A Bad Review is Not Libelous

The hottest news of the week is the libel lawsuit filed by a celebrity stylist against a fashion blogger. While this representation will not doubt to any feelings of the parties in this controversy, the efficacy of this level of alleged defamation is wanting.

There is a previous article on Libel and the Public figure (read HERE). Now, from gathering of information from the apologetic news portal, the celebrated stylist is suing a fashion blogger mainly on the issue that most trending woman on earth wore a “used” dress on the biggest show last October 24, 2015.

This representation is fashion-deficient, friends were sought to define the job of a stylist. So, a stylist chooses the attire for a person. It’s that simple. What was just newly discovered was the difference between the designer and the stylist. The designer is known for the quality of the design, while the stylist is known for the choice. Also, the stylist doesn’t actually own or lay any proprietary right to the clothes.

No doubt that a stylist is a specialized profession where craft and artistic acumen is desired. People pay over six figures to be told what to wear. A celebrity stylist is a celebrity for intents and purposes. And as it was stated before, celebrities have a lesser degree of defamation standards.

Libel under the Revised Penal Code is the 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 (Article 353 of the Revised Penal Code). The Cybercrime law (RA 10175) created the crime of online libel. In fact, the Cybercrime increased the penalty of libel.

Now, the degree of how the libel hurt the offended party is subjective. The more private the person, the higher the degree of privacy that is reasonably expected. Now, the more famous person, the lesser degree of privacy. A celebrity wants to be famous, thus the baggage that comes with notoriety must be the burden to be expected.

The accused in this issue is a fashion blogger. While his defense could use the freedom of expression and the press, there could be a better argument. The nature of the accuser in relation to the access to the public should be a factor. Also, the profession being high profile increases the chances of criticism.

The craft of “styling” is akin to other skills such as cooking, composing music or directing films. They put out their product for their target market to appreciate and pay for it, sometimes indirectly. 

Now, ask yourself this, if we allow this controversial libel lawsuit to prosper, what is to stop a director from suing a movie critic? What is to stop a chef from suing a customer who tweeted that the food tasted bland? What is to stop the musician from suing the audience who booed him onstage?

If you make yourself public, you make yourself open to criticism. More so, if the criticism is targeted to your craft. A bad review is not libelous. 

Four easy ways to protect your work

Your creation is from your blood, sweat and tears. You toiled over countless moments to seek perfection as you perceive it to be. You want others to enjoy but not to make money at your expense. Below are four simple ways to protect your work.

1. Invoke your right

If you want everyone to know that a particular literary or artistic work is yours, how do you do it? It’s the all important © symbol. Its send a notice to the reader/viewer/internet troll that such work has a semblance of protection. It may serve as a warning to others not to use or borrow without your consent.

2. One Moment in Time

Stop singing! Seriously, protection for your work starts from the moment of creation. So, you have to prove that one moment in time (ok, now you are humming). Have some method of documenting that moment of creation. In this social media age, it will not be hard to do.

3. Deposit with the National Library

Although such action is not a conclusive proof of ownership, a certificate of deposit from the National Library of the work you registered with them has a government stamp. That counts for something in case a dispute arises. Again, it is not conclusive as it is almost a rubber stamp act by the government agency. Sadly, your deposit does not earn any interest whatsoever.

4. Watermarking

Pretend you are painter and sign your name on the bottom left corner. Although not done literally, placing a visible mark of authorship is an effective deterrent for would be “downloaders”. Such mark should discreet enough so as not to spoil the artistic quality.

All these steps cannot guarantee that your work will be not infringed. There are several exemptions to infringement under the law and they may vary country to country. Infringers are getting smarter every day. For every step you make, they'll be watching you. (Again, stop with the singing!)  

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The material in this online newsletter has been drafted and edited by Atty. Roderick Vera and is for informational purposes only. The material above does not constitute nor become legal advice. Please consult with an attorney for legal advice before relying on any information found on this newsletter. For any questions, inquiries or comments, please see the contact information above.

The Wisdom of the Cybercrime Law (RA 10175)

The three wise monkeys, Mizaru, (sees no evil), Kikazaru, (hears no evil) and Iwazaru (speaks no evil) have decided to add a fourth member when they come to perform in the Philippines, Noliberu (types in computer keyboard no evil).

Why I use monkeys as a reference is because we might become the funniest country in the world with regard to free speech next to North Korea (which has no internet). The passage of the Cybercrime Prevention Act (R.A. 10175) has garnered the most profile picture changes since 2010 (when the San Francisco Giants won the World Series). For one, I pity those who live in the corner of 5^th Ave and East 44^th Street in New York. Our infamous law is also their zip code.

Most laws have good intentions and then some laws should have never been passed. My view is that the Cybercrime Law is needed for actual crimes committed while using the computer such as hacking or child pornography. Also, I applaud the Cyber squatting provision. Intellectual Property stakeholders can now sleep a little easier knowing my country took a step in the right direction.

Where the fork in the road bent the wrong way is in the inclusion of a libel provision. Admissions by both sides of the legislature claim that the free speech derailment wasn’t in the “original” version. It was “inserted” in the bicameral conference committee hearings. While there are at least eight (8) petitions against the law filed in the Supreme Court (as of this posting), I will try to analyze the law in my most obvious and overt humble way.

First, the soon to be famous Section 4 (c) (4) of the law just includes libel in a “copy and paste” format. Read here:

(4) Libel. — The 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.

This “insertion” is both vague and contradictory. It is vague because Article 355 of the Revised Penal Code DOES NOT define libel. The aforesaid provision only LISTS the prohibited acts of Libel by WRITING. It is contradictory because most those acts listed in Article 355 CANNOT be performed THROUGH a computer system. Here are the acts as listed in Article 355:

1.         Writing;

2.         Printing;

3.         Lithography;

4.         Engraving;

5.         Radio;

6.         Photograph;

7.         Painting;

8.         Theatrical exhibition;

9.         Cinematographic exhibition; or

10.       Any similar means.

In criminal law, statutory and constitutional construction demand that all penal laws should be construed in favor of the accused. Also, when a penal law enumerates a list, anything NOT in the list is really NOT in the list. To side with a devil’s advocate, the Cybercrime Act probably expanded the “Any similar means”. But I believe nothing in that list is similar to the Internet.

There are two more things wrong with the law on the libel inclusion.

The Cybercrime law INCREASED (Section 6) the penalty of Libel as defined in the Revised Penal Code by one degree. Since 1932, the punishment that can be imposed for a conviction of libel is Prision Correcctional in its minimum to medium period. Translated (here is where my meter starts running), possible imprisonment is a minimum of six (6) months to a maximum of four (4) years and two (2) months. Raising it to one degree higher means that the imprisonment is now Prision Mayor in its minimum and medium period. Translated again (tick, tock), the new jail time is a minimum of SIX (6) years to a maximum of TEN (10) years.  Look at it this way, the old maximum time is now SHORTER than the new minimum time (four years, 2 months versus six years). That means, if you call me a lousy lawyer, I can have you jailed for at least a full senatorial term. But there has been no change in the fines. It’s still a maximum of 6,000 pesos (a full tank of a Senator’s Ford Expedition).

On a more legalese side, libel as a cybercrime has now become mala prohibita. Simply put, (tick, tock), it means libel is now a crime under a special law. If libel, in its original form, is committed under the provisions of the Revised Penal Code, the crime is mala in se. The latter form allows a defense of “lack of criminal intent”. Cybercrime libel denies that type of defense. Thus, intent or motive is not an element. Any good intention on a sharp criticism cannot be given as a excuse when that critique will be deemed defamatory by the offended party.

On the issue of “Sharing” or “Retweeting”, we all have something to fear. Under Article 360 of the Revised Penal Code, any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The law may be twisted to include the aforementioned acts as the same as if you did the posting in the first place. Sharing and retweeting republishes or re-exhibits the same allegedly defamatory remark. The “Sharerer” or “Retweeter” is in the same cabin (boat is so old fashioned) as the original poster and will receive the same punishment if charged together with the original poster.

For the issues on “Like” or the “Favorite”, I submit that doing these acts in Facebook and Twitter respectively, are NOT punishable under the Cybercrime Law. For more information, please pay my standard hourly fee with a three hour minimum.

Just kidding… Liking a post in Facebook or marking a tweet as a favorite is NOT an act listed in Article 355. A mouse click on for a thumbs up sign is definitely NOT writing and neither any of the other acts listed many paragraphs above. Again, if the law does not list the act as a crime, it cannot be punished as a crime.

I will now watch “V for Vendetta” for inspiration on how to protest this new law, and also “Escape to Victory” for training and escape strategies if caught.

 

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Rod Vera is an attorney practicing intellectual property law. You may contact him at Phone: +63.917.884.8372; FAX: +63.2.820.1193; E-Mail: rpv@vera-iplaw.com

Plagiarism by the Government

A television host turned Senator campaigning for a religious cause created a lot of uproar when his privilege speech was alleged to have been tainted with plagiarism. The accusations have become moot as the Senator and his chief of staff admitted to the academic faux pas. The legal assistant of the Senator blasted the public and the blogging media by stating whatever is in the Internet is now “public domain”. While the spirit behind the speech is noteworthy, this “blog” article shall only focus on the issues of plagiarism and public domain.

At the crux of this brouhaha is intellectual property, more particularly on copyright. This branch of intellectual property is the easiest to create in terms of form and subject matter, the longest in the scope of protection and hardest to litigate. Thus, it is most infringed of all intellectual property rights.

Affirmative Defenses

Let’s argue in reverse. The defendant here is claiming the defenses of public domain and that plagiarism is not stated specifically in the law (RA 8293, Intellectual Property Code of the Philippines). The danger of using these defenses is that both become affirmative defenses. In affirmative defenses, the accused here admits to the facts of the “crime” but excuses himself with the available limitations/exemptions under the law. Egro, the Senator through his Chief of Staff admits to the copyright and ownership by the blogger of the material “taken” from the blog. So, a denial of the “copy and paste” scenario cannot lie (pun not intended).

Public Domain

So, we have plagiarism as a non-offense and public domain as exemptions invoked. Public domain in the strict legal sense denotes that the copyright of a work has ceased. As copyright is a private right, protection cannot be lost except by either waiver or by the expiration of the term of protection. Under Philippine law, the term of protection lasts until the lifetime of the author/creator of the work PLUS fifty (50) years. In the U.S., it’s longer, up to 75 years. Epilogue interviews with the offended blogger categorically stated that she has never waived any of her rights. Obviously, the other manner has not occurred yet.

Reproduction

Is plagiarism a violation of the Intellectual Property Code? I submit it is (technically). Under Section 177.1 of the IP Code of the Philippines, one of the economic rights that may be infringed is the right of reproduction (ironic, isn’t it?) with a qualification that it should be the whole work or a substantial portion. If that doesn’t fit in, the legislature saw it fit to add Section 177.7 (Other communication to the public of the work). The all inclusive “other communication” was supposed to fill in the gaps or to be progressive in the law. Therefore, plagiarism is a violation of the copyright law.  

Takedown

Is anything posted in the Internet public domain? We all know that it is not. I am sure that most of you have seen a video or music taken down by either Facebook or YouTube. Suffice it to say, these companies respect and follow the law on copyright. Of course, the abovementioned companies do not check each and every work that is uploaded. There must be a notice of takedown by the copyright owner (I have done this before with great success). There have been many (noteworthy and notorious) cases filed by the Recording Industry Association of America on illegal downloading of copyrighted material.

Copyright in Government

Now that we have shot down both affirmative defenses, only one is left. The staff of the Senator likewise claimed that the Government is exempt from committing copyright infringement. Perhaps, there has been a misreading of the law. Section 176 of the IP Code states that NO copyright shall subsist in any work of the Government of the Philippines. It doesn’t state no copyright infringement, just no copyright. Which means, we can all plagiarise any speech by a Senator acting in official duties, such as a privilege speech.

Constitutional Immunity

Now for the truly sad part, even if we can prove plagiarism was committed (admitted), the Senator and his staff will get off the hook. First, it was a privilege speech. In the 1987 Constitution, under Section 11 of Article VI, no member of Congress (sic) shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. Since the “reproduction” or “other communication of the work” was performed by a member of the Senate, there can be no infringement claim against any of the staff.

Plagiarism is an evil species of copyright infringement that can only be curtailed by legislation (unless you are still in college, where expulsion is the penalty). But if our law making branch of the government execute this intellectually heinous act themselves, do you think they will amend the law? 

Note: Just in case - (All rights reserved)

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Rod Vera is an attorney practicing intellectual property law. You may contact him at Phone: +63.917.884.8372; FAX: +63.2.820.1193; E-Mail: rpv@vera-iplaw.com

Content of this blog artilce is provided for informational purposes only and does not constitute nor become legal advice. For any questions, inquiries and comments, please see the contact information above.