My piece on the cybercrime law — whose title was abbreviated by the editors to “Rest of iceberg” — came out in the Philippine Daily Inquirer’s Talk of the Town section this Sunday, March 9, 2014. I am posting the original, longer version of the article here, and retaining the slightly longer title as well.
Much of the online outrage that came in the wake of the Supreme Court’s decision in the now landmark case of Disini v. Secretary of Justice (probably more popularly known to the public as the “cybercrime case”) was directed at the portion of the ruling upholding the constitutionality of Section 4(c)4 of the Cybercrime Prevention Act (RA 10175) – the “cyberlibel” provision.
This is not surprising, considering that from the outset, this provision on cyberlibel has been the most vociferously condemned feature of the law, with academics, civil rights lawyers, journalists, and ordinary netizens all coming together to bewail its deleterious effects on free speech online. The fact that Senator Vicente “Tito” Sotto III — not exactly everyone’s favorite member of the Senate — subsequently admitted to inserting the provision at a late stage of the bill’s deliberations in Congress, only added further to the notoriety of the provision.
Even the three dissenting members of the Court, Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio T. Carpio, and Associate Justice Marvic F. Leonen, all focused their dissents mainly on the question of cyberlibel and the related libel provision in the Revised Penal Code.
But while the cyberlibel question is indisputably significant, it is definitely not the only item of concern in relation to free speech, particularly within the relatively new terrain of cyberspace, in the Cybercrime Prevention Act. The seemingly innocuous Section 6, which transplants provisions of the Revised Penal Code into the Cybercrime Prevention Act, so long as they are committed “by, through, and with the use of communication and information technologies,” is potentially an even more insidious threat to online speech than cyberlibel, yet, thus far, it has sailed largely unscathed through the storms of protest that came in the wake of both the law’s enactment and it’s “ratification” by the Supreme Court in Disini.
Section 6 is phrased simply enough:
All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.
It is perhaps because of this deceptively simple phrasing of the provision that its far reaching implications, which go well beyond just the issue of libel, have been mostly overlooked. In the majority decision in Disini, the ponente, Associate Justice Roberto A. Abad, devotes a single, somewhat dismissive, paragraph to discussing Section 6, saying that the provision “merely makes the commission of existing crimes through the internet a qualifying circumstance.” And while CJ Sereno devotes a significant part of her dissent to discussing Section 6, she dwells more on the how the higher penalty mandated in the provision, again taken solely in relation to libel, creates a heavier “chilling effect” on free speech.
To my mind, there are at least two problems with Section 6 that were not substantially taken up either in the main decision, or in the dissenting opinions.
The first is a matter actually touched on during the oral arguments when Justice Carpio asked counsel for petitioners, my colleague in the House of Representatives, Neri Colmenares, if it is required for cyberlibel to exist that the computer system used be connected to the Internet. Carpio’s point was the expansive phrase “by, through and with the use of information and communications technologies” used in Section 6 seemingly allowed for application of the Cybercrime Prevention Act, and the higher penalty under Section 6, to a libellous article merely written using a computer, without necessarily transmitting or uploading the same online. Unfortunately, petitioners were unable to further develop this point, which I feel is a key issue with regard to the entire law.
The crux of this particular matter is that by treating the use of “information and communications technologies,” — an exceedingly broad term that is not even defined and delimited in the law itself — as a qualifying circumstance to all crimes defined and penalized under the Revised Penal Code, it opens the floodgates to a slew of prosecutions under Section 6 that have nothing to do with cyberspace.
For instance, using your cellphone to send threatening text messages to your ex-girlfriend’s new suitor, mislead random strangers into thinking that they’ve “won” a cash prize and will get it provided they pay a “management fee,” or inform your fellow burglars that the security guards by the backdoor of the warehouse have walked on, can now all be potentially penalized as “cyber-threats,” “cyber-estafa,” and “cyber-robbery” respectively.
And as more and more, we come to rely on our mobile phones, laptops, tablets, google glasses, and – who knows, eventually – surgically implanted computer chips, for the things we do in our daily lives, at some point, it is conceivable that all crimes will be “cybercrimes” due to the broad phrasing of Section 6. And remember, they will all be subject to the higher penalty prescribed in the provision.
The second problem is more specific, and relates to other provisions of the Revised Penal Code that have potentially suppressive effects on free speech, and that have been “imported” into the Cybercrime Prevention Act again through Section 6.
The most glaring example here is Article 142 of the Revised Penal Code, which defines the crime of inciting to sedition. This punishes any person —
who, without taking any direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end, or upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government of the Philippines, or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices.
This provision is adopted from the 1901 Sedition Law, or Act No. 292, promulgated by the United States colonial government to deter uprisings by the newly conquered Filipinos and punish all those critical of the government. A cursory reading of the text shows that it is deliberately designed to be broadly worded and conveniently vague – the crime is committed if “seditious words” are uttered, or words which “tend” to instigate others to meet or cabal, or which “suggest” rebellious conspiracies.
This is not surprising, as the Sedition Law was really intended as a draconian instrument to clamp down on dissent and protest during a particularly restive period in our history. Sadly, it has persisted in our statute books up to the present, and has been used by Presidents such as Ferdinand Marcos and, more recently, Gloria Macapagal Arroyo, to crack down on their critics and political opponents.
Still, it is apparent that Article 142, which should have long been struck down as a clear infringement on free speech, is now given a new, more potent existence through Section 6 of the Cybercrime Prevention Act.
Tweeting or posting on Facebook a statement calling the government “dirty,” a “dictatorship,” or “shameful,” will likely subject the hapless netizen to a prosecution for “cyber-sedition” as these are all invectives that the Supreme Court, in the 1951 case of Espuelas v. People, have deemed as seditious utterances. In fact, according to the same case, unless the criticism is “specific and therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire government set-up,” then it is punishable under Article 142.
Browsing through my Twitter feed on any given day, I can just imagine how many potential “cyber-seditionists” there are, courtesy of Section 6 in relation to Article 142.
Another example is Article 133, which should still be fresh in our memory in relation to the Carlos Celdran “Damaso” case. This provision that is yet another archaic, outdated throwback to colonial times, but which, for some inexplicable reason, continues to persist in our penal code, penalizes “anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful.”
Setting aside the venue and timing element – although, with ICT being what it is, how can you really say that you did not post, tweet, email, or text while a religious ceremony, somewhere was taking place – the phrase “notoriously offensive to the feelings of the faithful” has tremendous potential for taking to task for “cyber blasphemy” all those pro-RH people who clutter our online spaces with calls to implement the reproductive health law. I have a friend who makes a habit of debating die-hard religious nuts online, and I suppose now I have to warn him that he is now potentially opening himself up to potential criminal prosecution under the Cybercrime Prevention Act.
Finally, there is the second paragraph of Article 287, which penalizes “unjust vexation” with a nominal fine and imprisonment of up to 30 days. While seemingly innocuous, even trivial, this provision becomes potent when fused with Section 6 since it will potentially allow criminal prosecutions, which can result in a penalty of up to six (6) months imprisonment, for any vexing, irritating, annoying statement posted online. And really, on a regular day, how many annoying posts do you see on your newsfeed? Post an acerbic comment about all those selfies your friend uploads, and, thanks to Section 6, you may be looking at six months in Bilibid. Of course, you can jump the gun and sue him for his annoying selfies, “cyber-vexing” can, after all, cut both ways.
Ultimately, the problem with Section 6 is that it transplants wholesale hundreds of crimes from an 82-year old law – many of which were in turn adopted from laws enacted centuries earlier – and attempts to adopt them to the completely new, completely different terrain of cyberspace. There are bound to be problems in applying restrictions crafted in colonial times to the free-wheeling discussions on Facebook or the Twitterverse.
It is justified to be concerned about cyberlibel. But we should not forget, that it is an issue that is, very much, just the tip of a very large, very heavy iceberg.