Unnecessary, not unconstitutional

Published by reposted only Date posted on February 24, 2014

Let us not over-react to the recent Supreme Court decision on the Cybercrime Prevention Act (RA 10175). We should carefully study the entire case first before attacking the court and its decision on the matter.

Apparently the raging furor against the decision comes from the millions of netizens or cyberspace users who filed eleven Petitions asking the SC to invalidate the law for being unconstitutional. They felt threatened that the law deprives them of their freedom of speech and of expression guaranteed by our constitution (Article III Section 4). Their reaction may be understandable as this kind of threat may really exist. But is it enough to justify the invalidation of the entire law?

A thorough and deliberate study of the Cybercrime Prevention Act readily shows that it also has some good and laudable provisions especially in the light of the fast growing high tech social media of communications through cyberspace that transcends borders. There really ought to be a law which will protect the millions of PC users from the proliferating “cybercrimes” that the law has listed down.

In fact the law has pinpointed said crimes in Sections 4 and 5, as follows: (1) using someone’s computer without permission; (2) intercepting someone’s data without permission; (3) “damaging or deleting someone’s files without permission and spreading computer viruses”; (4)“hacking into a system and interfering with files”; (5) “buying a domain name similar or identical to an existing trademark or the name of another person”; (6) forging signatures through Photoshop”; (7)“using the Internet to commit fraud”; (8)“stealing somebody’s Facebook account; (9)“posting a sex video in exchange for money or favors”; and (10) “sending spam e-mails.”

The law likewise penalizes other “Cybersex” crimes committed against children like:(a)“running a child pornography syndicate”; (b) “producing directing and distributing sex video with children in it; (c)“possessing three or more pornographic pictures and videos of children”; (d)“luring a minor over the Internet to have sex”; (e)“sharing a link to a child porn site”; (f)“intentionally accessing any form of child porn”; and (g) possessing any form of child pornography”.

Likewise punishable under this law are: “using and possessing or producing an electronic device to commit any of the above crimes; helping someone in the commission of the above crimes; and attempting to commit any of the above crimes”.

These are the provisions which the SC found to be within the bounds of the constitution, including the penalties for these crimes consisting of imprisonment ranging in duration from 1-6 months, 1-6 years, 6-12 years and 12-20 years and/or fines of varying amounts. Three of the cybersex crimes affecting children (Section 4 © (l) are punishable with life imprisonment and higher amounts of fines.

On the other hand the SC also found some means employed to achieve the good and laudable purposes of the law constitutionally flawed and thus struck them down. These are the vague provisions that give almost unbridled powers to law enforcers and other government agencies in the investigation and prosecution of cybercrimes amounting to undue intrusion into the privacy of individuals, suppression of the freedom of speech and even deprivation of the due process of law. Thus under the law surveillance of Internet communications can be made merely because there is “due cause” to do so. Searches and seizures can be done without court order issued only after determining the existence of probable cause. Cyberspace communications can be restricted or blocked by government agents if they believe that it constitutes a cybercrime.

On the whole therefore, the SC cannot be faulted for rendering the decision in question. It was just doing its job of deciding cases involving the constitutionality of a law which is their duty under Section 5, Article VIII of the Charter.

Apparently most netizens are furious and vehemently assail the SC decision upholding the constitutionality of cyber libel found in Section 5. Under this section, the author of libelous internet communications including even some “tweets” like saying that “a politician has committed a crime or that the President is sick” is already punishable as libel with imprisonment of up to twelve years. The seemingly oppressive penalties imposed led people to say that the SC has curtailed their freedom of expression and that “cyberspace martial law” has been imposed in the country.

The remedy here however is not with the SC. The question here is no longer about the constitutionality of the law but its necessity in view of the existing laws covering these cyber crimes. The cybersex crimes committed on children are already punishable under RA 9775 particularly Section 4 (b) (d) (h) (i) (j) and (l). Then the “Electronic Commerce Act or RA 8754 already punishes hacking, email spam and introduction of computer viruses, theft of electronic data or documents or downloading of communications and making them public through the use of the internet (See Sections 47 and 48).

On the other hand the libel provision in Section 5 is also not necessary anymore. There is already a libel law found in Article 353 of the Revised Penal Code (RPC). The elements of libel as defined by the RPC may also be applicable to the online communications aside from the print and broadcast media. Indeed pursuant to Article 355, libel is committed by means of writings or similar means. As long as there is a publication of the malicious imputation of a “crime, vice, or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause dishonor, discredit, or contempt of a person, or to blacken the memory of one who is dead”, libel is committed. Publication “takes the form of delivering, reading, exhibiting or communicating the libelous matter to any person other than the person libeled”. Definitely this covers on line communications already.

So it is Congress which must review or amend the cyber law by discarding the provisions already covered by existing laws, removing oppressive the penalties imposed and/or even totally repealing it for being unnecessary. –Jose C. Sison (The Philippine Star)

E-mail: attyjosesison@gmail.com

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