MEDIA ORGS, JOURNALISTS, MORE, FILED 9th PETITION VS CYBERCRIME LAW


[CARTOON COURTESY OF THE MANILA STANDARD]

MANILA, OCTOBER 8, 2012 (CMFR) TWENTY MEDIA organizations and more than 250 individuals, comprised mostly of journalists and media practitioners, filed the ninth petition with the Supreme Court (SC) against the Cybercrime Prevention Act, assailing some of its provisions as unconstitutional.

The petitioners asked the SC to rule on the Cybercrime Prevention Act or Republic Act (RA) No. 10175, a law which the petitioners say establishes a regime of ‘cyber authoritarianism’ and ” undermines all the fundamental guarantees of freedoms and liberties that many have given their lives and many still give their lives work to vindicate, restore and defend.”

“It is a law that unduly restricts the rights and freedoms of netizens and impacts adversely on an entire generation’s way of living, studying, understanding and relating,” the petitioners stated.

The ninth petition is a petition for Certiorari, Prohibition and Injunction filed with the SC and called for an Immediate Restraining Order (IRO) “to annul and/or restrain the implementation of specific portions of Republic Act No. 10175 for being unconstitutional.” The specific provisions are the following:

a. Sec. 4(c)(4) (Libel);

b. Sec. 5(a) (Aiding or Abetting in the Commission of Cybercrime);

c. Sec. 6 (inclusion of all felonies and crimes within coverage of the law);

d. Sec. 7 (Liability under Other Laws);

e. Sec. 12 (Real-Time Collection of Traffic Data);

f. Secs. 14 (Disclosure of Computer Data), 15 (Search, Seizure and Examination of Computer Data), 19 (Restricting or Blocking Access to Computer Data), and 20 (Non-Compliance), where these provisions unlawfully delegate to police officers the authority to issue orders properly within the scope and sphere of judicial powers and where non-compliance is penalized as a crime;

g. Sec. 24 (Cybercrime Investigation and Coordinating Center) and 26(a) (Powers and Functions), where both sections 24 and 26(a) give the Cybercrime Investigation and Coordinating Center the power to formulate a national cybersecurity plan, which should properly fall within the power of Congress and not an administrative agency.

The petitioners hope the SC issue an Immediate Restraining Order ordering the DBM secretary not to release the P50-million budget intended for the act until the High Court orders otherwise.

The Free Legal Assistance Group (FLAG) of attorneys Jose Manuel I. Diokno, Pablito V. Sanidad, Ricardo A. Sunga III, and Theodore O. Te served as counsel for all petitioners.

The petitioners include media groups the Center for Media Freedom & Responsibility, National Union of Journalists of the Philippines, and the Philippine Press Institute. Other organizations who joined the e-petition are the Philippine Center for Investigative Journalism, Center for Community Journalism and Development, Philippine Center for Photojournalism, Cebu Citizens-Press Council, Bulatlat, MindaNews, PinoyWeekly, among others. Petitioners who signed hard copy of the ninth petition are Melinda Quintos de Jesus of the Center for Media Freedom and Responsibility, Rowena Paraan of the National Union of Journalists of the Philippines, Joseph Alwyn Alburo of GMA Network Inc. and National Union of Journalists of the Philippines, and Ariel Sebellino of the Philippine Press Institute. They are joined by more than 250 e-petitioners, comprised mostly of journalists and media practitioners.

“By punishing libel as a cybercrime simply because it is ‘committed through a computer system’, the clear intent of section 4(c)(4) is to single out netizens in their chosen medium of expression. It is clearly a prior restraint that infringes on the freedom of expression guaranteed under Article III, section 4 of the 1987 Constitution,” signatories to the the ninth petition stated. “Freedom of expression has long enjoyed the distinction of being a preferred right and thus, ‘a weighty presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms,’” they added, citing the case of Ayer Productions v. Hon. Capulong and Juan Ponce Enrile (G.R. No. 82380, April 29, 1988)

“Read together with section 4(c)(4), section 5(a) clearly constitutes a prior restraint on free expression. In the first place, section 5(a) fails to define exactly what acts are punished within the scope of the words ‘abets or aids’ and, in the distinct context of social media and online journalism, operates as a chilling factor that undermines, restricts and abridges freedom of expression,” the petitioners also stated.

The group also questioned the the criminalization of the yet-undefined acts that fall under ‘abets or aids’ under section 5(a). This will cause “any person using a computer and the internet to consider if the mere act of ‘forwarding’, ‘sharing’, ‘liking’, ‘re-tweeting’ would constitute an act that ‘abets or aids’ the content-related offense of cyber libel under section 4(c)(4),” they stated.

The wholesale importation of all felonies and crimes as cybercrimes in section 6 of the Cybercrime Prevention Act is unjustified, according to the ninth petition. “There is, however, no rational basis for concluding that the ‘use of information and communications technologies’ in relation to all felonies and crimes would constitute a circumstance so perverse as to convert an existing felony or a crime into a separate offense altogether. The absence of any rational basis for section 6, especially when read in relation to section 2, renders it an act of prior restraint especially in relation to the ‘use of information and communications technologies’ and clearly in violation of freedom of expression.”

The Act also gives the justice secretary the “power to restrict or block access to computer data simply on the basis of a prima facie finding that the computer data is in violation of the Cybercrime Law” without a judicial determination or even a formal charge. “Moreover, because the law provides for no standards for the exercise of this power, any order may be unlimited in scope, duration and character and would clearly infringe on the right to free expression.”

The list of the 20 media organizations which joined the ninth petition can be found here:

http://www.nujp.org/wp-content/uploads/2012/10/Organizations.pdf.

The list of 253 individual petitioners can be found here:

http://www.nujp.org/wp-content/uploads/2012/10/Individuals.pdf

THE CFMR LOGO

Criminal libel is one of the most abused means to suppress free expression and press freedom in the Philippines.

The fear of possible imprisonment and the imposition of hefty fines has on many occasions silenced press criticism of government officials and even the reporting of matters of public interest. Journalists and media advocacy groups like the Center for Media Freedom and Responsibility (CMFR) and the National Union of Journalists of the Philippines (NUJP) have called for the decriminalization of libel for decades.

They have asked Congress to amend the provisions on libel of the 82-year-old Revised Penal Code. By far the most significant development in the Philippine campaign to decriminalize libel is the United Nations Human Rights Committee’s (UNHRC) October 2011 declaration that the criminal sanction for libel in the Philippines is “excessive” and in violation of the International Covenant on Civil and Political Rights (ICCPR) in which the Philippines is a signatory.

Despite the UNHRC declaration that it is incompatible with human rights law, libel suits are still being filed against journalists, in many cases to limit criticism of public officials and other powerful individuals.

Worst assault on free expression since 1972 By Luis V. Teodoro | Posted on 01-10-2012



THE CYBERCRIME Prevention Act of 2012 is the worst assault on free expression since Ferdinand Marcos declared martial law 40 years ago if only for its potential to affect the 26 to 30 million Filipinos, including journalists, who regularly access the Internet to upload information through personal blogs or news sites, who comment on public issues in chat rooms or social media, or even those who communicate via email.

President Benigno Aquino III signed RA 10175 on the 12th of September, ironically—or perhaps appropriately—martial law month, unleashing a firestorm of protest which has so far taken not only the form of challenges to its constitutionality before the Supreme Court, but also the hacking of government websites. Journalists’ and media advocacy groups are also preparing an online petition for the Supreme Court to declare the entire act unconstitutional, even as spontaneous calls for marches and demonstrations have gone viral over cyberspace.

The incorporation of the 82-year old libel law into the Act’s roster of cybercrimes is only one of its egregious flaws. The Act also raises by one degree the penalty for all the crimes it lists—some of which, like libel and child pornography, are already covered by the law. Among other consequences, it strengthens even further the use for harassment of libel as a criminal offense. From penalties ranging from six months’ to four years’ imprisonment, those found guilty of libel would be imprisoned from six to 12 years under the provisions of the Act.

Prior to the filing of a court case for online libel, however, the Department of Justice can declare that there is prima facie evidence of libel in any online information, comment, or video, and can forthwith bar access to the site—whether a Facebook, twitter, or email account, or a blog or website—or cause the removal of the offending material. This provision in effect gives the DOJ the power of judge, jury and executioner. The Act is practically a bill of attainder—expressly prohibited by the Constitution—that punishes without trial. This power, however, does not prevent the DOJ from filing charges in court for the same offense, thus exposing the supposed offender to double jeopardy, or being twice held liable for the same offense.

Some lawyers also argue that those who upload material before the effectivity of the law on Oct. 3 could also be liable to libel charges if the material is still online on that date, thus making the Act also an ex-post facto law, or a law that retroactively penalizes an act that was not illegal at the time it was passed.

Add to these Section 12 of the Act which empowers the Philippine National Police and the National Bureau of Investigation to collect online traffic data in real time with the help of Internet service providers, thus subjecting individuals who are online to police surveillance without the benefit of a court order.

When asked during a Malacanang press conference why such an obvious attack on free expression as RA 10175 was passed during this administration, Presidential Spokesperson Edwin Lacierda shifted the blame to Congress, ignoring the fact that President Aquino was a party to it by affixing his signature to the bill. Lacierda changed his tune in subsequent days, arguing that freedom demands responsibility. Deputy spokesperson Abigail Valte later joined Lacierda in declaring that it was the journalists’ and Netizens’ fault, because they were not militant enough to question the bill and object to its provisions while it was still pending in Congress.

And yet not only were journalists’, media advocacy and Netizens’ groups not consulted or even informed when the bill was being discussed, the Act’s inclusion of libel among cybercrimes—and raising the penalty for it—was also the result of a veritable conspiracy during the bicameral conference, despite questions raised earlier by, among others, Kabataan party list congressman Raymond Palatino.

As for Lacierda’s pious arguments in favor of responsibility, that has always been the primary plank of the self-regulatory regime journalists and media advocacy groups including the Center for Media Freedom and Responsibility have supported, rather than the use of State sanctions to compel ethical behavior among journalists and media practitioners. Finally, Mr. Aquino cannot escape responsibility for the Act, which, rather than veto, he after all signed into law.

The Act was signed at the same time that various political groups including the Liberal Party mishmash of so -called political parties and dynastic denizens—the wives, children, nieces, nephews, uncles, aunts, parents, etc. of people already in Congress and Malacanang– were announcing their rosters of candidates for the Senatorial elections in 2013.

The entire journalism and media community, as well as all 30 million Netizens, must demand from these creatures a clear declaration on which side of free expression they’re on—whether they’re for it as an indispensable imperative in a country that dares call itself a democracy, or whether, like the sponsors and signatories of the Act, they are at heart no less authoritarian than the conspiracy that from 1972 onwards helped establish and made dictatorship endure for 14 years.

Both the failure to make a clear statement on their position re the Cybercrime Prevention Act of 2012 and/or a declaration for it should be cause enough for media practitioners, whether in print and broadcasting, or online, to campaign through the media whether old or new against these individuals as well as all those sponsors of RA 10175 who’re still running for office. Free expression is as vital as air and water in the realization of authentic democracy.

Unlike party affiliations, or the conflict between the elite victims of martial law and their victimizers, free expression is non-negotiable. A campaign to hold accountable those who’re savaging it, or who’re likely to further savage it, might even imbue the coming elections with some meaning.

Luis Teodoro

Luis V. Teodoro is a former dean of the University of the Philippines College of Mass Communication, where he teaches journalism.

He is the deputy director of the Center for Media Freedom and Responsibility.

He writes a weekly column for the BusinessWorld.


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