Philippine Cybercrime Law: Notes and Clarifications.

Internet freedoms are under threat in the Philippines.

“And just like that, the proverbial refuse assaulted the unsuspecting ventilation device.” — Theodore Te

This blog opposes the Cybercrime Prevention Act in its current form, but acknowledges those reasonable voices that point out, rightly, that the online protests against it has created a wild pandemonium on Facebook and Twitter that already borders on hysteria.

Protesters, for instance, have coined the term “Cyber Martial Law” to dramatize its effects. This, of course, is a hyperbole. Facebook and Twitter users will not receive cyber arrest warrants from an online Gestapo for what they share and tweet anytime soon, and the insinuations from the rabid opposition that the Aquino administration is attempting to establish an online dictatorship is simply unfounded.

There is value to exaggerations such as these. They raise awareness of the issue among the people involved. The downside, of course, is that the hyperbole has turned into misinformation, to which the less-discerning netizen has become a prey. Nonetheless, the goal of making Internet users aware that their freedom is under significant threat has been achieved. The netizens have driven home the point that they will not take this sitting down, and those who supported this law are now yielding ground.

But now that we have made our point, it’s time for a more sober discourse.

First of all, let’s clarify our opposition to this law. There is a spectrum even among those who oppose it, so where do we stand? This blog is not against the law in its entirety; it merely opposes it in its current form. The Act has laudable provisions against identity theft, cyber-prostitution, and child pornography, giving victims of these computer-related offenses the protection they need. But there are provisions that give those in positions of power the means to stifle dissent and infringe on people’s private lives, and should therefore be removed.

Among the most glaring of these provisions is Section 4(c)(4), which classifies libel, “as defined in Article 355 of the Revised Penal Code,” committed online, as a criminal offense. Apparently, this is a last-minute insertion by Senator Tito Sotto. It was opposed vigorously by leftist Rep. Mong Palatino, but was approved by a bicameral committee of Congress.

Firstly, the country’s eighty-five year-old libel law, which was promulgated by the Americans precisely to stifle dissent against colonial rule, has already been condemned by the United Nations Human Rights Committee as “excessive” and in conflict with the Philippines’ obligations under Article 19 of the International Covenant on Civil and Political Rights. Instead of decriminalizing it, the country has criminalized it again. This is certainly a step backward for freedom of speech.

Secondly, according to lawyers, the Act’s libel provision is so badly crafted it runs contrary to the constitutional principle of due process and the maxim nullum crimen nulla poena sine lege, or “there is no crime where there is no law defining the act to be a crime.” As Professor Theodore Te of the University of the Philippines College of Law explained, Section 4(c)(4) invokes only Article 355, a very specific provision of the Revised Penal Code that covers libel by “means of writings or similar means.” Articles 353 and 354, which defines what constitutes libel and spells out its “requirement for publicity,” respectively, have been excluded, leading to what Professor Te describes as “an absurd situation of a crime that is undefined yet punished very severely.”

Says Professor Te: “Under Section 4(c)(4), a prosecutor, who is tasked with filing a charge, and a judge, who is tasked with finding liability, would have to speculate on the definition of cyberlibel because the law does not define it.” The implication is that just about anyone can say that a post or a tweet is libelous, and sue whoever posted them.

The reason why libel has a chilling effect is not because it’s easy to convict someone of libel. Rather, it’s the fact that powerful people, who can pull some levers to get prosecutors to use even the flimsiest grounds to come up with a libel case, can sue for libel. For ordinary people, being sued for a criminal offense is financially, and therefore emotionally, taxing. In order to harass journalists, therefore, powerful people sue for libel just for the sake of suing.

And, with this Cybercrime Prevention Act, powerful people can now harass not just journalists but ordinary citizens  whose criticisms go viral on Twitter or Facebook. The lack of definition of what constitutes cyber libel allows these powerful people to be more arbitrary in characterizing posts and tweets that offend them as libelous. This reduces the value of the Internet as a platform for citizens to be heard.

Another alarming provision is Section 12, which gives authorities the power 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,” upon determination of “due cause.” This practically authorizes the government to conduct surveillance and fishing expeditions on unsuspecting netizens, something that only the Martial Law government was ever allowed by law to do.

Of course, this is not the intention of this clause. The provision, after all, limits the “traffic data” that can be monitored only to “the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.” The content of the data, and online identities, are supposed to be off-limits. But the road to perdition is paved with good intentions: Technical experts insist that traffic data can’t be monitored without monitoring its content and identities. In effect, this potentially gives the government the loophole to circumvent the Anti-Wiretapping Law, which protects individuals’ right to privacy.

Still, another alarming provision is Section 19, which gives the Department of Justice the power to “restrict or block access to such computer data” when such data is found to be prima facie in violation of the Act. This gives the Secretary of Justice, for instance, the power to take down this website if she thinks it contains materials that are, for her, libelous. Remember that the Secretary is also free to arbitrarily characterize any tweet or post as libelous, since the law doesn’t define cyber libel.

And then there’s Section 24, which creates a Cybercrime Investigation and Coordinating Center (CICC) that has the power to formulate and implement a “national cybersecurity plan.” As Prof. Te points out, nowhere in the Act is this “national cybersecurity plan” defined, nor is there a set of standards that will guide the CICC in formulating it.

Of course, one can reasonably concede that President Benigno S. Aquino III and Justice Secretary Leila de Lima would not be inclined to abuse these broad powers, but this is not enough a reason to be complacent. Having gone though nine years under Gloria Macapagal-Arroyo, who extended the reach of the powers of her office and tested the limits of the Constitution for political ends, Filipinos should not allow a law that gives a potential tyrant, and those in positions of power, the means to infringe on basic civil liberties.

But having said all these, this blog disagrees with the way groups like Anonymous Philippines are expressing their opposition. Hacking government websites and other forms of cyber-vandalism is not only wrong but also counter-productive. It only buttresses the arguments of those who support regulating, if not curtailing, Internet freedoms. The track taken by those who have formally asked the Supreme Court to declare the Act unconstitutional is the way to go. Making use of the avenues provided by the democratic framework strengthens the moral position of those opposed to this law.

Thanks to our efforts, those who support the law– from the President who signed it to the senators and congressmen who voted for it– have now recognized our serious concerns. We should accept their invitation to dialogue and engage them in all forums available, even as we remain vigilant and adamant on our position that civil liberties should always remain non-negotiable.

Required Readings: The Cybercrime Prevention Act, Prof. Theodore Te’s “Cyberauthoritarianism 101″ and Luis Teodoro’s “Worst Assault on Free Expression Since 1972″

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