SEN. SANTIAGO: CYBERCRIME LAW UNCONSTITUTIONAL / SEN. ANGARA: DON'T WORRY ABOUT CYBERCRIME LIBEL
 

MANILA, OCTOBER 8, 2012 (ABS-CBN) By Senator Miriam Defensor Santiago Posted at 10/06/2012 - Part 1 of the senator's keynote speech at the inter-university conference on business economics at Adamson University Theatre on October 6, 2012.)

The prefix "cyber" relates to the culture of computers, information technology, the internet, and virtual reality. The term "cybercrime" refers to criminal activities carried out by means of computers or the internet.

Just like any other human activity, the internet carries with it new avenues of illegal behavior. The internet makes it easier to commit certain crimes, such as dissemination of pornography, copyright infringement, and defamation. The internet also gives rise to crimes exclusive to the internet, such as computer hacking and misuse. And the internet can make certain crimes complicated, because they could be illegal in some countries, but not in others.

Computer misuse was dramatically demonstrated in 2000, when a Filipino hacker attacked and destroyed data in 45 million computers. He created a virus that the media called the "Love Bug," because it used the subject line "I love you" in the emails that carried it. The estimated cost in damages was $10 billion. The Filipino was never punished, because the Philippines at that time had no law criminalizing computer misuse.

Accordingly, in 2001, the Council of Europe drafted the Cybercrime Convention in Budapest. The Philippines is not yet a party to this treaty. If we become a party, the Philippines would be duty-bound to adopt a Cybercrime Prevention Act. But the Philippine Congress has already anticipated future global pressure to end computer abuse.

In the United States, there are several laws to protect the public from computer misuse, notably the Computer Fraud and Abuse Act (18 U.S.C. 1030) and the 1996 Telecommunications Act (Sec. 230). Although the U.S. considers internet gambling to be illegal, this year three bills were filed to legalize internet gambling in America.

As economics and business students, you are already aware that cybercrime works to prejudice ecommerce. Companies with online operations are subject to credit card fraud, identity theft, phishing, and intellectual property crimes. Cybercriminals continue to negatively impact ecommerce.

In short, in today's world, cybercrime prevention is a necessity. This is why I was active during the interpellation and amendment periods of the Cybercrime Prevention Act. Unfortunately, I was absent because of hypertension, during the voting period.

In my humble opinion, the law as presently worded is unconstitutional.

In our Constitution, freedom of speech occupies a preferred position. In his immortal argument for a "marketplace of ideas," the great Justice Holmes wrote: "They may come to believe . . . that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ."

In fact, the constitutional provision, on the surface, sounds absolute: "No law shall be passed abridging the freedom of speech." I humbly submit that while the general rule is that a law is presumed to be constitutional, there is an exception when the law limits free speech. In that case, the law is presumed to be either neutral, or presumed to be unconstitutional. Because it limits free speech, the Cybercrime Act begins with a presumption of unconstitutionality.

The Cybercrime Act is a law that dangerously limits the growth of the marketplace of ideas. Therefore, it is presumed to be unconstitutional. But in addition, the law is unconstitutional, because it uses language that is overbroad, and language that is too vague. In other words, it violates the overbreadth doctrine and the void for vagueness doctrine in constitutional law.

The overbreadth doctrine holds that if a law is so broadly written that it deters free expression, then the Supreme Court will strike it down in its face, because of its chilling effect. The vagueness doctrine refers to a law that provides a punishment without specifying what conduct is punishable, and therefore the law is void because it violates due process.

Among the provisions of the Cybercrime Act that are too broad or too vague are:

Sec. 4 para 4. It makes libel a cybercrime, if committed online; Sec. 5. It punishes any person who aids or abets the commission of any cybercrime, even if it is only through Facebook or Twitter; Sec. 6. It adopts the entire Penal Code, if the crime is committed by the use of information technology, but the penalty shall be one degree higher; Sec. 7. It makes the same crime punishable, both under the Penal Code and the Cybercrime Act; Sec. 19. It authorizes the Department of Justice to issue an order to restrict access to computer data which is found to be prima facie in violation of the new law. Sec. 19 is called "the takedown clause."

For these reasons, I humbly predict that the Supreme Court will strike down the Cybercrime Act as unconstitutional. Otherwise, it will be a black, black day for freedom of speech.

FROM THE INQUIRER- OCTOBER 7

Cybercrime law unconstitutional, says Santiago By Norman Bordadora Philippine Daily Inquirer

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 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.

Angara: Don't worry about cybercrime libel By Jon Carlos Rodriguez, ABS-CBNnews.com Posted at 10/05/2012 11:14 PM | Updated as of 10/05/2012 11:14 PM

Urges other cybercrime law authors to stand up, explain MANILA, Philippines – Senator Edgardo Angara, the principal author of Republic Act (RA) No. 10175 or the Cybercrime Prevention Act of 2012, urged the senators who voted for the law to defend their vote.

“I would wish that my fellow senators who supported this enthusiastically should also stand up and explain. This is a common effort, this is not just me,” Angara told ANC’s Prime Time on Friday.

The senators who approved the anti-cybercrime law proposal on third and final reading were Ferdinand Marcos Jr., Vicente “Tito” Sotto III, Loren Legarda, Francis Escudero, Gregorio Honasan II, Aquilino "Koko" Pimentel III, Pia Cayetano, Bong Revilla Jr., Jinggoy Ejercito-Estrada, Panfilo Lacson, Lito Lapid, Ralph Recto, and Manny Villar.

The anti-cybercrime law triggered uproar among netizens because of several provisions perceived to curtail freedom of expression on the Internet.

But Angara said the public should not fear the new law because several lawmakers have proposed to revise parts of it.

“There is no reason to be apprehensive and anxious because many of my colleagues have expressed enthusiasm in amending it,” he said.

Online libel

The law's provision on online libel was heavily criticized by various groups who believe that it will stifle discourse in the Internet.

Angara has defended the clause, saying that the Internet should not be considered a “zone of impunity.”

Angara said that when the clause was proposed on the Senate floor, not one senator made an objection.

“It is quite a reasonable request and I accepted that amendment and not one senator ever objected to that amendment,” he said.

The senator also said that those opposing the libel clause may be misinterpreting the law.

“Blogs, tweets and Facebook comments are not covered, those are protected expression. What’s outside the protection? If it is libelous, slanderous because even in print and broadcast, you can’t just say anything malicious against someone,” he explained.

“We should not focus simply on online libel because the overall purpose of the law will benefit the greater number. Because how many are just intent on making libelous and slanderous statements?” he added.

Eleven petitions against the Cybercrime Prevention Act have been filed before the Supreme Court.

The act was signed into law by President Benigno Aquino last September 12.

FROM THE BBC -UK

Philippine cybercrime law takes effect amid protests

A controversial law targeting cybercrime in the Philippines has come into effect, fuelling protests by citizens and media groups fearing censorship.


[PHOTO-
Under the new act, someone found guilty of libellous comments online could be fined or jailed]

A controversial law targeting cybercrime in the Philippines has come into effect, fuelling protests by citizens and media groups fearing censorship.

The new law, called the Cybercrime Prevention Act of 2012, was signed by the president on 12 September.

It is intended to prevent cybersex, online child pornography, identity theft and spamming, officials say.

But it also makes libel a cybercrime punishable by up to 12 years in jail.

The act was enacted by congress "to address legitimate concerns" about criminal and abusive behaviour online, presidential spokesman Edwin Lacierda (photo) said in a statement on Wednesday.

"Questions have been raised about the constitutionality of certain provisions of the act. We recognise and respect efforts not only to raise these issues in court, but to propose amendments to the law in accordance with constitutional processes," he said.

The act took effect despite the protests by those who oppose the law.

At least eight petitions from various groups challenging its constitutionality have been filed with the highest court in the Philippines, local media report.

Anonymous activists have hacked into government websites, journalists have held rallies and many Facebook users have replaced their profile picture with a blank screen, says the BBC's Kate McGeown in Manila.

Protesters say the legislation could be used to target government critics and crack down on freedom of speech.

Under the new act, a person found guilty of libellous comments online, including comments made on social networks such as Facebook and Twitter or blogs, could be fined or jailed.

Government officials will also have new powers to search and seize data from people's online accounts, says our correspondent.

The US-based Human Rights Watch said that the law would harm free speech in a statement last week.

"The cybercrime law needs to be repealed or replaced," said the group's Asia director, Brad Adams.

"It violates Filipinos' rights to free expression and it is wholly incompatible with the Philippine government's obligations under international law."


Chief News Editor: Sol Jose Vanzi
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