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TURNING CRITICS INTO CRIMINALS:

A LEGAL COMMENTARY ON THE CYBERCRIME PREVENTION ACT OF 2012

INTRODUCTION
The Philippines is a democratic country where freedom of speech is ultimately safeguarded. The said right is enshrined in our 1987 constitution. Article III, Section 4 of the Bill of Rights provides that: no law shall be passed

abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Consequently, the passage of R.A. No. 10175 or the Cybercrime
Prevention Act of 2012 was viewed as a threat against the countrys strong advocacy to preserve the exercise of such right. President Aquino signed into law R.A. No. 10175 on September 12, 2012 which provision penalizes a number of acts that may be committed only by individuals who are involved in cyber-technology. Such passing stirred the attention of netizens which eventually led to the submission of 15 petitions to the Supreme Court calling for it to repeal or delete certain provisions of the said law. The Supreme Court, in response to the outrage of the people, has imposed an indefinite temporary restraining order on R.A. No. 10175 pending the resolution on its controversial provisions.

DISCUSSIONS
Hence, it is but right to discuss the legal implications of the new law because it involves the members of the general public who probably are not even well aware of the possible imprisonment or other penalties they may face by writing something on their computers and uploading it through the internet. The most sensationalized provision in the new law is provided in Section 4 (4) on the punishable acts which states that: the unlawful and prohibited act of

libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future. In connection with this, Article 355 of the RPC defines
libel as a public and malicious imputation of a crime, or of a vice or defect, real

or imaginary, or any act, omission, condition, status, or circumstances tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Although the Department of Justice,
already removed libel from the provisions of the law as part of its proposed amendments to the Congress, such has not yet come into finality unless and until a new and improved Cybercrime Prevention Act shall be passed. Thus, it is still proper to deal with it to fuel the netizens already raging opposition and to better explain our hostility. The provision of the new law which unwittingly extended the coverage of the crime of libel into the public domain possesses a threat to our commentators and bloggers on the internet which only banks their courage to point out wrongdoings on the principle of exercising their freedom of expression. It bears also to tackle on the matters concerning social media, such that of Facebook, where the simple act of liking or sharing posts, status, articles, and photos that also falls within the ambit of libel can possibly be deemed criminal. If this is the case,

are the courts ready to be flooded with numerous cases on cyber-libel? I dont think so! Having a very vague law on cybercrime will be a great problem for the judiciary in the future so to speak. Some petitioners against the law even labeled R.A. No. 10175 as cyber martial law because of the insertion of the provision on libel which for me would directly mean that netizens should only post nice things on the internet with the fear of being prosecuted in the end. It would generally impede the check and balance in the society where people can question and criticize objectively. This would also touch the issue on double jeopardy due to the vague delineation between its provision and that of the Revised Penal Code. More specifically, as already mentioned above, is on ordinary libel versus cyber-libel and that of rape provided in the RPC versus cybersex, etc.. If Maria, a minor, sues Juan for rape at present and later on finds out that a video of such incident was uploaded in the internet, will another case for cybersex or child pornography prosper? Or more importantly, will Juan be prosecuted again based on R.A. No. 10175? Others also say that the penal provision of the law has its retroactive effect in violation of our constitutional right against the retroactivity of penal laws, in which I strongly agree. This happens when old libelous accounts, articles or posts in the internet are not withdrawn or deleted prior to the effectivity of the law. It is a very likely scenario where a writer maintains an article in his blog that he wrote 10 years ago, be used against him in the present by way of the cybercrime law. Section 19 of the law also provides that 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,
thereby, violating the constitutional guarantee 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.
This provision, if not deleted or

amended shall be prone to the abuse of corrupt politicians that would like to suppress informations and to keep the public blind on the real and disgusting truth on the Philippine government and of our society itself. Another problem being raised also pertains to questions on the possibility of computer hacking where somebody may post libelous comments or articles using the account of another. If this happens, how effective is the governments system in detecting spurious accounts and in identifying the real culprits? In connection with Section 19, would it be fair that a person be deprived of access to his own account absent prior investigation because somebody hacked his account and used it to post libelous comments? It is also worthy to point out the penalties imposed on those crimes committed online compared to their offline counterpart. This is evident in Section 6 which provides that 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. This is seen as a violation of
principles within the E-Commerce Law, R.A. No. 8792, where both offline and online evidence is given equal weight. In its implementing rules and regulations, it also indicated not to give special benefit or penalty to electronic transactions just because it is committed online.

CONCLUSION
I am well aware of the need on such law in order to give the government a tooth on the abuses that are flagrant in the internet. I, however, also believe that the government, especially our legislators, can do better in crafting a law that will not jeopardize our freedom of speech and it should be prioritized on the onset. The problems of the law already pointed out should be addressed prior to the formulation of its Implementing Rules and Regulations because if we started wrong, it will most likely to end up wrong as well.

The last time I checked, we were still a democracy-we want empowered citizens, not scared and passive ones.-Sen. Teofisto TG Guingona III

Submitted by:

JAMAICA A. MAGLINTE-DACUTANAN JURISPRUDENTIAL WRITING 2 J.D. III


Submitted to:

ATTY. IRWIN MIEL