Tuesday, October 2, 2012

Opposing RA # 10175, the Cybercrime Law

Tomorrow may be the end of absolute internet freedom in the Philippines, specifically the freedom to express one's opinions, whether through blogs, forum sites, social networks, etc. This is because RA # 10175, otherwise known as Cybercrime Prevention Act, takes into effect on 03 October 2012.

I was trying to get a soft copy of this new law, and found one here. From what I've read from the web, these are the highlights of the law as follows:

1. The aim of the cybercrime law is to fight online pornography, hacking, identity theft and spamming.

2. It includes a blanket provision that puts the country's criminal libel law into force in cyberspace, except that the penalties for Internet defamation are much tougher (up to 12 years in prison), compared with old media where maximum penalty is only 4 years and 2 months in prison. Sen. Vicente Sotto III admitted inserting the libel provision, under the noses of the senators who voted for the law, with the exception of Sen. Teofisto Guingona.

3. Aside from imprisonment of up to 12 years on RA 10175, violators can still be charged under Revised Penal Code on Libel, for additional 4 years and 2 months in prison. It would be a case of double jeopardy, which is against the Constitution, as per Sen. Guingona.

4. The new law also allows authorities to collect data from personal user accounts on social media and listen in on voice/video applications, such as Skype, without a warrant. But it has mitigating conditions from what I lifted on getrealphilippines.com's blog post below:

SEC. 12. Real-Time Collection of Traffic Data. — 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.
All other data to be collected or seized or disclosed will require a court warrant. Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

So what is my stand on this new law as a blogger and ordinary Filipino citizen?

I agree with RA # 10175's objectives. I believe in the freedom of expression, but it must have limitation to protect all the citizens and entities, to level the playing field. Yet this new law makes me hesitant to post even valid negative reviews, rants, or opinions to any person or entity. I hope that our "honorable" lawmakers rectify the provisions in the cybercrime law to still ensure our freedom of expression.

Collecting and recording electronic data is not new, as long as it is consistent with the wire-tapping laws. A person's personal rights may be overridden to protect the national security, public health and safety. As long as the law enforcers observe the provisions on this law, and not use it for harassing or personal gains, it should be fine.

However, the libel penalties should be the same, whether the offense was committed to cyberspace or through regular media. The possibility of double jeopardy should also be junked. Actually, it would be better if libel becomes decriminalized or become a civil case, like what the developed countries are now practicing.

With the insertion of libel provision on RA # 10175, one cannot help to suspect that Sen. Tito Sotto III wants to use the new law to get back to his critics, from his 2 fiasco of plagiarism here. He is too different and at lower class than his grandpa, the first Sen. Vicente Sotto, best known among journalists for Republic Act No. 53 or Sotto Law, which protects journalists from being forced into revealing the identities of their news sources.

Before anyone of us post our negative or malicious comments on social networking sites, let me paste below the definition and provisions of libel under the old laws, from abogadomo.com:

Under Article 353 of the Revised Penal Code of the Philippines, libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.

The law also presumes that malice is present in every defamatory imputation. Thus, Article 354 of the Revised Penal Code provides that: 
“Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”

Under Article 355 of the Revised Penal Code, libel may be committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means. 

It is important to remember that any of the imputations covered by Article 353 is defamatory and, under the general rule laid down in Article 354, every defamatory imputation is presumed to be malicious, even if it be true; if no good intention and justifiable motive for making it is shown. There is malice when the author of the imputation is prompted by personal ill-will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. Truth then is not a defense, unless it is shown that the matter charged as libelous was made with good motives and for justifiable ends.

I hope that the Supreme Court issue a TRO on RA # 10175, while our legislators rectify the law to clean their mess. By the way, don't forget the re-electionist senators who voted for the law, and their family member who are running on 2013 senatorial elections. Along with those who voted for CJ Corona's acquittal, it will be payback time next year.


NO to Cybercrime "Martial" Law!

Replace or amend RA# 10175!

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