Republic Act 10175: Cybercrime Prevention Act of 2012Posted on 22 September 2012 | Leave a comment

I

Introduction

There has been a lot of discussions observed days subsequent to the promulgation

of Republic Act 10175, or the Cybercrime Prevention Act of 2012,    on 12 September 2012.

There are some who assail the law to be unconstitutional as it acts as a prior restraint to

freedom of speech, or that it provides undue expanded interference of private activities in the

Internet by the Philippine Government, among others. Let me form my opinion herein, without

providing legal advice, regarding the present law in its final form.

Past proposals for an Anti-CyberCrime Law

The Anti-Cybercrime law was not a recent proposal. Prior versions have been introduced in

previous Congresses but which have been archived when the previous Congresses adjourned,

including the 14th Congress. It appears that prior versions were being pushed to meet (1) the

urgency to penalize child pornography; (2) rectify the perceived weakness of provision(s) on

computer-related crimes in Republic Act 8792, or the Electronic Commerce Act (2000);   (3)

the necessity of expanding the coverage of the applicability of electronic documents, or ITC-

enable acts, to criminal/penal laws, especially those in the Revised Penal Code, where

documents, or in which a computer may be used in the commission thereof, are involved; (4)

the necessity to provide an efficient legal procedure/allowance in the acquisition of evidence

by government agencies when crimes are being committed, or have been committed, through

electronic means; and (5) arrangement towards international cooperation, as acts may be

transnational.

II

Offenses under RA 10175

Child pornography under RA 9775, viz Section 4(c)(2) of RA 10175The main legislation regarding child pornography was enacted in 17 November 2009, through Republic Act 9775, or the Anti-Child Pornography Act of 2009.   As to the matter in meeting the urgency to penalize child pornography, this concern in past cybercrime bill proposals has been resolved by the enactment of RA 9775. As for international cooperation relating thereto, this is provided for under Sections 22 and 23 of RA 9775 [1], As for evidence that would be acquired therein, RA 9775 dumped the responsibility of monitoring, and preservation of data, relevant to infringing activities prohibited by RA 9775 to Internet Service Providers,[2] Mall owners/operators and owners/lessors of business establishments,[3] and Internet Content hosts.[4] Whether evidence acquired by government agencies, as a result of the notifications made by private entities, is not violative of Sections 2 and 3, Article III of the 1987 Philippine Constitution[5]may be a separate Constitutional question that needs to be resolved in the future.Due to the prior promulgation of RA 9775 to the Anti-Cybercrime Act, details regarding measures against child pornography are no longer extensively included in the law’s body unlike prior proposals. Nevertheless, reference to child pornography in RA 10175 can be found in Section 4(c)(2) [6], and the fifth paragraph of Section 8 [7] thereof.

Section 33 (a) of RA 8792, viz Section 4(a)(1) to (5) of RA 10175RA 10175 modified Section 33 (a)[8] of RA 8792, through Section 30 [9] thereof. Relevant to this matter, RA 10175 now, in Section 4(a)(1) to (5) thereof, enumerates “offenses against the confidentiality, integrity and availability of computer data and systems,” such as illegal access, illegal interception, data interference, system interference, and misuse of devices;[10] and the penalties therefor.[11]

The modification of Section 33 (a) of RA 8792 through the iteration of the specific acts under

Section 4 (a)(1) to (5) in RA 10175, somehow clarifies questions/apparent confusions relevant

to “white hat hacking.” Nevertheless, “access” “without right,” in the manner articulated in

the law, does not resolve whether such access without right involves only those applying

technical means or also includes violations of non-technical/layman computer/network usage

policies. Will the Implementing Rules and Regulations clarify the matter? I don’t know.

New offenses under RA 10175There are acts punishable under RA 10175, which have not been covered by previous statutes, or not covered by the elements of similar acts in previous statutes. These include Cyber-squatting in “Offenses against the confidentiality, integrity and availability of computer data and systems” under Section 4(a)(6)[12]; Computer-related forgery, computer-related fraud, and computer-related identity-theft in “Computer-related offenses” under Section 4(b) [13]. The penalties thereof are prescribed in the first and third paragraphs of Section 8.[14]These also include “content-related offenses” such as Cybersex under Section 4(c)(1) [15] and Unsolicited Commercial Communications under Section 4(c)(3).[16] The penalties for Cybersex and Unsolicited Commercial Communications are provided in the fourth [17] and sixth [18] paragraphs of Section 8, respectively.

Outside of this law, disputes pertaining to cyber-squatting are usually covered by

administrative proceedings in pursuance of the ICANN’s Uniform Domain-Name Dispute-

Resolution Policy   . This provision was introduced by Senator Angara (at least for Senate Bill

2796, which was later consolidated with House Bill 5808 to create the present law; see 30

January 2012 Journal of the Senate   ). It may be argued that the act of Congress to make this a

criminal act is excessive else inappropriate, but the decision of Congress to make it a criminal

act would be a political question. Judicial remedy might not be appropriate, and advocacy for

a legislative amendment or repeal might be more suited, if one is opposed to it.

As to cybersex, under the law, such act is restrictively defined or described under the law.

Thus, although engagement in any lascivious exhibition of sexual organs or sexual activity

with the aid of a computer system would be cybersex in layman understanding, the absence

of “for favor or consideration” would not necessarily make it a criminal act. This effectively

removes the State from interfering in the personal intimate activities of persons in

relationships, especially those separated by distance. Nevertheless, the law does not penalize

exhibitionism, possibly to the consternation of moralists who intend to stamp out these

allegedly sexually-deviant behavior.

As to unsolicited commercial communications, this is similar to the mechanics of the 2003

Can-Spam Act in the United States. That being said, this does not cover non-ommercial

communications, such as unsolicited political advertisements from politicians,

notwithstanding the fact that they have the same annoying effect as common spams and

hams.

Other offenses under Section 5, RA 10175“Aiding or Abetting in the Commission of Cybercrime” penalizes non-principals in the commission of cybercrimes enumerated under the law, while “Attempt in the Commission of Cybercrime” recognizes the commission of the crime, notwithstanding the act is merely on the attempted stage. These offenses are mentioned in Section 5, RA 10175.[19] These are penalized under the last paragraph of Section 8.[20]

Applicability to other penal laws, when crime committed using ICT, under Section 6,

RA 10175RA 10175, in Section 6 thereof [21], recognizes that crimes under Revised Penal Code and other special criminal/penal laws may be committed using Information and Communication Technology (ICT), and imposes a penalty one degree higher than those prescribed under said laws.

III

Contentious issue: Libel viz Freedom of Expression

Libel under Chapter 1, Title XIII of the Revised Penal Code (Act 3815 [RPC], 8

December 1930)

Under Article 353 of the Revised Penal Code, libel is defined as “a public and malicious

imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition,

status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or

juridical person, or to blacken the memory of one who is dead.” From such definition, the

elements of libel thus are: “(a) imputation of a discreditable act or condition to another; (b)

publication of the imputation; (c) identity of the person defamed; and, (d) existence of

malice.”(Guingguing vs. Court of Appeals, GR 128959, 30 September 2005; Second Division, Tinga

[J]; citing Vicario v. Court of Appeals, et. al. , 367 Phil. 292, 297 [1990]; citing in turn Daez v. Court

of Appeals   , G.R. No. 47971, 31 October 1990, 191 SCRA 61, 67)

In elaborating the first element, the Court has held that “[a]n allegation is considered

defamatory if it ascribes to a person the commission of a crime, the possession of a vice or

defect, real or imaginary, or any act, omission, condition, status or circumstance which tends

to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one

who is dead.”(Philippine Journalists, Inc. vs. Thoenen   , GR 143372, 13 December 2005; Second

Division, Chico-Nazario [J]; citing Vasquez v. Court of Appeals, G.R. No. 118971, 15 September

1999, 314 SCRA 460, citing in turn Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191

SCRA 61, with other citations omitted as per text of the decision.). As to the second

element,“[t]here is publication if the material is communicated to a third person. It is not

required that the person defamed has read or heard about the libelous remark. What is

material is that a third person has read or heard the libelous statement, for ‘a man’s

reputation is the estimate in which others hold him, not the good opinion which he has of

himself.’” (Ibid.) As to the third element, “to satisfy the element of identifiability, it must be

shown that at least a third person or a stranger was able to identify him as the object of the

defamatory statement.”(Ibid.) As to the last element, “malice or ill will must be

present.” (Ibid.) Under Article 354 of the Revised Penal Code, “Every defamatory imputation is

presumed to be malicious, even if it be true, if no good intention and justifiable motive for

making it is shown, except in the following cases: (1) A private communication made by any

person to another in the performance of any legal, moral or security duty; and (2) A fair and

true report, made in good faith, without any comments or remarks, of any judicial, legislative

or other official proceedings which are not of confidential nature, or of any statement, report

or speech delivered in said proceedings, or of any other act performed by public officers in

the exercise of their functions.”

It is often been said that truth is not a defense in libel cases in the Philippines, but such is a

sweeping statement. The Court provides a caveat, to wit: “Truth then is not a defense, unless

it is shown that the matter charged as libelous was made with good motives and for justifiable

ends.” (Alonzo vs. Court of Appeals   , GR 110088, 1 February 1995; First Division, Davide Jr.

[J]) Albeit limited, Article 361 of the Revised Penal Code provides for acquittal in instances

where truth is proven. Article 361 provides:

Proof of the truth. — In every criminal prosecution for libel, the truth may

be given in evidence to the court and if it appears that the matter charged

as libelous is true, and moreover, that it was published with good motives

and for justifiable ends, the defendant shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a

crime shall not be admitted unless the imputation shall have been made

against Government employees with respect to facts related to the

discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by

him, he shall be acquitted.

Considering the availability of other media beyond those contemplated in the 1930s that

would allow publication of controversial utterance, and considering our history relevant to the

primacy of constitutional rights, there appears a need to revisit the provisions of our libel law

and tune it to the requirement of our times, through appropriate amendatory legislation.

Current exceptions to these apparently archaic provisions include the limited defense of truth,

the propriety of the presumption of malice in one’s articulation, and the shift of the burden of

proof to the accused to demonstrate the truth of his/her articulation. An accused should

remain to be presumed innocent of any wrongdoing, and those who impute against another

person the commission of a crime or wrongdoing in a court of law should be the one tasked to

discharge the burden of proving the same, and not the other way around.

Libel under Section 4(c)(4), RA 10175Libel is enumerated as a content-related offense under Section 4(c)(4), RA 10175.[22]. If libel was not included as a separate entry in Section 4, it would have been covered by Section 6 anyhow. Curiously enough, nothing in Section 8 provides for a penalty therefor, unlike those in Section 6 where such acts would solicit a penalty one degree higher if committed using ICT.

The question, as to whether such omission was inadvertent, is something one ponders on,

absent clearer indications. Was the inclusion of libel as a content-related offense a mere

emphasis, a recognition that libel can be committed through the use of ICT, like all those

mentioned in Section 6 thereof, and thus the additional degree for penalty would apply? Or

was the separation of libel, from other crimes under Section 6, an indication that libel is

removed from the ambit of Section 6, which imposes an additional degree as penalty? The

provision sticks like a sore thumb, and is the rallying point on reactions against the law, for

allegedly being a prior restraint on free expression.

Parenthetically, Senator Sotto introduced the amendment in Section 4(c)(4), according to

the Senate Journal of 30 January 2012   . As to the question, as to whether the introduction of

the same is connected to the slew of online reactions against the Senator for his alleged

plagiarism, as retribution, that seems to be unfounded. The amendment was introduced

months before his “turno en contraspeeches,” (Pope issue (August 2012)   , Kennedy issue

(September 2012)   . The timeline, on its face, militates against a causal connection.

Be as it may, the inclusion of libel in RA 10175 should not impose an increase penalty of

imprisonment just because ICT has been utilized in the commission thereof, whether now or in

the future, in keeping with our treaty obligation, especially under the International Covenant

on Civil and Political Rights (ICCPR). Less severe sanctions than imprisonment should be

resorted to, as much as practicable. Relevant to this, the Philippine Supreme Court already

had promugated the guidelines in the observance of a rule of preference in the imposition of

penalties in libel cases, through Administrative Circular 8-2008   on 25 January 2008.

Freedom of Expression viz libel

Section 4, Article III, of the 1987 Constitution states that “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.”

“The right of free speech is not absolute at all times and under all circumstances. There are

certain well-defined and narrowly limited classes of speech, the prevention and punishment of

which has never been thought to raise any Constitutional problem. These include the lewd

and obscene, the profane, the libelous, and the insulting or ‘fighting’ words – those which by

their very utterance inflict injury or tend to incite an immediate breach of the peace. It has

been well observed that such utterances are no essential part of any exposition of ideas, and

are of such slight social value as a step to truth that any benefit that may be derived from

them is clearly outweighed by the social interest in order and morality.” (Philippine Journalists,

Inc. vs. Thoenen, supra.; citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 Ct. 766, 86 L.Ed.

1031) Libel is not protected speech.(Ibid.)

The issue between the freedom of speech and press and assembly, and the laws on libel and

slander, was first discussed in US v. Bustos    (37 Phil. 731 [1918]).Applying the prevailing

English and American jurisprudence therein, the Court declared to the effect that: “The

interest of society and the maintenance of good government demand a full discussion of

public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the

case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men

in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged

with the balm of a clear conscience. A public officer must not be too thin-skinned with

reference to comment upon his official acts. Only thus can the intelligence and dignity of the

individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the

individual is less than the State, so must expected criticism be born for the common good?

Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to

the Judiciary – to any or all the agencies of Government – public opinion should be the

constant source of liberty and democracy.” (Philippine Journalists, Inc. vs. Thoenen, supra.; citing

US v. Bustos, 37 Phil. 731 [1918]; with original citations omitted)

Doctrine of privileged communication

“The demand to protect public opinion for the welfare of society and the orderly

administration of government inevitably lead to the adoption of the doctrine of privileged

communication.” (Philippine Journalists, Inc. vs. Thoenen, supra.) “A privileged communication

may be either absolutely privileged or qualifiedly privileged. Absolutely privileged

communications are those which are not actionable even if the author has acted in bad faith.

An example is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a member of

Congress from liability for any speech or debate in the Congress or in any Committee thereof.

Upon the other hand, qualifiedly privileged communications containing defamatory

imputations are not actionable unless found to have been made without good intention or

justifiable motive. To this genre belong ‘private communications’ and ‘fair and true report

without any comments or remarks.’”(Ibid.; citing Borjal v. Court of Appeals, G.R. No. 126466, 14

January 1999, 301 SCRA 1)Qualified privileged communications correspond to those

enumerated in Article 354 of the RPC, where malice is not presumed.

Section 354 (1) which provides the privilege involving “[a] private communication made by

any person to another in the performance of any legal, moral or security duty” would not

have issues when it involves a private person. A declaration that “[a] written letter containing

libelous matter cannot be classified as privileged when it is published and circulated in

public” (Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191 SCRA 61, 69; citing Lacsa

v. IAC   , G.R. No. 74907, 23 May 1988, 161 SCRA 427) would be understandable in such a case.

Nevertheless, it has been previously declared that “A communication made bona fide upon

any subject-matter in which the party communicating has an interest, or in reference to which

he has a duty, is privileged, if made to a person having a corresponding interest or duty,

although it contained criminatory matter which without this privilege would be slanderous and

actionable. A pertinent illustration of the application of qualified privilege is a complaint made

in good faith and without malice in regard to the character or conduct of a public official when

addressed to an officer or a board having some interest or duty in the matter.”  (Philippine

Journalists, Inc. vs. Thoenen, supra.; citing US v. Bustos, 37 Phil. 731, 742-743 [1918])  This is

expounded subsequently, that “[a]s a rule, it is the right and duty of a citizen to make a

complaint of any misconduct on the part of public officials, which comes to his notice, to

those charged with supervision over them. Such a communication is qualifiedly privileged and

the author is not guilty of libel. The rule on privilege, however, imposes an additional

requirement. Such complaints should be addressed solely to some official having jurisdiction

to inquire into the charges, or power to redress the grievance or has some duty to perform or

interest in connection therewith.” (Ibid.; citing Daez v. Court of Appeals, G.R. No. 47971, 31

October 1990, 191 SCRA 61, 69)

This presents a problem when the fine line between criticism and perceived defamation blurs,

as it would due to the contending claims of parties involved. It could be contended that the

additional requirement that “such complaints should be addressed solely to some official

having jurisdiction to inquire into the charges, or power to redress the grievance or has some

duty to perform or interest in connection therewith” provides a prior restraint in the exercise

of free expression and the right to petition the government for redress of grievances. This

apprehension or fear magnifies when it is made applicable in online speech, as it will affect

more people.

The declarations in Guingguing vs. Court of Appeals    appear more reasonable, when

public officials or public figures are involved. In said case, the Court held:

Particularly, this Court has accepted the proposition that the actual malice

standard governs the prosecution of criminal libel cases concerning public

figures. In Adiong v. COMELEC   , (G.R. No. 103956, 31 March 1992, 207

SCRA 712) the Court cited New York Times in noting that “[w]e have

adopted the principle that debate on public issues should be uninhibited,

robust, and wide open and that it may well include vehement, caustic and

sometimes unpleasantly sharp attacks on government and public

officials.” (Id. at 716). The Court was even more explicit in its affirmation of

New York Times in Vasquez v. Court of Appeals    (373 Phil. 238 [1999]).

Speaking through Justice Mendoza:

For that matter, even if the defamatory statement is

false, no liability can attach if it relates to official

conduct, unless the public official concerned proves

that the statement was made with actual malice — that

is, with knowledge that it was false or with reckless

disregard of whether it was false or not. This is the gist

of the ruling in the landmark case ofNew York Times

v. Sullivan, which this Court has cited with approval in

several of its own decisions. (Particularly cited are Lopez

v. Court of Appeals   , 145 Phil. 219 [1970]; Mercado v.

Court of First Instance   , 201 Phil. 565 [1982]; Babst v.

National Intelligence Board   , 132 SCRA 316, 325 [1984]

[Fernando, C.J., concurring]) This is the rule of “actual

malice.” In this case, the prosecution failed to prove

not only that the charges made by petitioner were false

but also that petitioner made them with knowledge of

their falsity or with reckless disregard of whether they

were false or not. (Vasquez v. Court of Appeals, 373 Phil.

238, 254 [1999])

The Court has likewise extended the “actual malice” rule to apply not only

to public officials, but also to public figures. In Ayer Productions Pty.

Ltd. v. Capulong    (G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA

861), the Court cited with approval the following definition of a public

figure propounded by an American textbook on torts:

A public figure has been defined as a person who, by

his accomplishments, fame, or mode of living, or by

adopting a profession or calling which gives the public

a legitimate interest in his doings, his affairs, and his

character, has become a ‘public personage.’ He is, in

other words, a celebrity. Obviously to be included in

this category are those who have achieved some

degree of reputation by appearing before the public, as

in the case of an actor, a professional baseball player, a

pugilist, or any other entertainer. The list is, however,

broader than this. It includes public officers, famous

inventors and explorers, war heroes and even ordinary

soldiers, an infant prodigy, and no less a personage

than the Grand Exalted Ruler of a lodge. It includes, in

short, anyone who has arrived at a position where

public attention is focused upon him as a person. (Id. at

874-875; citing Prosser and Keeton on Torts, [5th ed.] at

859-861)

Ayer did not involve a prosecution for libel, but a complaint for injunction

on the filming of a dramatized account of the 1986 EDSA Revolution.

Nonetheless, its definition of a public figure is important to this case, as it

clearly establishes that even non-governmental officials are considered

public figures. In fact, the definition propounded in Ayer was expressly

applied by the Court in Borjal v. Court of Appeals    (361 Phil. 1, 7

[1999]) in ascertaining whether the complainant therein was a public

figure, thus warranting the application of the actual malice test.

We considered the following proposition as settled in this jurisdiction: that

in order to justify a conviction for criminal libel against a public figure, it

must be established beyond reasonable doubt that the libelous statements

were made or published with actual malice, meaning knowledge that the

statement was false or with reckless disregard as to whether or not it was

true.

More importantly, the Court held, in the same case, that:

… [Article 354 of the Revised Penal Code], as applied to public figures

complaining of criminal libel, must be construed in light of the

constitutional guarantee of free expression, and this Court’s precedents

upholding the standard of actual malice with the necessary implication

that a statement regarding a public figure if true is not libelous. The

provision itself allows for such leeway, accepting as a defense “good

intention and justifiable motive.” The exercise of free expression, and its

concordant assurance of commentary on public affairs and public figures,

certainly qualify as “justifiable motive,” if not “good intention.”

It cannot be helped if the commentary protected by the Bill of Rights is

accompanied by excessive color or innuendo. Certainly, persons in

possession of truthful facts are not obliged to present the same in bland

fashion. These true facts may be utilized to convince the listener/reader

against a particular position, or to even dissuade one against accepting

the credibility of a public figure. Dry facts, by themselves, are hardly

stirring. It is the commentary thereupon that usually animates the

discourse which is encouraged by the Constitution as integral to the

democratic way of life. This is replete in many components of our daily life,

such as political addresses, televised debates, and even commercial

advertisements.

As adverted earlier, the guarantee of free speech was enacted to protect

not only polite speech, but even expression in its most unsophisticated

form. Criminal libel stands as a necessary qualification to any absolutist

interpretation of the free speech clause, if only because it prevents the

proliferation of untruths which if unrefuted, would gain an undue influence

in the public discourse. But in order to safeguard against fears that the

public debate might be muted due to the reckless enforcement of libel

laws, truth has been sanctioned as a defense, much more in the case

when the statements in question address public issues or involve public

figures.

In ascertaining the degree of falsity that would constitute actual malice,

the Court, citing New York Times, has even gone so far as

acknowledging:

Even assuming that the contents of the articles are

false, mere error, inaccuracy or even falsity alone does

not prove actual malice. Errors or misstatements are

inevitable in any scheme of truly free expression and

debate. Consistent with good faith and reasonable

care, the press should not be held to account, to a

point of suppression, for honest mistakes or

imperfections in the choice of language. There must be

some room for misstatement of fact as well as for

misjudgment. Only by giving them much leeway and

tolerance can they courageously and effectively

function as critical agencies in our democracy.

The reiteration of this holding could alleviate concerns regarding articulation of criticism of

and/or grievances against the government and its agents by individuals, not directed to

judicial or administrative fora, over the various media, including the Internet.

ICCPR and General Comment No. 34In a submission where Article 19 [23] of the International Covenant on Civil and Political Rights was in point, the United Nations Human Rights Committee’s (UNHRC) declaration in Communication 1815/2008   , adopted 26 October 2011, provided, in part, that:

8.7 The Committee takes note of the author’s allegation that his conviction

for defamation under the Philippine Penal Code constitutes an illegitimate

restriction of his right to freedom of expression because it does not

conform to the standards set by article 19, paragraph 3 of the Covenant.

The author maintains, in particular, that the criminal sanction of

imprisonment established by the Philippine Revised Penal Code for libel is

neither necessary nor reasonable, because of the following reasons: a)

there are less severe sanctions available; b) it admits no proof of truth as

a defense except for very limited cases; c) it does not take into account

the public interest as a defense; or d) it presumes maliced in the allegedly

defamatory statements placing the burden of proof on the accused.

8.8 Article 19, paragraph 3 lays down specific conditions and it is only

subject to these conditions that restrictions may be imposed, i.e. the

restrictions must be provided by law; they may only be imposed for one of

the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they

conform to the strict tests of necessity and proportionality. (General

Comment No. 34, cit. para. 22)

8.9 The Committee recalls its General Comment No. 34 according to which

“Defamation laws must be crafted with care to ensure that they comply

with paragraphs 3 and that they do not serve, in practice, to stifle freedom

of expression. All such laws, in particular penal defamation laws, should

include such defences as the defence of truth and they should not be

applied with regard to those forms of expressions that are not, of their

nature, subject to verification. At least with regards to comments about

public figures, consideration should be given to avoiding penalising or

otherwise rendering unlawful untrue statements that have been published

in error but without malice. In any event, a public interest in the subject

matter of the criticism should be recognised as a defence. Care should be

taken by States parties to avoid excessively punitive measures and

penalties. (…) State parties should consider the decriminalization of

defamation and, in any case, the application of the criminal law should

only be countenanced in the most serious of cases and imprisonment is

never an appropriate penalty” (Ibid. para. 47)

8.10 In light of the above the Committee considers that, in the present

case the sanction of imprisonment imposed on the author was

incompatible with article 19, paragraph 3 of the Covenant.

9. The Human Rights Committee, acting under article 5, paragraph 4, of

the Optional Protocol to the International Covenant on Civil and Political

Rights (ICCPR), is of the view that the facts before the Committee disclose

a violation by the Philippines of articles 14, paragraph 3 and 19 of the

Covenant.

It must be recalled that the journalist, who sought remedies from the UNHRC, was sentenced

to imprisonment of a minimum of five months and one day to a maximum of four years, six

months and one day and to pay a fine of P100,000 in January 2007 for publishing reports that

the House Speaker and his alleged mistress had been caught in a hotel by the latter’s

husband. The sentence was imposed before the promulgation of AC 8-2008, which

recommended the preference of fine over imprisonment.

That being said, the possibility of imprisonment remains to be available notwithstanding AC 8-

2008. It would thus be understandable that there is a push to decriminalize libel laws.

Proposals for the decriminalization of libel are already being pushed through House Bill 6391  

and Senate Bill 3244   . Both bills propose the decriminalization of libel, and shift the

responsibility of utmost imposing discipline among practitioners of mass communications

(who should be, under the bills, members of registered professional organizations). The

proposed bills appear abbreviated and sweeping, but at the same time oriented to a specific

class. There are questions that I would not acquire answers for, based on the current contents

of the proposed bills.

IV

Contentious issue: Privacy

Right to privacy

“The right to privacy, as an inherent concept of liberty, has long been recognized as a

constitutional right.” (Gamboa vs. Chan, GR 193636, 24 July 2012; En Banc, Sereno [J]) “Liberty

in the constitutional sense must mean more than freedom from unlawful governmental

restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be

let alone is indeed the beginning of all freedom. “ (Morfe vs. Mutuc, GR L-20387, 31 January

1968, En Banc, Fernando [J]; citing Douglas [J], dissenting, Public Utilities Commission of the

District of Columbia et al. vs. Pollak et al.   , 343 US 451) “[A]s against the government, the right

to be let alone-the most comprehensive of rights and the right most valued by civilized

men.” (Morfe vs. Mutuc, GR L-20387, 31 January 1968, En Banc, Fernando [J]; citing Brandeis [J],

dissenting, in Olmstead et al. vs. United States   , 277 US 438)

In Morfe vs. Mutuc   , GR L-20387, 31 January 1968, En Banc, Fernando [J]:

The right to privacy as such is accorded recognition independently of its

identification with liberty; in itself, it is fully deserving of constitutional

protection. The language of Prof. Emerson is particularly apt: “The concept

of limited government has always included the idea that governmental

powers stop short of certain intrusions into the personal life of the citizen.

This is indeed one of the basic distinctions between absolute and limited

government. Ultimate and pervasive control of the individual, in all

aspects of his life, is the hallmark of the absolute state. In contrast, a

system of limited government, safeguards a private sector, which belongs

to the individual, firmly distinguishing it from the public sector, which the

state can control. Protection of this private sector — protection, in other

words, of the dignity and integrity of the individual — has become

increasingly important as modern society has developed. All the forces of

a technological age — industrialization, urbanization, and organization —

operate to narrow the area of privacy and facilitate intrusion into it. In

modern terms, the capacity to maintain and support this enclave of

private life marks the difference between a democratic and a totalitarian

society.” (Emerson, Nine Justices in Search of a Doctrine, 64 Mich. Law. Rev.

219, 229 [1965])“The right of privacy is recognized and enshrined in several provisions of our Constitution.” (Ople v. Torres, GR 127685, 23 July 1998; En Banc, Puno [J]; citing Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of Privacy, p. 18 [1970]) In the same case, it was stated that it is explicitly recognized under Section 3(1), Article III of the 1987 Constitution.[24]; and that certain facets of the right of privacy can also be found in other provisions of the 1987 Constitution, such as Section 1 [25]; Paragraph 1 of Section 2 [26], Section 6 [27], Section 8 [28], and Section 17 [29] of Article III, 1987 Constitution.

In Ople v. Torres   , GR 127685, 23 July 1998; En Banc, Puno [J]:

Zones of privacy are likewise recognized and protected in our laws. The

Civil Code provides that “[e]very person shall respect the dignity,

personality, privacy and peace of mind of his neighbors and other persons”

and punishes as actionable torts several acts by a person of meddling and

prying into the privacy of another. (Article 26, Civil Code) It also holds a

public officer or employee or any private individual liable for damages for

any violation of the rights and liberties of another person, (Article 32, Civil

Code) and recognizes the privacy of letters and other private

communications. (Article 723, Civil Code) The Revised Penal Code makes a

crime the violation of secrets by an officer, (Article 229, Revised Penal

Code) the revelation of trade and industrial secrets, (Articles 290-292,

Revised Penal Code) and trespass to dwelling. (Article 280, Revised Penal

Code) Invasion of privacy is an offense in special laws like the Anti-

Wiretapping Law, (Republic Act 4200) the Secrecy of Bank Deposits

Act (Republic Act 1405) and the Intellectual Property Code. (Republic Act

8293) The Rules of Court on privileged communication likewise recognize

the privacy of certain information. (Section 24, Rule 130 [C], Revised Rules

on Evidence)

In Gamboa vs. Chan   , GR 193636, 24 July 2012; En Banc, Sereno [J]:

[T]he right to privacy is considered a fundamental right that must be

protected from intrusion or constraint. However, in Standard Chartered

Bank v. Senate Committee on Banks    (G.R. No. 167173, 27 December

2007, 541 SCRA 456), this Court underscored that the right to privacy is

not absolute, viz:

With respect to the right of privacy which petitioners

claim respondent has violated, suffice it to state that

privacy is not an absolute right. While it is true that

Section 21, Article VI of the Constitution, guarantees

respect for the rights of persons affected by the

legislative investigation, not every invocation of the

right to privacy should be allowed to thwart a

legitimate congressional inquiry. In Sabio v. Gordon, we

have held that the right of the people to access

information on matters of public concern generally

prevails over the right to privacy of ordinary financial

transactions. In that case, we declared that the right to

privacy is not absolute where there is an overriding

compelling state interest. Employing the rational basis

relationship test, as laid down in Morfe v. Mutuc, there

is no infringement of the individual’s right to privacy as

the requirement to disclosure information is for a valid

purpose, in this case, to ensure that the government

agencies involved in regulating banking transactions

adequately protect the public who invest in foreign

securities. Suffice it to state that this purpose

constitutes a reason compelling enough to proceed

with the assailed legislative investigation. (Id. at 475-

476 [citing Morfe v. Mutuc, 130 Phil. 415 [1968]; Gordon v.

Sabio   , 535 Phil. 687 [2006])

Therefore, when the right to privacy finds tension with a competing state

objective, the courts are required to weigh both notions. In these cases,

although considered a fundamental right, the right to privacy may

nevertheless succumb to an opposing or overriding state interest deemed

legitimate and compelling.

Section 12 to 17, RA 10175Section 12 to 17, of RA 10175,[30] provides for the mechanism in which evidence would be acquired, maintained, and disposed, pursuant to the law.

Some sectors fear the import of Section 12 as it appears to be a blanket allowance for the

government to conduct surveillance against the general populace with impunity. The

paragraphs one, two, and four of Section 12 provide:

Law enforcement authorities, with due cause, shall be authorized to collect

or record by technical or electronic means traffic data in real-time

associated with specified communications transmitted by means of a

computer system.

Traffic data refer only to the communication’s origin, destination, route,

time, date, size, duration, or type of underlying service, but not content,

nor identities.

xxx

Service providers are required to cooperate and assist law enforcement

authorities in the collection or recording of the above-stated information.

Privacy in relation to Section 12, RA 10175

To reiterate, Section 3 (1), Article III, 1987 Constitution provides: “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. Data relating to

offenses committed under RA 10175, to be seized would be covered by paragraphs three and

five of Section 12 to comply with the law, as to the requirement of “upon lawful order of the

court,” to wit:

All other data to be collected or seized or disclosed will require a court

warrant.

xxx

The court warrant required under this section shall only be issued or

granted upon written application and the examination under oath or

affirmation of the applicant and the witnesses he may produce and the

showing: (1) that there are reasonable grounds to believe that any of the

crimes enumerated hereinabove has been committed, or is being

committed, or is about to be committed: (2) that there are reasonable

grounds to believe that evidence that will be obtained is essential to the

conviction of any person for, or to the solution of, or to the prevention of,

any such crimes; and (3) that there are no other means readily available

for obtaining such evidence.

The only contention thus would gravitate towards the collection of data, prior to the issuance

of a court warrant, specified under paragraphs one, two and four of Section 12. It is expected

to be argued that these provisions are the ones covered by the clause “when public safety or

order requires otherwise as prescribed by law.”

The key to the determination of whether the law is narrowly drawn may lie in the phrase “with

due cause,” and its actual import. Is this a mere legal formalization of methods and

procedures, with due regard to probable cause, in the conduct of investigation by police

agencies (such as the National Bureau of Investigation [PNP], the Philippine National Police-

Anti Kidnapping Group [PNP-AKG, formerly Police Anti-Crime and Emergency Response or

PACER]) when crimes are being committed, or were just committed, through the use of ICT?

Or is it the allowance for government to conduct active monitoring of the Internet activities of

the populace, premised on any alleged pursuit of public safety or order?

It has been held, in Ople vs. Torres, supra., that “[W]hen the integrity of a fundamental right

is at stake, this court will give the challenged law, administrative order, rule or regulation a

stricter scrutiny. It will not do for the authorities to invoke the presumption of regularity in the

performance of official duties. Nor is it enough for the authorities to prove that their act is not

irrational for a basic right can be diminished, if not defeated, even when the government does

not act irrationally. They must satisfactorily show the presence of compelling state interests

and that the law, rule or regulation is narrowly drawn to preclude abuses. This approach is

demanded by the 1987 Constitution whose entire matrix is designed to protect human rights

and to prevent authoritarianism. In case of doubt, the least we can do is to lean towards the

stance that will not put in danger the rights protected by the Constitution.”

The constitutionality of Section 12 can only be resolved, through the presentation of proof by

the government. In the same case, the Court held that“[T]he right to privacy is a fundamental

right guaranteed by the Constitution, hence, it is the burden of government to show that” the

measure or legislation“is justified by some compelling state interest and that it is narrowly

drawn.”

International Cooperation

Considering that the acts prohibited in the law may be transnational, Section 22 of the law

provides:

All relevant international instruments on international cooperation in

criminal matters, arrangements agreed on the basis of uniform or

reciprocal legislation, and domestic laws, to the widest extent possible for

the purposes of investigations or proceedings concerning criminal offenses

related to computer systems and data, or for the collection of evidence in

electronic form of a criminal, offense shall be given full force and effect.

VI

Jurisdiction

Section 21, RA 10175 provides:

The Regional Trial Court shall have jurisdiction over any violation of the

provisions of this Act, including any violation committed by a Filipino

national regardless of the place of commission. Jurisdiction shall lie if any

of the elements was committed within the Philippines or committed with

the use of any computer system wholly or partly situated in the country, or

when by such commission any damage is caused to a natural or juridical

person who, at the time the offense was committed, was in the Philippines.

There shall be designated special cybercrime courts manned by specially

trained judges to handle cybercrime cases.

The jurisdiction of the Regional Trial Court is fixed under RA 10175 on all punishable acts

(Sections 4-7 thereof). The phrase attached to such jurisdiction“including any violation

committed by a Filipino national regardless of the place of commission”, however, appears

oddly placed. The second sentence is more understandable, as it provides qualification to a

basic precept in criminal procedure that “[U]nlike in civil cases, in criminal cases venue is

jurisdictional.”(People vs. Metropolitan Trial Court of Quezon City, GR 123263, 16 December 1996;

Third Division, Narvasa [CJ]; citing People v. Mercado, 65 Phil. 665; Alfelor, et al. v. Intia, et al., 70

SCRA 460, citing in turn Lopez v. City Judge, 18 SCRA 616, and in turn citing US v. Pagdayuman, 5

Phil. 265; Beltran v. Ramos, 96 Phil. 149; Ragpala v. Justice of the Peace of Tubod, 109 Phil. 373;

People v. Yumang, 11 SCRA 279; People v. San Antonio, 14 SCRA 63; Bala v. Martinez, 181 SCRA

459, 569, citing in turn Ragpala v. Tubod, 109 Phil. 373)Although it may be implied

that “including any violation committed by a Filipino national regardless of the place of

commission” provides an exception to the venue-jurisdiction requirement, similar to Article 2

of the Revised Penal Code but this time directed to the specific nationality of the actor in the

commission of offenses under RA 10175, such articulation is currently deficient in its form.

Parenthetically, it must be noted, even before the promulgation of the law, the Supreme Court

has tackled the proper jurisdiction of “online libel” in Bonifacio vs. Regional Trial Court of

Makati   , GR 184800, 5 May 2010; First Division, Carpio-Morales [J]

VI

Admissibility of Evidence

My opinion on the matter has been previously articulated in Repost 10/Jan/12, update:

“Phantom resolution” (Original post, 10 January 2012; updated, 29 August 2012), which

tackles the Rules on Electronic Evidence (AM 01-7-01-SC) in light of the case of  Ang vs.

Court of Appeals   , GR 182835, 20 April 2010; Second Division, Abad [J].

VII

Conclusion

RA 10175 has been recently promulgated and, as of this writing, the Implementing Rules and

Regulations are yet to be promulgated. RA 10175 attempts to enumerate offenses that can be

committed using Information and Communication Technologies, and to extend its application

to crimes and offenses already available under other laws but where ICT may be used in its

commission.

The fear of the populace regarding the perceived encroachment of the law in the exercise of

Free Expression, and the right to privacy, is well-taken, and in some degree, shared.

It can be shown that our present libel law is not in tune with the times, and in some shades of

its archaic notion may indeed infringe upon the right of the people to free speech and to right

to air its grievances against the government. Amendment(s) of the source law in the Revised

Penal Code appears necessary, so as to safeguard the people’s freedom of speech and of the

press, considering new avenues for publication. I reserve my agreement with the movement

to decriminalize libel laws for the meantime, for lack of personal research so far to form a

concrete opinion on the matter. On the other hand, the provision in the law that would

warrant the collection and seizure of data, prior to the acquisition of a warrant of search with

the proper court, in compliance with the provisions of the Constitution, should be likewise be

narrowly drawn. The law should not be the source of unbridled authority by the government

to pry into the private lives of people.

Ordinarily, I tend to support the government’s drive to pursue public welfare, especially as to

public order, and tried my best to show, in this discussion, where the law may not necessarily

be invalid, in light of the fear articulated in its passage. Nevertheless, our recent history

provided us the experience on how abuses may be wrought due to unbridled power provided

to the State. Evil does occur, even in pursuit of best intentions, and the people should be

assured that the certain evils would be prevented or avoided in pursuit of such intentions.

This week’s commemmoration of the 40th anniversary of the proclamation of Martial Law    by

the late and former dictator Ferdinand E. Marcos this week (21 September 1972 as dated, 23

September 1972 as actually proclaimed) should provide us with the reminder that laws which

were crafted for the public good may be used to unduly deprive people life, liberty and

property. The government should assure the people, with clear proof, that it does not

emasculate people’s civil liberties.