networks, threatening the “constitutional right to freedom of expression. This act is a prior restraint on free expression and freedom of speech,” he said. “This law sets us back. The Spanish inquisition has long been disbanded. I do not know why we are reviving it today.”

Mr. Sotto knows, though, although he feigns ignorance over the uproar his insertion set off among media, civil society, bloggers, and users of social media. Following repeated accusations of plagiarism in speeches criticizing Right to Life legislation vigorously opposed by the Catholic Church, and then complaining that he was being “cyber-bullied,” the senate majority leader warned critics he would get even when the cybercrime bill became law.

Despite that warning, Mr. Sotto now claims he, “Can’t see the logic,” of his critics. “If mainstream media are prevented by law from cursing and engaging in character assassination, why should those in the social media and in the Internet be exempted from such accountability?”

There are several. In a democracy with constitutional guarantees of freedom of speech there is no place for criminal libel in digital or traditional media. The threat of arrest and conviction—particularly when the judicial system is perceived to be inefficient and hobbled by corrupt practices as evidenced by survey after survey—can give pause to even the most vigorous champions of transparency and accountability.

Mr. Sotto went even further, though. His clause increases the penalty for cyber libel from a minimum of six months and one day to a minimum of six years and one day. The maximum sentence for “ordinary” libel is four years and two months. Mr. Sotto’s insertion increases the maximum for cyber libel to 12 years. Finally, the United Nations Committee on Human Rights views Philippine criminal libel laws as “contrary to Article 19 of the International Covenant on Civil and Political Rights on freedom of expression.”

(Critics have also pointed out that double jeopardy–protecting defendants from being tried for the same crime twice–does not apply to cybercrime libel. Defendants can be used for digital and traditional libel at the same time. IT-BPO industry experts said this week they are alarmed at provision granting warrant-less confiscation of data.)

Senator Edgardo J. Angara, chair of the Senate Committee on Science and Technology, said in a statement that, “the Cybercrime Prevention Act cannot be used to stifle freedom of speech.” Mr. Guingona says he will challenge the bill and lead an effort to amend Mr. Sotto’s unconstitutional clause. That’s encouraging. But there’s a better way to deal with threats to freedom of speech, and that’s to decriminalize libel so that annoyed politicians can’t use it stifle the critics they serve.

(Michael Alan Hamlin is the managing director of TeamAsia and a Manila-based author and commentator. His latest book is High Visibility: Transforming Your Personal and Professional Brand. Write him at mahamlin@teamasia.com and follow him on TwitterFacebook and LinkedIn. Copyright © 2012 Michael Alan Hamlin. All Rights Reserved.)