SC affirms law vs. online libel,
clips powers in Cybercrime Act

THE SUPREME COURT today ended a standoff on the Cybercrime Law that lasted a year and a half by declaring the online libel provision in Republic Act 10175 constitutional.

However, in what many saw as an attempt by the court to recognize free speech and still strike a balance between the rights and responsibilities of a digital world with a need to uphold the eighty-year-old Revised Penal Code, or Act No. 3815, the Tribunal ruled that online libel only applies to the original author or producer of libelous material. Receiving, responding to, or sharing libelous material online would not be covered by online libel.

In addition, the Supreme Court also struck down other controversial provisions of R.A. 10175, such as Section 19 or the “Takedown Clause” that allows the government to block or restrict access to internet material it deems as criminal in nature without a warrant. “When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data,” Section 19 of the Cybercrime Law states.

The Court also struck down Section 12, which would have authorized government to do real-time collection of traffic data.

Section 12 states that “law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.”

Supreme Court spokesman Atty. Theodore Te said that the Justices of the High Court voted on each of the provisions of R.A. 10175, entitled AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES.

As a result, the Tribunal was able to uphold certain provisions of the Cybercrime Law, while declaring unconstitutional others.

The Supreme Court Public Information Office identified the following provisions of R.A. 10175 unconstitutional “either wholly or contextually:”

• Sec. 4(c)(3) (Unsolicited Commercial Communications)
• Sec. 12 (Real time collection of traffic data)
• Sec. 19 (Restricting or blocking access to computer data)
• Sec. 4(c)(4) (online libel- only where it penalises those who simply receive the post or react to it) but NOT UNCONSTITUTIONAL as far as the original author is concerned.
• Sec. 5 (aiding or abetting in the commission of a cybercrime/attempt to commit a cybercrime) only in relation to secs. 4(c)(2) (child pornography), 4(c)(3) (unsolicited commercial communications) and 4(c)(4) (libel);
• Sec. 7 (liability under other laws) only in relation to secs. 4(c)(4) (libel) and 4(c)(2) (child pornography).

“All other provisions not so declared by the Court are considered NOT UNCONSTITUTIONAL,” the SC Public Information Office said.

For example, Section 6 of the law, easily one of the more controversial provisions, was ruled constitutional by the Court.

Section 6 states: “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 shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.”

In the case of libel, contained in Article 355 of the Revised Penal Code, the penalty would be increased by one degree higher under the Cybercrime Law.

Several media and civil society groups filed at least 15 separate petitions before the Supreme Court in September 2012 to have the entire law struck down. The groups argued that the provisions against online libel were unconstitutional, especially since a strict interpretation of the law would mean that both authors and reactors and sharers of libelous material would be held liable for libel.

The Philippines is also one of the few countries in the world that still considers libel a criminal offense, where the allegedly libelous material is presumed to be malicious unless proven otherwise by the accused. Some of the media groups had also hoped to have the Supreme Court strike down the libel provision in the Revised Penal Code.

Atty. Harry Roque, one of the plaintiffs in the case, welcomed the Tribunal’s decision to strike down some of the provisions of the Cybercrime Law, but expressed disappointment that the Court upheld online libel. Roque said his group will still continue to push for the decriminalization of libel.

“The high court should not abdicate its duty to protect freedom of expression. No less than the U.N. Human Rights Committee has already declared that Philippine Criminal Libel Law is contrary to Freedom of Expression. The Court’s decision failing to declare libel as unconstitutional is therefore contrary to Human Rights Law,” Roque said.

“Centerlaw and our client, Alexander Adonis welcome the other provisions of the Act such as the Take Down clause and the decision to strike down the real time gathering of information. This is indeed a major victory for privacy and the right of the people to be secure in their communication,” he added. “We will continue the fight to nullify criminal libel.”

Noemi Dado, one of the petitioners under the Philippine Internet Freedom Alliance (PIFA), said the alliance will meet to decide whether to file a motion for reconsideration. “I do not understand why the Court could have veered far away from our most cherished Constitutional principles,” Dado, a blogger and editor of the online site BlogWatch, said.

“I am terribly disappointed at the SC decision since I, as an author can be sued for online libel,” Dado said. “The worst thing is the penalty is higher than the Revised Penal Code . Imagine I could go to jail for 12 years if ever I am found guilty of libel. I hope they still allow me to blog or tweet in jail.”

The Cybercrime Law was intended to update the Philippine legal system to deal with computer-assisted crimes. The law however was met with protests because of the powers it granted to government to crack down on free speech. The Supreme Court held the implementation of the law in abeyance in October 2012 while it deliberated on the merits of the petitions against the Law.