Miriam: ?Safe Harbor? provision to shield online firms from user comments

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Saying the Supreme Court (SC) has committed an error in upholding online libel under the Cybercrime Law, Sen. Miriam Defensor Santiago has urged Congress to pass a bill that protects online service providers from liability for posts made by users.

Sen. Miriam Defensor Santiago
Sen. Miriam Defensor Santiago

?I humbly disagree with the ruling of our Supreme Court on digital libel, because it might precipitate libel suits related to posts on Twitter and Facebook,? Santiago said in a speech at the De La Salle University in Manila on Friday, March 17.

The SC said in its landmark decision that online libel is constitutional, but only applies to the original author of the post and not to those who merely retweet or repost the message. However, the SC ruling did not say anything about the liability of third-party service providers.

According to Santiago, the “Safe Harbor? protection under the US Communications Decency Act, is included in a new Senate bill she filed recently.

?Because of the dangers to free speech posed by the recent Supreme Court decision upholding online libel, I have filed a new bill in the Senate entitled ?Magna Carta of Internet Freedom,? which was written by crowdsourcing in the Internet,? she said.

Under Section 230 of the proposed law, operators of “interactive computer services” are free from liability for the defamatory comments made by their users.

The same section also provides: “No provider or user of an interactive computer service shall be tried as the publisher or speaker of any information provided by another information content provider.”

However, Santiago said the “Safe Harbor? provision should also be thoroughly debated as it could be prone to abuse since it exempts the website from liability, while its operators shield posters by means of coding that allows people to post anonymously.

?Thus, the courts might use the Safe Harbor Provision to dismiss complaints for invasion of privacy, misappropriation of trade secrets, cyberstalking, and negligence,? she said.

In her speech, the fiery lawmaker also said the SC?s definition of the Internet was problematic as described in its ruling on the Cybercrime Law.

?The problem with the cybercrime decision of the Supreme Court is that almost by definition, the Internet can only be managed by a loose regulatory arrangement. In effect, the Internet is a global connection of interconnected computers. It has been described as: ?truly a peer-to-peer (P2P) system with many distributed nodes and no central point of control architecture?,? she said.

?As a constitutional law student, I have to emphasize that the structure of the Internet is by definition hostile to any desire to control, direct, manage, or supervise, whether that desire comes from the government, or from other interest groups,? she added.

?Experience has shown us that attempts to control the Internet will invariably fail. We should be instructed by the failed efforts of China to regulate political content, the efforts of America to regulate Internet gambling, or the efforts of Australia to regulate certain speech. By its very nature, the Internet will always resist such controls,? Santiago said.

She said that in the United States, from which the Philippines inherited the common law system as part of the mixed law system, digital media law no longer imposes strict liability upon libel defendants.

Santiago cited the 1971 case of Time vs. Pape in which the US Supreme Court created a “zone of protection” for errors of fact that occurs in publication.

In that case, she said the US Supreme Court ruled that plaintiffs suing for defamation regarding a matter of public concern, must prove negligence or malice on the part of the defendant, as well as the falsity of the defendant’s statements.

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