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By Senator Miriam Defensor Santiago (Part 1 of the senator's keynote speech at the inter-university conference on business economics at Adamson University Theatre on October 6, 2012.) The prefix "cyber" relates to the culture of computers, information technology, the internet, and virtual reality. The term "cybercrime" refers to criminal activities carried out by means of computers or the internet. Just like any other human activity, the internet carries with it new avenues of illegal behavior. The internet makes it easier to commit certain crimes, such as dissemination of pornography, copyright infringement, and defamation. The internet also gives rise to crimes exclusive to the internet, such as computer hacking and misuse. And the internet can make certain crimes complicated, because they could be illegal in some countries, but not in others. Computer misuse was dramatically demonstrated in 2000, when a Filipino hacker attacked and destroyed data in 45 million computers. He created a virus that the media called the "Love Bug," because it used the subject line "I love you" in the emails that carried it. The estimated cost in damages was $10 billion. The Filipino was never punished, because the Philippines at that time had no law criminalizing computer misuse. Accordingly, in 2001, the Council of Europe drafted the Cybercrime Convention in Budapest. The Philippines is not yet a party to this treaty. If we become a party, the Philippines would be duty-bound to adopt a Cybercrime Prevention Act. But the Philippine Congress has already anticipated future global pressure to end computer abuse. In the United States, there are several laws to protect the public from computer misuse, notably the Computer Fraud and Abuse Act (18 U.S.C. 1030) and the 1996 Telecommunications Act (Sec. 230). Although the U.S. considers internet gambling to be illegal, this year three bills were filed to legalize internet gambling in America. As economics and business students, you are already aware that cybercrime works to prejudice ecommerce. Companies with online operations are subject to credit card fraud, identity theft, phishing, and intellectual property crimes. Cybercriminals continue to negatively impact ecommerce. In short, in today's world, cybercrime prevention is a necessity. This is why I was active during the interpellation and amendment periods of the Cybercrime Prevention Act. Unfortunately, I was absent because of hypertension, during the voting period. In my humble opinion, the law as presently worded is unconstitutional. In our Constitution, freedom of speech occupies a preferred position. In his immortal argument for a "marketplace of ideas," the great Justice Holmes wrote: "They may come to believe . . . that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ." In fact, the constitutional provision, on the surface, sounds absolute: "No law shall be passed abridging the freedom of speech." I humbly submit that while the general rule is that a law is presumed to be constitutional, there is an exception when the law limits free speech. In that case, the law is presumed to be either neutral, or presumed to be unconstitutional. Because it limits free speech, the Cybercrime Act begins with a presumption of unconstitutionality. The Cybercrime Act is a law that dangerously limits the growth of the marketplace of ideas. Therefore, it is presumed to be unconstitutional. But in addition, the law is unconstitutional, because it uses language that is overbroad, and language that is too vague. In other words, it violates the overbreadth doctrine and the void for vagueness doctrine in constitutional law. The overbreadth doctrine holds that if a law is so broadly written that it deters free expression, then the Supreme Court will strike it down in its face, because of its chilling effect. The vagueness doctrine refers to a law that provides a punishment without specifying what conduct is punishable, and therefore the law is void because it violates due process. Among the provisions of the Cybercrime Act that are too broad or too vague are: Sec. 4 para 4. It makes libel a cybercrime, if committed online; Sec. 5. It punishes any person who aids or abets the commission of any cybercrime, even if it is only through Facebook or Twitter; Sec. 6. It adopts the entire Penal Code, if the crime is committed by the use of information technology, but the penalty shall be one degree higher; Sec. 7. It makes the same crime punishable, both under the Penal Code and the Cybercrime Act; Sec. 19. It authorizes the Department of Justice to issue an order to restrict access to computer data which is found to be prima facie in violation of the new law. Sec. 19 is called "the takedown clause." For these reasons, I humbly predict that the Supreme Court will strike down the Cybercrime Act as unconstitutional. Otherwise, it will be a black, black day for freedom of speech.
Sec. 21, which states the jurisdiction of Regional Trial Courts (RTC) and designated cybercrime courts over violations of any of the provisions of the law; and Sec. 22 pertaining to international cooperation from all relevant international instruments, international arrangements, and domestic laws in the implementation of RA 10175. Petitioners said the law violates the publics constitutional rights including right to due process, equal protection, freedom of speech, right to privacy, protection against unreasonable searches and seizures, protection against double jeopardy, among others. Indeed, the Internet is not evil per se, but the statute in question views cyberspace as inherently evil and treats those who use it in violation of a rule with unjust discrimination by providing a penalty higher than an act committed without the use of an internet, one of the petition stated. The law is envisioned as a measure against hacking, identity theft, spamming, cybersex and online child pornography. But citizens and groups who protested on social networking sites, blogs and out in the streets fear politicians will use it to silence critics. The law contains a provision that says libel which is already punishable by up to six years in prison is also a cybercrime. It doubles cumulative penalties for online offenses and allows government agencies to search, seize and destroy computer data deemed libelous. Human rights and media groups have unsuccessfully campaigned for years to downgrade libel from a criminal to a civil offense, saying politicians often use the law to harass journalists and other critics. Many Facebook and Twitter users in the Philippines and the portals of the main media organizations have replaced their profile pictures with black screens as a protest against the law.
you (the mainstream media) are responsible and have rules to follow. But currently, social media doesnt, Sotto said. Sotto said libel laws should not pose any problem to responsible journalists and media organizations who are professionally trained and observe ethical standards. While news reports are carefully edited before they are published, Sotto said online writers and bloggers can easily post information without verifying their data and are not accountable to anyone. Sotto said he would be the first to oppose any measure to curtail press freedom because a free press is essential to a vibrant democracy. I guarantee you that I support moves to decriminalize libel, if only to promote a press that is free from harassment and intimidation. Unfortunately, our laws still treat libel as a criminal offense and not as a civil offense, Sotto said. Asked how he reconciles this stand with the inclusion of libel in the Cybercrime Prevention Law, Sotto said he favors removing only criminal liability and not civil sanctions for the offense (which means one can be sued for damages but not sent to jail.) Sotto said the bill on the decriminalization of libel, which requires amending the Revised Penal Code, is likely to be passed in the next Congress. Right now, we would rather work on the FOI (Freedom of Information) bill. I support the FOI, Sotto said. In her blog, Raissa Robles earlier criticized Sottos insertion of online libel in the Cybercrime Prevention law, saying it lumped libel together with cybersex, child porn and advertising spam as major offenses. She said the online libel provision has no safeguards which the rich and the powerful can now use to chill critics. Sotto said contrary to reports that he sneaked it into the bill, the provision on online libel was discussed at the committee level last December and in January this year. Contrary to that, we discussed this in the last quarter of 2011. We passed the amendments in January 2012 long before the controversy over the Reproductive Health Bill occured, Sotto said. Asked if a public hearing was held that invited media outlets or bloggers to discuss the online libel provision, Sotto said I think Sen. Ed Angara said there was. But the period of amendments already expired which meant there was no more time for public hearings. Sotto earlier came under fire from the blogging community for allegedly plagiarizing an American blogger and a speech by the late US senator Robert Kennedy in his speeches opposing the RH bill, charges which he denied. Sotto denied that he introduced the online libel provision in retaliation for this online criticism. As a public servant, we cannot be onion-skinned about criticisms by the press, he said. I freely talk about those people writing about me, whether it is good or bad, and those who try to ruin my reputation and credibility instead of targeting my message. But reputation is the only thing weve got. So we should not allow just anyone to take it away from us,
he told the audience of students and media professionals. The senator cited his family roots in Cebu and the Sotto Law or Republic Act No. 53 authored by his great grandfather, Sen. Vicente Sotto, as proof of his adherence to press freedom. Under RA 53, a journalist cant be forced to reveal the source of his stories told to him in confidence. Together with Sen. Gregorio Honasan, who chairs the Senate committee on public information, we are expanding the coverage of the Sotto law which protects print media from disclosing their sources, to the broadcast media, the senator said.