CyberCrime Case Digest

JOSE JESUS M. DISINI, JR., ET AL. v. THE SECRETARY OF JUSTICE, ET AL., G.R. No. 203335, FEBRUARY 18, 2014 Constitutional law; Unsolicited commercial communications, also known as “spam” is entitled to protection under freedom of expression. To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection. The State cannot rob him of this right without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate forms of expression. Criminal law; Cyberlibel under Section 4(c)(4) of the Cybercrime Law is constitutional. The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the Penal Code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes “similar means” for committing libel. But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the Penal Code provisions on libel were enacted. The culture associated with internet media is distinct from that of print. Criminal law; Section 5 of the Cybercrime Law that punishes “aiding or abetting” libel on the cyberspace is a nullity. The terms “aiding or abetting” constitute broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages. Its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated. In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny. FACTS: Petitioners Jose Jesus M. Disini, Jr., Rowena S. Disini, Lianne Ivy P. Medina, Janette Toral and Ernesto Sonido, Jr., as taxpayers, file a Petition for Certiorari and Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, the petitioners seek to 1) nullify Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175, otherwise known as the “Cybercrime Prevention Act of 2012” for violating the fundamental rights protected under the Constitution; and 2) prohibit the Respondents, singly and collectively, from enforcing the afore-mentioned provisions of the Cybercrime Act. Named as Respondents are the Secretary of Justice, the Secretary of the Interior and Local Government, the Executive Director of the Information Communications Technology Office, the Chief of the Philippine National Police, and the Director of the National Bureau of Investigation. ISSUES/GROUNDS: 1. Sections 4(c)(4), 6, 7, 12 and 19 of The Cybercrime Act violate the petitioners’ constitutionally protected rights to freedom of expression, due process, equal protection, privacy of communications, as well as the Constitutional sanctions against double jeopardy, undue delegation of legislative authority and the right against unreasonable searches and seizure; o • Sections 6 and 7 of the Cybercrime Act more than doubles the liability for imprisonment for any violation of existing penal laws are in violation of the petitioners’ right against Double Jeopardy; o • Section 12 of the Cybercrime Act, which permits the NBI and the PNP “with due cause” to engage in real time collection of traffic data without the benefit of the intervention of a judge, violates the Petitioners’ Constitutionally-protected right to be free from unreasonable searches and seizure as well as the right to the privacy of communications; o • Section 19 of the Cybercrime Act, which authorizes the Respondent Secretary of DOJ to block or restrict access to any content upon a prima facie finding that the same violates the law, contains an undue

delegation of legislative authority, infringes upon the judicial power of the judiciary, and violates the Petitioners’ Constitutionally-protected right to due process and freedom of expression; and o • Section 4(c)(4) defines libel as a cybercrime and in relation to Section 6 of the law increased the penalty from 6 months to 4 years and 2 months to the greater period of 6 years to 10 years, infringes upon the right to freedom of expression and also restricts the freedom of the press. Under Section 12, a prima facie finding by the Secretary of DOJ can trigger an order directed at service providers to block access to the said material without the benefit of a trial or a conviction. Thus, RA 10175 infringes upon the right to freedom of expression and also restricts the freedom of the press. The increased penalties, plus the ease by which allegedly libelous materials can be removed from access, work together as a “chilling effect” upon protected speech. 2. No other plain, speedy, or adequate remedy in the court of law, and that this Petition is therefore cognizable by the SC’s judicial power under Article VIII, Section 1 par. 2 of the Constitution and pursuant to Rule 65, Sec. 1 of the 1997 Rules of Civil Procedure, as amended. ARGUMENTS/DISCUSSIONS: 1. The Cybercrime Act Violates Free Speech: o • imposes heavier penalties for online libel than paper-based libel; single act of online libel will result in two convictions penalized separately under the RP and the Cybercrime Act; o online libel under the Cybercrime Act will ensure the imprisonment of the accused and for a much longer period. Such changes will result in a chilling effect upon the freedom of speech; o • with the passage of the Cybercrime Act, Senator Vicente Sotto III’s earlier threat to criminally prosecute all bloggers and internet users who were critical of his alleged plagiarism of online materials for use in his speech against the Reproductive Health Bill became real; threat of criminal prosecution under RA 10175 will work to preclude people such as Petitioners from posting social commentaries online, thus creating a “chilling effect” upon the freedom of expression; o • gives the DOJ Secretary blanket authority to restrain and block access to content whether authored by private citizens or the organized press sans any hearing of any kind but merely upon a mere prima facie showing that a particular Internet article constitutes online libel; o • respondents must demonstrate how the Cybercrime Act will fare under strict scrutiny 2. Sections 6 and 7 of the Cybercrime Act violate the Double Jeopardy and Equal Protection Clauses of the Constitution: o • Persons who commit crimes using information and communication technologies (ICTs) face the possibility of being imprisoned more than double the imprisonment laid down in the RPC or special law, simply by the passage of the Cybercrime Act; o • the cybercrimes defined and punished under Section 6 of the Act are absolutely identical to the crimes defined in the RPC and special laws which raises the possibility that an accused will be punished twice for the same offense in violation of the Constitution; o • Congress created a class of offenders who commit crimes “by, through or with the use” of ICTs in violation of the equal protection clause 3. The Real Time Collection of Traffic Date Violate the Right to Privacy and the Right Against Unreasonable Searches and Seizure: o • No compelling state interest that justifies real time collection of data; the authority vested on the Philippine National Police and the National Bureau of Investigation to collect data is not bounded by any reasonable standard except “due cause” which presumably, the PNP and NBI will determine for itself; o • While the privacy of suspected terrorists, through the Human Security Act, are protected by the intervention of the Court of Appeals before surveillance operations are conducted, the privacy of all citizens may be infringed without judicial participation in the Cybercrime Act; o • Neither the PNP nor the NBI is required to justify the incursion into the right to privacy;

No limits imposed upon the PNP or the NBI since they can lawfully collect traffic data at all times without interruption; o • No stated justification for this warrant-free unlimited incursion into the privacy of citizens 4. The Respondent DOJ Secretary’s Take Down Authority under Section 19 of the Cybercrime Act violates Due Process and is an Undue Delegation of Legislative Authority o • The DOJ Secretary’s overwhelming powers to order the restriction or blocking of access to certain content upon a mere prima facie finding without any need for a judicial determination is in clear violation of petitioners’ Constitutionally protected right to due process; o • The Cybercrime Act contemplates that the respondent DOJ Secretary will be “judge, jury and executioner” of all cybercrime-related complaints; o To consider that all penal provisions in all specials laws are cybercrimes under Section 6, it • follows that: 1. Complaints filed by intellectual property rights owners may be acted upon the Respondent DOJ Secretary to block access to websites and content upon a mere prima facie showing of an infringement; 2. Foreign sites (e.g. Amazon.com) offering goods on retail to Philippine citizens may be blocked for violating the Retail Trade Law; 3. Foreign service providers such as Skype may be blocked from offering voice services without securing a license from the National Telecommunications Communication; 4. YouTube video may be blocked for presumably violating the IP Code. o • The Cybercrime Act fails the two tests laid down by the Court in Abakada Guro Party List v. Purisima (GR No. 166715) to determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test 1. Nowhere in the Cybercrime Act’s declaration of policy does it lay down the legislative policy with respect to the blocking of content. No limits upon the takedown power of the respondent DOJ Secretary; 2. Prima facie standard is not enough to prevent the DOJ Secretary from exercising infinite discretion and becoming the supreme authority in the Philippine Internet landscape. PRAYER: 1. Declare null and void, for being unconstitutional, Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175; 2. Prohibit all Respondents from implementing Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175; 3. Issue a TRO enjoining the Respondents from implementing Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175; and 4. Issue other reliefs, just and equitable in the premises. 5. The Supreme Court on Tuesday, February 18, upheld as constitutional most provisions of Republic Act 10175 or the Cybercrime Law, including online libel – subject to one condition. 6. The High Court also struck down a provision of the law that gives the state the power to take down online content without a court warrant. 7. Seeking to strike a balance between fundamental freedoms and government control, the High Court decided on the constitutionality of Republic Act 10175 a little over a year afteroral arguments were heard on Jan 15, 2013. 8. Among the hotly-debated issues during the oral arguments was the law's provision on online libel. (READ: 'Libel gone is best-case scenario for SC cybercime ruling') 9. The Supreme Court decision, penned by Justice Roberto Abad, ruled online libel to be constitutional but with an exception – that is, in cases where it covers persons other than the original author. Recipients of, and netizens who react to a potentially defamatory post, will not be covered by online libel. o

Unconstitutional provisions Three provisions were voted down as categorically unconstitutional:  Section 4 (c)(3) which pertains to unsolicited commercial communications  Section 12 which pertains to real-time collection of traffic data  Section 19 which pertains to restricting or blocking access to computer data

The SC decided that Section 19 – granting power to the Department of Justice (DOJ) to restrict computer data on the basis of prima facie or initially observed evidence – was not in keeping with the Constitution. The said automatic takedown clause is found in Section 19 of the cybercrime law. Even the SOLICITOR General, in his defense of RA 10175, admitted before the SC that Section 19 is "constitutionally impermissible, because it permits a form of final restraint on speech without prior judicial determination." Section 12 would have allowed law enforcement authorities with due cause to collect or record by technical or electronic means "traffic data" in real time. Section 4 (c)(3) of the law says that "the transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited" unless certain conditions – such as prior affirmative consent from the recipient – are met. This was ruled unconstitutional. A separability clause contained in Section 29, Chapter VIII of the law allows the rest of the law to "remain in full force and effect" even if certain provisions are held invalid. Nuances in other provisions Three other provisions were not struck down and remain in the law, but they will not apply in certain cases as decided by the SC. Among these provisions is online libel, which is constitutional as far as the original author is concerned. Section 5, which pertains to aiding or abetting the commission of a cybercrime and to the attempt to commit a cybercrime, was declared unconstitutional only in the following cases: child pornography, unsolicited commercial communications (or spam), and online libel. Section 5 will apply to all other cybercrimes outlined in the law. National Bureau of Investigation (NBI) Cybercrime Division Chief Ronald Aguto explained to Rappler that it will also be hard for both law enforcement and the prosecution to prove the "attempt to commit a cybercrime." Aiding a nd abetting the commission of a cybercrime, he added, might unduly cover certain players in the online industry. Section 7, which pertains to liability of a cyber criminal under other laws, was declared unconstitutional only in the following cases: online libel and child pornography. The SC cited the guarantee against double jeopardy or being punished more than once for the same offense – a guarantee outlined in the Constitution – in deciding on Section 7. Libel is punishable by Article 353 of the Revised Penal Code, while child pornography is punishable by RA 9775 or the Anti-Child Pornography Act. A person convicted of libel or child pornography can only be punished once, under the coverage of a single law.