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Government defends cyberlaw

jardeleza-roqueIt was the government’s turn last Tuesday to defend the Cybercrime Prevention Act. Solicitor-General Francis Jardeleza single handedly defended the law. The Justices grilled him for at least three and a half hours straight. Almost all of the questions of the magistrates focused on libel and Section 12 of the law, which authorizes law enforcement agents to gather or collect real-time data.

Justice Roberto Abad fired the opening salvo. He observed that while the government has argued that libel is not being penalized for the first time under the new law, Congress must still be presumed to have a purpose for including libel as a content-related offense under the new law. Justice Abad theorized that it must be to make it clear that defamatory statements in the Internet had to be expressly declared by Congress as now capable of being punished as libel. The

Sol-Gen countered that what Congress did was merely to provide publication in the Internet as a qualifying circumstance. He argued that cyber libel was the only offense under the new law that was not subject to a higher penalty, a conclusion that was disputed not just by Justice Abad, but also by Justices Teresita De Castro and Justice Diosdado Peralta. All of them asked the government to show where in the new law this exception may be found. The Sol-Gen then, responding to a question from Justice Abad, opined that reposting a libelous post on Facebook may be subject also to a libel prosecution, but pressing the “Like” button may not be as the latter may represent only an opinion. Justice Abad though observed that while the Solicitor-General has opinions on these matters, the reality is because of the uncertainty on the legal consequences of reposting and liking, this may lead to the chilling of the rights of the citizens to express themselves on facebook.

Justice Antonio Carpio reiterated his view that the current jurisprudence on libel recognizing the actual malice rule in New York Times vs. Sullivan has rendered the libel provisions of the Revised

Penal Code as unconstitutional. Justice Marvic Leonen then asked why Congress, despite the jurisprudence, insisted on a cross-reference to Art. 355 of the Revised Penal Code despite the fact that this provision literally runs counter to jurisprudence. He then asked if the Court should not make a declaration that Sec 4(C) 4 of the cyberlaw is unconstitutional to highlight the distinction between the codal provision on libel in the RPC and jurisprudence. He asked: “may it be that the RTC Judge who convicted Adonis applied the language of the RPC and not the jurisprudence on actual malice?”

Anent the collection of real-time data, there appears to be consensus amongst the Justices that without judicial intervention, the section may lead to an invasion of privacy. Justice Antonio Carpio asked the Sol-Gen how he would feel if the government procures a record of his phone history from his phone company without his consent and whether this would be constitutional. The Sol-Gen replied: “constitutional but barely”, highlighting that these phone records would be “external” information for which there is no reasonable expectation of privacy. What the right covers would be the content of these individual calls, which he described as “internal” information. But where the Justices had great misgivings was on “due cause” as basis for the collection of the real time data. Justice Carpio elicited an admission from the government that it is uncertain who will determine that “due cause” exists. The Sol-Gen opined that it should be the law enforcement agency itself. Moreover, Justice Carpio bewailed why law enforcement agencies want to take a short cut. In his words, law enforcement agents “can always go to a Judge for a warrant”. He even said that the

Supreme Court could even designate Judges to act on these applications for warrants. Justice De Castro observed the absence of a definition of “due cause” which in turn, Justice Mariano Del Castillo said might be “subject to abuse”.

There too were important points raised on cybersex. The Sol-Gen explained that the legislative intent of the provisions against cybersex was to penalize prostitution on the Internet and trafficking

and not to punish obscenity. Justice Abad inquired why the law did not mention prostitution and trafficking in the language of the law. Justice Reyes also asked if the cyber law’s provision on “luring” is superfluous given that the same is already punished in a special statute.

Pursuant to tradition, the Chief Justice asked the last questions. She observed that almost all of the questioned provisions of the law are found in the section on “content related offenses” and that these provisions appeared to be “forced insertions”. She was comparing the “loose” language of these provisions with the very precise language of the other offenses such as cyber squatting. She then asked if there was a way of saving the legislation even if the questioned provisions were

to be declared unconstitutional. The Sol-Gen responded that under the principle of separation of powers, the clear intent of Congress is to penalize all those acts classified as content related offenses.

I received a tweet asking if the nation should now say “kudos” to the Supreme Court. Well, my reply is: too soon. My oral argument against the cyberlaw was my 10th opportunity to argue before the Court. The lesson I’ve learned is this: Never celebrate until the decision is actually handed down.

Lets continue to pray and hope that the supremacy of the Constitution will once more be upheld.

Willie and libel

The Quezon City Prosecutor’s Office rightfully dismissed child abuse and libel raps filed in connection with “Jon-Jon’s” notorious “macho boy” dance sequence in the program of Willie Revillame. Ironically, it was even the parents of Jon-jon who filed suit against bloggers Froilan Grate and John Silva. Also sued was noted child psychologist Lourdes Carandang.

The three were sued over statements intended to protect the rights of Jon-jon as a child. Recall that in an episode of the show “Willing Willie,” Jon-jon was asked by TV host Willie Revillame to gyrate like a macho dancer in exchange for cash. While the boy obliged, television viewers, including the respondents, did not fail to notice that the boy was in tears while performing for the camera.

Grate created a Facebook page criticizing the television host for the incident. He also sent communication to various government agencies complaining about the incident. Silva criticized the television host in his own Facebook account. Carandang, on the other hand, issued a professional opinion that the incident had adverse effects on Jon-jon and other children who saw the incident on television.

The Center for International Law (Centerlaw), a civil society organization that seeks to promote freedom of expression, among others, represented Grate before the fiscal’s office. It argued that since criminal statutes such as libel are strictly construed against the state, libel on the Internet, in the absence of a statute, is not criminal. It also argued that the criticisms published by Grate on Facebook were covered by qualified privilege since they were fair commentaries on an issue that involves the public interest: that is, the protection of the rights of minors. Centerlaw is the same outfit that successfully impugned Philippine criminal libel law as being contrary to freedom of expression in the United Nations Human Rights Committee.

As chairman of Centerlaw, I submit that this latest legal victory is a big win for freedom of expression. The Internet, albeit initially developed as part of a US defense initiative, the so-called, “star wars technology,” has nonetheless made possible what legal theorists have referred to as the “free market place of ideas”.  This market enables the people to ascertain the truth and develop opinions. Without this free marketplace of ideas, we would not have public opinion that is indispensible in any democracy. This is why our courts have repeatedly declared infringements on freedom of expression as null and void.

Clearly, this recent victory has gotten rid of another obstacle to enable the Internet to perform the crucial role of an information superhighway.

It is also good news that the respective drafts of the Department of Justice and the UP Law Center for a New Criminal Code have both done away with criminal libel. Apparently, there is finally recognition that criminal libel is not indispensible since there is an alternative, to wit, civil damages. Furthermore, there too is the recognition that what libel seeks to protect—the right to privacy of private individuals—is not proportionate to the means it adopts to achieve this: imprisonment. The only problem now is how soon Congress can enact an entirely new code of crimes. My bet is it will take at least four years.

This is why Centerlaw is also provoking jurisprudence to declare criminal libel as being contrary to our treaty obligations and hence null and void. While the “view” of the UN Human Rights Committee is that our libel law is contrary to freedom of expression, the view itself is not binding. At most, it is evidence of a breach of a treaty obligation and hence, contrary to the Latin maxim of pacta sundt servanda, or treaty obligations must be complied with in good faith. This, according to our Supreme Court, in turn, is a “generally accepted principle of international law” and hence “forms part of the laws of the land.”

The latest case where we have invoked the defense of pacta sudt servanda as a ground to invalidate our criminal libel law is in a pending case for libel filed by the sitting mayor of Iloilo City against the Daily News Today. This is the first instance where the UN view has been raised as a defense in an actual, pending libel case. It is anticipated that regardless of how the Iloilo Regional Trial Court resolves this defense, the matter will be elevated to the Supreme Court on an issue of law.

I hope that the high court then accepts the UN view as evidence of a breach of Philippine law: that of pacta sundt servanda.