29 Jan Internet Trolls in the Philippines

Internet Trolls in the Philippines and their Possible Criminal Liability under the Cybercrime Prevention Act

Since the 2016 U.S Presidential elections, internet trolls have made their presence known in various social media platforms such as Facebook. In an indictment filed by the U.S. Department of Justice, Internet Research Agency[1], a Russian internet troll farm owned by a close ally of Russian President Vladimir Putin[2], was accused of election interference during the 2016 U.S. Presidential elections, which resulted in Donald Trump’s victory.

In a study conducted by the University of Oxford entitled “Troops, trolls and troublemakers: A global inventory of organized social media manipulation”,  it found that President  Duterte’s team “used 400 to 500 internet trolls to post nationalistic and pro-government comments and interact with dissenters through harassment and individual targeting[3].”

President Duterte himself admitted it during a press conference after his State of the Nation Address, but denied that he or the government still employs the use of online trolls or “social media users”[4]. This statement came after a report published by Rappler,  identified three high-profile pro-Duterte bloggers such as Mocha Uson, RJ Nieto, and Bruce Rivera as having received  preferential treatment[5].

With the midterm elections coming up this May 2019, it pays to be informed of possible criminal liabilities  for internet trolling or engaging in a heated argument with an internet troll.

An internet troll is one who posts controversial opinions with the intention to incite anger from others in order to distract people from the real controversies[6]. An internet troll may support a certain candidate and undermine  opposing candidates. They may also tag certain groups to support  opposing political groups. Usually, they would set up a fake social media account in order to retain their anonymity and escape prosecution. For instance, someone may be labelled  “Dilawan” or “Ka-DDS (Diehard Duterte Supporter)” when the latter does not agree with the former’s views. Posting such comments may seem harmless, but given the passage of the Cybercrime Prevention Act of 2012 (“CPA”), one may be subject to criminal liability.

Last September 2017, a criminal complaint for violation of P.D. 1727 (Declaring as Unlawful the Malicious Dissemination of False Information of the Willful Making of any Threat concerning Bombs, Explosives or any Similar Device or Means of Destruction and Imposing Penalties) committed by, through and with the use of Information and Communication Technologies (ICT) pursuant to Sec. 6 of Republic Act 10175 (Cybercrime [Prevention] Act of 2012) was filed against Willyn Trabajador, an open critic of President Duterte, for posting on Facebook of a bomb threat in the rally organized by the President’s supporters[7].

In the previous presidential elections, election lawyer Romulo Macalintal  opined that online trolls may be held liable for election offenses if they are found guilty of “propagating false and alarming reports to disrupt or obstruct the election process or cause confusion[8], as provided by Article XXII, Section 261(z)(11)[9].” Under Section 6 of the CPA[10], if the criminal offense is committed through the use  of ICT,  the penalty would be increased.  In Disini v. Secretary of Justice[11], the Supreme Court discussed that Section 6 of the CPA is considered a qualifying circumstance when an existing crime is committed through the internet.

Aside from being liable for an election offense, an online troll may also be liable for cyberlibel as provided by Section 4(c)(4) of CPA, which states that “[t]he unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.”

In Disini[12], the Supreme Court discussed the elements of libel and the necessity of proving actual malice:

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice.

There is “actual malice” or malice in fact when the offender makes the defamatory statement with the knowledge that it is false or with reckless disregard of whether it was false or not.  The reckless disregard standard used here requires a high degree of awareness of probable falsity (emphasis supplied). There must be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even extreme negligence is not sufficient to establish actual malice.

The prosecution bears the burden of proving the presence of actual malice in instances where such element is required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter standard of “malice” to convict the author of a defamatory statement where the offended party is a public figure (emphasis supplied). Society’s interest and the maintenance of good government demand a full discussion of public affairs.

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Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of P6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement. For his defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact true.

Given that online trolls target public officials, to be convicted of cyberlibel, there must be actual malice in that they knew what they were posting was false or had a reckless disregard as to its accuracy.

Article III, Section 4 of the 1987 Constitution guarantees the right to freedom of speech and expression, which may include  posts on  social media accounts, conveying  opinions on public officials. However, similar to other fundamental and constitutional rights, there are exceptions or restrictions, and one of them is libelous statements[13]. The Supreme Court stated that the right of freedom of speech and expression cannot be used to protect the disclosure of lies, gossip, and rumors[14].

According to the Department of Justice, there has been a two hundred seventy-four percent (274%) increase in the number of cyberlibel cases pending before it for preliminary investigation since 2015[15]. However, the report did not mention if any of those cyberlibel cases  were related to online trolls. As  of this writing, no one has been convicted of cyberlibel or of an election offense in relation to online trolling in the Philippines, given the difficulty in investigating and prosecuting the crime. Some have argued that the CPA, particularly the provision on cyberlibel may stifle freedom of expression. However, the Supreme Court upheld  in Disini the CPA’s constitutionality.

Online trolling may continue [16], but it comes with consequences given that it is not considered constitutionally-protected speech. It may be considered an election offense if it seeks to disrupt the electoral process or it may be considered as libel committed through an ICT under the CPA.

[1]MacFarquhar, Neil. “Inside the Russian Troll Factory: Zombies and a Breakneck Pace.” February 18, 2018 (December 24, 2018).  https://www.nytimes.com/2018/02/18/world/europe/russia-troll-factory.html.

[2]Kirby, Jen. “What to know about the Russian troll factory listed in  Mueller’s indictment.” February 16, 2018 (December 24, 2018).  https://www.vox.com/2018/2/16/17020974/mueller-indictment-internet-research-agency.

[3] Matsuzawa, Mikas. “Duterte camp spent $200,000 for troll army, Oxford study finds.” July 24, 2017 (December 24, 2018).  https://www.philstar.com/headlines/2017/07/24/1721044/duterte-camp-spent-200000-troll-army-oxford-study-finds.

[4]Ranada, Pia. “Duterte says online defenders, trolls hired only during campaign.” July 25, 2017 (December 24, 2018).  https://www.rappler.com/nation/176615-duterte-online-defenders-trolls-hired-campaign.

[5] Gutierrez, Natashaya. “State-sponsored hate: The rise of the pro-Duterte bloggers.” August 18, 2017 (December 24, 2018). https://www.rappler.com/newsbreak/in-depth/178709-duterte-die-hard-supporters-bloggers-propaganda-pcoo.

[6] Bourque,  Andre and Hayley Irvin. “Answering a Social Troll – What You Need to Know.” February 5, 2015 (December 24, 2018). https://www.huffingtonpost.com/andre-bourque/answering-a-social-troll_b_6625654.html.

[7] Gutierrez, Natashya. “For anti-Duterte netizen, online troll attacks turn into real world nightmare.” September 15, 2017 (December 24, 2018).  https://www.rappler.com/newsbreak/in-depth/182164-duterte-trolls-lyn-ouvrier-willyn-trabajador-nightmare

[8]Jaymalin, Mayen. “’Online trolls’ may face imprisonment.” April 27, 2016 (December 24, 2018).   https://www.philstar.com/headlines/2016/04/27/1577644/online-trolls-may-face-imprisonment

[9] Section 261. Prohibited Acts. – The following shall be guilty of an election offense:

X              X             X

(z) On voting:

X              x              x

Any person who, for the purpose of disrupting or obstructing the election process or causing confusion among the voters, propagates false and alarming reports or information or transmits or circulates false orders, directives or messages regarding any matter relating to the printing of official ballots, the postponement of the election, the transfer of polling place or the general conduct of the election.”

[10] Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

[11] G.R. Nos. 203335, 203299, 203306, 203359, 203378, 203391, 203407, 203440, 203453, 203454, 203469, 203501, 203509, 203515, 203518, February 11, 2014.

[12] Id.

[13] Id.

[14] In Re Jurado, A.M. No. 93-2-037-SC, 6 April 1995.

[15] San Juan, Joel R. “Cyber-libel cases rising, as friends turn into foes via online platforms.: March 19, 2018 (December 24, 2018). https://businessmirror.com.ph/cyber-libel-cases-rising-as-friends-turn-into-foes-via-online-platforms/ .

[16] Ingram, Mathew. “Believe It or Not: Online Trolling and Abuse Could Get Worse.” March 30, 2017 (December 24, 2018).  http://fortune.com/2017/03/30/online-abuse-trolls/.