A Brief Discussion on Senate Bill 53
(ANTI-CYBERCRIME LAW 2.0)
With the foundation of the of the Advanced Research Projects Agency (ARPA) in the late 1950’s in the United States which aimed to develop information technologies which could survive a nuclear attack, thru the initiative of the ARPA university and private sector contractors with representatives of the Department of Defense, met to discuss the possible protocols for sharing information via computers, the ARPANET was born in the late 1960’s. In the 1980’s, the sharing of information was further developed. In 1983, the TCP/IP was introduced and the University of Wisconsin developed the name “server.” The following year, the domain name server (DNS) was established. In 1986, the National Science Foundation developed system to connect the fast growing number of hosts where regional networks were connected to a main network, thus the NSFNET was established. The “internet” continued to grow and thus the ARPANET totally obsolete by 1989. This was replaced by the HTML protocol which allowed graphics to be sent with text to create hypertext pages customized to the sender’s preference1.
The internet totally changed the we live, particularly the way we communicate. It has revolutionized almost each and every aspect of one’s life. Before, one has to write a letter to his/her love ones and send it thru a currier and wait for a few days before it arrives to its destination, bearing the risk of lost or tampering of such letter. In the aspect of marketing and advertising, before, the publisher has to contact a newspaper or a publisher of a magazine for their ad to be placed in their page and for it to be distributed to the general public. Before, one has to contact a publisher for him to avail of such service for his/her article to be published for the public to read. Before, one has to send a telegram to place an order on an item he wishes to buy. But now, one can communicate with his/her loved ones in real time thru the use of online applications like, Skype, Facebook, Viber, Chikka and other similar applications. One can also place ads online, where most of the Filipinos who have access to the Internet spend their idle time. One can also interact with their loved ones or their idol celebrities, may it be overseas or just around the city, thru the use of Twitter and other similar social media sites. Nowadays, one can simply just publish his article about a certain topic which disturbs the public or simply because he/she disagrees with the speech which he heard over a conference or just simply because he dislikes the way someone talks in front of the camera or just simply hates the DJ over the radio. Now, with the click of a button, you can easily buy a designer bag over ebay or Amazon and have it deliver right at your doorstep. Because of the internet, communication and business transactions were hastened and can now take place in real time.
With the purchase of personal computers and gadgets becoming more and more affordable, and the availability and affordability of having a broadband connection, more and more Filipinos are exposed to the use of the internet more exposure to social media. And with the rapid increase of internet users in our country and through the constant exposure of each individual to the social media, there is a greater risk of one’s exposure to various acts which are now considered crime nowadays without him knowing.
To aid the increasing problem of our government because of the rapid changes in our society (the cyber society), in has created various laws which would facilitate and define the whether the act committed was already a crime and if so, what crime is it and how would it be prosecuted. It has enacted several laws namely Republic Act 8792 (e-Commerce Law), Republic Act 10173 (Data Privacy Act and the latest law which had suffered a lot of criticisms from the “netizens” (citizens of the internet), the Republic Act 10175 otherwise known as the Cybercrime Prevention Act.
Seeing that these laws are not broad enough to cover the “gray areas” that traverse the vast space of the World Wide Web, Senator Miriam Defensor Santiago announced in a press release that she is seeking to pass a law that could be the “anti- cybercrime law 2.0”. If passed, the bill will repeal the controversial Cybercrime Prevention Act. The said bill will not only lay down the criminal activities that a person can do in the internet, but will also define and empower the rights (freedom of expression, privacy and due process) of each netizen of the Republic of the Philippines.2
This paper seeks to check the detail of the said Senate Bill 53 and would provide some analysis and recommendations and further improvements. It also seeks to reconcile the conflicting concepts with the existing laws and the said Bill.
The Magna Carta is supported by the government transparency organization called the Pro Pinoy Project, come from a dedicated group of activists outraged by the sweeping, highly-criticized Cybercrime Prevention Act of 2012.In response to the Cybercrime Prevention Act, Filipinos engaged inthe largest Internet protest in their country’s history, complete with a blackout of popular sites, an online petition with more than 75,000 signatures, and Anonymous taking down a dozen government sites. The country’s Supreme Court put the law on hold to examine it. As a result it was put on indefinite hold.This was the environment that inspired six bloggers to get proactive and draft a bill to prevent similar laws from being passed in the future. A Senate aide created a Facebook group for them before the Cybercrime Act was even signed into law, and they drafted it together on Google Docs. Eventually, the group caught a meeting with Senator Miriam Defensor-Santiago, who introduced it as a Senate bill in November.
Observing the Cybercrime Law, known as RA 10175, and Senate Bill No. 3327, known as the Magna Carta for Philippine Internet Freedom (MCPIF), the expression of the Legislature is to protect the rights and freedoms of every Filipino in the world of cyberspace, by providing a corresponding penalty for criminal activities. However, the expression of the Legislature through passing a law, should be in accordance with the Constitutional rights guaranteed by the Constitution, such as right of expression, right to privacy and right to due process. The Constitution mandates these rights in order to protect the mankind, in cases there are abuses of authority on the part of the Congress in passing laws that will regulate and manage the people by the government.
If a certain law passed by the Congress which is not in line with the Constitutional rights guaranteed by the Constitution, such law or expression is not effective and it will constitute as in contrast as to what the law should be. The role of the Congress is very important in the government, because without Congress there will be no government.
The main function of the Congress is to craft laws and they should take into consideration the benefits that it will give to the Filipino People, and to protect their respective rights, however, such right must be regulated in order not to be abusive in exercising their rights. In regulating the rights of the people must be in accordance with the Constitution, so that it will not violate the Constitutional rights of people and the enforcement of the law will not become abusive.
The Cybercrime Prevention Act of 2012 upon passing as a law received several reactions from several sectors upon its enactment, particularly with how its provisions could potentially affect freedom of expression, freedom of speech and data security in the Philippines.
The local business process outsourcing industry has received the new law well, citing an increase in the confidence of investors due to measures for the protection of electronic devices and online data. Media organizations and legal institutions though have criticized the Act for extending the definition of libel as defined in the Revised Penal Code of the Philippines, which has been criticized by international organizations as being outdated: the United Nations for one has remarked that the current definition of libel as defined in the Revised Penal Code is inconsistent with the International Covenant on Civil and Political Rights, and therefore violates the respect of freedom of expression.
Senator Edgardo Angara, the main proponent of the Act, defended the law by saying that it is a legal framework to protect freedoms such as the freedom of expression. He asked the Act’s critics to wait for the bill’s implementing rules and regulations to see if the issues were addressed.
The Supreme Court shall interpret the provision on online libel through the tribunal that will upheld the constitutionality of online libel, saying the provision in the new law merely incorporates what had been stated in the Revised Penal Code. The Supreme Court went further in making the distinction between online libel committed against public officials or public figures as against online libel committed against private or ordinary persons.
Even the truth may be a defense, it is not a magic formula to exonerate one from libel. The SC reiterates that for truth to be a valid defense, the accused must show “good motive and justifiable ends” in making the statement.The Court says “the penal code and implicitly, the cybercrime law, mainly target libel against private persons.” As such, “the Court recognizes that these laws imply a stricter standard of ‘malice’ to convict the author of the defamatory statement where the offended party is a public figure.” To the Court, “society’s interest and the maintenance of good governance demand a full discussion of public affairs.”The SC observes that the provision on online libel suffers from vagueness and overbreadth and may threaten the constitutional right of free speech. “A governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invalidating the area of protected freedoms.”
We need to test the validity of any governmental regulation of speech, courts employ a strict scrutiny standard and have invariably called it the “clear and present danger” rule. Under this rule, speech becomes unprotected if it presents a clear and present danger of a grave and imminent evil which the government has a right to prevent. The feared evil must have gravity and proximity, meaning there must be seriousness and immediacy about the danger sought to be prevented. Freedom of speech is not an absolute right. Not all speech is constitutionally protected. Speech that incites lawless conduct, so-called fighting words (words that provoke physical retaliation), libelous or defamatory speech, and obscenity can legitimately be prohibited or punished by the government. As such, The Magna Carta for Internet Freedom also must be tested upon regulating the freedom of speech in the Cyberspace. Freedom of speech under the Philippine Constitution includes freedom of expression, freedom of the press and the right of the people to peacefully assemble and petition the government for redress of grievances.
Upon the passage of the Cybercrime Law a total of 15 petitions were filed with the High Court questioning the constitutionality of the law, which, among others, criminalizes libel, increases penalties of crimes under the Revised Penal Code to one degree, and allows government agencies to collect traffic data.Lawyers and media organizations have slammed the law for its ambiguities and the power it extends to the Department of Justice, which can shut down any web site based on prima facie evidence of libelous content.Because of the law’s vague wording, anyone who shares offending content could end up behind bars, even if he or she did not write it. Merely a Facebook “Like” could be construed as libel under the Cybercrime Prevention Act. The law also establishes that the Department of Justice can block websites that contain criminal content without in-depth or third party review, and that it can monitor online communications traffic without a court-ordered warrant.Several appeals have been filed with the Filipino Supreme Court and Freedom House urges the government to overturn these worrisome provisions of the law. Freedom House recognizes the need to prevent online crimes but believes that this act is a gross overreach that severely jeopardizes the Philippines’ status as a country with a free Internet. This law could lead to widespread self-censorship by individuals and online platforms and cause a chill in what has been a vibrant space for free expression.
The Magna Carta for Philippine Internet Freedom has been generally viewed locally and internationally as a welcome development in promoting civil and political rights on the internet. Magna Carta for Philippine Internet Freedom and its provisions pertains to people’s rights online, freedom of expression, strengthening ICT infrastructures, and cybercrimes. Upon the uprising cyber-attacks against MST, the legislature must be more convinced that they should pass MCPIF. The Center for Media Freedom and Responsibility took note that Section 4 of the MCPIF protects and promotes freedom of speech and expression on the Internet and protects the right of the people to petition the government via the Internet for redress of grievances, and that Section 52 defines provisions and exceptions on Internet libel, highlighting that the MCPIF states that expressions of protest against and dissatisfaction with the government shall not constitute Internet libel. The main goal of the MCPIF among other things is the right of free expression, aspires towards universal internet access, and protects users’ privacy.The Magna Carta for Internet Freedom repealing the Cybercrime Prevention Act of 2012:
You must only see good insightsonline. If you’re a normal person who happens to use Facebook and Twitter to let the world know about what’s going on your head you cannot express any disgraceful opinions online because you can be accused of committing cybercrime. Libel is defined in the Revised Penal Code as “the 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 cause the dishonor, discredit, or contempt of a natural or juridical person…”
A person who shall be committing a crime if you “blacken the memory of one who is dead.” shall also face penal consequences from the authority.The law says that if you post something not good better not post anything at all.
We must also distinguish offenses that are considered mala prohibita as from mala in se. In mala in se, there must be a criminal mind to be convicted. In mala prohibita, there need not be a criminal mind. The mere perpetuation of the prohibited act is enough. So, even if you’re kidding around by using somebody’s name as a verb or noun to signify not-too-admirable acts you could get arrested.
The Cybercrime Prevention Act of 2012 also penalize the persons who had libelous posts in the past that are still can be open today or been republish online can still be charged with online libel.So if you’re still publishing any libelous posts after the law took effect that made the post illegal, then you’re liable for its publication today.
Persons who play a part in spreading the post that is libelous shall be charged for abetting libel. Simply clicking the “Like” button of Facebook, sharing the post or re-tweeting posts on Twitter may be tagged as unlawful as well. The SC agrees with the Office of the Solicitor General that “there exists a substantial distinction between crimes committed through the use of information and communications technology and similar crimes committed using other means. In cybercrime, “the offender often evades identification and is able to reach far more victims or cause greater harm. The distinction therefore creates a basis for higher penalties for cybercrimes,” the SC says.
Cybersex can be done by two consenting adults which the Act cannot prohibit them on doing because nothing is illegal of the act of two adults.The Cybercrime Prevention Act of 2012 also defined cybersex which is The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.
Posting merely sarcastic opinion as long as you post in in the cyberspace can make a person liable of libel. The basis of such is from the Supreme Court of the Philippines which ruled that even ironic, suggestive, or metaphorical language could be considered libelous.
Section 1 of Article III of the Bill of Rights of the 1987 Constitution provides that ‘no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.’ However, under Section 19 of the Cybercrime Prevention Act, ‘when a computer data is prima facie found to be in violation of the provisions of this Act, the Department of Justice (DOJ) shall issue an order to restrict or block access to such computer.'” No court intervention is needed, the DOJ can go right ahead and compel you to stop publishing your posts.
The penalties is too much for the convict because you may spend a maximum of 12 years in prison and be fined a maximum of ₱1,000,000.
MCPIF is protecting and promoting freedom of speech and expression on the Internet. It also protects the right of the people to petition the government through Internet for redress of grievances. The right of citizens to publish to the Internet without the requirement of a license is also specifically addressed.
These are expressions which causes injury or damage to another person. Internet libel: defined as “public and malicious expression tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, made on the Internet or on public networks”;Hate speech: defined as “public and malicious expression calling for the commission of illegal acts on an entire class of persons, a reasonably broad section thereof, or a person belonging to such a class, based on gender, sexual orientation, religious belief or affiliation, political belief or affiliation, ethnic or regional affiliation, citizenship, or nationality, made on the Internet or on public networks” and;Child pornography.
Atypically, the definition of Internet hate speech is incredibly limited, with the Act stating that it shall not lie if the expression “does not call for the commission of illegal acts on the person or class of persons that, when they are done, shall cause actual criminal harm to the person or class of persons, under existing law” and if it “does not call for the commission of illegal acts posing an immediate lawless danger to the public or to the person who is the object of the expression.”
MCPIF also promotes universal access to the Internet, it allows for the suspension of an individual’s Internet access as an accessory to other penalties upon conviction of certain crimes, with certain checks and balances. It prevents persons or entities offering Internet access for free or for a fee from restricting access to the Internet or limiting content that may be accessed by guests, employees or others without a reasonable ground related to the protection of the person or entity from actual or legal threats, the privacy of others who may be accessing the network, or the privacy and security of the network as provided for in the Data Privacy Act of 2012 (RA 10173) or this Act.
1(History of the Internet)http://education.illinois.edu/wp/commercialism/history-of-the-internet.htm
2“Magna Carta for Internet Freedom to replace Anti- Cybercrime Law – Miriam” Senate of the Philippines 30 November 2012 (http://www.senate.gov.ph/press_release/2012/1130_santiago1.asp)