AHRC Petition for Certiorari - RA 10175

SUPREME COURTPADRE FAURA

MANILA

MELENCIO S.STA.MARIA, SEDFREY M.CANDELARIA, AMPARITA STA. MARIA,RAY PAOLO J. SANTIAGO, GILBERT V.SEMBRANO, and RYAN JEREMIAH D.QUAN, (all of the Ateneo Human RightsCenter)

Petitioners

- versus – G.R. 203440

HONORABLE PAQUITO OCHOA in hiscapacity as Executive Secretary,HONORABLE LEILA DE LIMA in hercapacity as Secretary of Justice,HONORABLE MANUEL ROXAS in hiscapacity as Secretary of the Department ofInterior and Local Government, TheCHIEF of the Philippine National Police,The DIRECTOR of the National Bureau ofInvestigation ( all of the ExecutiveDepartment of Government)

RespondentsX------------------------------------------------------------------X

PETITION FOR CERTIORARI

Petitioners, by undersigned counsel, to this most Honorable Supreme Court

respectfully state:

PREFATORY STATEMENT

“Experience should teach us to be most on our guard toprotect liberty when the government’s purposes arebeneficient. Men born to freedom are naturally alert to

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repel invasion of their liberty by evil-minded rulers. Thegreatest dangers to liberty lurk in insidiousencroachment by men of zeal, well-meaning but withoutunderstanding.” (Justice Louis D. Brandeis)

This Petition assails in the strongest terms imaginable what a majority in

Congress (House of Representatives and Senate) has drafted and what the

Executive, through President Benigno Aquino III, has signed into law. Petitioners

humbly come before this august body and most respectfully pray that its Honorable

Members, acting collectively as the third great branch of government, exercise

their constitutional duty to unanimously CHECK the unconstitutional acts of

Congress and the Presidency.

This is a case of transcendental importance, a first of its kind in our history.

This will herald the entry of this Honorable Supreme Court into a world of cyber

communication that is perpetually active, global and free. According to the 2011

Southeast Asia Digital Consumer Report,1 thirty-three percent (33%) of Filipinos

have accessed the internet within the twelve-month period, translating to about

thirty-one million (31,000,000) users. There are multi-millions more in other parts

of the world, regardless of race, religion, culture and background, knowingly or

not, who will be affected by the assailed law and, eventually, by the decision of

this Honorable Supreme Court.

As the assailed law will immediately impact on the rights of every Filipino

on the Internet – ourselves, our spouses, our children, our parents, our employers,

our workers, our traders, our teachers and students – there is urgency in this

petition. At the same time, there is urgent need, as well as wisdom, to

understanding how the Internet is expanding and evolving our very concepts of

free expression.

The world has changed and is changing. It has become smaller.

Communications have grown faster and more direct. Thanks to the Internet, people

1 http://www.slideshare.net/truongbang/south-east-asia-sea-digital-consumer-report-2011

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now have direct access to a platform that allows them to communicate with friends

and strangers all at once, at the literal click of a button. As one famous blogger

and perceptive journalist, Jessica Zafra,2 described

Whenever something unpleasant happens, be it a terrible meal atan overpriced restaurant or a traffic altercation or the sight of agrown man threatening his son’s classmate or a public officialdemanding a bribe, we report it on social media and blogs. They'refree, they're fast, they get the word out before the traditional mediadoes. Newspapers and television networks get information fromonline media…..We are, in effect, our very own print andbroadcast networks. Everyone's a media mogul. 3

Communications - messages, ideas, images (whether still or moving), sound

- nowadays come in various forms. They can be short or long. They can be made

up of whole documents, essays, paragraphs, or even cryptic sentences made up of

no more than 140 characters, with no standard whatsoever as to grammar or

spelling. Some messages nowadays do not even contain letters. So-called

“emoticons” convey a range of emotions without a single character of the alphabet

used as an actual letter. For example, consider these emoticons for:

Happiness - :)Sadness/Displeasure - :(

Love - <3Coolness - \m/

For the generations born into these times – or yet not too late to embrace its

ways – language, terms, symbols, and speed for conveying have all evolved and

continue to evolve, literally on a day-to-day, hour-to-hour, minute-by-minute basis.

Communication is changing, in fact, with every new message.

On the popular social networking site Twitter, because of an imposed rule

for brevity – one can only send messages no more than 140 characters in length –

new users would find many of the posts perplexing and cryptic. But more seasoned

2 Jessica Zafra of Interaksyon.com ( News Portal Tv5 in the internet) in her article , “ The Cybercrime Law: TheReturn of the Thought Police” http://www.interaksyon.com/article/44057/jessica-zafra--the-cybercrime-law-the-return-of-the-thought-police3 Jessica Zafra of Interaksyon.com (News Portal Tv5 in the internet) in her article, “The Cybercrime Law: TheReturn of the Thought Police” http://www.interaksyon.com/article/44057/jessica-zafra--the-cybercrime-law-the-return-of-the-thought-police

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users think nothing of the new abbreviations and symbols that are born and thrown

away by necessity and fashion. On Facebook, which reports of 955 million

monthly active users at the end of June 2012,4 one can express agreement without

need for a single key-stroke. A click of a computer mouse-button is enough to

“Like” or “Recommend”, and to thereby not only agree, but even to – with the

same single act of a mouse click – further spread the very same message “Liked”

or recommended.

As with all messages in any traditional or new form, any thought on the

Internet may be friendly, offensive, neutral, informative or business-like.

Whichever way they are intended to be received, these messages, and the

ability to form and spread them, have given rise to a universal environment that

has meaningfully deepened and widened our very own democratic space.

Online Filipinos are enjoying with the rest of the world platforms for

expression, education, and empowerment unimagined and hard to fathom for those

still tethered to “traditional” media such as newspapers, radio, movies, and even

television and mobile telephone. And it is not just their means of communicating

that are evolving. With every message sent, received, consumed or even merely

scanned, so too are their very concepts of what can or may be conveyed or

consumed.

Horizons for thought expand with every new idea. Tolerance is raised for

every disagreement that takes place, for every new encounter in cyberspace

between and among friends, and, yes, also even involving literal strangers. On the

Internet, these interactions take place every second. As radical as that sounds to

older, more traditional consumers of news, commentary, and information, children

being born or just beginning to be schooled today are exposed to, inoculated to,

and strengthened and empowered by, this space where ideas form, clash, spawn,

and die by the microsecond.

4 http://newsroom.fb.com/content/default.aspx?NewsAreaId=22

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Quoting herein petitioner Law Professor Melencio Sta. Maria of the Ateneo

School of Law, he said

[T]his kind of free-wheeling interaction, though at times veryoffensive, has developed through time a kind of special toleranceamong the interactors. The public has found an accessible directmedium to ventilate their opinions, and people are learning to gobeyond offensive opinions and accept them as just another point ofview. This is a very healthy development in a democracy wherefree expression must be actively robust.

As former Justice William Douglas of the United StatesSupreme Court said a

"...function of free speech under our system of government is toinvite dispute. It may indeed best serve its high purpose when itinduces a condition of unrest, creates dissatisfaction withconditions as they are, or even stirs people to anger. Speech isoften provocative and challenging. It may strike at prejudices andpreconceptions and have profound unsettling effects as it pressesfor acceptance of an idea. That is why freedom of speech, thoughnot absolute, is nevertheless protected against censorship orpunishment, unless shown likely to produce a clear and presentdanger of a serious substantive evil that rises far above publicinconvenience, annoyance or unrest… There is no room under ourConstitution for a more restrictive view. For the alternative wouldlead to standardization of ideas either by legislatures, courts, ordominant political or community groups." (Terminiello v.Chicago 337 US 1)5

Let it not be misconstrued that this petition simply seeks the perpetuation of

licentiousness in the enjoyment of computers utilized by multi-millions of

netizens6 in the Philippines and indeed around the world. Surely, the petitioners

know that freedom must not be enjoyed for its own sake. It must be exercised with

a profound understanding of its responsibilities for the public good. If the

sanctity of our fundamental freedoms will be curtailed, the petitioners only seek

that it be properly undertaken strictly pursuant to and within the limitations of

the BILL OF RIGHTS enshrined in the people’s Constitution.

Republic Act No. 10175 patently disregards this. Important sections of the

same violate the due process clause of our constitution, the equal protection of the

law clause, the prohibition on illegal seizure, and the double jeopardy proscription.

5 Atty. Mel Sta. Maria, ANALYSIS: The Cybercrime Law and How it Affects Your Freedom of Expression,posted in Interaksyon.com ( News Portal of TV5) on September 17, 2012.http://www.interaksyon.com/article/43328/analysis--the-cybercrime-law-and-how-it-affects-your-freedom-of-expression6 “Netizens” is used to refer to people who use the internet. It is a modern alteration of “citizens”.

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Equally more significant is the law’s violation of the freedom of speech and

expression and the right to privacy of communication. The law or some part of it

should be struck down as void.

The law’s repugnancy betrays its constitutionality. It disobeys the

sovereign command enunciated in Section 10, Article 16 of the 1987 Philippine

Constitution which provides:

The State shall provide the policy environment for the fulldevelopment of Filipino capability and the emergence ofcommunication structures suitable to the needs and aspirations ofthe nation and the balanced flow of information into, out of, andacross the country, in accordance with a policy that respects thefreedom of speech and of the press.

An editorial by InterAksyon.com, the online news portal of broadcasting

network TV5, captures much of petitioners’ concern: 7

“…The law … explicitly brings the archaic libel law…intothe realm of the Internet. [Thus it purports to] settle aquestion that, prior to [President Aquino’s] signing of theCybercrime Law, the Philippines and most other democracieswere still grappling with, and, to their credit, still allowing topercolate in courts and in space which, and for which,behavior, and ergo policies (even ethics and etiquette), arestill in flux. The question being: are social media likeFacebook and Twitter platforms for private or publicexpression?

The Cybercrime Law has answered that question. Anythingyou do online – writing, posting, sharing, "liking" - isessentially publication and for that matter broadcasting.Nothing is private. Everything is actionable, and potentiallycriminal.

[Senator Francis] Escudero… says he did not see theprovision or did not appreciate its implications. He also didnot see additional clauses that aggravate the penalties –greater fines, longer prison terms - for libel when found andproved online. Nor the provision that would allow libel'sprosecution twice over, offline and then online, violatingConstitutional guarantees against double jeopardy.

And it's retroactive, too, experts now say. Or at least, it willerase the very concept of retroactivity. Because the Internetpotentially keeps your posts, tweets, and status updates live in

7http://www.interaksyon.com/article/44266/editorial--oh-please-take-time-to-explain-sen escudero)

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perpetuity – or at least until the Cybercrime law pushes you,as it will, to take everything down – there is no past datebeyond which the long arm of the law cannot reach.”

In other words, the assailed law, as soon as it comes into effect, will

immediately stifle the freedom of Filipinos to express themselves, in what is by far,

the most democratic medium ever created by humankind. It will stifle not only

speech, but thought, altering not only words but action. At every turn and at every

moment online, Filipinos will have a specter of subsequent punishment hanging

over them, effectively acting as prior restraint.

This law, in other words, will not only deprive Filipinos of their

constitutionally guaranteed liberties. It will deprive them of their place in the world

as it has evolved and continues to evolve. It will deny them their place in a world

and time where free expression is not only a right but also integral to the way of

living, of competing, of surviving, of being.

NATURE OF THE PETITION

This petition is filed pursuant to Section I, Article 8 of the 1987

Constitution of the Philippines which pertinently provides that this Honorable

Supreme Court possesses the judicial power “to determine whether or not there

has been a grave abuse of discretion amounting to lack or in excess of jurisdiction

on the part of any branch of government.” This is also brought pursuant to the

power of the Supreme Court under Section 4 of Article 3 of the 1987 Constitution

of the Philippines to decide cases involving the constitutionality of , among

others, a law and its implementation. More particularly , this case is filed as a

special civil action under Rule 65 of the Rules of Court of the Philippines for

Certiorari to declare unconstitutional Sections 4 (c) (4),5,6,7 and 19 of Republic

Act No. 10175 otherwise known as “Cybercrime Prevention Act of 2012”.

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PARTIES

The Petitioners are MELENCIO S. STA.MARIA, AMPARITA S. STA.

MARIA, SEDFREY M. CANDELARIA, RAY PAOLO J. SANTIAGO,

GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN. They can be

served pleadings and processes at the Ateneo Human Rights Center, G/F Ateneo

Professional Schools Building, 20 Rockwell Drive, Rockwell Center, Makati City.

They teach at the Ateneo de Manila University School of Law and are members of

the Ateneo Human Rights Center. Petitioner Melencio S. Sta. Maria further writes

for Interaksyon.com, the internet news portal of TV5 and has a daily show at

Aksyon TV and RADYO 5. They are filing this suit as taxpayers, internet users,

journalist, broadcaster, professors of law and, most importantly, as CITIZENS of

the Republic of the Philippines. They all belong to the Ateneo Human Rights

Center.

Respondents are:

HONORABLE PAQUITO OCHOA in his capacity as Executive

Secretary. He can be served at the Premier Guest House, Malacañang, JP Laurel

St., Manila. He is the alter ego of the President who is charged with the

implementation of all laws in the country, particularly Republic Act No. 10175,

otherwise known as the Cybercrime Prevention Act of 2012.

HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice.

She can be served at the Department of Justice, Padre Faura, Manila. She is

impleaded in her capacity as the government official who is charged with the

supervision and control of the National Bureau of Investigation. She is alter-ego

of the President charged with the enforcement and prosecution of crimes and the

duty of restricting and blocking access to computer data in accordance with

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Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act of

2012.

HONORABLE MANUEL ROXAS Secretary of the Department of

Interior. He can be served at A. Francisco Gold Condominium II, EDSA Corner

Macapagal St., Diliman Quezon City. He is impleaded in his capacity and also in

his capacity as the government official who is charged with the supervision and

control of the Philippine National Police. She is also the alter-ego of the President

charged with the implementation of Republic Act No. 10175, otherwise known as

the “Cybercrime Prevention Act of 2012.”

The CHIEF of the Philippine National Police. He can be served at the PNP

National Headquarters, Camp Crame, Quezon City Metro Manila. He is charged

with the implementation of Republic Act No. 10175, otherwise known as the

“Cybercrime Prevention Act of 2012.”

The DIRECTOR of the National Bureau of Investigation. He can be served

at the NBI Building, Taft Avenue, Manila. He is also charged with the

implementation of Republic Act No. 10175, otherwise known as the “Cybercrime

Prevention Act of 2012.”

BASIS FOR TAKINGCOGNIZANCE OF THIS PETITION

LEGAL STANDING OF THE PETITIONERS

The instant petition is for certiorari under Rule 65 of the Rules of Court and

the jurisdiction of this Honorable Court is being invoked by herein petitioners on

the ground that Sections 4 (4) , 5, 6, 7 and 19 of Republic Act No. 10175,

otherwise known as the “Cybercrime Prevention Act of 2012” promulgated on 12

September 2012 (“R.A. No. 10175”), is in gross contravention of the 1987

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Constitution. Among others, Sections 4 (4) on libel is unconstitutionally

overbroad as it may apparently apply to postings made even before the effectivity

of the law on October 3, 2012 and thus will have the effect of an ex-post-facto

law.

This is not to say nor admit that petitioners committed libel or some other

offense under Republic Act No. 10175 but, considering that Section 19 illegally

grants the Department of Justice (DOJ) power to ORDER blocking or

restricting of access to computer data without notice and hearing, after a prima

facie determination, Section 19 may be applied and place the petitioners and

other netizens in unwanted and serious prejudice intruding into their freedom of

expression and the right to privacy of communication.

Petitioner Melencio S. Sta. Maria is a broadcaster, journalist, internet-user,

and professor of law. As such, he has broadcasts in radio, television and You

Tube. He has published articles posted in cyberspace in Interaksyon.com. With

the enactment of R.A. No. 10175, and the imminent enforcement of Section 19

thereof, the petitioner will sustain a direct injury as described in paragraph 12 of

the STATEMENT OF THE FACTS AND THE CASE and in paragraphs 5 to 8 of

the APPLICATION AND BASIS FOR THE ISSUANCE OF A TEMPORARY

RESTRAINING ORDER.

Petitioners Sedfrey M. Candelaria is the Dean of the Ateneo de Manila

University School of Law and a professor of Constitutional Law, while Amparita

Sta. Maria, Ray Paolo J. Santiago, Gilbert V. Sembrano, and Ryan Jeremiah D.

Quan are all members of the law faculty of the Ateneo Law School and members

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of the Ateneo Human Rights Center. As law professors, they have such a stake in

the outcome of the controversy, where the overbroad provisions of the law present

far-reaching implications on well-settled doctrines on the constitutional guarantees

to the right to information and freedom of speech and of expression, as well as on

legal protections of the privacy of communication and correspondence. Petitioners,

who are also human rights educators, advocates, and legal practitioners, perceive

and are alarmed by the “chilling effect” the law and its particular provisions in

question create on the exercise and enjoyment of citizens’ rights to seek and

receive information, as well as the freedom of speech. Whereas libel has already

been decriminalized in other jurisdictions, R.A. 10175 bolsters and buttresses this

outdated penal provision.

Clearly, therefore, petitioners have legal standing to challenge Sections 4

(4), 5, 6, 7 and 19 of Republic Act No.10175 , consistent with the definition of

locus standi, as enunciated in Francisco, Jr. v. House of Representatives, 415

SCRA 44 (2003), thus –

“Locus standi or legal standing or has been defined as apersonal and substantial interest in the case such that the party hassustained or will sustain direct injury as a result of thegovernmental act that is being challenged. The gist of the questionof standing is whether a party alleges such personal stake in theoutcome of the controversy as to assure that concrete adversenesswhich sharpens the presentation of issues upon which the courtdepends for illumination of difficult constitutional questions.”(underscoring ours)

Moreover, the petitioners are concerned citizens and taxpayers of the

Philippines. With the enactment of Republic Act No. 10175, the enforcement and

implementation thereof would entail expenses to the national treasury for, among

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others, the organization by the National Bureau of Investigation (NBI) and

Philippine National Police (PNP) of a cybercrime unit or center manned by special

investigators to exclusively handle cases involving violations of said law (Sec. 10),

as well as the real-time collection of traffic data (Sec. 12), among others, as

provided in R.A. No. 10175.

In any event, the instant case involves issues of paramount importance as

the constitutionality of some important parts of the statute are in question, insofar

as they patently violate the due process clause, the equal protection of the law

clause, the prohibition on illegal search and seizure, and the double jeopardy

proscription. Equally significant is the fact that the law violates freedom of speech

and expression and the right to privacy of communication as will hereinafter be

discussed.

Hence, the transcendental importance to the public and the nation of the

issues raised demands that this petition for certiorari be settled promptly and

definitely, brushing aside technicalities of procedure and calling for the admission

of a citizen’s taxpayer’s suit, as this Honorable Court held in Santiago v.

Commission on Elections, 270 SCRA 106 (1997), thus –

“In any event, as correctly pointed out by intervenor Rocoin his Memorandum, this Court may brush aside technicalities ofprocedure in cases of transcendental importance. As we stated inKilosbayan, Inc. v. Guingona, Jr.:

A party's standing before this Court is a proceduraltechnicality which it may, in the exercise of its discretion, set asidein view of the importance of issues raised. In the landmarkEmergency Powers Cases, this Court brushed aside thistechnicality because the transcendental importance to the public ofthese cases demands that they be settled promptly and definitely,brushing aside, if we must, technicalities of procedure.” (Supra atp. 135)

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Indeed, this Honorable Court’s pronouncement in the case of Randolf David

v. Gloria Macapagal-Arroyo, G.R. No. 171396, 03 May 2006, teaches us that –

“It must always be borne in mind that the question of locusstandi is but corollary to the bigger question of proper exercise ofjudicial power. This is the underlying legal tenet of the ‘liberalitydoctrine’ on legal standing. It cannot be doubted that the validityof PP No. 1017 and G.O. No. 5 is a judicial question which is ofparamount importance to the Filipino people. To paraphraseJustice Laurel, the whole of Philippine society now waits withbated breath the ruling of this Court on this very critical matter.The petitions thus call for the application of the ‘transcendentalimportance’ doctrine, a relaxation of the standing requirements forthe petitioners in the ‘PP 1017 cases.’”

RIPENESS OF THE PETITION

The instant petition is ripe for adjudication inasmuch as the enactment and

impending implementation of the patently unconstitutional provisions of R.A. No.

10175, involves a clearly justiciable controversy, consistent with Francisco, Jr.

v. House of Representatives, 415 SCRA 44 (2003), which held that –

“In Sanidad v. Commission on Elections, questioned wasthe power of the President to propose amendments to theConstitution on the ground that it was exercised beyond the limitsprescribed by the Constitution. Holding that it was a justiciablecontroversy, this Court made the following disquisition:

The amending process both as to proposal and ratification,raises a judicial question. x x x. The Supreme Court has the lastword in the construction not only of treaties and statutes, but alsoof the Constitution itself. The amending, like all other powersorganized in the Constitution, is in form a delegated and hence alimited power, so that the Supreme Court is vested with thatauthority to determine whether that power has been dischargedwithin its limits.”

Moreover, there is an extreme urgency and necessity to resolve the present

petition in view of the enactment and impending enforcement of R.A. No. 10175,

particularly Sections 4 (4) , 5, 6, 7 and 19 thereof, which is not only patently

http://www.supremecourt.gov.ph/jurisprudence/2006/may2006/G.R. No. 171396.htm

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unconstitutional, but would also result in grave and irreparable injury to the nation,

its citizens and taxpayers (including herein petitioners).

Clearly, therefore, as R.A. No. 10175 has already been signed by the

President and, is already effective by the time of the filing of this petition, the

instant petition is ripe for adjudication, consistent with Francisco, Jr. v. House of

Representatives, 415 SCRA 44 (2003), which held that –

“In Tan v. Macapagal, this Court, through Chief JusticeFernando, held that for a case to be considered ripe foradjudication, ‘it is a prerequisite that something had by then beenaccomplished or performed by either branch before a court maycome into the picture.’ Only then may the courts pass on thevalidity of what was done, if and when the latter is challenged inan appropriate legal proceeding.

The instant petitions raise in the main the issue of thevalidity of the filing of the second impeachment complaint againstthe Chief Justice in accordance with the House Impeachment Rulesadopted by the 12th Congress, the constitutionality of which isquestioned. The questioned acts having been carried out, i.e., thesecond impeachment complaint had been filed with the House ofRepresentatives and the 2001 Rules have already been alreadypromulgated and enforced, the prerequisite that the allegedunconstitutional act should be accomplished and performed beforesuit, as Tan v. Macapagal holds, has been complied with.”

Under the circumstances obtaining and where time is of the essence, no

appeal or any plain, speedy and adequate remedy is available to the herein

petitioners in the ordinary course of law and to whose interests further delay would

be prejudicial.

STATEMENT OF THE FACTS AND THE CASE

1.) On January 30, 2012, the Senate passed Senate Bill No. 2796 entitled

“ An Act Defining CyberCrime Providing Prevention, Investigation and Imposition

of Penalties Therefore and For Other Purposes”;

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2.) On May 21, 2012, the House of Representatives of Congress passed

House Bill No. 5808 entitled “An Act Defining CyberCrime Providing Prevention,

Investigation and Imposition of Penalties Therefore and For Other Purposes”;

3.) After consolidation of House Bill 5808 and Senate Bill 2796, the

President of the Philippines, President Benigno Aquino III, finally signed into law

Republic Act No. 10175, otherwise known as the “CyberCrime Prevention Act of

2012” on September 12, 2012. It was published on September 18, 2012. Judicial

notice under Section 1, Rule 129 of the Rules of Court herein invoked as to the

existence of Republic Act No. 10175.

4.) Republic Act No. 10175 takes effect on October 3, 2012.

5.) Section 28 of Republic Act No. 10175 provides that “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.” The 90-day period from the

approval of the Act by the President will end on December 11, 2012;

6.) The said Republic Act No. 10175 contains, among others, the following

assailed provisions:

CHAPTER IIPUNISHABLE ACTS

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense ofcybercrime punishable under this Act: xxxxxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 ofthe Revised Penal Code, as amended, committed through a computer system or anyother similar means which may be devised in the future.

SEC. 5. Other Offenses. — The following acts shall also constitute an offense:

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(a) Aiding or Abetting in the Commission of Cybercrime. – Any person whowillfully abets or aids in the commission of any of the offenses enumerated in thisAct shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfullyattempts to commit any of the offenses enumerated in this Act shall be held liable.

SEC. 6. 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 andcommunications technologies shall be covered by the relevant provisions of thisAct: Provided, That the penalty to be imposed shall be one (1) degree higher thanthat provided for by the Revised Penal Code, as amended, and special laws, as thecase may be.

SEC. 7. Liability under Other Laws. — A prosecution under this Act shall bewithout prejudice to any liability for violation of any provision of the Revised PenalCode, as amended, or special laws.

SEC. 19. Restricting or Blocking Access to Computer Data. — When a computerdata is prima facie found to be in violation of the provisions of this Act, the DOJshall issue an order to restrict or block access to such computer data.

7.) All of the above provisions, taken singularly and/ together, are

unconstitutional, as they transgress the following provisions of the Bill of Rights

in Article III of the 1987 Constitution of the Philippines:

Section 1. No person shall be deprived of life, liberty, or property without dueprocess of law, nor shall any person be denied the equal protection of the laws.

Section 2. The right of the people to be secure in their persons, houses, papers,and effects against unreasonable searches and seizures of whatever nature and forany purpose shall be inviolable, and no search warrant or warrant of arrest shallissue except upon probable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and the witnesses hemay produce, and particularly describing the place to be searched and the personsor things to be seized.

Section 3. (1) The privacy of communication and correspondence shall beinviolable except upon lawful order of the court, or when public safety or orderrequires otherwise, as prescribed by law.

xxx xxx xxx

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 thegovernment for redress of grievances.

Section 21. No person shall be twice put in jeopardy of punishment for the sameoffense. If an act is punished by a law and an ordinance, conviction or acquittalunder either shall constitute a bar to another prosecution for the same act.

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8.) Petitioner is a broadcaster and a TV Anchor in Radyo 5 and AKSYON

TV. The Program is RELASYON which runs from Monday to Friday from 12:00

pm to 2:00pm. He co-anchors the show with TV5 News and Current Affairs head,

Luchi Cruz Valdes. In the program, they entertain, read and answer questions

coming from various texters and messages from its RELASYON page in

Facebook.

9.) He is also a Facebook and Twitter user. Facebook and Twitter are

social sites where one can post messages and other types of communication

available for everybody to see. He also shares, likes, and re-tweets messages.

10.) He is also a journalist in Interaksyon.com, the news portal of TV5.

Interaksyon.com posts his various articles on topics ranging from currents events

to human interests topics. Messages are received and sent and the petitioner also is

given the option to reply to the messages.

11.) The other petitioners are law professors at the Ateneo de Manila

University School of Law. The matter at hand is of paramount importance to

them considering their roles as both officers of the Court and members of the

academe. Teaching law is not solely about imparting legal knowledge to students.

It is also about being examples to law students by being vanguards of the law.

They are likewise members of the Ateneo Human Rights Center and are engaged

in the promotion and protection of human rights. The implementation of the said

unconstitutional provisions would clearly affect fundamental human rights such as

the right to information, freedom of speech and expression, and the privacy of

communication and correspondence. Also they are also Facebook and Twitter

users.

12.) The above mentioned unconstitutional provisions clearly affect

Petitioners’ freedom of expression in their undertakings as broadcaster, journalist,

law professors, and human rights advocates.

13.) Moreover, with the effectivity of Republic Act No. 10175, another

form of irreparable damage will occur. Petitioners have posted, shared , retweeted

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and liked articles, long and short messages in Facebook and Twitter previous to

the effectivity of Republic Act No. 10175 and this would number more than

hundreds already. Should this law remain effective and lest they might be

subjected to penalties, they will be constrained to again try to recover, look at

and examine all these hundreds of postings, “sharings”, “tweets” and “likings” as

they are still presently in cyberspace somewhere capable of being seen by

anybody. To make such retrieval is virtually impossible as these hundreds of

postings, “sharings”, “tweets” and “likings” number, at least, in the hundreds. It is

impossible for petitioners to even remember all of them. All netizens will be in the

same situation as a result of this unconstitutionally overbroad statute. This is

irreparable injury.

14.) Because Sections 4 (4), 5, 6, 7 and 19 of Republic Act No. 10175 are

clearly unconstitutionally overbroad as will hereafter be discussed, they have to

be declared void. The declaration of the same provisions as unconstitutional will

prevent irreparable injury not only to the petitioners but to the millions of netizens

as well.

GROUNDS FOR THE PETITION

I

Section 19 of Republic Act No. 10175 violatesSection 1 of Article 3 of the BILL OF RIGHTSof the 1987 Philippine Constitution

II


III

Section 19 of Republic Act No. 10175 violatesSection 3 (1) of Article 3 of the BILL OFRIGHTS of the 1987 Philippine Constitution

19

IV

Section 19 of Republic Act No. 10175 violatesSection 21 of Article 3 of the BILL OFRIGHTS of the 1987 Philippine Constitution

V


VI

Sections 6 of Republic Act No. 10175 violatesSections 1 on equal protection and 21 ondouble jeopardy of Article 3 of the BILL OFRIGHTS of the 1987 Philippine Constitution

VII

Section 7 of Republic Act No. 10175 violatesSections 1 on equal protection and 21 ondouble jeopardy of Article 3 of the BILL OFRIGHTS of the 1987 Philippine Constitution

VIII

Section 4 (4) on Libel of Republic Act No.10175 violates Sections 1 and 4 of Article 3 ofthe BILL OF RIGHTS of the 1987 PhilippineConstitution

ARGUMENTS/DISCUSSION

I

Section 19 of Republic Act No.10175 violates Section 1 of Article 3of the 1987 Philippine Constitution

Section 19 of Republic Act No. 10175 provides

20

SEC. 19. Restricting or Blocking Access to ComputerData. — When a computer data is prima facie found to be inviolation of the provisions of this Act, the DOJ shall issue an orderto restrict or block access to such computer data.

Section 19 has become notoriously known as the “takedown clause.”

Textually, the unconstitutionality of the provision is self-evident. It grants the

power on the part of the Department of Justice (DOJ) not only to determine a prima

facie case, but, like a judge, subsequently to issue out ORDERS of restriction or

blocking. The Section itself does not provide any requirement for notice and

hearing. This is unprecedented.

Moreover, borrowing the statement of the Supreme Court in the case of

Cojuangco vs. PCGG, G.R. Nos. 92319-20 October 2, 1990, “it is in such instances

that We say one cannot be ‘a prosecutor and judge’ at the same time."

That Section 19 clearly violates procedural due process has been clearly

explained by one of the petitioners in his article in Interkasyon.com.8 It is worth

reproducing it here. Thus

Without doubt, the power granted to the Department of Justice(DOJ) under Section 19 fundamentally violates the due processclause of the Constitution. Section 1 of Article III of the Bill ofRights of the 1987 Constitution provides that "no person shall bedeprived of life, liberty or property without due process of law, norshall any person be denied the equal protection of the laws."

The DOJ is the prosecutorial arm of the government. When a crimeis committed, the DOJ's power is initially limited to investigationvia the normal preliminary investigation or inquest proceeding.Once the DOJ finds prima facie case that a crime has beencommitted, the only thing it can do is to file the case in court. Oncefiled, it becomes a criminal case.

It is the court which shall decide and issue an order whether or notcertain liberties of the accused as protected by the Constitution canbe legitimately curtailed during the pendency of the case. Hence, ifthere is clear evidence that the accused is a flight-risk, the courtmay legally curtail the accused's liberty to travel by issuing a holddeparture order.

8 Atty. Mel Sta. Maria, OPINION: Beware CyberCrime Law’s Section 19: The Takedown Clause” posted onSeptember 23, 2012 at Interaksyon.com. ’http://www.interaksyon.com/article/43846/opinion--beware-the-cybercrime-laws-section-19---the-takedown-clause

21

Section 19 is extraordinarily different. The DOJ is granted notmerely the power to determine the existence of a prima facie casefor purposes of filing a criminal case in court. Unprecedentedly, itis expressly given the power to ISSUE AN ORDER merely on aprima facie level restricting or blocking access to one’s computerdata at a time when a person may not yet be an accused in acriminal case. Such ORDER intrudes into a person’s constitutionalright to privacy and his or her freedom of expression.

Consequently, the DOJ is not only the prosecutor which is thevictim's adversary in court. The DOJ is also the “judge” that , first,determines on a prima facie level whether or not an intrusion onhis or her liberties can be ordered and, second, ultimatelyORDERS such intrusion even before a court can listen to thevictim’s defense. How can one contend with a prosecutor wholikewise is granted the power of a "judge"? This blatantly violatesthe procedural due process clause which "guarantees proceduralfairness." (Fr. Joaquin Bernas, The 1987 Philippine Constitution, Acomprehensive Reviewer, Page 28, 2006 edition).9

II

Section 19 of Republic Act No. 10175violates Section 4 of Article 3 of the1987 Philippine Constitution

Section 4 of Article 3 of the 1987 Constitution provides that

No law shall be passed abridging the freedom of speech, ofexpression, or of the press, or the right of the people peaceably toassemble and petition the government for redress of grievances.

The extraordinary power of the Department of Justice to issue an order to

restrict or block access to computer data is a form of “prior restraint.” First, the

power is clearly illegal as it is unconstitutional for being violative of the due

process clause. Second, the “blocking” and the “restricting ” immediately snuff

even the opportunity to manifest expression through the computer and cyberspace.

There is total abatement by coercive means on the part of the government for one

to produce speech by way of messages and other forms of communications

through the computer. Third, it prevents expression even before a court of law

decides on any legitimate limitation on the victim’s constitutional right.

9 Ibid.

22

III

Section 19 of Republic Act No. 10175violates Section 3 (1) of Article 3 ofthe 1987 Philippine Constitution

Section 3 (1) of the 1987 Constitution provides that “the privacy of

communication and correspondence shall be inviolable except upon lawful order of

the court, or when public safety or order requires otherwise, as prescribed by law.”

The threshold question is “how does one know what is to be blocked and/or

restricted” from the computer data of the victim. There is no way but to cull and

read all the data-innards of the computer file. Over-reaching is inevitable. Data

which should not be opened will be opened. Those which should not be read will

be read and those which should not be examined will be examined. This is the

only way to discriminate and determine what ought to be blocked and what ought

not to be restricted. In the process, the constitutional right of privacy of

communication and correspondence of the victim will be intruded, interfered

with, and clearly violated. Other files not subject of any inquiry will inevitably

be scrutinized. It is unconstitutionally overbroad. Section 19 is an intrusive

provision clearly endangering one’s privacy of communication. It must be struck

down as unconstitutional.

IV

Section 19 of Republic Act No. 10175violates Section 21 of Article 3 of the1987 Philippine Constitution

1. Blocking of computer data under Section 19 constitutes “seizure”

Again , Section 19 of Republic Act No. 10175 provides

Section 19. Restricting or Blocking Access to Computer Data. –When a computer data is prima facie found to be in violation of theprovisions of this Act, the DOJ shall issue an order to restrict orblock access to such computer data.

23

“Blocking” of computer data is “seizure” within the protective ambit of

Article III, Section 2 of the 1987 Constitution which provides

Section 2. The right of the people to be secure in their persons, houses,papers, and effects against unreasonable searches and seizures of whatevernature and for any purpose shall be inviolable, and no search warrant orwarrant of arrest shall issue except upon probable cause to be determinedpersonally by the judge after examination under oath or affirmation of thecomplainant and the witnesses he may produce, and particularlydescribing the place to be searched and the persons or things to be seized.(underscoring supplied)

“Seizure” of computer data does not require actual taking by, or transfer

of ownership or possession to, the DOJ; nor is it necessary for the “blocking” of

such data to be permanent. For blocking of computer data to constitute seizure, it

is enough that the act of blocking results in the interference with a person’s

possessory interest over such computer data.

In KindHearts for Charitable Humanitarian Development, Inc. v. Geithner

et al., [KindHeart] 2009 U.S. Dist. LEXIS 80475 (N.D. Ohio 2009), the

parameters of “seizure” under the Fourth Amendment, which is the same provision

where the Philippine Constitution based Article III, Section 2, was expounded . In

this case, the plaintiff challenged a provisional determination by the Office of

Foreign Assets Control [OFAC] of the United States Treasury Department that

plaintiff was a Specially Designated Global Terrorist [SDGT]. It also challenged

the block placed by OFAC on plaintiff’s assets pending a full investigation.

Relying on the US Supreme Court case of Soldal v. Cook County, 506 U.S. 56

(1992), the court ruled:

“The government need not take possession of or title to property to‘seize’ it; interference with the target’s possessory interest triggersFourth Amendment scrutiny. Illinois v. McArthur, 531 U.S. 326,330 (2001). In McArthur, officers, who had probable cause tobelieve a suspect’s home contained marijuana, prevented him fromre-entering his home for the two hours needed to obtain a searchwarrant. Id. at 331-332. Even though the officers had taken nothingduring that period, the Court applied Fourth Amendment scrutinyto the ‘temporary seizure’ of the suspect’s home. Id. at 330-31.xxx”

24

“A Fourth Amendment seizure, in contrast, does not result inpassage of title to the government or even necessarily permanentdeprivation. A seizure affects a possessory interest: Id. at 1263. AFourth Amendment seizure may often lead to permanentdeprivation of the property ‘taken’ by government officers, but thatis not always so. xxx Viewing the consequences of a blockingorder in a Fourth Amendment light, the court in AlHaramainstatedthat because ‘[e]ven a temporary deprivation of property’constitutes a seizure, an OFAC blocking action affects FourthAmendment rights. Id. xxx.”

Furthermore, the court also held that blocking as an act of seizure was

further bolstered by the fact that the purpose of such block is to deprive the

plaintiff of access to the benefits of the property.

This conclusion is not only reinforced, but, indeed, madeirrefutable on consideration of the fact that the very purpose of anOFAC blocking action is to “depriv[e] the designated person of thebenefit of the property, including services, that might otherwise beused to further ends that conflict with U.S. interests.” Al Haramain,supra, 585 F. Supp. 2d at 1263. An OFAC block interferes withpossessory rights, and is, in Fourth Amendment terms a seizure.

Clearly, the provision on blocking in Section 19 of Republic Act 10175

constitutes seizure that should first comply with the requirement of a judicial

warrant upon the finding of a probable cause. It should not merely be effected upon

prima facie determination by the DOJ.

On its very face therefore, the said Section 19 is unconstitutional as it

violates the right against unreasonable seizures under Section 2 Article 3 of the

1987 Constitution.

2. Section 19 constitutes “unreasonable” seizure

In the recent case of Ambre y Cayuni v. People, G.R. No. 191532, August

15, 2012, this Honorable Court reiterated the well-entrenched doctrine of the

constitutional right of persons against unreasonable searches and seizures.

“Section 2, Article III of the Constitution mandates that a search

25

and seizure must be carried out through or on the strength of ajudicial warrant predicated upon the existence of probable cause,absent which such search and seizure becomes ‘unreasonable’within the meaning of said constitutional provision. Evidenceobtained and confiscated on the occasion of such an unreasonablesearch and seizure is tainted and should be excluded for being theproverbial fruit of a poisonous tree. In the language of thefundamental law, it shall be inadmissible in evidence for anypurpose in any proceeding.”

On the other hand, the questioned provision states:

Section 19. Restricting or Blocking Access to ComputerData. – When a computer data is prima facie found to be inviolation of the provisions of this Act, the DOJ shall issue an orderto restrict or block access to such computer data.

Moreover, a careful perusal of Section 19 of Republic Act NO. 10175

shows that seizure of a person’s computer data, through the acts of restricting

and/or blocking, can be easily ordered by the DOJ without any court intervention,

such as a warrant, on a prima facie determination by the same government

department that such computer data is “in violation of the provisions of this Act.”

Under Section 3 of said law, computer data is defined as:

(e) Computer data refers to any representation of facts,information, or concepts in a form suitable for processing in acomputer system including a program suitable for processing in acomputer system including a program suitable to cause a computersystem to perform a function and includes electronic documentsand/or electronic data messages whether stored in localcomputer systems or online. (emphasis ours)

This petition maintains that by dispensing with a judicial warrant, Section 19

sanctions unreasonable seizure, which violates the constitutional guarantee and

right of people to be “secure in their persons, houses, papers, and effects”. This is

so because it is primarily only through judicial intervention that the seizure of

such “effects” becomes reasonable as clearly seen from the Constitutional

mandate that any search and/or seizure must be accomplished through probable

cause “determined personally by the judge after examination under oath or

affirmation of the complainant and the witnesses he may produce, and particularly

describing the place to be searched and the persons or things to be seized.”

26

Although our laws also provide for warrantless search and seizures, these

are only exceptions. The general rule is still this: absence of a warrant makes

searches, seizures or arrest unreasonable and unconstitutional. A mere provision of

a law, such as Section 19 of Republic Act NO. 10175 cannot override this

constitutional mandate and protection.

In the case of KindHearts case, supra, the court had also the occasion to

elaborate on the “reasonableness” requirement of the U.S. Constitution’s Fourth

Amendment. In ruling that the seizure was unreasonable, the court said that

(“[R]easonableness in all the circumstances of the particulargovernmental invasion of a citizen’s personal security” is the“touchstone” of Fourth Amendment analysis); Soldal, supra, 506U.S. at 61-62. This does not, however, mean that courts always arefree to conduct open-ended balancing of interests whenever thegovernment has seized property. On the contrary, searches andseizures are usually “reasonable” only when conducted withaljudicial warrant supported by probable cause. Place, supra, 462U.S. at 701. The reasonableness clause under the FourthAmendment “derives content and meaning through reference to thewarrant clause.” U.S. Dist. Court, supra, 407 U.S. at 309-310.Though the ultimate inquiry is reasonableness, “the Amendmentdoes not leave the reasonableness of most seizures to the judgmentof courts or government officers: the Framers of the Amendmentbalanced the interests involved and decided that a seizure isreasonable only if supported by a judicial warrant based onprobable cause.” Place, supra, 462 U.S. at 722 (Blackmun, J.concurring). Under most circumstances searches and seizuresconducted without a warrant are “per se unreasonable under theFourth Amendment – subject only to a few specifically establishedand well-delineated exceptions.” Katz v. U.S., 389 U.S. 347,357(1967). Thus, as stated in Place, supra, 462 U.S. at 701, “In theordinary case, the Court has viewed seizure of personal property asper se unreasonable within the meaning of the Fourth Amendmentunless it is accomplished pursuant to a judicial warrant issued uponprobable cause and particularly describing the items to be seized.”

Without doubt, Section 19 of Republic Act No. 10175 cannot pass the

scrutiny of reasonableness required by Section 2, Article III of the 1987

Constitution. It is unconstitutional and void.

27

V

Section 5 of Republic Act No.10175 violates Section 1 of Article3 of the 1987 PhilippineConstitution

Section 5 of Republic Act No. 10175 provides

SEC. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person whowillfully abets or aids in the commission of any of the offenses enumerated in thisAct shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfullyattempts to commit any of the offenses enumerated in this Act shall be held liable.

Given the nature of how communications are made in the computer

especially the most popular sites such as the Facebook and the Twitter, the

application of Section 5 becomes unconstitutionally overbroad. The analysis of

Petitioner Professor Melencio Sta. Maria at Interaksyon.com10 showing the

unconstitutionally overbroadness of the law is worth reproducing. Thus,

Republic Act 10175, the Cybercrime Law, is a special law.

What does that mean?

It is an accepted legal rule that offenses under special laws areconsidered MALA PROHIBITA as distinguished from MALA INSE. In the latter, there must be a criminal mind to be convicted. Inmurder, theft, robbery and other offenses punished by our RevisedPenal Code, for example, intention to do wrong is an essentialelement. In the former, MALA PROHIBITA, there need not be acriminal mind. The mere perpetuation of the prohibited act isenough.

Good faith and absence of a criminal mind, in other words, are notdefenses. Intent is immaterial, for example, where ordinancesprohibit jaywalking and littering. The Bouncing Check Law isanother special law, and so the mere issuance of a check withoutfunds is punishable.

10 Atty. Mel Sta. Maria “ANALYSIS: How the Cybercrime Law criminalizes “likes” and Tweets” posted onInteraksyon.com on September 28, 2012 http://www.interaksyon.com/article/44251/analysis--how-the-cybercrime-law-criminalizes-likes-and-tweets

28

The Cybercrime Law contains a provision which may implicateanyone who uses Facebook or Twitter.

Section 5 (a) of the law provides that

... The following acts shall also constitute an offense:

Aiding or Abetting in the Commission of Cybercrime. Any personwho willfully abets or aids in the commission of any of theoffenses enumerated in this Act shall be held liable.

"To abet", according to Webster's Dictionary, means "to activelysecond and encourage", "to forward", or "to assist or support in theachievement of a purpose". On the other hand, "to aid" means "toprovide with what is useful or necessary in achieving an end."

Article 3 of our Civil Code provides that "ignorance of the lawexcuses no one from compliance therewith". This means that if youare not aware of the effectivity of an existing law, you can still beheld liable for violating it.

Clearly, Republic Act Number 10175 is a special law providing asit does special crimes.

It likewise adopts the crime of libel provided in the Revised PenalCode and all other crimes therein for as long as they are committedthrough a computer.

To highlight the distinction and "separateness" of these adoptedcrimes, the Cybercrime Law imposes higher penalties. It alsoprovides that a case under the Revised Penal Code is withoutprejudice to the filing of another one under the Cybercrime Law. Inother words, two cases originating from the same act can be filedseparately. The filing can even be simultaneous or successive.Hence if the prosecutor fails in one, he or she can prosecute on theother.

This is indeed a very special law.

When a Facebook or Twitter user posts his or her views,comments, replies or blogs, his or her intention is clearly for otherusers to read them. When another user disseminates them orencourages them by sharing or re-tweeting or even liking, he or sheactively second and encourage, forward, assist or support in theachievement of the purpose of the original writer. Simply put, thesharer or retweeter abets the activities and the objective of theoriginal writer. This may start a chain reaction. Others may showtheir support by merely clicking "like" or they may forward it byfurther sharing and retweeting.

In the context of the specific provisions of the Cybercrime Law,therefore, sharers and retweeters, or even just "likers", are abettorsregardless of intent. The moment he or she disseminates, he or sheabets. A crime has been committed. The defense of good faith, lackof intention to injure and ignorance of the law become totallyirrelevant.

29

The Cybercrime Law has no standards.

It is all encompassing in scope because it has an indiscriminatemultiplier effect brought by successive dissemination potentiallyproducing hundreds of cybercriminals without clear standardsunder the law and causing even innocent minded people to behesitant in expressing their thoughts.

It is unconstitutionally overbroad

“because it also threatens others not before the court-those whodesire to engage in legally protected expression but who mayrefrain from doing so rather than risk prosecution or undertake tohave the law declared partially invalid." (Brockett v. SpokaneArcades, Inc., 472 U.S. 491[, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394](1985). The doctrine contemplates the pragmatic judicialassumption that an overbroad statute will have a chilling effect onprotected expression." City of Daytona Beach v. Del Percio, 476So.2d 197, 202 (Fla.1985). (Sult vs. State o. SC03-542, June 23,2005)

VI

Sections 6 of Republic Act No.10175 violates Sections 1 on equalprotection and 21 on doublejeopardy of Article 3 of the 1987Philippine Constitution

Section 6 Republic Act No. 10175 pertinently provides:

SEC. 6. All crimes defined and penalized by the Revised Penal Code, asamended, and special laws, if committed by, through and with the use ofinformation and communications technologies shall be covered by the relevantprovisions 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.

Section 6 of Republic Act No. 10175 increases the penalty to one degree

provided under the Revised Penal Code and other special laws if committed

through a computer. This is unconstitutional. It violates the equal protection of the

law clause of the 1987 Constitution.

30

Section 1 Article 3 of the Constitution pertinently provides that no person

shall “be denied the equal protection of the laws.” For there to be valid

discrimination, the classification must

a.) rest on substantial distinctions

b.) must be germane to the purpose of the law;

c.) equally apply to all members of the same class

d.) apply to present and future conditions.11

Does the classification rest on substantial distinctions? The only difference

of an offense committed under the Revised Penal Code and other special laws, on

the one hand, and, on the other hand, under the Cybercrime Prevention Act of

2012, is that, in the latter, the crime was committed through a computer. This

distinction is not substantial enough. This is so because, still the offender is just

the same person. For instance, whether you commit the crime of “intriguing

against honor” under the Revised Penal Code or under the CyberCrime Prevention

Act, the offended party was offended because the offender told others

untruthful things about him or her. And whether five more people or six more

people or even two more people read the gossip in the computer, the end result

will still be the same. The offender will be prosecuted for what he or she uttered

or wrote. The computer is immaterial to the injury to the offended party and the

evil intent of the offender. On this score alone, the equal protection clause of the

constitution is already transgressed.

Is the increased penalty germane to the purposes of the law? The answer

clearly is in the negative. The increase in the penalty shall not at all serve the

purposes of the law. Penalties are always a deterrent. Higher penalties may be

greater deterrents. If the purpose of the law is simply to protect the confidentiality

and integrity of the data and information stored in the computer, the penalties in

the Revised Penal Code are sufficient enough as deterrent.

11 People vs. Cayat 68 Phil 12

31

Accordingly, even if the third requisite is complied with, the first and the

second are not met. It is unconstitutional.

VII

Section 7 of Republic Act No.10175 violates Sections 1 on equalprotection and 21 on doublejeopardy of Article 3 of the 1987Philippine Constitution

Section 7 Republic Act No. 10175 pertinently provides:

SEC. 7. Liability under Other Laws. — A prosecution under thisAct shall be without prejudice to any liability for violation of anyprovision of the Revised Penal Code, as amended, or special laws.

Section 21 of Article 3 of the Constitution provides “No person shall be

twice put in jeopardy of punishment for the same offense. If an act is punished by a

law and an ordinance, conviction or acquittal under either shall constitute a bar to

another prosecution for the same act.”

There is no doubt that Section 7 of Republic Act No. 10175 expressly

violates the proscription on double jeopardy as enshrined Section 21 Article 3 of

the 1987 Constitution. The test to determine the existence of “same offense” for

the purpose of double jeopardy has been authoritatively explained by eminent

constitutionalist Fr. Joaquin Bernas S.J. , thus:

The test now is whether one is identical with the other orwhether it is an attempt or frustration of the other or whether oneoffense necessarily includes or is necessarily included in the other.What this test shows is that identity of offenses does not requireone-to-one correspondence between the facts and the law involvedin the two charges. It is necessary, however, that one offense iscompletely included in the other. Thus, while physical injury isnot identical with attempted homicide, for purposes of doublejeopardy, physical injury is “the same” as attempted homicide (which alleges inflicted injury) because physical injury isnecessarily included in such attempted homicide.12

12 Joaquin Bernas. The 1987 Philippine Constitution , A comprehensive Reviewer, 2006 Edition Page 186.

32

Without gainsaying, Section 6 of Republic Act No. 10175 utterly fails

under the above-quoted constitutional test. It is void.

VIII

Section 4 (4) on Libel ofRepublic Act No. 10175 violatesSection 1 and 4 of Article 3 of the1987 Philippine Constitution

Section 4 (4) of Republic Act No. 10175 provides

SEC. 4. Cybercrime Offenses. — The following acts constitute theoffense of cybercrime punishable under this Act: xxxxxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined inArticle 355 of the Revised Penal Code, as amended, committedthrough a computer system or any other similar means which maybe devised in the future.

There is a special reference on libel under Republic Act No. 10175. While

appearing to be a simple adoption of our 80-year old law on libel under the

Revised Penal Code into this new cyberspace law, its application indeed is

unconstitutionally overbroad affecting as it does even “publications” previously

made but still presently in cyberspace.

This can easily be illustrated.

For example, computer user-B shared an article of another user-A in

Facebook which is a social media website that can be seen through the computer.

This happened in January of 2008. The article was libelous but it contained

legitimate gripe on the subject-public official. It remained there and was not

deleted. Because of so many other postings, this libelous posting was overtaken

but not deleted by hundreds, perhaps thousands, of other shared articles from

computer user-B and other hundreds of computer. This “sharing” may have

already been forgotten by computer-user B by October 3, 2012 when Republic

Act No. 10175 takes effect. Let us assume that in December of 2012, the person

subject of the libelous statement was browsing and looking for people to contact

33

with and he or she chanced upon the posting of computer user-B of the libelous

statements made more or less four (4) years ago. Arguably, the libeled person

can still file a case against computer user-B. The over-reaching effect of the law is

thus very palpable.

Section 4 (4) of Republic Act 10175 is not only vague in its application but

it is clearly expansive for it can even encompass speech before the law takes

effect. To correct, clarify or remedy the situation, there is a need for some major

amendment that should narrow its ambit so that postings made previous to the

effectivity of the law cannot be reached and so that no chilling effect of

prosecutions on all existing messages, blogs, comments and other forms of written

communication (but posted prior to the effectivity of the law) could be felt.

A criminal law is overbroad if it punishes activities which areconstitutionally protected, Thornhill v. Alabama, 310 U.S. 88, 97(1940), and it cannot be enforced against any defendant until orunless a limiting construction or partial invalidation narrows itsscope so that it does not threaten protected expression. Broadrickv. Oklahoma, 413 U.S. 601, 613 (1973). Commonwealth vs. DavidOrlando. 371 Mass. 732October 5, 1976 - January 24, 1977

Section 4 (4) clearly is not susceptible to an easy narrowing interpretation

or construction. What is clear is the vagueness of its reach. It thus potentially

infringes on a person’s freedom of speech under Section 4 of Articles 1 and 3 of

the 1987 Constitution. It is , in effect, a form of subsequent punishment.

Finally, because Republic Act No. 10175 is MALA PROHITA, as previously

discussed, computer-user B cannot invoke good faith or absence of criminal intent

as a defense. The law did not take into consideration the peculiarities brought

about by the new environment created by the internet. The reach is just without

any constitutional standards. It so expansive that it violates the narrowing

concept of criminal law. It even has the glaring nuance of an ex-post-facto law.

Section 4 (4) likewise violates the equal protection of the law clause under

Section 1 of Article 3 of the Constitution for there is no substantial distinction for

increasing the penalty under Republic Act No. 10175 vis-à-vis the same libelous

34

act under the Revised Penal Code. In this regard, arguments in Ground VII are

adopted.

APPLICATION AND BASIS FOR THE ISSUANCEOF A TEMPORARY RESTRAINING ORDER

1.) The petitioners hereby adopt all their arguments previously made as part

of this application for a temporary restraining order.

2.) The issuance of a temporary restraining order must satisfy three (3)

elements namely: a.) material invasion of a right; b.) clear right on the part of the

complainant; and c.) necessity for the writ to prevent damage (See Versoza v.

Court of Appeals, 299 SCRA 100)

3.) All the following elements are satisfied.

4.) Section 10 of Article 16 of the 1987 Philippine Constitution provides

that

The State shall provide the policy environment for the fulldevelopment of Filipino capability and the emergence ofcommunication structures suitable to the needs and aspirations ofthe nation and the balanced flow of information into, out of, andacross the country, in accordance with a policy that respects thefreedom of speech and of the press.

5.) It is the right of citizens and taxpayers of a country to have all laws

passed without constitutional infirmity. It is their right to live under a system of

valid laws which passed the legislative mill at the cost of the taxpayers’ money.

It is also their right to compel our public officials only to enforce laws which are

within the mandates of the Constitution and not to enforce those that are void for

being violative thereof.

6.) The implementation of Sections 4 (4), 5, 6, 7 and 19 of Republic Act

10175 will clearly result to a material invasion of the above-mentioned rights and

35

constitutional mandate. No citizen must be allowed even for a second to live

under an infirm law that affects his or her freedom of expression and right to

privacy. Instead of enjoying as a matter of right an “environment for the full

development of Filipino capability and the emergence of communication structures

suitable to the needs and aspirations of the nation and the balanced flow of

information into, out of, and across the country, in accordance with a policy that

respects the freedom of speech and of the press”, the petitioners and the Filipino

people will be suffering under a law that endangers freedom of speech, right to

privacy, and the freedom of the press and all the other rights argued in this

petition.”

7.) Moreover, with the effectivity of Republic Act No. 10175, another form

of irreparable damage will occur. Petitioners have posted, shared , re-tweeted and

“liked” articles, long and short messages in Facebook and Twitter previous to the

effectivity of Republic Act No.10175 and this would number more than hundreds

already. Should this law remain effective and lest they might be subjected to

penalties, they will be constrained to again try to recover, look at and examine

all these hundreds of postings, sharings, tweetings and “likings” as they are still

presently in cyberspace somewhere capable of being seen by anybody. To make

such retrieval is virtually impossible as these hundreds of postings, sharings,

tweetings and “likings” number n the hundreds. It is impossible for petitioners to

even remember all of them. All netizens will be in the same situation as a result of

this unconstitutionally overbroad statute. This is irreparable injury.

8.) Without a temporary restraining order, the petitioners and the Filipino

people will undoubtedly suffer irreparable injury. This is not only an isolated

injury but a constant and recurring one on the basis of the perpetuation of the

questioned provisions of the law which are constitutionally void.

CONCLUDING STATEMENT

Petitioners finally wish to again underscore the dangers of Section 19 of the

Cybercrime Prevention Act. In unison, they reiterate what one of them, Professor

36

Melencio Sta.Maria, has already said in cyberspace, more particularly in his

column at Interaksyon.com.13 that

xxx Section 19 is a gem of a provision for a dictator or one whodesires to become one. It can be used to control and instill fear on themillions of computer users, commentators, bloggers, repliers, sharers,twitters, and re-twitters. It is, in effect, a GAG law potentially capableof shaping people’s mind and way of thinking. Under the threat ofgovernment intrusion, users will be forced to toe the government’s lineif only to make use of or access (or to again make use of or access) theircomputers.

This environment will create a “BIG BROTHER” effect,borrowing the words of US Justice William Douglas , where there willbe an “increasing power of government” interfering into the privatelives of people under the pretext of “national security, law and order ,scientific advancement and the like.” (Justice William Douglas Points ofRebellion, 1969). It can insidiously encroach on the users’ well-keptcomputer-stored-secrets. The chilling-effect of the implementation ofSection 19 is a limitless suppression of the freedom of expression andan undue interference into the privacy of people. It may not onlytake down your computer system. It can also take you down as aperson.

Indeed, in Justice Douglas’ concurring opinion in Gibson v. FloridaLegislative Investigation Committee, (372 U.S. 539, March 25, 1963), he rejectedthe idea of government acting as the “Big Brother” [Orwell, 1949], andemphasized that by the First Amendment, the people have staked their “security onfreedom to promote a multiplicity of ideas” and “to defy governmental intrusioninto these precincts.” Further quoting the concurring opinion of Justice Brandeis inWhitney v. California, (274 U.S. 357, 375, 377) he said

To courageous, self-reliant men, with confidence in the

power of free and fearless reasoning applied through the processes

of popular government, no danger flowing from speech can be

deemed clear and present, unless the incidence of the evil

apprehended is so imminent that it may befall before there is

opportunity for full discussion. If there be time to expose through

discussion the falsehood and fallacies, to avert the evil by the

processes of education, the remedy to be applied is more speech,

not enforced silence. Only an emergency can justify repression.

Such must be the rule if authority is to be reconciled with freedom.

xxx (emphasis ours)

13 http://www.interaksyon.com/article/43846/opinion--beware-the-cybercrime-laws-section-19---the-takedown-clause

37

PRAYER

WHEREFORE, it is most respectfully prayed of this Honorable Court that

a.) upon the filing of this petition,

a.1) a temporary restraining order be issued ordering the

respondents, their representatives, and the government employees

over whom they have control/or supervision to desist from the

implementation of Republic Act. No. 10175; and,

a.2) a Resolution be issued setting ORAL ARGUMENTS

before this Honorable Supreme Court

b.) after due hearing and deliberation

b.1) Declaring NULL AND VOID Sections 4 (4) , 5, 6, 7 and

19 of Republic Act 10175, otherwise known as the Cybercrime

Prevention Act of 2012.

Petitioners pray for such other relief as this Honorable Supreme Court may

find equitable and proper in the premises.

Explanation of Service: Service by registered mail of this petition was

made, if necessary, pursuant to Rule 13 of the Rules of Court due to distance, time

constraint and the filing of equally important pleadings and inadequacy of

messengerial staff.

Makati City October 2, 2012.

38

(orig. signed)

MELENCIO S. STA. MARIA

Counsel / PetitionerAteneo Human Rights Center

G/F Ateneo Professionals Schools Building,20 Rockwell Drive, Rockwell Center, Makati CityPTR No. 6004171; January 2, 2012; Quezon City

IBP Lifetime No. 02689Roll No. 32298; Page No. 460 Book No. XIII

Tel. No. 4136711; Cellphone No. 09189020353MCLE Exemption No. IV-000065; May 16, 2012

(orig. signed)

SEDFREY M. CANDELARIA


G/F Ateneo Professionals Schools Building,20 Rockwell Drive, Rockwell Center, Makati CityPTR No. 1701256; January 3, 2012, Sta. Rosa City

IBP No. 877173; January 2, 2012; RizalRoll of Attorneys No. 33376Tel. No. 8997691 local 2109

MCLE Exemption No. III-000449

(orig. signed)

AMPARITA DE LOS SANTOS – STA.MARIA


G/F Ateneo Professionals Schools Building,20 Rockwell Drive, Rockwell Center, Makati CityPTR No. 6004170; January 2, 2012; Quezon City

IBP Lifetime No. 0042Roll No.32235; Page No. 447; Book No.13

Tel. No. 4136711MCLE Exemption No. lV-000066

39

(orig. signed)

GILBERT V. SEMBRANO


G/F Ateneo Professionals Schools Building,20 Rockwell Drive, Rockwell Center, Makati CityPTR No. 3191587; January 12, 2012, Makati City

IBP Lifetime No. 03400; RizalRoll of Attorneys No. 41030Tel. No. 8997691 local 2109

MCLE Exemption No. III-001557

(orig. signed)

RYAN JEREMIAH D. QUAN


G/F Ateneo Professionals Schools Building,20 Rockwell Drive, Rockwell Center, Makati City

PTR No. 1227400; January 4, 2012; Valenzuela CityIBP No. 877981; January 4, 2012; Bulacan

Roll of Attorneys No. 56765Tel. No. 8997691 local 2109

MCLE Compliance No. III-0014260

(orig. signed)

MARIA PATRICIA R. CERVANTES – POCO

Counsel for the PetitionerAteneo Human Rights Center

G/F Ateneo Professionals Schools Building,20 Rockwell Drive, Rockwell Center, Makati CityPTR No. 3191589; January 12, 2012; Makati City

IBP Lifetime No. 09043; Makati CityRoll of Attorneys No. 58650Tel. No. 8997691 local 2109

Admitted to the Philippine Bar, April 2009

40

(orig. signed)

RAY PAOLO J. SANTIAGO



IBP Lifetime No. 02962Roll of Attorneys No. 46470Tel. No. 8997691 local 2109


(orig. signed)

NINA PATRICIA D. SISON-ARROYO

Counsel for the PetitionerAteneo Human Rights Center


IBP No. 879690; January 5, 2012; PangasinanRoll of Attorneys No. 43124Tel. No. 8997691 local 2109


Documents

AHRC Petition for Certiorari - RA 10175