Unprotected Speech: Libel and Hate Speech

The right to freedom of speech and expression is a cornerstone of a democratic society and is enshrined in Section 4, Article III of the 1987 Philippine Constitution. However, this right is not absolute. Certain forms of speech are considered unprotected, meaning they do not enjoy the full protection of the Constitution. Among these are libel and hate speech.

1. Libel

Libel is a form of defamation, which is a communication that harms the reputation of another person. In the Philippines, libel is defined under Article 353 of the Revised Penal Code (RPC), and its criminal prosecution is treated distinctly from civil suits for defamation.

a. Definition and Elements of Libel

Libel is defined as:

“A public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

The following elements must be present to establish criminal libel:

Imputation of a discreditable act or condition – There must be an allegation of a fact that is likely to injure the reputation of another.
Publication – The defamatory matter must be communicated to a third person.
Identifiability – The person defamed must be identifiable, even if not named directly.
Malice – The imputation must be made with malice, which may be presumed in the case of defamatory statements made without lawful justification.

b. Qualified Libel and Aggravating Circumstances

Certain conditions elevate ordinary libel to a higher degree of seriousness, known as qualified libel, such as:

When the imputation is against a public officer regarding his performance of official duties, even if the officer is not explicitly named.
When the defamatory matter is published in writing, in print, or broadcast via radio, television, or online platforms.

c. Cyberlibel

With the advent of the internet, the Philippines enacted Republic Act No. 10175, or the Cybercrime Prevention Act of 2012, which punishes cyberlibel under its provisions. The essential difference between libel under the RPC and cyberlibel lies in the medium used—the latter applies when the defamatory statement is made online or through electronic communication.

Elements of Cyberlibel: Similar to those for libel under the RPC, except that the medium of publication is online.
Penalties: Cyberlibel carries a higher penalty than traditional libel, with imprisonment ranging from 6 years and 1 day to 12 years.

The case of Disini v. Secretary of Justice (G.R. No. 203335, 2014) upheld the constitutionality of the Cybercrime Prevention Act, including the provisions on cyberlibel. However, the Supreme Court clarified that only the author of the defamatory statement could be held liable, not those who simply liked, shared, or commented on the post, unless they added new defamatory content.

d. Defenses in Libel

Truth – In libel cases, truth may be a defense if the imputation is directed against a public figure or public officer, and the matter published is related to his official conduct. However, the truth of the statement alone is insufficient; the imputation must also have been made with good motives and for justifiable ends.
Privileged Communication – Certain communications are considered privileged, either absolutely or qualifiedly:
- Absolutely privileged communications (e.g., statements made during congressional hearings or in court proceedings) cannot be subject to libel prosecution.
- Qualifiedly privileged communications, such as fair comments on matters of public interest, may be actionable if made with malice.
Lack of Malice – If malice is not present, the communication cannot be considered libelous. Malice may be presumed in some cases but can be rebutted by showing good motives.

e. Civil Liability for Libel

Aside from criminal liability, the aggrieved party may also file a civil suit for damages under Article 33 of the Civil Code, which allows civil actions for defamation, independent of criminal prosecution.

2. Hate Speech

While the Philippine Constitution protects freedom of speech, it also implicitly limits such freedom through various laws and jurisprudence to prohibit hate speech, which can incite violence, discrimination, or harm against individuals or groups based on their race, religion, ethnicity, gender, sexual orientation, or other characteristics.

a. Definition and Scope of Hate Speech

Hate speech can be understood as any form of expression that seeks to vilify or incite hatred, discrimination, or violence against a specific group of people. Although there is no specific statute directly defining "hate speech" in the Philippines, its prohibition is implied in various laws that penalize forms of speech leading to violence or discrimination.

b. International Commitments and Influence

The Philippines is a signatory to several international conventions that obligate the state to prohibit hate speech, such as:

The International Covenant on Civil and Political Rights (ICCPR), particularly Article 20, which mandates states to prohibit "any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence."
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which requires the state to take measures against hate speech based on race or ethnicity.

These international commitments influence the Philippines' stance on hate speech and guide its interpretation of the limits of free speech.

c. Jurisprudence on Hate Speech

Although Philippine jurisprudence on hate speech is sparse, the Supreme Court has upheld the regulation of speech that incites violence, disrupts public order, or promotes discrimination in cases involving other forms of unprotected speech, such as obscenity or subversive speech.

In Chavez v. Gonzales (G.R. No. 168338, 2008), the Supreme Court ruled that while prior restraint on speech is generally unconstitutional, speech that incites imminent lawless action or promotes violence can be curtailed. This ruling provides a potential framework for limiting hate speech.

d. Penal Sanctions

While there is no comprehensive "hate speech" law in the Philippines, certain provisions of the Revised Penal Code and special laws may apply to speech that falls under hate speech, including:

Articles 138 and 139 of the RPC, which penalize incitement to rebellion and sedition.
Article 282 of the RPC, which penalizes grave threats, including those inciting harm based on hate.
Anti-Discrimination Bills pending in Congress, which, if enacted, will penalize discriminatory speech on the basis of sexual orientation, gender identity, or other characteristics.

3. Balancing Freedom of Expression and Unprotected Speech

While the Bill of Rights guarantees the right to freedom of speech and expression, the Supreme Court has consistently held that this right is subject to limitations, particularly when the speech falls under unprotected categories, such as:

Libelous statements
Speech that incites lawless violence
Obscenity
Defamation
Hate speech

In Soriano v. Laguardia (G.R. No. 164785, 2009), the Supreme Court ruled that the state may regulate speech when necessary to protect other fundamental rights, such as the right to dignity, privacy, and equality.

Conclusion

In the Philippine legal framework, libel and hate speech are categorized as unprotected speech, subject to regulation and penalties under existing laws. The government, while respecting the constitutional right to free speech, imposes reasonable limitations to protect public order, safety, and the rights of others. The balance between protecting free speech and curbing harmful expressions remains a dynamic area of law that evolves with the changes in society and technology.