MTRCB v. ABS-CBN G.R. No. 155282.
January 17, 2005 1) TV programs imprinted or exhibited by Phil govt and/or
Facts:
Respondent abs-cbn aired “Prosti-tuition”, an episode of
the TV program “The Inside Story” produced and hosted by
respondent Legarda. It depicted female students
moonlighting as prostitutes to enable them to pay for their
tuition fees.
PWU was named as the school of some of the students
involved and the façade of the PWU building served as the
background of the episode. This caused upsoar in the PWU
community and they filed a letter-complaint to the MTRCB.
MTRCB alleged that respondents:
1) Did not submit “the inside story” to petitioner for review
2) Exhibited the same without its permission, thus violating
sec 7 of PD 1986 and some sections of MTRCB rules and
regulations
ABS-CBN averred:
1) The Inside Story is a public affairs program, news
documentary and socio-political editorial, its airing is
protected by the constitutional provision on freedom
of expression and of the press
2) Petitioners has no power, authority and jurisdiction to
impose any form of prior restraint upon respondents.
After hearing and submission of the parties’ memoranda,
MTRCB investigating committee ordered the respondents
to pay P20,000 for non-submission of the program
MTRCB affirmed the ruling
Respondents filed a special civil action for certiorari with
RTC QC. RTC rendered a decision in favor of respondents,
annulling and setting aside the decision and resolution of
the MTRCB and declaring and decreeing that certain
sections of PD 1986 & MTRCB do not cover the TV program
“Inside Story”, they being a public affairs programs which
can be equated to a newspaper
Hence, this petition
Issue:
Whether the MTRCB has the power or authority to review
the “Inside Story” prior its exhibition or broadcast by TV.
Held:
Sec 3 of PD 1986 enumerates the powers, functions and
duties of the board:
Xxx
b) to screen, review and examine all motion pictures herein
defined, TV programs, including publicity materials
The court in INC v. CA rules that PD 1986 gives MTRCB the
power to screen, review and examine ALL TV PROGRAMS
*LESSON* where the law does not make any exceptions,
courts may not exempt something therefrom, unless there
is compelling reason apparent in the law to justify it.
Thus, when the law says “all TV programs”, the word
all covers all tv programs whether religious, public affairs,
news docu, etc
It then follows that since the Inside Story is a TV Program,
MTRCB has the power to review it
The only exemptions from the MTRCB’s power to review
are those mentioned in Sec 7 of PD 1986
departments and agencies
2) Newsreels
In a desperate attempt to be exempted, respondents
content that Inside Story falls under the category of
newsreels.
MTRCB rules and reg defines newsreels as “straight news
reporting, as distinguished from analyses, commentaries,
and opinions. Talk shows on a given issue are not
considered newsreels.
Clearly, Inside Story is not a newsreel but more of a public
affairs program and within petitioner’s power of review.
Issue related to Consti law:
Petitioner’s power to review television programs under
Section 3(b) of P. D. No. 1986 does not amount to “prior
restraint.”
Ratio:
It is significant to note that in Iglesia ni Cristo, this Court
declared that freedom of religion has been accorded a
preferred status by the framers of our fundamental laws,
past and present, “designed to protect the broadest
possible liberty of conscience, to allow each man to believe
as his conscience directs x x x.” Yet despite the fact that
freedom of religion has been accorded a preferred status,
still this Court, did not exempt the Iglesia ni Cristo’s
religious program from petitioner’s review power.
Respondents claim that the showing of “The Inside Story” is
protected by the constitutional provision on freedom of
speech and of the press. However, there has been no
declaration at all by the framers of the Constitution that
freedom of expressionand of the press has a preferred
status.
If this Court, in Iglesia ni Cristo, did not exempt religious
programs from the jurisdiction and review power of
petitioner MTRCB, with more reason, there is no
justification to exempt therefrom “The Inside Story” which,
according to respondents, is protected by the constitutional
provision on freedom of expression and of the press, a
freedom bearing no preferred status.
The only exceptions from the MTRCB’s power of review are
those expressly mentioned in Section 7 of P. D. No. 1986,
such as (1) television programs imprinted or exhibited by
the Philippine Government and/or its departments and
agencies, and (2) newsreels.
Reno v. American Civil Liberties Union
Facts of the case
Several litigants challenged the constitutionality of two
provisions in the 1996 Communications Decency Act.
Intended to protect minors from unsuitable internet
material, the Act criminalized the intentional transmission
of "obscene or indecent" messages as well as the
transmission of information which depicts or describes
"sexual or excretory activities or organs" in a manner
deemed "offensive" by community standards. After being
enjoined by a District Court from enforcing the above
provisions, except for the one concerning obscenity and its
inherent protection against child pornography, Attorney
General Janet Reno appealed directly to the Supreme Court
as provided for by the Act's special review provisions.
Question
Did certain provisions of the 1996 Communications
Decency Act violate the First and Fifth Amendments by
being overly broad and vague in their definitions of the
types of internet communications which they criminalized?
Conclusion
Yes. The Court held that the Act violated the First
Amendment because its regulations amounted to a
content-based blanket restriction of free speech. The Act
failed to clearly define "indecent" communications, limit its
restrictions to particular times or individuals (by showing
that it would not impact adults), provide supportive
statements from an authority on the unique nature of
internet communications, or conclusively demonstrate that
the transmission of "offensive" material is devoid of any
social value. The Court added that since the First
Amendment distinguishes between "indecent" and
"obscene" sexual expressions, protecting only the former,
the Act could be saved from facial overbreadth challenges if
it dropped the words "or indecent" from its text. The Court
refused to address any Fifth Amendment issues.
Disini, et al. v. The Secretary of Justice, et al., G.R. No.
203335, 11 February 2014
FACTS
Petitioners lament that libel provisions of the penal code
and, in effect, the libel provisions of the cybercrime law
carry with them the requirement of “presumed malice”
even when the latest jurisprudence already replaces it with
the higher standard of “actual malice” as a basis for
conviction. Petitioners argue that inferring “presumed
malice” from the accused’s defamatory statement by virtue
of Article 354 of the penal code infringes on his
constitutionally guaranteed freedom of expression.
ISSUE
Whether or not Section 4(c)(4) of the Cybercrime
Prevention Act on cyberlibel affected the requirement of
“actual malice” as opposed to “presumed malice” as basis
for conviction of libel.
RULING
The prosecution bears the burden of proving the presence
of actual malice in instances where such element is
required to establish guilt. The defense of absence of actual
malice, even when the statement turns out to be false, is
available where the offended party is a public official or a
public figure, as in the cases of Vasquez (a barangay official)
and Borjal (the Executive Director, First National
Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel
against private persons, the Court recognizes that these
laws imply a stricter standard of “malice” to convict the
author of a defamatory statement where the offended
party is a public figure. Society’s interest and the
maintenance of good government demand a full discussion
of public affairs.
But, where the offended party is a private individual, the
prosecution need not prove the presence of malice. The
law explicitly presumes its existence (malice in law) from
the defamatory character of the assailed statement. For his
defense, the accused must show that he has a justifiable
reason for the defamatory statement even if it was in fact
true.
Disini, Jr. v. Secretary of Justice, 716 SCRA 237 (2014)
and 723 SCRA 109 (2014)
Issues were raised against the constitutionality of the various
provisions of Cybercrime Prevention Act of 2012 (R.A. No.
10175). The Court upheld some provisions but struck down
others. Among the highlights from the ruling:
Cyberspace, the benefits and costs. Cyberspace is “a system
that accommodates millions and billions of simultaneous
and ongoing individual accesses to and uses of the internet.
The cyberspace is a boon to the need of the current
generation for greater information and facility of
communication. But all is not well with the system since it
could not filter out a number of persons of ill will who
would want to use cyberspace technology for mischiefs and
crimes.”
Levels of Scrutiny. “The Court has in a way found the strict
scrutiny standard, an American constitutional construct,
useful in determining the constitutionality of laws that tend
to target a class of things or persons. According to this
standard, a legislative classification that impermissibly
interferes with the exercise of fundamental right or operates
to the peculiar class disadvantage of a suspect class is
presumed unconstitutional. The burden is on the government
to prove that the classification is necessary to achieve a
compelling state interest and that it is the least restrictive
means to protect such interest. Later, the strict scrutiny
standard was used to assess the validity of laws dealing with
the regulation of speech, gender, or race as well as other
fundamental rights, as expansion from its earlier
applications to equal protection.”
On Illegal Access and “Ethical Hackers.” “In the cases
before it, the Court finds nothing in Section 4(a)(1) that calls
for the application of the strict scrutiny standard since no
fundamental freedom, like speech, is involved in punishing
what is essentially a condemnable act – accessing the
computer system of another without right. It is a universally
condemned conduct.” How about the danger of suppressing
the work of ethical hackers? No problem. “Ethical hackers
evaluate the target system’s security and report back to the
owners the vulnerabilities they found in it and give
instructions for how these can be remedied. Ethical hackers
are the equivalent of independent auditors who come into an
organization to verify its bookkeeping records.”
Data Interference, Vandalism and Overbreadth Doctrine.
“Under the overbreadth doctrine, a proper governmental
purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject
broadly, thereby invading the area of protected freedoms.
But Section 4(a)(3) does not encroach on these freedoms at
all. It simply punishes what essentially is a form of
vandalism, the act of willfully destroying without right the
things that belong to others, in this case their computer data,
electronic document, or electronic data message. Such act
has no connection to guaranteed freedoms. There is no
freedom to destroy other people’s computer systems and
private documents.” And, moreover, “[a]ll penal laws, like
the cybercrime law, have of course an inherent chilling
effect, an in terrorem effect or the fear of possible
prosecution that hangs on the heads of citizens who are
minded to step beyond the boundaries of what is proper.”
Cybersquatting. Cyber-squatting is the acquisition of
domain name over the internet in bad faith to profit,
mislead, destroy the reputation, and deprive others from
registering the same. “The law is reasonable in penalizing
him for acquiring the domain name in bad faith to profit,
mislead, destroy reputation, or deprive others who are not
ill-motivated of the rightful opportunity of registering the
same. The challenge to the constitutionality of Section
4(a)(6) on ground of denial of equal protection is baseless.”
Privacy and Identity Theft. Computer-related Identity Theft
is the intentional acquisition, use, misuse, transfer,
possession, alteration, or deletion of identifying information
belonging to another, whether natural or juridical, without
right. “The right to privacy, or the right to be let alone, was
institutionalized in the 1987 Constitution as a facet of the
right protected by the guarantee against unreasonable
searches and seizures. But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc, it ruled that
the right to privacy exists independently of its identification
with liberty; it is in itself fully deserving of constitutional
protection.” In this connection, “[i]n assessing the challenge
that the State has impermissibly intruded into these zones of
privacy, a court must determine whether a person has
exhibited a reasonable expectation of privacy and, if so,
whether that expectation has been violated by unreasonable
government intrusion.” Now, how about the application of
the law in this regard? “[T]he charge of invalidity of this
section based on the overbreadth doctrine will not hold
water since the specific conducts proscribed do not intrude
into guaranteed freedoms like speech. Clearly, what this
section regulates are specific actions: the acquisition, use,
misuse or deletion of personal identifying data of another.
There is no fundamental right to acquire another’s personal
data.” Also, the Court pointed out: “Evidently, the theft of
identity information must be intended for an illegitimate
purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a
form of theft. The Court has defined intent to gain as an
internal act which can be established through the overt acts
of the offender, and it may be presumed from the furtive
taking of useful property pertaining to another, unless
special circumstances reveal a different intent on the part of
the perpetrator. As such, the press, whether in quest of news
reporting or social investigation, has nothing to fear since a
special circumstance is present to negate intent to gain
which is required by this Section.”
Cybersex. Cybersex, or the willful engagement,
maintenance, control, or operation, directly or indirectly, of
any lascivious exhibition of sexual organs or sexual activity,
with the aid of a computer system, for favor or
consideration. Would not the law, as written, invite law
enforcement agencies into the bedrooms of married couples
or consenting individuals? No, “the deliberations of the
Bicameral Committee of Congress on this section of the
Cybercrime Prevention Act give a proper perspective on the
issue. These deliberations show a lack of intent to penalize a
‘private showing x x x between and among two private
persons x x x although that may be a form of obscenity to
some.’ The understanding of those who drew up the
cybercrime law is that the element of ‘engaging in a
business’ is necessary to constitute the illegal cybersex. The
Act actually seeks to punish cyber prostitution, white slave
trade, and pornography for favor and consideration. This
includes interactive prostitution and pornography, i.e., by
webcam.” And the Court added, “[i]n any event, consenting
adults are protected by the wealth of jurisprudence
delineating the bounds of obscenity. The Court will not
declare Section 4(c)(1) unconstitutional where it stands a
construction that makes it apply only to persons engaged in
the business of maintaining, controlling, or operating,
directly or indirectly, the lascivious exhibition of sexual
organs or sexual activity with the aid of a computer system
as Congress has intended.”
Child Pornography. “It seems that the above merely
expands the scope of the Anti-Child Pornography Act of
2009 (ACPA) to cover identical activities in cyberspace. In
theory, nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child
pornography using a computer system.”
Spam and Commercial Speech. Unsolicited Commercial
Communications or spam11 is the transmission of
commercial electronic communication with the use of
computer system which seeks to advertise, sell, or offer for
sale products and services. “To prohibit the transmission of
unsolicited ads would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech which
is not accorded the same level of protection as that given to
other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection. The State cannot rob him
of this right without violating the constitutionally
guaranteed. “The term ‘spam’ surfaced in early internet chat
rooms and interactive fantasy games. One who repeats the
same sentence or comment was said to be making a ‘spam.’
The term referred to a Monty Python’s Flying Circus scene
in which actors would keep saying ‘Spam, Spam, Spam, and
Spam’ when reading options from a menu.” freedom of
expression. Unsolicited advertisements are legitimate forms
of expression.”
Cyberlibel. This would refer to the commission of libel
through a computer system. The Court held that libel is not a
constitutionally protected speech and that the government
has an obligation to protect private individuals from
defamation. And, cyberlibel is actually not a new crime
since Article 353, in relation to Article 355 of the penal
code, already punishes it. In effect, Section 4(c)(4) above
merely affirms that online defamation constitutes “similar
means” for committing libel.” “But the Court’s
acquiescence goes only insofar as the cybercrime law
penalizes the author of the libelous statement or article.
Cyberlibel brings with it certain intricacies, unheard of when
the penal code provisions on libel were enacted. The culture
associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling,
anything-goes writing style. In a sense, they are a world
apart in terms of quickness of the reader’s reaction to
defamatory statements posted in cyberspace, facilitated by
one-click reply options offered by the networking site as
well as by the speed with which such reactions are
disseminated down the line to other internet users.”
Aiding or Abetting Commission of Cybercrime. Here, one
has to differentiate between the usual and traditional means
of aiding or abetting from its commission through the
internet. “Aiding or abetting has of course well-defined
meaning and application in existing laws. When a person
aids or abets another in destroying a forest, smuggling
merchandise into the country, or interfering in the peaceful
picketing of laborers, his action is essentially physical and
so is susceptible to easy assessment as criminal in character.
These forms of aiding or abetting lend themselves to the
tests of common sense and human experience. But, when it
comes to certain cybercrimes, the waters are muddier and
the line of sight is somewhat blurred. The idea of ‘aiding or
abetting’ wrongdoings online threatens the heretofore
popular and unchallenged dogmas of cyberspace use.” And
the Court went on to elucidate how easy it would be to get
trapped under the law if it were to be understood in its
traditional non-internet application. “If the post is made
available to the public, meaning to everyone and not only to
his friends, anyone on Facebook can react to the posting,
clicking any of several buttons of preferences on the
program’s screen such as ‘Like,’ ‘Comment,’ or ‘Share.’
‘Like’ signifies that the reader likes the posting while
‘Comment’ enables him to post online his feelings or views
about the same, such as ‘This is great!’ When a Facebook
user ‘Shares’ a posting, the original ‘posting’ will appear on
his own Facebook profile, consequently making it visible to
his down-line Facebook Friends. Twitter, on the other hand,
is an internet social networking and microblogging service
that enables its users to send and read short text-based
messages of up to 140 characters. These are known as
‘Tweets.’ Microblogging is the practice of posting small
pieces of digital content – which could be in the form of
text, pictures, links, short videos, or other media – on the
internet. Instead of friends, a Twitter user has ‘Followers,’
those who subscribe to this particular user’s posts, enabling
them to read the same, and ‘Following,’ those whom this
particular user is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can make his tweets
available only to his Followers, or to the general public. If a
post is available to the public, any Twitter user can
‘Retweet’ a given posting. Retweeting is just reposting or
republishing another person’s tweet without the need of
copying and pasting it. In the cyberworld, there are many
actors: a) the blogger who originates the assailed statement;
b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the
internet café that may have provided the computer used for
posting the blog; e) the person who makes a favorable
comment on the blog; and f) the person who posts a link to
the blog site.” Then the Court considered the peculiarities of
the internet and online postings relative to the crime of
cyberlibel. “The question is: are online postings such as
‘Liking’ an openly defamatory statement, ‘Commenting’ on
it, or ‘Sharing’ it with others, to be regarded as ‘aiding or
abetting?’ . . . Besides, it is not clear if aiding or abetting
libel in the physical world is a crime.” Then, it noted that “in
the complex world of cyberspace expressions of thoughts,
when will one be liable for aiding or abetting cybercrimes?
Where is the venue of the crime? Except for the original
author of the assailed statement, the rest (those who pressed
Like, Comment and Share) are essentially knee-jerk
sentiments of readers who may think little or haphazardly of
their response to the original posting. Will they be liable for
aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of
responding ‘Friends’ or ‘Followers’ in the criminal charge
to be filed in court, who will make a choice as to who
should go to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel
would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel
law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to
freedom of expression.” What then? Well, you can penalize
certain conduct but it should not sweep too broadly. If it
does, it would be a lesser evil to let the conduct go
unpunished than sacrifice more important freedoms. “Libel
in the cyberspace can of course stain a person’s image with
just one click of the mouse. Scurrilous statements can spread
and travel fast across the globe like bad news. Moreover,
cyberlibel often goes hand in hand with cyberbullying that
oppresses the victim, his relatives, and friends, evoking from
mild to disastrous reactions. Still, a governmental purpose,
which seeks to regulate the use of this cyberspace
communication technology to protect a person’s reputation
and peace of mind, cannot adopt means that will
unnecessarily and broadly sweep, invading the area of
protected freedoms. If such means are adopted, self-
inhibition borne of fear of what sinister predicaments await
internet users will suppress otherwise robust discussion of
public issues. Democracy will be threatened and with it, all
liberties. Penal laws should provide reasonably clear
guidelines for law enforcement officials and triers of facts to
prevent arbitrary and discriminatory enforcement. The terms
‘aiding or abetting’ constitute broad sweep that generates
chilling effect on those who express themselves through
cyberspace posts, comments, and other messages. Hence,
Section 5 of the cybercrime law that punishes ‘aiding or
abetting’ libel on the cyberspace is a nullity.”
Facial Challenge and As Applied Challenges. “When a
penal statute encroaches upon the freedom of speech, a
facial challenge grounded on the void-for-vagueness
doctrine is acceptable.” On the other hand, “[i]n an ‘as
applied’ challenge, the petitioner who claims a violation of
his constitutional right can raise any constitutional ground –
absence of due process, lack of fair notice, lack of
ascertainable standards, overbreadth, or vagueness. Here,
one can challenge the constitutionality of a statute only if he
asserts a violation of his own rights. It prohibits one from
assailing the constitutionality of the statute based solely on
the violation of the rights of third persons not before the
court. This rule is also known as the prohibition against
third-party standing. But this rule admits of exceptions. A
petitioner may for instance mount a ‘facial’ challenge to the
constitutionality of a statute even if he claims no violation of
his own rights under the assailed statute where it involves
free speech on grounds of overbreadth or vagueness of the
statute. The rationale for this exception is to counter the
‘chilling effect’ on protected speech that comes from
statutes violating free speech. A person who does not know
whether his speech constitutes a crime under an overbroad
or vague law may simply restrain himself from speaking in
order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence.” And, relating it to
the internet, “the cyberspace is an incomparable, pervasive
medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of
the medium creates a chilling effect on the constitutionally-
protected freedom of expression of the great masses that
use it. In this case, the particularly complex web of
interaction on social media websites would give law
enforcers such latitude that they could arbitrarily or
selectively enforce the law. Who is to decide when to
prosecute persons who boost the visibility of a posting on
the internet by liking it? Netizens are not given ‘fair notice’
or warning as to what is criminal conduct and what is lawful
conduct. When a case is filed, how will the court ascertain
whether or not one netizen’s comment aided and abetted a
cybercrime while another comment did not? Of course, if
the ‘Comment’ does not merely react to the original posting
but creates an altogether new defamatory story against
Armand like “He beats his wife and children,” then that
should be considered an original posting published on the
internet. Both the penal code and the cybercrime law clearly
punish authors of defamatory publications. Make no
mistake, libel destroys reputations that society values.
Allowed to cascade in the internet, it will destroy
relationships and, under certain circumstances, will generate
enmity and tension between social or economic groups,
races, or religions, exacerbating existing tension in their
relationships.”
Aiding or Abetting Commission of Child Pornography.
“Section 5 with respect to Section 4(c)(4) is
unconstitutional. Its vagueness raises apprehension on the
part of internet users because of its obvious chilling effect
on the freedom of expression, especially since the crime of
aiding or abetting ensnares all the actors in the cyberspace
front in a fuzzy way. What is more, as the petitioners point
out, formal crimes such as libel are not punishable unless
consummated. In the absence of legislation tracing the
interactionof netizens and their level of responsibility such
as in other countries, Section 5, in relation to Section 4(c)(4)
on Libel, Section 4(c)(3) on Unsolicited Commercial
Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.”
Aiding or Abetting Other Cybercrimes. “[T]he crime of
aiding or abetting the commission of cybercrimes under
Section 5 should be permitted to apply to Section 4(a)(1) on
Illegal Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4) on
System Interference, Section 4(a)(5) on Misuse of Devices,
Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-
related Fraud, Section 4(b)(3) on Computer related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these
offenses borders on the exercise of the freedom of
expression.”
Double Jeopardy. Section 7 of the law provides that a
prosecution under it shall be without prejudice to any
liability for violation of any provision of the Revised Penal
Code, as amended, or special laws. “With the exception of
the crimes of online libel and online child pornography, the
Court would rather leave the determination of the correct
application of Section 7 to actual cases. Online libel is
different. There should be no question that if the published
material on print, said to be libelous, is again posted online
or vice versa, that identical material cannot be the subject of
two separate libels. The two offenses, one a violation of
Article 353 of the Revised Penal Code and the other a
violation of Section 4(c)(4) of R.A. 10175 involve
essentially the same elements and are in fact one and the
same offense. Indeed, the OSG itself claims that online libel
under Section 4(c)(4) is not a new crime but is one already
punished under Article 353. Section 4(c)(4) merely
establishes the computer system as another means of
publication. Charging the offender under both laws would
be a blatant violation of the proscription against double
jeopardy. The same is true with child pornography
committed online. Section 4(c)(2) merely expands the
ACPA’s scope so as to include identical activities in
cyberspace. As previously discussed, ACPA’s definition of
child pornography in fact already covers the use of
‘electronic, mechanical, digital, optical, magnetic or any
other means.’ Thus, charging the offender under both
Section 4(c)(2) and ACPA would likewise be tantamount to
a violation of the constitutional prohibition against double
jeopardy.”
Real-Time Collection of Traffic Data. Section 12 authorized
law enforcement authorities, “with due cause,” to collect or
record by technical or electronic means traffic data12 in
real-time associated with specified communications
transmitted by means of a computer system. “The first
question is whether or not Section 12 has a proper
governmental purpose since a law may require the
disclosure of matters normally considered private but then
only upon showing that such requirement has a rational
relation to the purpose of the law, that there is a compelling
State interest behind the law, and that the provision itself is
narrowly drawn. In assessing regulations affecting privacy
rights, courts should balance the legitimate concerns of the
State against constitutional guarantees. Undoubtedly, the
State has a compelling interest in enacting the cybercrime
law for there is a need to put order to the tremendous
activities in cyberspace for public good. To do this, it is
within the realm of reason that the government should be
able to monitor traffic data to enhance its ability to combat
all sorts of cybercrimes.” And, given reality presently, the
Court noted:“In this digital age, the wicked can commit
cybercrimes from virtually anywhere: from internet cafés,
from kindred places that provide free internet services, and
from unregistered mobile internet connectors. Criminals
using cellphones under pre-paid arrangements and with
unregistered SIM cards do not have listed addresses and can
neither be located nor identified. There are many ways the
cyber criminals can quickly erase their tracks. Those who
peddle child pornography could use relays of computers to
mislead law enforcement authorities regarding their places
of operations. Evidently, it is only realtime traffic data
collection or recording and a subsequent recourse to court-
issued search and seizure warrant that can succeed in
ferreting them out.” However with regard to that dangerous
authorization based on “due cause,” “the Court cannot draw
this meaning since Section 12 does not even bother to relate
the collection of data to the probable commission of a
particular crime. It just says, ‘with due cause,’ thus
justifying a general gathering of data. It is akin to the use of
a general search warrant that the Constitution prohibits. Due
cause is also not descriptive of the purpose for which data
collection will be used.” In short, “the authority that Section
12 gives law enforcement agencies is too sweeping and
lacks restraint. While it says that traffic data collection
should not disclose identities or content data, such restraint
is but an illusion. Admittedly, nothing can prevent law
enforcement agencies holding these data in their hands from
looking into the identity of their sender or receiver and what
the data contains. This will unnecessarily expose the
citizenry to leaked information or, worse, to extortion from
certain bad elements in these agencies.”
Disclosure of Computer Data. “[I]t is well-settled that the
power to issue subpoenas is not exclusively a judicial
function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.
Besides, what Section 14 envisions is merely the
enforcement of a duly issued court warrant, a function
usually lodged in the hands of law enforcers to enable them
to carry out their executive functions. The prescribed
procedure for disclosure would not constitute an unlawful
search or seizure nor would it violate the privacy of
communications and correspondence. Disclosure can be
made only after judicial intervention.”
Take-Down Clause. Section 19 authorizes the Department of
Justice to issue an order to restrict or “Traffic data refer only
to the communication’s origin, destination, route, time, date,
size, duration, or type of underlying service, but not content,
nor identities.” The Court also noted that in regard to traffic
data, “[t]ransmitting communications is akin to putting a
letter in an envelope properly addressed, sealing it closed,
and sending it through the postal service. Those who post
letters have no expectations that no one will read the
information appearing outside the envelope.” block access
to computer data when computer data is prima facie found
to be in violation of the provisions of the law. “Here, the
Government, in effect, seizes and places the computer data
under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial
search warrant. The content of the computer data can also
constitute speech. In such a case, Section 19 operates as a
restriction on the freedom of expression over cyberspace.
Certainly not all forms of speech are protected. Legislature
may, within constitutional bounds, declare certain kinds of
expression as illegal. But for an executive officer to seize
content alleged to be unprotected without any judicial
warrant, it is not enough for him to be of the opinion that
such content violates some law, for to do so would make
him judge, jury, and executioner all rolled into one. Not only
does Section 19 preclude any judicial intervention, but it
also disregards jurisprudential guidelines established to
determine the validity of restrictions on speech. Restraints
on free speech are generally evaluated on one of or a
combination of three tests: the dangerous tendency doctrine,
the balancing of interest test, and the clear and present
danger rule. Section 19, however, merely requires that the
data to be blocked be found prima facie in violation of any
provision of the cybercrime law. Taking Section 6 into
consideration, this can actually be made to apply in relation
to any penal provision. It does not take into consideration
any of the three tests mentioned above. The Court is
therefore compelled to strike down Section 19 for being
violative of the constitutional guarantees to freedom of
expression and against unreasonable searches and seizures.”
Packingham v. North Carolina
Facts of the case
Lester Packingham was convicted of taking “indecent
liberties” with a minor in 2002, as a 21-year-old college
student. Per North Carolina law, he was sentenced to a
standard 10-12 month imprisonment, followed by a 24-
month supervised release. Aside from being told to “remain
away from” the minor, his conviction entailed no special
stipulations. Packingham was arrested in 2010 after
authorities came across a post on his Facebook profile,
thanking God for having a parking ticket dismissed. He was
arrested for violating North Carolina’s laws regarding
convicted sex offenders, which barred the offender’s access
to social media websites.
In his defense, Packingham argued that the law violated his
First Amendment rights. He was convicted in trial court,
which found that the state had a weighty interest in
keeping sexual predators off of social media websites for
the “protection of minors.” The North Carolina Court of
Appeals reversed and held that the social media website
provision of the law was unconstitutional. The North
Carolina Supreme Court reversed and held that the law was
constitutional by finding that the law was a “limitation on
conduct” and not a restriction of free speech. The court
found that the state had a sufficient interest in “forestalling
the illicit lurking and contact” of registered sex offenders
and their potential future victims.
Question
Does a North Carolina law prohibiting registered sex
offenders from accessing various websites, where minors
are known to be active and have accounts, regardless of
whether or not the sex offender directly interacted with a
minor, violate the First Amendment?
Conclusion
The North Carolina law prohibiting registered sex offenders
from accessing various websites, where minors are known
to be active and have accounts, regardless of whether or
not the sex offender directly interacted with a minor
violates the First Amendment. Justice Anthony M. Kennedy
delivered the opinion of the 5-3 majority. The Court held
that, in order to be valid under the First Amendment, a
content-neutral regulation of speech must be narrowly
tailored to serve a significant government interest. In other
words, the law cannot burden substantially more speech
than necessary to advance the government’s legitimate
interest. In this case, although the government has a
legitimate interest in protecting children from abuse, this
law too broadly restricted access to all sorts of websites.
Even if it were limited only to social media websites, the
law would still unconstitutionally restrict speech because of
the vast number of functions that social media websites
perform in the modern world. First Amendment
jurisprudence has never allowed for such a broad
regulation of speech, and similarly broad restrictions have
been struck down. However, a state could accomplish the
same goal by enacting a more narrowly written statute.
Justice Samuel A. Alito, Jr., wrote an opinion concurring in
the judgment in which he argued that the majority opinion
erred in equating the entire internet with a traditionally
public forum instead of recognizing the importance of
allowing states to regulate certain types of websites. The
government certainly has a compelling interest in
protecting children from potential sexual predation, and
the internet is a place that allows sexual offenders to
contact children in ways that they might not otherwise be
able, so the government should be able to regulate sex
offenders’ use of the internet to an extent. However, the
North Carolina law at issue here went too far because it
encompassed websites that were unlikely to facilitate a sex
crime against a child. Because the North Carolina law
prohibited more speech than necessary to further the
government’s significant interest, it violated the First
Amendment. Chief Justice John G. Roberts, Jr. and Justice
Clarence Thomas joined in the opinion concurring in the
judgment.
Justice Neil Gorsuch did not participate in the discussion or
decision of this case.
Adiong Vs Comelec
FACTS: On January 13, 1992, the COMELEC promulgated
Resolution No. 2347 pursuant to its powers granted by the
Constitution, the Omnibus Election Code, Republic Acts
Nos. 6646 and 7166 and other election laws. Section 15(a)
of the resolution provides:
Sec. 15. Lawful Election Propaganda.” The following are
lawful election propaganda:
(a) Pamphlets, leaflets, cards, decals. Provided, That decals
and stickers may be posted only in any of the authorized
posting areas provided in paragraph (f) of Section 21
hereof.
Section 21 (f) of the same resolution provides:
Sec. 21(f). Prohibited forms of election propaganda.
It is unlawful:
(f) To draw, paint, inscribe, post, display or publicly exhibit
any election propaganda in any place, whether public or
private, mobile or stationary, except in the COMELEC
common posted areas and/or billboards.
Petitioner Blo Umpar Adiong, a senatorial candidate in the
May 11, 1992 elections assails the COMELEC’s Resolution
insofar as it prohibits the posting of decals and stickers in
“mobile” places like cars and other moving vehicles.
According to him such prohibition is violative of Section 82
of the Omnibus Election Code and Section 11(a) of Republic
Act No. 6646.
ISSUE: Whether or not the COMELEC may prohibit the
posting of decals and stickers on “mobile” places, public or
private, and limit their location or publication to the
authorized posting areas that it fixes.
HELD: The petition is hereby GRANTED. The portion of
Section 15 (a) of Resolution No. 2347 of the COMELEC
providing that “decals and stickers may be posted only in
any of the authorized posting areas provided in paragraph
(f) of Section 21 hereof” is DECLARED NULL and VOID. The
COMELEC’s prohibition on posting of decals and stickers on
“mobile” places whether public or private except in
designated areas provided for by the COMELEC itself is null
and void on constitutional grounds. The prohibition unduly
infringes on the citizen’s fundamental right of free speech
enshrined in the Constitution (Sec. 4, Article III).
Significantly, the freedom of expression curtailed by the
questioned prohibition is not so much that of the candidate
or the political party. The regulation strikes at the freedom
of an individual to express his preference and, by displaying
it on his car, to convince others to agree with him.
Also, the questioned prohibition premised on the statute
(RA 6646) and as couched in the resolution is void for
overbreadth. The restriction as to where the decals and
stickers should be posted is so broad that it encompasses
even the citizen’s private property, which in this case is a
privately-owned vehicle (The provisions allowing regulation
are so loosely worded that they include the posting of
decals or stickers in the privacy of one’s living room or
bedroom.) In consequence of this prohibition, another
cardinal rule prescribed by the Constitution would be
violated. Section 1, Article III of the Bill of Rights provides
that no person shall be deprived of his property without
due process of law. (The right to property may be subject to
a greater degree of regulation but when this right is joined
by a “liberty” interest, the burden of justification on the
part of the Government must be exceptionally convincing
and irrefutable. The burden is not met in this case.)
Additionally, the constitutional objective to give a rich
candidate and a poor candidate equal opportunity to
inform the electorate as regards their candidacies,
mandated by Article II, Section 26 and Article XIII, section 1
in relation to Article IX (c) Section 4 of the Constitution, is
not impaired by posting decals and stickers on cars and
other private vehicles. It is to be reiterated that the posting
of decals and stickers on cars, calesas, tricycles, pedicabs
and other moving vehicles needs the consent of the owner
of the vehicle. Hence, the preference of the citizen
becomes crucial in this kind of election propaganda not the
financial resources of the candidate.
In sum, the prohibition on posting of decals and stickers on
“mobile” places whether public or private except in the
authorized areas designated by the COMELEC becomes
censorship which cannot be justified by the Constitution.
ABS-CBN Broadcasting Corp v. COMELEC
FACTS: COMELEC issued a Resolution approving the
issuance of a restraining order to stop ABS CBN or any
other groups, its agents or representatives from conducting
exit surveys. The Resolution was issued by
the Comelec allegedly upon "information from a reliable
source that ABS-CBN (Lopez Group) has prepared a project,
with PR groups, to conduct radio-TV coverage of the
elections and to make an exit survey of the vote during the
elections for national officials particularly for President and
Vice President, results of which shall be broadcasted
immediately.” The electoral body believed that such
project might conflict with the official Comelec count, as
well as the unofficial quick count of the National Movement
for Free Elections (Namfrel). It also noted that it had not
authorized or deputized ABS-CBN to undertake the exit
survey.
Two days before the elections on May 11, 1998, the
Court issued the Temporary Restraining Order prayed for
by petitioner ABS-CBN. The Comelec was directed to cease
and desist, until further orders, from implementing the
assailed Resolution or the restraining order issued pursuant
thereto, if any. In fact, the exit polls were actually
conducted and reported by media without any difficulty or
problem.
ISSUE: W/N the Comelec, in the exercise of its
powers, can absolutely ban exit polls
ABS-CBN: The holding of exit polls and the
nationwide reporting of their results are valid exercises of
the freedoms of speech and of the press
1)The issuance thereof was "pursuant to its constitutional
and statutory powers to promote a clean, honest, orderly
and credible May 11, 1998 elections"; and "to protect,
preserve and maintain the secrecy and sanctity of the
ballot."
2)It contends that "the conduct of exit surveys might
unduly confuse and influence the voters," and that the
surveys were designed "to condition the minds of people
and cause confusion as to who are the winners and the
losers in the election," which in turn may result in "violence
and anarchy."
3)"exit surveys indirectly violate the constitutional principle
to preserve the sanctity of the ballots," as the "voters are
lured to reveal the contents of ballots," in violation of
Section 2, Article V of the Constitution and relevant
provisions of the Omnibus Election Code. It submits that
the constitutionally protected freedoms invoked by
petitioner "are not immune to regulation by the State in
the legitimate exercise of its police power," such as in the
present case.
4) "[p]ress freedom may be curtailed if the exercise thereof
creates a clear and present danger to the community or it
has a dangerous tendency." It then contends that "an exit
poll has the tendency to sow confusion considering the
randomness of selecting interviewees, which further
make[s] the exit poll highly unreliable. The probability that
the results of such exit poll may not be in harmony with the
official count made by the Comelec x x x is ever present. In
other words, the exit poll has a clear and present danger of
destroying the credibility and integrity of the electoral
process."
SUPREME COURT: The COMELEC Resolution on exit
polls ban is nullified and set aside.
1) Clear and present danger of destroying the integrity of
electoral processes
Speculative and Untenable. First, by the very
nature of a survey, the interviewees or participants are
selected at random, so that the results will as much as
possible be representative or reflective of the general
sentiment or view of the community or group
polled. Second, the survey result is not meant to replace or
be at par with the official Comelec count. It consists merely
of the opinion of the polling group as to who the electorate
in general has probably voted for, based on the limited data
gathered from polled individuals. Finally, not at stake here
are the credibility and the integrity of the elections, which
are exercises that are separate and independent from the
exit polls. The holding and the reporting of the results of
exit polls cannot undermine those of the elections, since
the former is only part of the latter. If at all, the outcome of
one can only be indicative of the other.
2) Overbroad
The Comelec's concern with the possible
noncommunicative effect of exit polls -- disorder and
confusion in the voting centers -- does not justify a total
ban on them. Undoubtedly, the assailed Comelec
Resolution is too broad, since its application is without
qualification as to whether the polling is disruptive or
not.[44] Concededly, the Omnibus Election Code prohibits
disruptive behavior around the voting centers.[45] There is
no showing, however, that exit polls or the means to
interview voters cause chaos in voting centers. Neither has
any evidence been presented proving that the presence of
exit poll reporters near an election precinct tends to create
disorder or confuse the voters. Moreover, the prohibition
incidentally prevents the collection of exit poll data and
their use for any purpose. The valuable information and
ideas that could be derived from them, based on the
voters' answers to the survey questions will forever remain
unknown and unexplored. Unless the ban is restrained,
candidates, researchers, social scientists and the electorate
in general would be deprived of studies on the impact of
current events and of election-day and other factors on
voters' choices.
3) Violation of Ban Secrecy
The contention of public respondent that exit polls
indirectly transgress the sanctity and the secrecy of the
ballot is off-tangent to the real issue. Petitioner does not
seek access to the ballots cast by the voters. The ballot
system of voting is not at issue here.
The reason behind the principle of ballot secrecy is
to avoid vote buying through voter identification. Thus,
voters are prohibited from exhibiting the contents of their
official ballots to other persons, from making copies
thereof, or from putting distinguishing marks thereon so as
to be identified. Also proscribed is finding out the contents
of the ballots cast by particular voters or disclosing those of
disabled or illiterate voters who have been assisted. Clearly,
what is forbidden is the association of voters with their
respective votes, for the purpose of assuring that the votes
have been cast in accordance with the instructions of a
third party. This result cannot, however, be achieved
merely through the voters' verbal and confidential
disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are
not actually exposed. Furthermore, the revelation of whom
an elector has voted for is not compulsory, but voluntary.
Voters may also choose not to reveal their identities.
Indeed, narrowly tailored countermeasures may be
prescribed by the Comelec, so as to minimize or
suppress incidental problems in the conduct of exit polls,
without transgressing the fundamental rights of our
people.##
An exit poll is a species of electoral survey
conducted by qualified individuals or groups of individuals
for the purpose of determining the probable result of an
election by confidentially asking randomly selected voters
whom they have voted for, immediately after they have
officially cast their ballots. The results of the survey are
announced to the public, usually through the mass media,
to give an advance overview of how, in the opinion of the
polling individuals or organizations, the electorate voted. In
our electoral history, exit polls had not been resorted to
until the recent May 11, 1998 elections.
SOCIAL WEATHER STATIONS, INCORPORATED and
KAMAHALAN PUBLISHING CORPORATION, doing business
as MANILA STANDARD vs. COMMISSION ON ELECTIONS
Facts : Petitioner, Social Weather Stations, Inc. (SWS), is a
private non-stock, non-profit social research institution
conducting surveys in various fields, including economics,
politics, demography, and social development, and
thereafter processing, analyzing, and publicly reporting the
results thereof. On the other hand, petitioner Kamahalan
Publishing Corporation publishes the Manila Standard, a
newspaper of general circulation, which features news-
worthy items of information including election surveys
Petitioners brought this action for prohibition to enjoin the
Commission on Elections from enforcing §5.4 of RA.
No.9006 (Fair Election Act), which provides: Surveys
affecting national candidates shall not be published fifteen
(15) days before an election and surveys affecting local
candidates shall not be published seven (7) days be- fore an
election. Petitioner SWS states that it wishes to conduct an
election survey throughout the period of the elections both
at the national and local levels and release to the media the
results of such survey as well as publish them directly.
Petitioner Kamahalan Publishing Corporation, on the other
hand, states that it intends to publish election survey
results up to the last day of the elections on May 14,2001
Issue : WON §5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech,
expression, and the press.
HELD : What test should then be employed to determine
the constitutional validity of §5.4? The United States
Supreme Court, through Chief Justice Warren, held in
United States v. O 'Brien: [A] Government regulation is
sufficiently justified [1] if it is within the constitutional
power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental
interest is unrelated to the suppression of free expression;
and [4] if the incidental restriction on alleged First
Amendment freedoms [of speech, expression and press] is
no greater than is essential to the furtherance of that
interest. This is so far the most influential test for
distinguishing content-based from content neutral
regulations and is said to have "become canonical in the
review of such laws." is noteworthy that the O 'Brien test
has been applied by this Court in at least two cases First.
Sec. 5.4 fails to meet criterion [3] of the O 'Brien test
because the causal connection of expression to the
asserted governmental interest makes such interest "not
related to the suppression of free expression." By
prohibiting the publication of election survey results
because of the possibility that such publication might
undermine the integrity of the election, §5.4 actually
suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter
by newspaper columnists, radio and TV commentators,
armchair theorists, and other opinion takers Even if the
governmental interest sought to be promoted is unrelated
to the suppression of speech and the resulting restriction of
free expression is only incidental, §5.4 nonetheless fails to
meet criterion [4] of the O'Brien test, namely, that the
restriction be not greater than is necessary to further the
governmental interest. As already stated, §5.4 aims at the
prevention of last-minute pressure on voters, the creation
of bandwagon effect, "junking" of weak or "losing"
candidates, and resort to the form of election cheating
called "dagdag-bawas." Praiseworthy as these aims of the
regulation might be, they cannot be attained at the
sacrifice of the fundamental right of expression, when such
aim can be more narrowly pursued by punishing unlawful
acts, rather than speechbecause of apprehension that such
speech creates the danger of such evils To summarize then,
we hold that §5.4 is invalid because (1) it imposes a prior
restraint on the freedom of expression, (2) it is a direct and
total suppression of a category of expression even though
such suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be
achieved by means other than suppression of freedom of
expression.