PHNO-SI: 1st cyberLIBEL CASE: DOJ CORRECTS BOO-BOOS IN CYBER-PERLING'S CASE

1st cyberLIBEL CASE: DOJ CORRECTS BOO-BOOS IN
CYBER-PERLING'S CASE

APARRI, CAGAYAN, OCTOBER
29, 2012 (INQUIRER) By Melvin Gascon Inquirer Northern Luzon - Prosecutors
of the Department of Justice (DOJ) here on Thursday moved for the correction of
the charges filed against Esperlita Garcia, the antimining activist who was
arrested on October 19 for posting an allegedly defamatory note on Facebook.

Assistant Provincial Prosecutor Edward Javier filed an amendment to the
criminal information that indicted Garcia for grave oral defamation. The change
was approved by Provincial Prosecutor Amador Arao.
Garcia was charged based on a complaint filed in May 2011 by Gonzaga Mayor
Carlito Pentecostes Jr., who claimed that he was "maligned and discredited" in a
note she posted on Facebook about the magnetite mining controversy in their
town.
Amendments
Javier sought to make what he termed as "substantial amendments" or those
that change the nature of the crime originally charged to the November 14, 2011,
information that he filed in the regional trial court (RTC) here. That
information served as basis for Judge Conrado Tabaco of RTC Branch 9 here to
issue on October 9 an arrest warrant against Garcia.
In law, an information is filed by DOJ prosecutors who recommend the filing
of criminal charges in court against a respondent who stands to face trial as he
may be probably liable for the crime charged.
Garcia, 62, was arrested and detained overnight by the National Bureau of
Investigation on October 19, in circumstances that drew public condemnation over
how a statement made online was considered a criminal offense.
The information said Garcia was being charged with grave oral defamation,
supposedly under Article 258 of the Revised Penal Code (RPC).
Lawyer Mila Acacio, the handling prosecutor, declined to comment, for ethical
reasons. She said the case was raffled off to her only after the criminal
information was issued, and that her engagement would start only when she
appears as prosecutor during an arraignment on October 31.
Libel, not defamation
In the amended information, Javier said Garcia was instead being charged with
libel under Articles 353 and 355 of the RPC. Article 258 covers the crime of
abortion.
"We admit that we commit mistakes at times, and this is why we are correcting
them now, which is allowed under the law," Javier said, adding that the
inclusion of Article 258 was a mere "typographical error."
Javier also said Garcia was charged under the RPC, and not Republic Act No.
10175 or the anticybercrime law.
"Posting statements on Facebook is also considered writing [as provided for
in the RPC]," Javier said, declining to comment on a Supreme Court ruling which
declared that statements made online did not constitute publication, one of the
elements of libel.
He lamented that Garcia had been airing her complaints on his handling of the
case in the media, instead of resorting to legal remedies.

The story narrates that " the leader of an anti-mining group in Cagayan was
arrested Thursday [October 18], despite a temporary
restraining order on the implementation of the Cybercrime Prevention Act or RA
10175, for posting an allegedly libelous account about a mining issue on
Facebook. The said post criticized a mayor in Cagayan province in May last
year."
This is dubbed as the first arrest triggered by an online libel complaint.
(Manila Times & ManilaStandardToday)
PDI News issued the following statements on their headline news:

BAYOMBONG, Nueva Vizcaya - Environmentalists and Internet users have
rallied behind Esperlita "Perling" Garcia, an antimining advocate who was
arrested on Thursday on libel charges for a purported critical post on Facebook
in spite of the Supreme Court's suspension of the cybercrime law.
Garcia was charged with libel by Gonzaga Mayor Carlito Pentecostes Jr. for
the note she posted on Facebook in April 2011, or 18 months before the enactment
of RA 10175, which punishes online libel with up to 12 years imprisonment. (PDI
news)
Bayan Secretary General Renato Reyes said Penetescoste's libel suit was based
on a Facebook article posted by Garcia who claimed that an anti-mining rally was
canceled last year because the mayor harassed the activists.

Reyes said that Garcia was arrested Thursday and was freed on Friday when she
posted bail of P10,000.
Facebook post - that's a fact. But why Presidential spokesperson Edwin
Lacierda has a very unclear position regarding the arrest of Cyber-Perling?
Malacañang clarified on Monday that the arrest of an anti-mining group leader
in Cagayan was not in any way connected to the Cybercrime
Prevention Law. (ABS-CBN news)
Presidential spokesperson Edwin Lacierda (photo) said the
arrest of the 62-year-old Garcia, was prompted by a violation of the Revised
Penal Code.
Lacierda denied the claim of the militant youth group Anakbayan that Garcia
was arrested for violation of the harsher electronic, or e-, libel law.
He said that the arrest order against Garcia was based on a libel suit under
Article 355 of the Revised Penal Code. "If you notice, the bail posted was
P10,000. The penalty
for online libel is prision mayor, which is higher than the penalty
imposed under the Revised Penal Code. So this is not a case of e-libel,"
Lacierda said. "Let me be clear, let me also inform our good friends from
Anakbayan and I hope they don't ride on this issue but apparently they already
rode on it, but they're claiming that this is the start of e-martial law. Let me
tell Anakbayan, please don't be ignorant of the issues. First, you're entitled
to your opinion but you are not entitled to your facts," Lacierda said.
Oh very nice and highly professional statement Lacierda! You sound too
defensive boy!
People in the Philippines let me quote the following statement from GMA news.



However, Lacierda admitted puzzlement on why the arrest was ordered
despite the fact that the article was posted online, noting the temporary
restraining order issued by the Supreme Court on the implementation of the
Cybercrime Prevention Act of 2012.
"Ang cause kasi nito galing sa Facebook. Kaya nagtataka rin kami bakit…
may Supreme Court decision na on the issue of publication pagdating sa
cyberspace, bakit ito natuloy pa," Lacierda said.

Lacierda said only the judge could answer questions surrounding the arrest of
Garcia, president of the Gonzaga Alliance for Environmental Protection and
Preservation.

"As to why it was able to pass and the judge was able to issue a warrant
of arrest in spite of a Supreme Court decision and the issue of publication when
it comes to libel online, that's something that the courts and also the fiscal
would have to answer to."
Lacierda also added that Esperlita Garcia has several options open to her.
"May motion for reconsideration before the fiscal, or merong petition for review
before the [Department of Justice] proper dito sa Manila, or pwede siyang
mag-file ng motion for judicial determination of probable cause. There are still
redress of grievances, but may remedies pa rin 'yung akusado."
Anakbayan's president, Vencer Crisostomo, insisted that Garcia was arrested
on the basis of a libel suit filed by Mayor Carlito Penetescoste Jr. of Gonzaga,
Cagayan.
The mayor denied the allegation of Cyber-Perling and filed a libel suit
against Garcia.
It was the second known case of an alleged cybercrime since 16 nurses were
sacked in August for having "liked" criticism on Facebook against the
Taguig-Pateros District Hospital.
In the previous month, Crisostomo said the 11-year-old son of an anti-mining
leader of the Subanen tribe in Zamboanga was killed in an assassination attempt.

On March 5, paramilitary troops under the Armed Forces murdered an
anti-mining Lumad leader in Bukidnon, he added.


Philippines: Anti-Mining Activist Arrested over Facebook Post
First Post:2012-10-2523:15 By: Karlo Mikhail Mongaya Source: Global
Voices Online
The arrest of a 62-year old anti-mining activist in the Philippines for a
Facebook post spawned fears of a clampdown on dissenters through the recently
enacted anti-cybercrime legislation.
Critics of the cybercrime legislation won a tactical victory when the
Philippine Supreme Court issued a 120-day Temporary Restraining Order (TRO)
against the law as it deliberates on at least 15 petitions calling for the
junking of the law.
However, they claim that the case of Esperlita "Perling" Garcia is a preview
of how the law could be used to suppress the people's freedom of expression and
right to expose and criticize government abuses online.
Garcia is President of the Gonzaga Alliance for Environmental Protection and
Preservation which is opposed to magnetite mining operations in Gonzaga town in
Cagayan Province. The Cagayan provincial government authorized mining by Chinese
and Taiwanese corporations in the area.
Gonzaga Mayor Carlito Pentecostes Jr. charged Garcia with libel for a
Facebook note posted last April 2011. The note condemned Pentecostes for
harassing community leaders planning an anti-mining demonstration.

Environmentalists and internet freedom advocates has setup the"Cyber-Perling"
Facebook page to draw attention to Garcia's plight. The page has gathered more
than 800 likes as of this writing.
A factsheet on her October 18 arrest can be read on the said page.
'Cyber-Perling' was released on bail last October 19 after a day in detention.

Activist youth group Anakbayan warned that the incident is a strong
indication of an impending E-Martial Law once the cybercrime law becomes
effective:


"This is a preview of what to expect once the TRO lapses: the Cybercrime
Law will be unleashed by the Aquino regime against its countless critics and
opponents" said Vencer Crisostomo, national chairperson of Anakbayan.
He said it was not surprising that an anti-mining activist is the first
victim of 'e-Martial Law', considering the intensifying resistance nationwide
against foreign, large-scale, destructive mining operations, and President
Noynoy Aquino's bias in favor of those.
Presidential Spokesperson Edwin Lacierda, however, insisted that the arrest
did not in any way arise from the Cybercrime Prevention Act:

"This is not a Cybercrime case. This is a case of libel filed. In fact, if
you notice, the bail posted was P10,000. The penalty for online libel is prision
mayor, which is higher than the penalty imposed under the Revised Penal Code.
Obviously, this is a case filed under Article 355 of the Revised Penal Code. So
this is not a case of e-libel.
The youth activists answered Lacierda by pointing out that Facebook, blogs,
and social networking sites are not included in the Revised Penal Code, which
limits libel to printed and broadcasted materials.

"Lacierda has now morphed into an e-Martial Law spokesman who is also
lawyering for those who want to stifle internet freedom and free speech. He
knows very well that libel under the law currently only applies to print and TV,
making the case vs Perlie baseless, and yet he twists and spins to justify
repressive and fascist acts.
They reiterated that it is "a preview of how rights will be curtailed once
the Cybercrime Law is passed." Lawyers also reaffirmed this observation. Atty.
JJ Disini points out in a Facebook post:

"Well, someone should tell Atty. Lacierda the fact that this is not even a
proper case of libel because public officials, as a rule, are not allowed to sue
for criminal libel. This is clear from the landmark [United States Supreme
Court] case of New York Times v. Sullivan cited with approval by our Supreme
Court in the recent case [decided in 2005] of Guingging v. Court of Appeals."

PITIK-B(u)LOG said the case is a wakeup call for everyone to take action
against the cybercrime law.

"Ilang ESPERLITA GARCIA pa ba ang dapat hulihin para maniwala ang
sambayanan na ang R.A. 10175 ay inilalagay sa panganib ang ating freedom of
expression? Kailan natin maiintindihan na sa ating pagsasawalang-kibo ay
unti-unti rin nating kinakatay ang ating mga karapatang pangtao? Hindi lang ang
R.A. 10175 ang dapat sisihin sa pagkitil sa ating freedom of speech, kasama na
dito ang mga taong nagkibit ng balikat at nagsawalang-kibo. Apathy kills.

How many more Esperilta Garcia should be arrested before the people believe
that R.A. 10175 will put our freedom of expression in danger? When will we
understand that our indifference is slowly killing our human rights? R.A. 10175
is not the only thing that should be blamed for the curtailment of our freedom
of speech, alongside this are the people who stay on the sidelines and do not
care. Apathy kills.
Originally posted on Global Voices Online. It is published here under
Creative Commons license. Thumbnail image: Cyber-Perling facebook
page



Chief News Editor: Sol
Jose Vanzi

© Copyright, 2012 by PHILIPPINE HEADLINE
NEWS ONLINE
All rights reserved





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