More than just the dirty words
“Libel is not committed simply because a derogatory statement is made,” says Bernas. “There are other elements to be ascertained. One of them is publication or circulation. It is not clear that blogs meet the current definition of publication since actually blogs are static and readers “visit” the blogs’ web site instead of blogs circulating or publishing their journals. Technically therefore, it will be an effort to prove publication.”
       For libel to succeed, Bernas says, the plaintiff or the accuser has to prove malice, or the desire to cause pain, injury, or distress to an offended party. Statements made to a private audience, however, are qualified privilege, he says, and are not considered public circulation.
       “So the intended audience of the blogger is also to be evaluated,” Bernas continues. “If the statement was made only for the association, it may be protected by privilege and may not be considered libelous.”
       But are blogs private or a public means of communication? This is a dilemma because blogs emerged in a specific cultural context where the private and the public spheres are blurred because of technological change.
       At the surface, it looks public because anybody who knows the blogs’ URL (uniform resource locator) could access, read, and post comments in them. Quoting Clay Calvert, author of Voyeur Nation: Media, Privacy and Peering in Modern Culture, Caroline Miller of the University of North Carolina State University say that blogs serve four basic purposes including self-clarification (who am I?), self-validation (how do my views fit within society’s sets of values), relationship development (building an online community) and social control (influencing other people’s views through the blogger’s revelations). The first two purposes necessary reflect blogs as a private activity, while the last two portray blogs as intended for public audience.
       “Blogs are part of the World Wide Web, the most accessible protocol of the Internet, which is also called the new media,” says Danilo Arao, assistant professor of the University of the Philippines’ Department of Journalism. “The World Wide Web by itself is acknowledged to have web sites that are publicly accessible. These are channels used for ‘mass communication’ due to their wide reach and anonymous audiences. Blogs are part of publicly accessible web sites and as channels for mass communication they can be termed as mass media. For as along as the content of blogs are publicly available, they are classified as mass media.”

Not established
Bernas, however, thinks otherwise. The rules on mass media, he says, are still evolving and have not been established. Blogs, he believes, are neither part of electronic media because they don’t use the air waves—which is a public resource—nor considered a newspaper because they don’t circulate like one.
       “I would not consider it mass media at this time because the degree of deliberateness or intent possessed by the blogger, and the blogger’s ability to carry out the circulation himself does not approximate those that you see in mass media,” he said. “The blogger simply allows his site to be visited while the producer of mass media makes an effort to bring to the ‘masses’ his content.”
       In his paper entitled “Libel in the Blogosphere: Some Preliminary Thoughts,” Glenn Harland Reynolds, professor of law at the University of Tennessee and the blogger behind Instapundit.com, says bloggers are unlikely to put defamatory content on blogs; it is their readers—through comments, and e-mails—who usually do. Under American law, bloggers are immune from liability for these contents as they are protected by Article 230 of the Communications Decency Act. In the Philippines, there is no equivalent statute; nonetheless Bernas says bloggers’ protection lies in the question whether or not he or she is a “publisher.”
       “The heart of that issue has to do whether the communications are ‘private’ in the sense that these are not circulated to the masses like mass media,” stresses Bernas. “If these are private, and are not ‘circulated’ to third parties, it will be difficult to prosecute a case of libel as defined presently. The reality is that laws always play catch up to technology.”

Freedom incomplete
So does this mean bloggers have complete freedom from lawsuits? Could they just malign anybody they fancy to attack?
       Not necessarily. Bernas says offended parties could always resort to civil action.
       “A civil action need not measure up to the strict definitions of criminal libel,” explains Bernas. “If you can prove actual damage to your reputation that can be quantified then you can sue for damages. However our courts do not usually award large amounts for damages. That would depend on the reputation of the complainant to begin with and whether that reputation was actually damaged.”
       He adds that in other countries, damages need not be proved when certain defamatory statements like attacks on chastity, professional work or reputation are uttered. “The court can award nominal damages because it is assumed that such damage was suffered,” he says.
       That’s what exactly is happening in the West. In January this year, a court in the US ordered David Milum, an Internet muckraker and political activist, to pay lawyer Rafe Banks $50,000 for accusing him of “delivering bribes for drug dealers” to a judge. In March 2006, a UK court slapped a Yahoo user a £17,200 fine for calling a politician “lard brain” and “Nazi.” In the US, there is a growing list of lawsuits against bloggers for various violations ranging from publication of trade secrets to a fraudulent acquisition of a sex.com domain.
       In general, Reynolds says that it’s unlikely that bloggers are going to be swamped by lawsuits because of certain factors. One of these is the ease with which to correct factual errors. “When errors of fact are pointed out, most bloggers correct them immediately and generally do so with the same degree of prominence as the original error,” he says. “This practice makes libel suits less likely, and would arguably serve as evidence of absence of malice.”
       “The ideal defendant, from a libel plaintiff’s standpoint, would be a rich blogger who has done significant original factual reporting as opposed to merely posting opinion or links to and quotes from other sites,” he says in his paper. “Such individuals are quite rare, at present. Most bloggers focus on opinion and most bloggers are not wealthy. This may change, however, as the blogosphere matures.”

Blogs evolving
And they are maturing at a very fast rate. Five years ago, blogs were purely diaries of individuals who write about their angst, pets, failed relationships, and rose gardens. These days blogs, social networking platforms and Web sites are fast taking on business models, carrying advertisements and syndicated posts to make money. Global blogging networks have also emerged, carrying blogs on specific gadgets and technologies written by writers all over the world, mimicking how news wires work. And because of these recent trends in blogging, Justin Levine, a lawyer and blogger who writes for a law blog calblog.com expects a “legal superstorm against bloggers” as the impact of blogging rises.
       “It won’t just be libel—though that will certainly be a strong weapon in the antiblogging arsenal. It will also be the recent convergence of copyright, trademark, publicity rights, and trade secret claims that have converged in recent years to make free speech an ephemeral notion,” Levin says.
       The libel case filed by the Yuchengco group against plan holders of Pacific Plans—who are not media practitioners—is the first in the Philippines. (The first blog-related case was filed by a certain Jonathan Tiongco against the Philippine Center for Investigative Journalism). Whatever the outcome of the legal action against that group of bloggers would set a precedent in Philippine jurisprudence.
       How the mainstream media would react to this possible super-storm against bloggers would be interesting. Because of the absence of editorial control and the gravitas of organized media, blogging is still considered “low-trust culture.” Some professional journalists, especially those who are not into it, see blogging as dangerous as it grants ordinary citizens without formal journalistic training with more or less the same power to influence public opinion. There are views that blogging should eventually have certain professional standards and code of ethics to follow.
       Arao, however, disputes this view, stressing that the practice of the media profession and blogging should never be legislated.
       “Theoretically, bloggers should maintain the same discipline and ethical standards as journalists from the so-called traditional forms of mass media,” Arao says.        “However, not all bloggers are journalists, as in the case of those who mainly write about fluff and existential angst. I can even say that not all bloggers are good writers. I think self-regulation is the key.”
       “I don’t think you can apply the same standards because the infrastructures are different,” adds Bernas. “Additionally, it will not be cost-effective to maintain the same standards.  Again, one must not forget that people still think that the essence of the Internet is its unregulated state. No law can change what people think overnight so until people view the Internet differently and begin to think that it should be regulated, no law in that regard will be passed or, if passed, can be enforced.”