NOY ON CYBERCRIME LAW: LIBEL PROVISION STAYS / LAW LEGAL? OR ILLEGAL?


[PHOT0 -President Benigno Aquino III]

CITY OF SAN FERNANDO, PAMPANGA, OCTOBER 8, 2012 (INQUIRER) By TJ Burgonio - President Benigno Aquino III said Friday the provision on libel in the controversial Cybercrime Prevention Act should stay but left it to lawmakers to amend the provision on what penalty to impose on violators.

“On the libel provision, I don’t agree that it should be removed. If you write something libelous, you’re liable. If you’re a broadcaster and air it on radio or TV, you’re also liable. When it comes out in the Internet that’s still libelous. Whatever format it is, the person whose rights were impinged should have redress,’’ the President told reporters here following the mass oath-taking of Liberal Party members.

“If the penalty is too high, then it should be amended,’’ he added.

Pressed on the libel provision, Aquino said: “If you write something libelous, you have a libel case, even civil offenses. If you broadcast the same matter on TV or radio, that’s still libelous. If it comes out in the Internet, it’s no longer libelous? If it’s a different format, it shouldn’t be libelous?’’

Since it has been enacted, Mr. Aquino said, the Executive Department should execute the law, and it was up to the Supreme Court to rule on its constitutionality and Congress to amend it.

“If we don’t implement it, I’m liable for dereliction of duty. I can be impeached,’’ he said.

Cybercrime law unconstitutional, says Santiago By Norman Bordadora Philippine Daily Inquirer 2:09 am | Sunday, October 7th, 2012

MANILA, Philippines—Liking and sharing libelous material on Facebook and retweeting similarly defamatory content on Twitter would make a netizen liable under the Cybercrime Prevention Act, Sen. Miriam Defensor-Santiago (photo) warned on Saturday.

These are some of the punishable acts prescribed by the new law that makes Republic Act No. 10175 violative of the constitutional provision on free speech, said Santiago, a former trial court judge and magistrate-in-waiting to the International Court of Justice.

In addition, the law’s provisions are also “overbroad” and “vague,” which makes it unconstitutional, she said.

For these reasons, Santiago predicted the Supreme Court would strike down the cybercrime law as unconstitutional.

“Otherwise, it will be a black, black day for freedom of speech,” Santiago said in a speech on Saturday before business and economics students at Adamson University.

For example, the senator said, Section 5 cites aiding and abetting cybercrimes as one of the acts punishable under the new law. Ordinary Facebook and Twitter activities such as liking, sharing and retweeting could make one accountable under the law, she said.

“Simply repeating things, you made a comment, you liked, you shared, you’re already guilty, because you’re aiding and abetting. You can interpret it that way. That’s why I’m saying it is too vague,” Santiago told her audience.

Sen. Edgardo Angara, the sponsor and one of the authors of the bill in the Senate, has sought to dismiss such fears by saying that mere liking in Facebook doesn’t make one an author of material deemed libelous.

As to sharing, Angara said, conspiracy between the author and the one that shared should be established.

This is not something that’s easy to do, he said.

According to Santiago, the constitutional provision on free speech “sounds absolute” and thus, the cybercrime law begins with a “presumption of unconstitutionality.”

The burden of proof is on those that support the law to prove that it is constitutional, the senator said.

“[In] addition, the law is unconstitutional because it uses language that is overbroad and too vague,” she said.

She said the overbroad doctrine holds that if a law is broadly written, it deters free expression.

She expects the Supreme Court to strike down the new law “because of its chilling effect,” such that “you almost don’t want to use your computer for fear of becoming liable”.

According to Santiago, the vagueness doctrine refers to a law that provides a punishment without specifying what conduct is punishable. “[Therefore], the law is void because it violates due process,” she said.

Santiago said the overbroad and vague provisions of the Cybercrime Act are those on online libel, on aiding and abetting cybercrimes, on the adoption of the whole Revised Penal Code with punishments that are a degree higher, on making cybercrimes punishable also under the Penal Code, and on the authority of the Department of Justice to take down violative websites.

Preventing cybercrime is a necessity, however, the senator said.

FROM THE PHILSTAR

Cybercrime law constitutional - Enrile, De Lima By Edu Punay (The Philippine Star) Updated October 08, 2012 12:00 AMComments (0)

[PHOTO -ENRILE AND DE LIMA]

MANILA, Philippines - There is nothing unconstitutional in Republic Act 10175 or the Cybercrime Prevention Act, Justice Secretary Leila de Lima maintained yesterday.

De Lima said all the legal questions raised by critics could be addressed in the implementing rules and regulations (IRR) to be crafted with stakeholders.

De Lima said she had reviewed the law and “can’t see any unconstitutional provision” in it.

“Some sectors have questioned libel provision but we should remember that it is already a criminal offense under existing law. The only issue is the propriety or imposition of higher degree of penalty, which is not a constitutional issue,” she explained.

While she agreed with critics there are vague provisions in the law, De Lima said they could be clarified in the IRR.

De Lima dispelled fears the constitutional rights of citizens in cyberspace would be violated in the implementation of the new law.

She reiterated the law would be implemented “gradually and very prudently” pending creation of the IRR and enforcers would focus first on palpable cybercrimes like hacking and other syndicated crimes for the meantime.

President Aquino earlier stood by the questioned provisions in the law, but reportedly agreed to lower the penalty imposed on such crime in the new law.

Still, many sectors questioned the new law with 11 groups filing petitions before the Supreme Court seeking to stop its implementation for alleged violation of fundamental rights.

Lawmakers who earlier approved the law had already initiated amendments of questioned provisions.

Sen. Miriam Defensor-Santiago said she expected the high court to declare the provisions unconstitutional for their vagueness.

Lapses

Senate President Juan Ponce Enrile said Santiago apparently failed to look into the constitutionality of the Cybercrime Prevention Act when the bill was still being deliberated in Congress early this year.

Enrile admitted he may have been absent when the now controversial law was passed by the Senate, tossing blame to his fellow senators who failed to examine the provisions of the new law that several sectors find unconstitutional and tamper with freedom of speech.

“That law was born out of the discussions in the Senate. That law came from our deliberations. Why did Miriam, who is considered a constitutionalist, not even question its legality?” Enrile said in a radio interview yesterday.

Enrile made the remark in reaction to Santiago’s statement that the new law may be struck down by the SC due to constitutional issues.

“She could have seen it. She was the expert in constitutional law, I am not saying that I am expert on that but the point is, she could have raised that question when it was being crafted into a law, “ Enrile said.

Enrile admitted possible lapses of the Senate to scrutinize the law and its provisions. He noted several sectors raised a howl over the inclusion of a higher penalty for libel in the Cybercrime Prevention Act, compared to the Revised Penal Code on the same offense.

“I was absent at that time when the law was deliberated... I was focused on other pressing things... the minority was there and they should have questioned the majority over this,” he said.

Enrile pointed out also that no law is perfect, and that there is nothing wrong if any law is declared unconstitutional.

“A law is not a perfect document, it is done by human beings,” he said.

Enrile said there are many cases in the past here and abroad when the high tribunal declares some laws were not aligned with the provisions in the Constitution.

Enrile however defended the administration’s move to pursue the implementation of the law despite the massive outcry.

With the recent attacks and hate campaign waged by “faceless” users in social networking sites, Enrile sees more reason why the new cybercrime law should be implemented.

Enrile said the hacking attacks should give the government more reason to implement the law.

Bayan Muna Rep. Teddy Casiño added the cybercrime law also covers sending of malicious text messages.

“Based on Section 3(c) of the law, communication covered refers to the transmission of information through ICT (information and communications technology) media, including voice, video and other forms of data,” Casiño said.

“Section 3(d) meanwhile defines computers and computer system covered as any type of computer device, including devices with data processing capabilities like mobile phones, smart phones, computer networks and other devices connected to the Internet,” he added.

Casiño pointed out that Section 6 broadens the law’s coverage to include “all crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies.”

“This practically means that communications and data on any type of phone or ICT device are covered by this very repressive law. If I text my friends that a certain candidate is a ‘cheap, second-rate, trying hard copycat,’ that person can haul me to court and charge me with libel under the Anti-Cybercrime Law and have me locked up for 10 years,” he stressed.

Casiño said the mere possibility that one can be charged with online libel is enough to silence ordinary people and stop them from expressing critical ideas on the Internet and modern communications devices.

Casiño’s Bayan Muna colleague Neri Colmenares said the objectionable and controversial provisions of the law were inserted by the Senate and approved by the bicameral conference committee, whose report was in turn ratified by the Senate and the House.

“The cybercrime bill approved by the House did not contain the questionable provisions found in the Senate version and the law. The House version did not contain the ‘electronic libel’ provision found in Section 4 (c) 4... There was no mention at all of the DOJ’s (Department of Justice) ‘blocking access’ power found in Section 19 of the law,” he said.

“Section 4 (b) 4 (cc) of the House bill did not contain the phrase ‘provided that the penalty to be imposed shall be one degree higher than that provided by the Revised Penal Code, and Special Laws.’ “While Section 9 of the House version allowed ‘real time collection of computer data,’ it requires the need to ‘secure a court warrant.’ The Senate version, found in Section 12 of the law, deleted this very important warrant requirement,” he said.

Sen. Edgardo Angara is the principal author of the Senate version of the anti-cybercrime bill, which the committee on justice, chaired by Sen. Francis Escudero, endorsed.

Sen. Vicente Sotto III had introduced the provision against Internet libel.

Escudero has admitted that the measure he endorsed had some defects.

Colmenares renewed his call for transparency in the proceedings of the bicameral committee, often called as the third chamber of Congress.

“The recent outrage over insertions in the cybercrime law shows that there is a need for the bicameral committee hearings, including those on the budget, to be transparent. Its scheduled meetings should be published and opened to the public. The media should be allowed to cover these meetings and given access to the minutes of proceedings,” he said.

Suggestions

De Lima, on the other hand, stressed concerns on questioned provisions could be addressed in the IRR to be drafted by the DOJ with the Department of the Interior and Local Government (DILG) and Department of Science and Technology (DOST).

She stressed that inputs from stakeholders on these issues would be gathered anyway during the multi-sectoral forum set for tomorrow at the DOJ main office in Manila.

“The purpose of this gathering is for concerned parties to ask for clarifications and suggest how the law can be made effective to address the problem of cybercrime,” De Lima explained.

House committee on information and communications technology chairman and Taguig City Rep. Sigfrido Tinga will open the forum with officials of DOST’s Information and Communications Technology sitting in the panel.

Agencies under the DOJ like the National Bureau of Investigation, National Prosecution Service and Public Attorney’s Office will also join the forum.

Those expected to participate in the forum include the Internet Society - Philippines chapter, PH Net Foundation, UP College of Law, La Salle Institute of Governance, Foundation for Media Alternatives, Globe Telecommunications, Imperium Technologies, Philippine Software Industry Association, Business Processing Association of the Philippines, Philippine Computer Emergency Response Team, IdeaCorp Philippines, National Security Council, National Defense College of the Philippines, and Freelance Writers Guild of the Philippines.

The forum will have a live webcast at www.doj.gov.ph.

A total of 11 petitions seeking to stop implementation of the anti-cybercrime law had been filed earlier before the high court.

The petitioners include businessman Louis Biraogo; a group of journalists belonging to Alab ng Mamahayag (ALAM); a group of bloggers and Internet law experts led by lawyer Jose Jesus Disini Jr. of the Internet and society program of UP College of Law; Sen. Teofisto “TG” Guingona; another group of journalists, bloggers and lawyers led by UP law professor Harry Roque Jr.; a group of lawmakers, members of academe and students led by Kabataan party-list Rep. Raymond Palatino; militant groups led by Bagong Alyansang Makabayan (BAYAN); Ateneo Human Rights Center (AHRC); journalists led by the National Union of Journalists of the Philippines; a group of bloggers led by Anthony Ian Cruz, and the Philippine Bar Association.

The high court is set to tackle these petitions in their regular session tomorrow. -Christina Mendez, Jess Diaz


Chief News Editor: Sol Jose Vanzi

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