4 October 2012
Source: Center for Media Freedom and Responsibility
(CMFR/IFEX – 3 October 2012 – Twenty media organizations and more than 250 individuals, comprised mostly of journalists and media practitioners, filed the ninth petition with the Supreme Court (SC) against the Cybercrime Prevention Act, assailing some of its provisions as unconstitutional.
The petitioners asked the SC to rule on the Cybercrime Prevention Act or Republic Act (RA) No. 10175, a law which the petitioners say establishes a regime of ‘cyber authoritarianism’ and ” undermines all the fundamental guarantees of freedoms and liberties that many have given their lives and many still give their lives work to vindicate, restore and defend.”
“It is a law that unduly restricts the rights and freedoms of netizens and impacts adversely on an entire generation’s way of living, studying, understanding and relating,” the petitioners stated.
The ninth petition is a petition for Certiorari, Prohibition and Injunction filed with the SC and called for an Immediate Restraining Order (IRO) “to annul and/or restrain the implementation of specific portions of Republic Act No. 10175 for being unconstitutional.” The specific provisions are the following:
a. Sec. 4(c)(4) (Libel);
b. Sec. 5(a) (Aiding or Abetting in the Commission of Cybercrime);
c. Sec. 6 (inclusion of all felonies and crimes within coverage of the law);
d. Sec. 7 (Liability under Other Laws);
e. Sec. 12 (Real-Time Collection of Traffic Data);
f. Secs. 14 (Disclosure of Computer Data), 15 (Search, Seizure and Examination of Computer Data), 19 (Restricting or Blocking Access to Computer Data), and 20 (Non-Compliance), where these provisions unlawfully delegate to police officers the authority to issue orders properly within the scope and sphere of judicial powers and where non-compliance is penalized as a crime;
g. Sec. 24 (Cybercrime Investigation and Coordinating Center) and 26(a) (Powers and Functions), where both sections 24 and 26(a) give the Cybercrime Investigation and Coordinating Center the power to formulate a national cybersecurity plan, which should properly fall within the power of Congress and not an administrative agency.
The petitioners hope the SC issue an Immediate Restraining Order ordering the DBM secretary not to release the P50-million budget intended for the act until the High Court orders otherwise.
The Free Legal Assistance Group (FLAG) of attorneys Jose Manuel I. Diokno, Pablito V. Sanidad, Ricardo A. Sunga III, and Theodore O. Te served as counsel for all petitioners.
The petitioners include media groups the Center for Media Freedom & Responsibility, National Union of Journalists of the Philippines, and the Philippine Press Institute. Other organizations who joined the e-petition are the Philippine Center for Investigative Journalism, Center for Community Journalism and Development, Philippine Center for Photojournalism, Cebu Citizens-Press Council, Bulatlat, MindaNews, PinoyWeekly, among others. Petitioners who signed hard copy of the ninth petition are Melinda Quintos de Jesus of the Center for Media Freedom and Responsibility, Rowena Paraan of the National Union of Journalists of the Philippines, Joseph Alwyn Alburo of GMA Network Inc. and National Union of Journalists of the Philippines, and Ariel Sebellino of the Philippine Press Institute. They are joined by more than 250 e-petitioners, comprised mostly of journalists and media practitioners.
“By punishing libel as a cybercrime simply because it is ‘committed through a computer system’, the clear intent of section 4(c)(4) is to single out netizens in their chosen medium of expression. It is clearly a prior restraint that infringes on the freedom of expression guaranteed under Article III, section 4 of the 1987 Constitution,” signatories to the ninth petition stated. “Freedom of expression has long enjoyed the distinction of being a preferred right and thus, ‘a weighty presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms,'” they added, citing the case of Ayer Productions v. Hon. Capulong and Juan Ponce Enrile (G.R. No. 82380, April 29, 1988)
“Read together with section 4(c)(4), section 5(a) clearly constitutes a prior restraint on free expression. In the first place, section 5(a) fails to define exactly what acts are punished within the scope of the words ‘abets or aids’ and, in the distinct context of social media and online journalism, operates as a chilling factor that undermines, restricts and abridges freedom of expression,” the petitioners also stated.
The group also questioned the criminalization of the yet-undefined acts that fall under ‘abets or aids’ under section 5(a). This will cause “any person using a computer and the internet to consider if the mere act of ‘forwarding’, ‘sharing’, ‘liking’, ‘re-tweeting’ would constitute an act that ‘abets or aids’ the content-related offense of cyber libel under section 4(c)(4),” they stated.
The wholesale importation of all felonies and crimes as cybercrimes in section 6 of the Cybercrime Prevention Act is unjustified, according to the ninth petition. “There is, however, no rational basis for concluding that the ‘use of information and communications technologies’ in relation to all felonies and crimes would constitute a circumstance so perverse as to convert an existing felony or a crime into a separate offense altogether. The absence of any rational basis for section 6, especially when read in relation to section 2, renders it an act of prior restraint especially in relation to the ‘use of information and communications technologies’ and clearly in violation of freedom of expression.”
The Act also gives the justice secretary the “power to restrict or block access to computer data simply on the basis of a prima facie finding that the computer data is in violation of the Cybercrime Law” without a judicial determination or even a formal charge. “Moreover, because the law provides for no standards for the exercise of this power, any order may be unlimited in scope, duration and character and would clearly infringe on the right to free expression.”