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January 16, 2013
Justices cite loopholes in Cybercrime law

The battle against the Cybercrime law before the Supreme Court began with the petitioners citing the unconstitutionality and dangers of the law.

Read also: Netizens, activists call for junking of cybercrime law

By RONALYN V. OLEA
Bulatlat.com

MANILA – Five lawyers representing 15 groups of petitioners presented their basis for petitioning the Supreme Court to strike down Republic Act 10175 or Cybercrime Law as unconstitutional during the oral arguments, January 15.

Lawyers Harry Roque, Neri Javier Colmenares, Jose Jesus Disini Jr., Rodel Cruz and Julius Matibag highlighted five main points why the high court should decide in their favor.

The temporary restraining order issued by the SC on the implementation of the law will lapse on February 6.

Chief Justice Ma. Lourdes Sereno and Justice Marvic Leonen defended the necessity of having such a law while some justices pointed out questionable provisions.

Cyber-libel

Roque said cyber-libel, as defined by the law, is vague and overbroad, saying that given the nature of the internet and computer systems, it will be difficult to identify who will be held liable.

Roque argued that the cyber-libel provisions of the law penalize constitutionally-protected speech.

The unprotected forms of speech include obscenity, sedition, false advertisement, defamation, among others.

Senior Justice Antonio Carpio noted that nothing in the law requires a computer to be online before cybercrime is committed. The use of information communication technology, including cellphones and even fax machines, may qualify for cyber-libel.

“Then there’ll be no ordinary libel,” Carpio said. “Everybody now uses a computer to type a news report, so practically all libel crimes now are cybercrimes because nobody uses a typewriter anymore.”

Leonen said: “We must also protect those who have been silenced by the speech of others.” He cited the cyberbullying of Chris Lao, whom he described as a private citizen who has been transformed into a public figure.”

Lao was then a law student, now a lawyer, who, in 2011, was seen on the evening news trying unsuccessfully to drive through a flooded street then complained why there was no traffic enforcer present to inform drivers that the flooded street was impassable. The video clip became viral and Lao was flooded with comments, a lot of which were insults.

Sereno said there has to be a balancing act between the freedom of expression and protection of citizens’ right to privacy. She said there are those who commit suicide due to cyberbulllying.

Roque said the balancing act would be to decriminalize libel, as recommended by the United Nations Human Rights Committee in the Adonis v. the Philippines case.

Carpio said the Philippine government must comply with duly signed international human rights agreements, including the International Covenant on Civil and Political Rights.

Meanwhile, Justice Teresita Leonardo-De Castro pointed out that under the law, no new element was introduced on libel, only a qualifying circumstance – the use of ICT.

Colmenares argued that offenses such as libel through newspaper articles does not have a substantial distinction between libel committed via Internet, and information and communication gadgets, which the law penalizes.

Colmenares said Sections 6 and 7 of the law violate the rights against double jeopardy and rights to equal protection of the law and due process.

“The law allows what the Constitution prohibits so that the law should be struck down,” Colmenares said.

Section 6 punishes crimes covered by the Revised Penal Code “committed by, through and with the use of information and communications technologies” by one degree higher; and Section 7 provides that a prosecution under the law shall be without prejudice to any liability under the penal code.

Justice Diosdado Peralta agreed with Colmenares. “There is really something wrong here,” Peralta said, referring to Section 7.

Dangerous

The justices also took note of other “dangerous” provisions of the law such as Section 19, which empowers the Department of Justice to block computer data, also referred to as “take-down” provision of the law and Section 12, which allows the real-time collection of traffic data.

Cruz said the law violates the right against warrantless search and seizure. “Section 19 amounts to a general warrant issued by Congress to DOJ,” he told the justices.

Cruz said the DOJ may restrict or block one’s access to his or her computer data should the agency deem prima facie or on first appearance that the user was violating the law.

“How do we start determining prima facie evidence? Does that mean law enforcement agents can now snoop around?” De Castro asked.

Disini, meanwhile, pointed out that there are no restrictions on the amount and scope of data law enforcement agencies can collect.

Disini said any collection of real-time data should be covered by a court order so that that precise data to be collected would be specified.

De Castro asked: “Is there any way for the ordinary citizen to know they’re only collecting traffic data and not content data?” Disini said in response: “None. The ability to collect copious amounts of data is unparalleled.”

De Castro also noted that the law does not define what “due cause” means. The law allows the DOJ to collect traffic data with “due cause.”

In defense of the law, Leonen asked: “Isn’t ‘due cause’ enough? Isn’t Amazon, for instance, already collecting your traffic data and using this? Where is the ‘balance’? What can the state do to protect itself and the citizens from hacking, phishing, spam?”

Sereno said that tracking online data is necessary to obtain information on several criminal activities, such as money laundering.

Disini replied, “there should be clear standards, regulations, not blanket authority.”

Meanwhile, Meanwhile, Matibag slammed Section 5 a & b, which also punishes cyberspace users for “aiding or abetting” and “attempt” of a cybercrime, for being overbroad as said provision does not distinguish between protected speech and expression, on one hand, and unprotected speech and conduct, on the other hand, thereby invading the protected area of freedom of expression.

At the end of the hearing, petitioners asked for an extension of the 120-day temporary restraining order. Sereno said the high court would take note of their manifestation.

On January 22, the Office of the Solicitor General will be arguing for the government. (http://bulatlat.com)

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