Anti-Cybercrime law, an attack against freedom of expression, other civil rights

Press freedom advocates said the new law could also be used to justify the shutdown of websites that are critical to the government without the necessity of a court warrant and in keeping with the Marcosian tradition of curtailing the freedoms of expression and opinion.

By INA ALLECO R. SILVERIO
Bulatlat.com

MANILA — Bloggers, social media networks users and all civil libertarians unite!

The Burgos Media Center and a youth political party have called on netizens to oppose the Aquino administration’s Anti-Cybercrime law saying that it attacks freedom of expression and other civil rights.

Last Sept 12, the Aquino government signed Republic Act 10175, or the anti-cybercrime law. It was authored mainly by Sen. Edgardo Angara , who also authored the Data Privacy Act, which was also signed into law last month.

The new cybercrime law will be jointly implemented by the Department of Science and Technology (DOST), the Department of Justice (DOJ), and the Department of Interior and Local Government (DILG) 90 days after it was signed into being.

Net activists and civil rights advocates have decried the new law saying that it could lead to the invasion of the right of Filipino citizens and netizens to privacy. They also expressed apprehension that the new law could also be used to justify the shutdown of websites that are critical to the government without the necessity of a court warrant and in keeping with the Marcosian tradition of curtailing the freedoms of expression and opinion.

“The old concepts of what consists libel in the crimes targeted by the law may be used to attack not only cyberpress members but also progressive netizens like activists and political bloggers. Through this law, traditional and corrupt politicians can now easily file charges against critics, and claim that cyber journalists have threatened their lives and property,” said Burgos Media Center spokesman Marc Joseph Alejo.

Alejo said Aquino and the proponents of the cybercrime law have chosen to ignore the pointed comment of the United Nations Human Rights Council (UNHRC) against the libel law in the Philippines. In 2011, the UNHRC said the Philippine libel law is “colossal” because of the penalization and imprisonment provisions. These provisions, the UNHRC said, run contrary to the human rights protocol to which the Philippines is a signatory.

“This is a desperate move of the Aquino government to use the media and administration critics as whipping boys. When Aquino came to power, he promised to make the country a safe haven for journalists, but the killings of journalists continue. Now there’s this cybercrime law, while the Freedom of Information bill remains in limbo,” he said.

Earlier, the Center for Media Freedom and Responsibility (CMFR) said the law’s passage and that of 10173, or the Data Privacy Act, earlier in August ” … suggests how restrictive rather than expansive is the mindset of the country’s legislators, and of Mr. Aquino himself when it comes to enshrining in the law those principles — accountability and transparency, press freedom and free expression, etc. — to which he has repeatedly declared he is committed.”

According to the CMFR, the Data Privacy Act has among its provisions penalties against those in government who release information of a personal nature.

“This which seems a reasonable enough restriction in behalf of the right to privacy—until one recalls that information on the personal lives of government officials often has a bearing on their performance as public servants accountable to the citizenry, and is therefore among the legitimate concerns of the news media,” he said.

The Electronic Frontiers Foundation (EFF) has also issued a story wherein it stated that “it is gravely concerned about the implications of the libel provision in the Cybercrime Act and supports local journalists and free expression advocates in opposing it.”

Gaps in libel law will not protect net activists

The Kabataan party-list said civil rights activists have reason to oppose it. It clarified that while the new law makes clear mention of libel, related to Art. 355 of the Revised Penal Code, committed through computer systems (Sec. 4(c)4) as a “‘crime,” there is no mention of the penalty to be imposed.

The group’s national president and general counsel James Mark Terry Ridon explained that it is an elementary rule in criminal law that no act could be considered as a crime, nor punishment imposed on it without a pre-existing penal law. Contingent upon the existence of a penal law is the definition of the particular penalty imposable on the criminal offense defined.

Ridon said that in the section of defining cybercrime penalties, no express mention is made on the specific penalty imposable on Libel as defined in the law.

“What is most bothersome to civil libertarians and online writers is the catch-all provision under Sec. 6 of the law, in which all offenses defined under the Revised Penal Code and special laws committed through information and communications technologies shall be imposed with a penalty one degree higher than that provided for in the Code and special laws,” he said.

Under the said provision, the use of information and communications technologies to commit crimes under the penal code and special laws is considered a special aggravating circumstance. This, Ridon said, does not only increase the penalty to its maximum as other special aggravating circumstances, but increases the penalty one degree higher, akin to a qualifying aggravating circumstance.

“As information and communications technologies had been vaguely defined in the law, it can be assumed that such ICT includes all platforms by which information is communicated online – blogs, websites, social networking sites. All content in such platforms which may contain libelous material may now be subject to a criminal suit one degree higher than the penalty imposed on libel under the penal code. This is a path to the wrong direction at a time when the Supreme Court had already made clear steps towards the decriminalization of libel, by making preferences on fines instead of prison terms,” he said.

“By imposing a penalty one degree higher than what had been stated in the penal code on libel, longer prison terms are guaranteed for persons found to have published or posted material containing libelous remarks online. The new law is a threat to the constitutional freedoms of the press and expression. The relative freedom of publication utilized by online critics of government policies is now being threatened with curtailment and repression,” he said.

In the meantime, Ridon said, the law’s provision on Illegal access punishes mere access to the whole or any part of a site with a fine of at least P200,000 ($4,760) and/or prison mayor.

“As many of the employed youth are now working in industries in which they are utilizing computer systems, it is feared that this provision may be exploited by unscrupulous employers to further control and restrict the rights of employees in their workplaces. For merely accessing internet sites for personal use on work time, the employee may be subjected to termination and criminal prosecution, on the basis that such access is deemed illegal access punishable under the law,” he explained.

Also, Ridon argued, the law may be treading upon unconstitutional waters on the powers being granted to law enforcement agencies, which includes preservation, disclosure, search and seizure and destruction of computer data.

“At the onset, the role of the courts in the grant of warrants relative to the preservation, disclosure, search and seizure and destruction of computer data is unclear. In the provision preservation of content, while a court order is required for the preservation of content, the one-time six-month extension of such preservation order does not require another court order,” he said.

The right of to preserve data is also undermined by the law.

“As the preservation of data is akin to the garnishment of personal property or an asset preservation order in civil forfeiture proceedings in which the free use and disposition of private property is restricted, the six-month extension cannot be left to the mere volition of law enforcement authorities. A due process issue may arise over this provision,” he said.

On the other hand, the power to compel the disclosure of computer data through an order has been granted to law enforcement authorities.

Ridon said although the law requires the issuance of a court warrant prior to such order, the nature of such court warrant is unclear.

“This may be a violation of the constitutional rights to privacy and due process, as only the courts can compel, through an order, the production or disclosure of information regularly within the ambit of the right to privacy,” he said.