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No, the web host is generally not liable for libelous content posted by others on websites that it hosts, as long as it meets certain requirements:
1. It must not have had actual knowledge of the libelous content.
2. Upon obtaining knowledge, it must have acted expeditiously to remove or disable access to the content.
3. It cannot have induced, encouraged or materially contributed to the unlawful conduct.
Web hosts are protected by the "safe harbor" provision of the Electronic Commerce Law which exempts them from liability for content posted by others, as long as they comply with requirements to remove libelous material once notified. However, authors of libelous content posted on hosted websites
No, the web host is generally not liable for libelous content posted by others on websites that it hosts, as long as it meets certain requirements:
1. It must not have had actual knowledge of the libelous content.
2. Upon obtaining knowledge, it must have acted expeditiously to remove or disable access to the content.
3. It cannot have induced, encouraged or materially contributed to the unlawful conduct.
Web hosts are protected by the "safe harbor" provision of the Electronic Commerce Law which exempts them from liability for content posted by others, as long as they comply with requirements to remove libelous material once notified. However, authors of libelous content posted on hosted websites
Copyright:
Attribution Non-Commercial (BY-NC)
Verfügbare Formate
Als PPT, PDF, TXT herunterladen oder online auf Scribd lesen
No, the web host is generally not liable for libelous content posted by others on websites that it hosts, as long as it meets certain requirements:
1. It must not have had actual knowledge of the libelous content.
2. Upon obtaining knowledge, it must have acted expeditiously to remove or disable access to the content.
3. It cannot have induced, encouraged or materially contributed to the unlawful conduct.
Web hosts are protected by the "safe harbor" provision of the Electronic Commerce Law which exempts them from liability for content posted by others, as long as they comply with requirements to remove libelous material once notified. However, authors of libelous content posted on hosted websites
Copyright:
Attribution Non-Commercial (BY-NC)
Verfügbare Formate
Als PPT, PDF, TXT herunterladen oder online auf Scribd lesen
CONFLICT OF LAWS • Conflict of laws is defined as that part of the municipal of the state which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, to apply either the local law or a foreign law.
• Conflict of Laws is part of the municipal
law, particularly civil law, not international law. DISTINGUISHED FROM INTERNAL RULES • Internal Rules are applicable to cases without any foreign element, which are also part of the municipal law, by the fact that they do not purport to solve the problem.
• They merely point to the law to be
applied, whether local law or the proper foreign law. Lex Loci Celebrationis • Art. 17. CIVIL CODE. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. • Except: • 1. Alienation and encumbrance of property (Art. 16 – Lex Situs); • 2. Consular Contracts SAMPLE PROBLEM • A, an American from New York, and F, a Filipino from Baguio City, entered into a contract of employment in the Kingdom of Saudi Arabia under which A is to pay F monthly salary of P5,000.00 provided the latter prays to Allah five times a day. Is the Contract valid? • There are two foreign elements in the problem. A is an American, and the contract was entered into in the Kingdom of Saudi Arabia. ANSWER • Art. 17. CIVIL CODE. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. • The first paragraph of Article 17 does not decide the case. It merely points to the law to be applied, the lex loci celebrationis, which in this case, is the internal law of the Kingdom of Saudi Arabia. • As to what Arabian law provides, we do not pretend to know. CONTRAST WITH INTERNAL LAW • PROBLEM: A donated a parcel of land to B in a private instrument. B accepted the donation. Is the donation valid? • ANSWER: No, the donation was not made in a public instrument as required by Article 749 of the Civil Code. [There is no foreign element] • PROBLEM: A donated a parcel of land to B in a public instrument. B accepted the donation in a private instrument. Is the donation valid? • ANSWER: No, because under Article 749 of the Civil Code both the giving and the acceptance must be in a public instrument. [There is no foreign element] Monism v. Dualism • Monists believe that international law and domestic law are part of a single legal order; international law is automatically incorporated into each nation's legal system and that international law is supreme over domestic law.
• Dualists, however, contend that international law
and domestic law are distinct. Under this view, when municipal law provides that international law applies within our jurisdiction, it is but an exercise of the authority of municipal law, an adoption or transformation of the rules of international law. What is meant by the Principle of TERRITORIALITY?
• It provides that penal statutes are
applicable only within the territorial jurisdiction of the enacting state. • Thus, a crime is punishable only within the territorial jurisdiction where it is committed. TERRITORIALITY • Art. 14. CIVIL CODE. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations. EXTRA-TERRITORIALITY • It provides that penal statutes may find application even outside the territorial jurisdiction of an enacting state pursuant to treaty obligations and general principles of public international law. • An example of extra-territoriality is Article 2 of our Revised Penal Code. May a Filipino convicted of a crime abroad serve his sentence in the Philippines?
No. Under the principle of territoriality, a crime
is punishable only in the territorial jurisdiction where it is committed. Allowing a Filipino convicted abroad to serve sentence in the Philippines will be tantamount to recognizing and enforcing a foreign judgment which is penal in nature. This is contrary to our public policy on territoriality (Article 14, Civil Code). Extra -Territoriality • If there is a treaty for exchange of prisoners, it becomes part of our laws and a Filipino convicted for a crime abroad may serve his sentence in the Philippines. • If a Filipino is convicted of crimes against humanity, he may also serve his sentence here under the principle of universality, which makes such crimes punishable in any jurisdiction regardless of the place of commission. Sample Problem: Territoriality • Ricky and Arlene got married in Manila. • Ricky thereafter went to London and married Rita. • After a month, Ricky went to San Francisco and married Sheila. • May Ricky be prosecuted for Bigamy in the Philippines at the instance of his first wife, Arlene? Why? Answer: Ricky is not liable for Bigamy
• Ricky did not commit any crime within Philippine
territory. • Bigamy is committed by entering into a second or subsequent marriage. • Ricky’s first marriage with Arlene, which was entered into in the Philippines, is not bigamous. • The subsequent marriages, which are the bigamous marriages, were all entered into abroad, or outside Philippine territory, and therefore beyond our criminal jurisdiction. Forum Non Conveniens This principle is one of the most frequently asked questions in the bar exams. It was asked, in various forms, in the bar exams of: 1991 (Question Nos. VII-A, B); 1992 (Question Nos. XIV-A, B, C); 1994 (Question Nos. I-1, 2, 3; II-1,2; XX); 2002 (Question No. XIII-B); and 2004 (Question No. III-B1; VII-B) JURISDICTION What is Jurisdiction? • In International Law, jurisdiction is often defined as the right of a State to exercise authority over persons and things within its boundaries subject to certain exceptions. Universality of Jurisdiction • Certain offenses are so heinous and so widely condemned that any state that captures an offender may prosecute and punish that person; • on behalf of the international community regardless of the nationality of the offender or victim or where the crime was committed. FOUR QUESTIONS ON JURISDICTION • Has the court jurisdiction over the person of the defendant or over his property? • Has the court jurisdiction over the subject matter (“competency”)? • Has the suit been brought in the proper venue in cases where a foreign element is involved? • Is there a statute or doctrine under which a court otherwise qualified to try the case may or may not refuse to entertain it? Current Legal Issues • • electronic transactions (sales and banking) • • jurisdiction and identity (cyber crimes) • • Privacy and security (hacking and viruses) • • content regulation (cyber libel and e-fraud) • • telecommunications/VoIP (franchise / costs) • • Piracy (copyright / trademark) • • Functional Equivalence (e-documents) • • Automated Elections (Electoral Fraud) SOCIAL NETWORK SITES • The Supreme Court in Canberra, Australia has recently ruled that legal documents may be served via Facebook for defendants who cannot be found. • The defendants in the subject case failed to pay a loan and cannot be found. • Service of summons, subpoena and other court process via email, blogs, myspace, friendster, or facebook accounts is now feasible. • http://www.Reuters.com/article/technologyNews/id USTRE4BG0PI20081217 FACEBOOK USED FOR BLACKMAIL
• • Facebook has already been used for
blackmail by a male student who posed as a girl in a fictitious account. • He was able to trick at least 31 male classmates into sending him naked photos of themselves and then blackmailing some for sex acts. • http://www.cbsnews.com/stories/2009/02/05/national/main4 777194.shtml?source=RSSattr=U.S_4777194. MYSPACE USED FOR FRAUD
• A woman created a fictitious boy on
MySpace and set flirtatious messages from him to a female teenage neighbor. • He then “dumped” the girl. • The girl killed herself shortly thereafter. • The woman was held civilly liable. • http://www.smh.com.au/articles/2008/11/27/1227491672826 .html. Cyber Libel • Defamatory statements made on the internet is libel, even if the internet is not a medium expressly enumerated in the law. • Internet is subsumed in “any similar means.” • “Publication,” which is one of the requisites, is defined as the “communication of the defamatory matter to some third person or persons.” • The internet is a means of communicating. Publishing Libel Online • The blogger “publishes” the post or article. • Internet writings, including blogs, would fall under “any similar means” of publication. • When someone posts a comment in another’s blog and such comment is libelous, the owner of the blog is also liable for libel --- similar to the liability of a publisher of a newspaper. BLOGGER’S LIABILITY • Bloggers can be both a provider and a user of interactive computer services. • Bloggers are users when they create and edit blogs through a service provider, and they are providers to the extent that they allow third parties to add comments or other material to their blogs. • Under the law, any person who causes the publication of a defamatory article is held liable for libel. IS THE WEB HOST LIABLE? • NO. The webhost is generally not liable. • Under RA 8792, the service provider is not liable so long as it “does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent, that the making, publication, dissemination or distribution of such material is unlawful or infringes any rights subsisting in or in relation to such material.” INTERNET LIBEL • The Taytay provincial prosecutor has recommended the indictment of lawyer Argee Guevarra on libel charges in connection with his Facebook postings last year in which he allegedly defamed the practice of celebrity cosmetic doctor Vicki Belo. The complaint stemmed from his status updates in July 2009 on the social networking site FACEBOOK in which Guevarra referred to Belo’s clinic as a “Frankenstein factory,” and called her “Reyna ng Kaplastikan (queen of fakery). INTERNET LIBEL • Atty. Guevarra also called for a boycott of Belo’s company, the Belo Medical Group Inc. (BMGI), in protest of the alleged botched buttock augmentation procedure performed on a former patient, Josie Norcio, by one of her doctors.
• In a June 28 resolution, the prosecutor said she found all
the elements of libel—defamation, malice, identification and publication—in the libel complaint. INTERNET LIBEL • In his counter affidavit, Atty. Guevarra said Facebook postings were not covered by libel laws, and that the Taytay prosecutor did not have jurisdiction over the case. He also reasoned that the messages were a form of privileged communication as they were not defamatory and were only an exercise of his freedom of expression. • He also noted that Belo and her clinic are public figures. The Investigating Prosecutor found probable cause and the case is now undergoing trial. BONIFACIO V. GIMENEZ G.R. No. 184800, 5 May 2010 • Gimenez, on behalf of the Yuchengco Family and of the Malayan Insurance Co., Inc. (Malayan), FILED a criminal complaint for 13 counts of libel under Article 355 against officers and trustees of Parents Enabling Parents Coalition, Inc. (PEPCI). • PEPCI was formed by a large group of disgruntled plan holders of Pacific Plans, Inc. (PPI), which was indirectly owned by the Yuchengco Group of Companies (YGC). • PEPCI sought to provide a forum by which the plan holders could seek redress by maintaining a website on the internet under the address of www.pepcoalition.com BONIFACIO V. GIMENEZ G.R. No. 184800, 5 May 2010
• Gimenez alleges that he accessed the website in Makati
and found the website to contain thirteen articles containing highly derogatory statements and false accusations against the Yuchengco Family, YGC, and particularly, Malayan. • The Makati City Prosecutor’s Office, finding probable cause, filed thirteen (13) separate Informations in the Makati RTC. However, on appeal, the Secretary of Justice, reversed the finding of probable and reasoned that the crime of “internet libel” was non-existent. • The accused then filed a Motion to Quash the Information on the grounds that it failed to vest jurisdiction on the Makati RTC. IMMUNITY FROM JURISDICTION Sovereign Immunity • According to the absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. • According to the restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis HOLY SEE V. JUDGE ROSARIO • The Catholic Church entered into a contract with Starlight Realty for the sale of the vacation house of the papal nuncio. • After receiving earnest money, the church sold the same property to another buyer. • Aggrieved, Starlight Realty sued the church for breach. • Summons was issued against the Holy See and the Pope. • The DFA certified that the Holy See (Vatican) is a State and enjoys state immunity from suit. Is the Vatican a State? - NO. Under the four elements of a state (people, territory, sovereignty, government). - Yes. Under the Lateran Treaty of 1929. - Factual determination by the DFA is binding upon the courts. - A State, though immuned, may still be sued for acts jure gestionis. - Here, the sale of the vacation house of the papal nuncio is an act jure imperii. TEST OF IMMUNITY
• The mere entering into a contract by a
foreign state with a private party cannot be the ultimate test. • The test is whether the foreign state is engaged in the activity in the regular course of business. • If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. (Indonesia v. Vinzon, July 23, 2003) INDONESIA V. VINZON (2003) • The Republic of Indonesia entered into an agreement for the maintenance of the Indonesian Embassy with Vinzon Trade and Services. • The agreement provided that the respondent would maintain the cleanliness of the embassy and that it shall be effective until 4 years and will be automatically renewed thereafter unless cancelled for which there needs to be a 30-day written notice. • However in March 2000, when a new minister entered service for the embassy, he terminated the agreement for unsatisfactory service. INDONESIA V. VINZON (2003) • Due to this VINZON filed a case against the Indonesian government in the RTC of Manila. • It alleged that the petitioner may be sued under the Restrictive Doctrine of Immunity, that when a sovereign state enters into a contract with a private person, the state can be sued upon the theory that it has descended to the level of an individual from which it can be implied that it has given its consent to be sued under the contract. INDONESIA V. VINZON (2003) • The SC held that the mere entering into a contract by a foreign State with a private party cannot be construed as the ultimate test of whether or not it is an act jure imperii or jure gestionis. • If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii. • Submission by a foreign state to local jurisdiction must be clear and unequivocal. • It must be given explicitly or by necessary implication. JEFFREY LIANG V. PEOPLE (2001) • Jeffrey was a Chinese national who was employed as an Economist by the Asian Development Bank (ADB); • He uttered defamatory words to Joyce V. Cabal, a member of the clerical staff of ADB. • He was sued for grave oral defamation; • His defense is diplomatic immunity because he is an employee of the ADB. • Is he correct? JEFFREY LIANG V. PEOPLE (2001) • The Supreme Court ruled, in essence, that the immunity granted to officers and staff of the ADB is not absolute; • it is limited to acts performed in an official capacity. • Furthermore, the SC held that the immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty. JEFFREY LIANG V. PEOPLE (2001) • “Officers and staff of the Bank, including experts and consultants performing missions for the Bank, shall enjoy the following privileges and immunities: • (a)Immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity.” Diplomatic v. Consular Immunity • Under Article 32 of the Vienna Convention on Diplomatic Relations, a diplomatic agent shall enjoy immunity from the criminal, civil and administrative jurisdiction of the receiving state. • On the other hand, under Article 41 of the Vienna Convention on Consular Relations, a consular officer enjoys immunity from the civil and administrative, but not criminal, jurisdiction of the receiving state. When is a diplomat not Immuned? • He shall enjoy immunity from civil and administrative jurisdiction except in the case of: • (i) A real action relating to property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purpose of the mission; • (ii) An action relating to succession in which the diplomatic agent is invoked as executor, administrator, heir or legatee as a private person and not on behalf of the sending state; • (iii) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions. When is a consul not Immuned? • Under Article 43 of the Convention, Consular officers are not immuned when the civil action: • (i) Arises out of a contract concluded by a consular officer in which, he did not contract expressly or impliedly as an agent of the sending state; • (ii) By a third party for damage arising from an accident in the receiving state caused by a vehicle, vessel, or aircraft.