Monthly Archives: October 2012

RA10175: In the eyes of an ex-MAGDALO man

(The following is a lengthy discourse on the Cybercrime Prevention Act of 2012, made by former MAGDALO Editorial Board Literary Editor Jose Jason Chancoco. This contains text from two articles. Republished with the Author’s express consent, original articles linked)

1. THE PROBLEM WITH RA 10175

Too much law books made me forget about the news. It was only last night when I learned that RA 10175 or the CyberCrime Prevention Act of 2012 has been passed into law. I have been hearing about it and thought that it was only a bill. But mistaken I was, for it is now a law. And dura lex sed lex.

But Article 7 of the Civil Code provides that a law must conform to the Constitution else it could be nullified.

So many writers are questioning the validity of this law. I for one blogged earlier that the measure ought to be unconstitutional because there is a fundamental prohibition to any law that would violate freedom of speech and expression. True enough, there are now petitions calling for its unconstitutionality. From what I have read in one petition, RA 10175 makes the convict liable for libel both as a cybercrime and as a felony (as punished by the Revised Penal Code). There is definitely something wrong with that given our rule regarding double jeopardy. This is aside from the fact that the 1987 Constitution as explicated in the case of Chavez v. Gonzales provides for a two-fold rule when it comes to Freedom of Speech and Expression. Namely, there must be: 1.) Freedom from prior restraint, and 2.) Freedom from subsequent punishment.

And I learned that Sen. Guingona was the lone dissenter, invoking the above doctrine.

In my limited knowledge of the law, I know that with the RPC provision on libel notwithstanding, there is always an allowance for the so-called “Doctrine of Fair Comment.” Well-placed and well-constructed criticism is always welcome in a democratic society. The law on libel is there, perhaps just to discourage people from bringing the law into their own hands by verbally maligning those who have wronged them. It then prods people to use the machinery of the legal system to attain justice.

The more important issue now is what constitutes “prior restraint”? In the Chavez case, it was the Justice Secretary and the NTC’s warnings to the media that continued airing of the scandalous “Hello Garci” tape shall be a violation of the Anti-Wiretapping Act, hence a ground for closure and arrest. Would a duly enacted law on cybercrime or electronic libel constitute “prior restraint”?

But in the Chavez case the Supreme Court ruled that not every violation of the law will justify straitjacketing the exercise of freedom of speech and of the press. The government must prove “clear and present danger”. And there was no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State. Hence the DOJ and NTC warnings constituted “prior restraint” as they were delivered as part of official government function. The act does not have to be converted to a formal order or official circular to be considered a breach of press freedom.

Is a possible commission of electronic libel enough to restrain bloggers and social networkers from printing strongly-worded statements on issues they care about? Is there “clear and present danger” that the government would collapse because of it? In the case of Chavez, it was a mere order and yet it was shot down. In the case of RA 10175, it is not just an order, but a law, for that matter. Definitely, it comes under the purview of official government function and inherent State power which is law-making or police power. And Article Three of the Constitution or the Bill of Rights is addressed to the State and its agents. It is a provision that would safeguard the people from possible government overstep on private rights.

2.CURSORY READING OF RA 10175

I have been thinking of what constitutes “prior restraint”. I really have to read the RA 10175 in detail to make up my mind. Although my opinion would be just a speck of immaterial dust because it is the Supreme Court that is the final arbiter whether a law is constitutional or not. The findings of the High Court may not be law and a mere interpretation of what the law is, but still, it is part of our legal system.

I have been thinking that RA 10175 specialized libel, in the sense that there is now electronic libel. The thing is, since the passing of the electronic evidence rule, electronic libel has always been possible. Only this time, with this new law, it has become more specialized.

Since the Revised Penal Code provision on libel has always been there, will this new law constitute “prior restraint”? For one, our law on libel has never been seen as “prior restraint” at least, not according to jurisprudence.

You see in the Chavez case the DOJ and the NTC was warning media entities that continued airing of the “Hello Garci” tape would violate the Anti-Wiretapping Law hence they threatened said entities with closure and arrest. In that case, the “prior restraint” or censorship was the warning, while the threat of closure and arrest constituted “subsequent punishment”. We all know that the SC ruled against such “warning” even if it did not come in the form of official government issuance or order. It was after-all done in furtherance of government function and was threatening to violate freedom of the press. The Court even ruled that granting that the continued airing of the tapes could lead to a possible breach of the Anti-Wiretapping Law, said “warning” was never justified. It constituted “prior restraint.” The only justification would be if there is “clear and present danger”.

In other words, the Court was saying: “Let them do their job, and if they violate the anti-wiretapping law, then so be it. They could be prosecuted later. You just have no business telling them to shut up.”

Now we have to look at RA 10175 if it has the same effect as the “prior restraint” in the Chavez case which came as a “warning” from administrative bodies.

Now reading the RA 10175 itself, we can see that it has provisions on cybercrime offenses against the confidentiality, integrity and availability of computer data systems such as data interference, cybersquatting, illegal interception, etc. It has something on fraud, identity theft, cybersex, child pornography, and of course, libel.

The provision on libel reads: “Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.”

You see, it specialized libel, in effect making it electronic libel.

And here is the provision that they say would make you think twice before doing an FB click or share: “Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.”

This one makes electronic libel a heavier offense than libel as a felony, or as punished by the RPC: “All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.”

Hence if you commit Inciting to War and Giving Motives for Reprisals via FB by telling China to “Get it on! We are ready to slug it out with you. Our OFWs there will start the fight!” (Of course, I don’t really mean this. Just an example) the FB status will be the electronic evidence as saved via “print screen”. And you will be imposed a higher penalty if found guilty beyond reasonable doubt.

And of course, there is the warrant requirement (without prejudice to provisions of law allowing for warrantless arrests and searches, of course): “Exclusionary Rule. — Any evidence procured without a valid warrant or beyond the authority of the same shall be inadmissible for any proceeding before any court or tribunal.”

I agree that indeed many provisions are vague specially those pertaining to who aids or abets in cybercrime and how. Hence there is the provision on the IRR: “Implementing Rules and Regulations. — The ICTO-DOST, the DOJ and the Department of the Interior and Local Government (DILG) shall jointly formulate the necessary rules and regulations within ninety (90) days from approval of this Act, for its effective implementation.”

Hmmm… So far there is nothing similar to that “warning” in the Chavez case. There is no warning for example, that if we post on FB scurrilous libels against China, tending to involve the country in a war with it and tending to expose our citizens there for reprisals on their persons and property, we shall be committing Inciting to War and Giving Motives for Reprisals hence we must be restrained from posting anything. Else, we will be arrested or our PCs or netbooks, confiscated. Nothing of that sort. Only that this law makes the law on libel so much fiercer.

How will the Court rule on the petitions?

Abangan ang susunod na kabanata.

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End of CyberFreedom

Legal Online Editorial Cartoon by Manix Abrera


In a matter of hours, the recently-signed Cybercrime Prevention Act of 2012 will become effective – and with it, the beginning of another tribulation the likes of which have never been thought possible during the dark days of the martial law regime.

And yet, the public outrage is off the charts.
UN internet freedom is a right

What does this mean to you? It means that we are being denied of a right to express ourselves online… for the wrong reasons too. Simply sharing or liking post that the government deems offensive can net you some jail time? Is tweeting a grievance a criminal offense now?

This started because a certain senator plagiarized passages from a blogger and a famous US president into his speeches – and later said about the blogger “blogger lang yon.” Such brazen nonsense from him, yet he continues to dig his head into the sand, say he doesn’t get the revulsion against him and denies that he or anyone in his staff inserted a provision against online libel at the last minute. It’s a safe bet he is just waiting for the law to go into effect and he will go on a counterstrike – the sign of a cowardly and bitter old man. He’s in the same boat as the PNP who denies that they made these statements:

It is also hard to believe that our Supreme Court, in its first major test since the impeachment of Renato Corona, declined to issue a temporary restraining order against the Act. These justices have apparently forgot the one provision in our Constitution that actually targets these kinds of laws:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

To the Emilian, what does this law mean? The EAC administration will simply use this law to further crack down on our freedoms – to stop dissent against them. We wouldn’t be able to even speak up without the school stifling our rights. This is the revival of a time when our admin only listened to people it only wanted to hear from and a time when our publication was corrupted to serve them.

For our government, who speaks big about transparency and accountability, signing this law is a major step back without our president even knowing it. Some of our government officials have invested time to establish a social media presence to better interact with the public. If we make honest criticisms against them, would the authorities use this law to smoke them out? It is understandable that the law aims to stop crimes that have become too apparent in today’s wired world. Punishing those who commit online piracy, child pornography, cybersex, identity theft, proliferation of spam and plagiarism we can take but online libel we cannot. What is our government afraid of? That a redux of EDSA Dos done like the Arab Spring – a series of revolutions that spread like wildfire over social media – would come their way? Are they shaking in their boots now that the people have spoken up? They do, they just don’t want to admit it.

We have the power to be responsible in what we post as long as what we publish is backed up by solid evidence – but suddenly declaring it a crime to criticize wrongdoings or speaking up for our rights is the height of stupidity. Are we going to wake up one day and log in to our Facebook accounts to find a subpoena in our inbox – worse, we can’t even access the site at all? We may not care how countries like China and Iran treated their netizens and exercised their Internet controls, but this in all honesty we can say … it is not that farfetched for our short-sighted government and security apparatus to emulate how they did it. And this is a country who has one of the freest democracies in Southeast Asia and started a trend in non-violent revolutions long ago, not to mention being a member of the United Nations Human Rights Council, no less!

Eto ba talaga ang gusto mong Daang Matuwid, PNOY? Daang itinuwid sa paglilipol ng mga pambabatikos sa iyong pamumuno? Daang itinuwid sa pamamagitan ng isang batas na bigla-biglang napatupad kung kailang may mga mas importante pang panukalang nakabinbin sa Mababang Kapulungan? Sana makatulog ka ng mahimbing at hindi ka multuhin ng mga magulang mo ngayong gabi, dahil kung buhay pa sila, kahit sila hindi rin sasangayon sa ginagawa mo.

NO TO CYBER MARTIAL LAW! JUNK RA10175!