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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