Defective 'take-down' clause no reason to scrap Cybercrime Law - SolGen

Solicitor General Francis Jardeleza admitted Tuesday that one of the provisions of the controversial Cybercrime Prevention Act of 2012 is defective, but argued that it is not enough reason to void the entire law. In an interview with reporters before the oral arguments, Jardeleza said Section 19 of Republic Act 10175 is not needed for law enforcement. Section 19, also known as the "take-down provision," empowers the Department of Justice to block computer data found to be in violation of the law. It states that "when computer data is prima facie found to be in violation of the provision of this Act, the DOJ shall issue an order to restrict or block access to such computer data." However, despite his agreement regarding the unconstitutionality of Section 19, Jardeleza stressed that it was by no means a reason to scrap the entire law.  “Except for Section 19, the whole law is constitutional. Under the law, you can declare parts unconstitutional pero hindi lahat. If you have a case of mango, just because bulok yung isa hindi ibig sabihin na yung buong case ay bulok,” he said. Vague provision Critics of the Cybercrime Law have pointed out that the "take-down provision" is too vague on how it will be carried out. Internet law expert Atty. JJ Disini, who also earlier filed a petition against the Cybercrime Law,  said that Sec. 19 is actually a "desirable provision" in the context of cyberbullying and scams. However, he added that "(T)he way it was worded in the law, unfortunately, it did not contain the necessary safeguards." When the Supreme Court began hearing oral arguments against the law on January 15, Justice Teresita Leonardo De Castro also expressed reservations over Sec. 19. "(It) isn't specific enough as to how government intends to find prima facie evidence. This is something we need to find out," De Castro had said. No defense for Sec. 19

Penalty for libel Defending the Cybercrime law's section on libel before SC justices, Jardeleza said, “Reputation is reputation, defamation is defamation. This proposition is true whether we communicate through megaphones, letters, mimeograph, photocopied maters, xerox radio, TV, or cable; whether we communicate through memes, posters, tweets, shares, comments instagrams and the likes.” As the law did not mention the specific penalty for cyber libel, Jardeleza explained that those who will be charged with libel under RA 10175 will be meted with the penalty that is stated in the Revised Penal Code. “Libel is specially mentioned as a content offense, but Congress did not provide for penalty,” he said. “That should be welcomed because it is protection of speech.” Jardeleza noted that penalties for other offenses cited in the Anti-Cybercrime Law are provided.  Also, Associate Justice Marvic Leonen asked Jardeleza during the oral arguments if the law's provision on cybersex was a drawback to obscenity charges. He also said the law used “loose language” that was so broad that it could make “our intimacies controlled by the State due to the language used.”   Jardeleza argued that the cybersex provision was not an anti-obscenity provision. It was rather an effort to curb online prostitution. Also, the law was focused against those who maintain cybersex dens ,the sex workers of which are not treated as criminals but as victims. Forced insertion Chief Justice Ma. Lourdes Sereno noted during the day's oral arguments, that there seemed no problem with some provisions of the Cybercrime Prevention Act except the provision on content-related offenses such as cyber pornography, cyber sex and cyber libel. She said the law has detailed and sufficient in the technical description of other cybercrime offenses “to give one the impression that there is an intention to be precise about the definition of those crimes.” But cyber pornography, cyber sex and cyber libel “with all the complications already been raised even [with] memes and tweets” was described with a simple sentence. “This seems to be actually something that seems, to a cursory reader, a forced insertion,” said Sereno, “Is it because this really was not, never intended to be part of the law as it was originally conceived?” Jardeleza admitted that this could be possible as many of the provisions included in the law were lifted from the Budapest Convention, the first convention on cybercrime held in 2001. He also argued that the provisions being questioned are fruits of the congressional debates and “indicative of the sentiment of the Congress.” “Flowing from the same principle that what is a crime in the real world should be a crime in the cyber world. That was the theme in the sponsorship speech of Rep. [Dante] Tinga,” he said. 'Due cause' Sereno also questioned Section 12 of the law, that authorizes law enforcement authorities, after finding due cause, to collect traffic data, which she finds problematic. “It will be the first time we grapple with the issue of due cause because this is the first time we have encountered such an animal. We do not know who will determine or identify what kind of animal 'due cause' is,” she said. , Jardeleza said 'due cause' starts with a complaint from a citizen that a cybercrime has been committed and that complaint would trigger the law enforcement agencies to conduct an investigation. Sereno countered that Jardeleza’s definition of due cause is not stated in the law. The Chief Justice asked the Solicitor General if the Anti-Cybercrime law would still stand if the questioned provisions on cyber libel, cyber sex, cyber child pornography and Sec 12 would be struck down. Jardeleza said “if there is anything you want to save, save Section 12, give law enforcement a chance. Let Congress possibly pass a more robust procedural safeguards.” He said that Section 12 is the heart of the law against hackers. He added that it would only bring law enforcers to an IP address. “The specter of Big Brother was raised in the last oral arguments. RA 10175 does not authorize 24/7 Big Brother surveillance. Sec 12 will only bring law enforcement authorities to an IP address, a series of numbers. To search the premises, to seize his computer, law enforcement authorities must apply for a court order,” he said. — BM/TJD/DVM, GMA News