Monday, February 24, 2014


The Philippine Supreme Court recently declared the Cybercrime Prevention Act of 2012 as constitutional except for some parts that it considered as unconstitutional.

I was not surprised.  My view is that the Supreme Court in the exercise of its power of judicial review passes upon the constitutionality of an entire legislation only as a last resort and upon determination of “real, earnest and vital controversy between individuals”.  The court decided to deal with only a few of them.

I will touch only one issue. Section 4(c) (4) of the Cybercrime Law or the application of Section 355 of the Revised Penal Code (LIBEL) was declared constitutional but not insofar as it purports to create criminal liability on the part of persons who receive a libelous post and merely react to it.

So if you receive a defamatory post on Facebook, Twitter, or email and you react to it by liking, commenting, or sharing/re-tweeting it, you are not criminally liable. Only the original author would be liable.
Vox Populi Kubernetes
(Voice of the People in Cyberspace)
As I wrote in a previous column/blog, the need to have a Cybercrime Law was longtime coming.  Philippine Internet users are very active in the cyber world. They are the freest in Asia and the sixth freest in the world.  They are also prone to the dangers posed by cyber criminals.

Having participated in the discussions and development of the Cybercrime Convention, the Philippines was expected to pass legislation patterned after the format developed at the Convention.

The Philippines did!  In fact, the bill that originated in the House of Representatives was copied almost verbatim from that of the Cybercrime Convention.  However, it became less acceptable when, in the Senate, Senator Sotto sought the insertion of Online Libel.  The provisions on the protection of Intellectual Property Rights as well as safeguards like Human, Political, and Civil Rights guarantees were excluded.  The provision on Online libel was not in the Convention while those relating to Intellectual Property, Human, Political and Civil rights were.

Not only did Congress, and now reinforced by the Supreme Court, add online libel as a crime, it even increased the penalty for its commission by one degree higher.  

Penalties for crimes are provided to inhibit or deter the commission of crimes.  Libel as crime under the Revised Penal Code already provides a deterring penalty that includes imprisonment.  Under Cyber libel, not only does it consider ICT use to be a qualifying aggravating circumstance, but, as Chief Justice Sereno pointed out, it has the following effects: First, it increases the accessory penalties of libel; Second, it disqualifies the offender from availing of the privilege of probation; Third, it increases the prescriptive period for the crime of libel from one to fifteen years; Fourth, it increases the prescriptive period for its penalty from ten years to fifteen years; and Fifth, its impact cannot be offset by mitigating circumstances.

The Constitution states; “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.” – Section 4, Article III

Justice Leonen, also of the current Supreme Court, is of the opinion that Libel, be it under the Revised Penal Code or the new Cybercrime Law, is unconstitutional.  He says that it “now stands starkly in contrast with required constitutional protection of freedom of expression.”

Indeed, the continued criminalization of libel especially when the form or medium used is the Internet produces such chilling effect that it effectively stifles our fundamental guarantees of free expression.  The law that provides it has the effect of abridging the constitutionally guaranteed freedoms provided under Section 4, Article III.

Living in a democracy requires the free exchange of ideas and views in all forms of media.  The governed must freely receive and disseminate information without fear. Freedom of Expression is the device that every citizen uses to share the truth and to understand all the issues. For this, “no idea, no opinion, no doubt, no belief, no counter belief, no relevant information”, may be kept from him and fellow citizens.

The value of the Internet as a medium for the Freedom of Expression for effective governance and for wider and direct participation by citizens in governance is incalculable.

Expressing one’s views not only to a local audience but also more to a global one “freely” and without or with minimal “fee” strengthens the democratic processes. It empowers people from even the remotest corners of the globe, inspires them to think of new ideas, and encourages them to acquire and share these ideas.

The threat of possible imprisonment because of Libel would stifle this inviolable and primordial constitutionally guaranteed right.

People Power covers land, air, and sea but also extends its domain to cyberspace.  Its powers are as pronouncedly, efficiently, effectively, and courageously used in the Internet. Through the Internet, greater participation by the people without fear means greater power for the governed.

In the Internet, the fear by people to be maligned is based on false assumptions. The truth is that potential victims have as much power to reply, defend, protect, and apprehend offenders.  Currently technology provides it.

To be effective in utilizing their power to legislate, Senators and Congressmen as agents or representatives of the people are given the privilege to speak freely in the halls of Congress – even free to defame anybody without fear of detention. They have what we call immunity from suit.  We want them to be great generators of new ideas and views in legislating to benefit their principals – the people.

Under the Cory Constitution, the people as principals reserve the right to directly legislate through People’s Initiative.  In cyberspace, Filipino users have been enjoying free speech privileges without any threat of detention – not unlike the immunity from suit enjoyed by the legislators. Cybercrime libel as currently worded changes the dynamics. 

In the name of the People Power or EDSA Revolution that provided them the opportunity to enjoy their current privileges and powers, the Senators and Congressmen should DECRIMINALIZE LIBEL as soon as possible.

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