Can memes be defamatory?

Our defamation laws are being tested by the Internet. The Internet is now a huge market place of ideas that the Government cannot easily police or regulate. This is especially true of memes.

Memes are technically defined as an element of a culture or system of behavior that may be considered to be passed from one individual to another by nongenetic means, especially imitation. (Richard Dawkins) Online, memes are entertaining pictures or videos with words, images and effects reflecting ideas with shared understanding by most netizens; these pictures or videos are usually templates or patterns and any person can change the words and effects to communicate a slightly different thought or expression, often to appeal to a specific taste or humor (e.g. law students, etc.).

The problem about our defamation laws is that they are written with broad strokes. If a malicious publication (meaning communication to a third person/s with the specific intent to harm another's reputation) blackens the memory of the dead or aims to discredit a person, if identified, it can be declared "defamatory" and the proper penalty (fine and/or imprisonment) may be imposed.

In simpler terms, elements of libel (written defamation) 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. (Borjal v. Court of Appeals, 361 Phil. 1, 1999; Vasquez v. Court of Appeals, 373 Phil. 238, 1999)

This is where the problem with memes enters the picture. Memes are shared thousands, if not millions, of times over and over on the Internet. It is hard to trace the origin of the meme itself, i.e., the one who actually created it, putting the words and pictures together, with malicious intent. Now, when other Internet users share the same meme on Facebook, Twitter and other platforms, the element of "malice" becomes evasive.

The problem becomes bigger if we consider the fact that, under Philippine criminal law, "malice" or "criminal intent" is important in dolo crimes under the Revised Penal Code (RPC) which punishes libel and slander as two of the forms of criminal defamation.Although not specifically referring to memes, the Supreme Court explained in one case why this is a problem, especially on the Internet. This is the case of Disini v. Secretary of Justice. In Disini, the High Court aptly observed:

"The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their constitutionally-guaranteed right to freedom of expression." (G.R. No. 203335, February 11, 2014)

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog; and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service Provider). (G.R. No. 203335, February 11, 2014)

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to that blog site. (G.R. No. 203335, February 11, 2014)

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens, hundreds, thousands, and greater postings. (G.R. No. 203335, February 11, 2014)

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a crime. (G.R. No. 203335, February 11, 2014)

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or a betting cybercrimes? Where is the venue of the crime? (G.R. No. 203335, February 11, 2014)

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting? (G.R. No. 203335, February 11, 2014)