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Internet libel in cybercrime law constitutional – SC

(Updated 8:23 p.m.) The Supreme Court has ruled that the online libel provision in the controversial Cybercrime Prevention Act of 2012 is constitutional, although it struck down others, including one that empowers the Department of Justice (DOJ) to restrict or block access to data violating the law.

However, the high court, in a landmark ruling issued on Tuesday "partially granting" the 15 consolidated petitions against the law, clarified that only original authors of libelous material are covered by the cybercrime law, and not those who merely received or reacted to it.

“The high court... declared Section 4(c)(4), which penalized online libel, is not unconstitutional with respect to the original author of the post but unconstitutional only where it penalizes those who simply receive the post or react to it," said SC spokesman Theodore Te, who announced the ruling in a press briefing.

In a later text message to reporters, Te clarified that online contents posted prior to the issuance of the SC ruling, including the period of the temporary restraining order (TRO), are not yet covered by the law.

“There was a TRO so it didn't take effect at that time. There can be no retroactive application of penalties because of the prohibition against 'ex post facto' laws," he said.

President Benigno Aquino III signed the law in 2012 to stamp out cybercrimes such as fraud, identity theft, spamming and child pornography.

In October 2012, the high court put on hold the implementation of the law after it received 15 petitions questioning the constitutionality of some of its provisions, with various groups condemning it for purportedly threatening freedom of speech, increasing the penalties for libel, and making it easier for authorities to spy on citizens using electronic media.

The petitioners wanted the SC to strike down provisions contained in Sections 4, 5, 6, 7, and 19. Sections 4 and 5 tackle the various offenses covered under the law, including online libel, which the petitioners said violates the right to free speech.

Sections 6 and 7, meanwhile, impose a higher degree of punishment for people found guilty of libel while also allowing them to be charged separately under the Revised Penal Code for the same offense. The petitioners said this violated the constitutional prohibition against double jeopardy.

The petitioners also questioned Section 19, which authorizes the DOJ to restrict or block access to data that would be found prima facie in violation of the cybercrime law.

In its ruling, the high court upheld the legality of Section 5, which penalizes anyone who aids or abets the commission of cybercrimes and anyone who attempts the commission of cybercrimes, if the crimes involved are:

  • illegal access
  • illegal interception
  • data interference
  • system interference
  • misuse of devices
  • cyber squatting
  • computer-related fraud
  • computer-related identity theft,
  • cybersex

Struck down

Penalties set for crimes like online libel and commercial communications, as well as child pornography the high court deemed unconstitutional.

Also declared unconstitutional are: 

  • Section 4(c)(3), which considers unsolicited commercial communication as a cybercrime offense
  • Section 12 on collection or recording of traffic data in real-time, associated with specified communication transmitted by means of a computer system
  • Section 19, which authorizes the DOJ to restrict or block access to data that would be found prima facie in violation of the cybercrime law
  • Section 7 on separate prosecutions under the Cybercrime Law and the Revised Penal Code.

The high court said Section 7 violated the prohibition on double jeopardy.

Associate Justice Roberto Abad penned the decision, while Associate Justices Presbetiro Velasco and Estela Perlas-Bernabe took no part in the voting.

Kabataan party-list Rep. Terry Ridon, meanwhile, said the whole cybercrime law should have been declared unconstitutional, as opposed to only a few provisions.

“We wanted to start from scratch so we can deliberate on a new cybercrime law without the unconstitutional provisions," he said in a chance interview.

Bayan Muna party-list Rep. Neri Colmenares, who was among those who challenged the law, said they may appeal the latest ruling.

"No one should go to prison just for expressing oneself, specially on the Internet, where people express their frustration with government," he said.

Solicitor General Francis Jardeleza, meanwhile, declined to comment in detail on the ruling, but said it was "good" that most of the contested provisions were upheld.

"I will have to read it [but] if that is so [that most provisions were upheld] then that is good," Jardeleza told reporters while waiting for the start of oral arguments on the constitutionality of the Disbursement Acceleration Program.

The Office of the Solicitor General represents the government in cases.

Jardeleza said he  could not comment yet because he was not able to "follow the gist of the ruling when it was announced because it was too quick."

"That was a summary but more important  than the summary is what it really says. So you have to be patient," Jardeleza said.

In a statement, Justice Secretary Leila de Lima welcomed the SC ruling, saying it was "timely," given that cybercrimes were "continuing and even escalating" during the time the TRO was in effect since last year.
"A clear legal framework is necessary to protect citizens and balance state duties. We will continue to recommend best practices to improve the law," De Lima.
Work on some of the details of legal framework can now move forward, according to DOJ Assistant Secretary Geronimo Sy.
"The hard work begins. We are ready to engage stakeholders to issue the IRR (implementing rules and regulations) as required by law and the procedures that will aid law enforcers to investigate core cybercrime case," Sy said.

Reactions: From 'major victory' to 'arena of fear'

Lawyer Harry Roque, one of those who petitioned against the law, hailed the decision striking down the powers to take down websites and monitor Internet traffic.

"This is indeed a major victory for privacy and the right of the people to be secure in their communications," he said in a statement.

But he said the fight to nullify the provisions on criminal libel would continue.

The National Union of Journalists of the Philippines (NUJP) blasted the decision, calling it "[a] half-inch forward but a century backward."

"By extending the reach of the antediluvian libel law into cyberspace, the Supreme Court has suddenly made a once infinite venue for expression into an arena of fear, a hunting ground for the petty and vindictive, the criminal and autocratic," it said.

If the SC remains "blind" to this, the NUJP statement added, "there can only be one response lest we be forced to surrender all our other rights—resistance."

Taking a more neutral tone, Malacañang said it will wait for the SC's full decision "to be able to understand its implications on public policy". "We hope that this decision will strengthen government’s position in fighting cybercrime and upholding the people’s welfare," Presidential Communications Operations Office Secretary Herminio Coloma, Jr. said in a statement.

Social media users expressed anger at the upholding of the libel provisions.

"Under Cybercrime Law, tweets, likes, shares, comments = crimes. Everyone under surveillance," said activist leader Vencer Crisostomo in a tweet. — with Patricia Denise Chiu and Agence France-Presse/KBK/KG/BM, GMA News