2.1 JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and
ERNESTO SONIDO, JR., Petitioners, vs. THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
G.R. No. 203335 February 11, 2014
ABAD, J.:
 
FACTS: These consolidated petitions seek to declare several provisions of RA 10175, the Cybercrime Prevention
Act of 2012, unconstitutional and void.
 
The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person
can connect to the internet, a system that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and payments;
4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges, trade
houses, credit card companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail address or telephone.
 
This is cyberspace, 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. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting
defamatory statements against him that people can read.
 
And because linking with the internet opens up a user to communications from others, the ill-motivated can use
the cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card
or defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in
sex or for exposing to pornography guileless children who have access to the internet. For this reason, the
government has a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.
 
Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and
memories of innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that
destroy those computer systems, networks, programs, and memories. The government certainly has the duty and
the right to prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime
Prevention Act.
 
But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace
activities violate certain of their constitutional rights. The government of course asserts that the law merely seeks
to reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the
system.
 
ISSUE: WON RA 10175, the Cybercrime Prevention Act of 2012 is unconstitutional and void
 
RULING:
(1) Section 4(b)(3): CONSTITUTIONAL
 
Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under
this Act: x x x x
b) Computer-related Offenses:
 xxxx
(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one
(1) degree lower.
 
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.
 
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.
 
Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"
the relevance of these zones to the right to privacy:
 
Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that the right to privacy is a "constitutional
right" and "the right most valued by civilized men," but also from our adherence to the Universal Declaration of
Human Rights which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and
"everyone has the right to the protection of the law against such interference or attacks."
 
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches16
and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence. In 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.
 
The usual identifying information regarding a person includes his name, his citizenship, his residence address, his
contact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data. The
law punishes those who acquire or use such identifying information without right, implicitly to cause damage.
Petitioners simply fail to show how government effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of law.
 
Also, the 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 anotherʼs personal data.
 
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be
hindered from accessing the unrestricted user account of a person in the news to secure information about him
that could be published. But this is not the essence of identity theft that the law seeks to prohibit and punish.
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.
 
(2) Section 4(c)(1): CONSTITUTIONAL
 
(c) Content-related Offenses:
(1) Cybersex.– 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.
 
Petitioners claim that the above violates the freedom of expression clause of the Constitution. They express fear
that private communications of sexual character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace.
In common usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or
conceded," or "a token of love (as a ribbon) usually worn conspicuously." This meaning given to the term "favor"
embraces socially tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.
 
But 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.
 
The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201
of the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons
Act of 2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography." The law
defines prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other consideration.
 
The case of Nogales v. People shows the extent to which the State can regulate materials that serve no other
purpose than satisfy the market for violence, lust, or pornography. The Court weighed the property rights of
individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.
 
In 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.
 
(3) Section 4(c)(3): UNCONSTITUTIONAL
(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication
with the use of computer system which seeks to advertise, sell, or offer for sale products and services are
prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative announcements from
the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely disguise the source of the electronic
message; and
(cc) The commercial electronic communication does not purposely include misleading information in any
part of the message in order to induce the recipients to read the message.
 
The above penalizes the transmission of unsolicited commercial communications, also known as "spam." 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 Pythonʼs Flying Circus scene
in which actors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.
 
The Government, represented by the Solicitor General, points out that unsolicited commercial communications or
spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the ownerʼs peaceful enjoyment of his property.
Transmitting spams amounts to trespass to oneʼs privacy since the person sending out spams enters the
recipientʼs domain without prior permission. The OSG contends that commercial speech enjoys less protection in
law.
 
But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such
ads. What matters is that the recipient has the option of not opening or reading these mail ads. That is true with
spams. Their recipients always have the option to delete or not to read them.
 
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 freedom of expression. Unsolicited advertisements are legitimate forms of expression.
 
(4) LIBEL: CONSTITUTIONAL
 
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply
suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression.
Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its exercise carries with it
special duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be
necessary and as may be provided by law.
 
The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the
government has an obligation to protect private individuals from defamation. Indeed, 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 Courtʼs 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 readerʼs 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. Whether these reactions to defamatory
statement posted on the internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law
punishes, is another matter that the Court will deal with next in relation to Section 5 of the law.
 
(5) Section 5: CONSTITUTIONAL only in relation 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; but VOID and UNCONSTITUTIONAL with
respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial
Communications, and 4(c)(4) on online Libel
 
Sec. 5. Other Offenses. — The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the
 commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.
 
Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or
aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.
 
The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of
the internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or
abetting" a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage
is at times sufficient to guide law enforcement agencies in enforcing the law.51 The legislature is not required to
define every single word contained in the laws they craft.
 
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.
 
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch. Users register at this site, create a personal profile or an open book of who
they are, add other users as friends, and exchange messages, including automatic notifications when they update
their profile. A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,
depending on the userʼs privacy settings.
 
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.
 
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.
 
Libel in the cyberspace can of course stain a personʼs 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 personʼs 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.
 
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice
Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections, "we must view these
statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as
appropriate only insofar as these doctrines are used to mount ‘facialʼ challenges to penal statutes not involving
free speech."
 
In 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.
 
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 interaction of 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.
 
(6) Section 12: UNCONSTITUTIONAL
 
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be
authorized 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.
 
Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample
safeguards against crossing legal boundaries and invading the peopleʼs right to privacy. The concern is
understandable. Indeed, the Court recognizes in Morfe v. Mutuc that certain constitutional guarantees work
together to create zones of privacy wherein governmental powers may not intrude, and that there exists an
independent constitutional right of privacy. Such right to be left alone has been regarded as the beginning of all
freedoms.
 
But that right is not unqualified. In Whalen v. Roe, the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in
making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.
 
Informational privacy has two aspects: the right not to have private information disclosed, and the right to live
freely without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to
privacy, this Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must
have an actual or legitimate expectation of privacy over a certain matter. The second is an objective test, where
his or her expectation of privacy must be one society is prepared to accept as objectively reasonable.
 
Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person
or group, petitionersʼ challenge to Section 12 applies to all information and communications technology (ICT)
users, meaning the large segment of the population who use all sorts of electronic devices to communicate with
one another. Consequently, the expectation of privacy is to be measured from the general publicʼs point of view.
Without reasonable expectation of privacy, the right to it would have no basis in fact.
 
As the Solicitor General points out, an ordinary ICT user who courses his communication through a service
provider, must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the
recipient ICT user. For example, an ICT user who writes a text message intended for another ICT user must furnish
his service provider with his cellphone number and the cellphone number of his recipient, accompanying the
message sent. It is this information that creates the traffic data. Transmitting 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.
 
Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to
parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice
call, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the
packet fits together with other packets. The difference is that traffic data sent through the internet at times
across the ocean do not disclose the actual names and addresses (residential or office) of the sender and the
recipient, only their coded internet protocol (IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover
the identities of the sender and the recipient.
 
ICT users must know that they cannot communicate or exchange data with one another over cyberspace except
through some service providers to whom they must submit certain traffic data that are needed for a successful
cyberspace communication. The conveyance of this data takes them out of the private sphere, making the
expectation to privacy in regard to them an expectation that society is not prepared to recognize as reasonable.
 
The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are
gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to
create profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a
personʼs close associations, religious views, political affiliations, even sexual preferences. Such information is
likely beyond what the public may expect to be disclosed, and clearly falls within matters protected by the right to
privacy. But has the procedure that Section 12 of the law provides been drawn narrowly enough to protect
individual rights?
 
Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the
law.
 
Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law,
dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor
General suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure."
But 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. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case
against an identified suspect? Can the data be used to prevent cybercrimes from happening?
 
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.
 
Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But
this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would
specify the target communications. The power is virtually limitless, enabling law enforcement authorities to
engage in "fishing expedition," choosing whatever specified communication they want. This evidently threatens
the right of individuals to privacy.
 
(7) Section 19: UNCONSTITUTIONAL
 
Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to
be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such
computer data.
 
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom
and right mentioned.
Computer data may refer to entire programs or lines of code, including malware, as well as files that contain texts,
images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers or authors may constitute
personal property. Consequently, they are protected from unreasonable searches and seizures, whether while
stored in their personal computers or in the service providerʼs systems.
 
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.
 
 
 
ON MOTION FOR RECONSIDERATION
 
Section 6 of the cybercrime law imposes penalties that are one degree higher when the crimes defined in the RPC
and certain special laws are committed with the use of information and communication technologies (ICT). Some
of the petitioners insist that Section 6 is invalid since it produces an unusual chilling effect on users of cyberspace
that would hinder free expression.
 
RULING: In any event, Section 6 of the cybercrime law merely makes the commission of existing crimes through
the internet a qualifying circumstance that raises by one degree the penalties corresponding to such crimes. This
is not at all arbitrary since a substantial distinction exists between crimes committed through the use of ICT and
similar crimes committed using conventional means.
 
The majority of the movants believe that the Courtʼs decision upholding the constitutionality of Section 4(c)(4),
which penalizes online libel, effectively tramples upon the right to free expression. But libel is not a protected
speech. There is no freedom to unjustly destroy the reputation of a decent woman by publicly claiming that she is
a paid prostitute.
 
As early as 1912, the Court held that libel is a form of expression not protected by the Constitution.8 Libel, like
obscenity, belongs to those forms of speeches that have never attained Constitutional protection and are
considered outside the realm of protected freedom.
 
The constitutional guarantee against prior restraint and subsequent punishment, the jurisprudential requirement
of “actual malice,” and the legal protection afforded by “privilege communications” all ensure that protected
speech remains to be protected and guarded. As long as the expression or speech falls within the protected
sphere, it is the solemn duty of courts to ensure that the rights of the people are protected.
 
At bottom, the deepest concerns of the movants seem to be the fact that the government seeks to regulate
activities in the internet at all. For them, the Internet is a place where everyone should be free to do and say
whatever he or she wants. But that is anarchical. Any good thing can be converted to evil use if there are no laws
to prohibit such use. Indeed, both the United States and the Philippines have promulgated laws that regulate the
use of and access to the Internet.
 
The movants argue that Section 4(c)(4) is both vague and overbroad. But, again, online libel is not a new crime. It
is essentially the old crime of libel found in the 1930 RPC and transposed to operate in the cyberspace.
Consequently, the mass of jurisprudence that secures the freedom of expression from its reach applies to online
libel. Any apprehended vagueness in its provisions has long been settled by precedents.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
8. GMA NETWORK, INC., petitioner, vs. COMMISSION ON ELECTIONS, respondent. SENATOR ALAN
PETER “COMPAÑERO” S. CAYETANO, petitioner-intervenor.
G.R. No. 205357. September 2, 2014.*
PERALTA, J.:
 
FACTS: Assailed in these petitions are certain regulations promulgated by the COMELEC relative to the conduct
of the 2013 national and local elections dealing with political advertisements. Specifically, the petitions question
the
constitutionality of the limitations placed on aggregate airtime allowed to candidates and political parties, as well
as the requirements incident thereto, such as the need to report the same, and the sanctions imposed for
violations.
 
The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9(a) of COMELEC
Resolution No. 9615 limiting the broadcast and radio advertisements of candidates and political parties for
national election positions to an aggregate total of 120 minutes 180 minutes, respectively. They contend that such
restrictive regulation on allowable broadcast time violates freedom of the press, impairs the peopleʼs right to
suffrage as well as their right to information relative to the exercise of their right to choose who to elect during the
forthcoming elections.
 
ISSUE: WON the questioned provisions are valid and constitutional
 
RULING: Section 9(a) of COMELEC Resolution No. 9615 is unconstitutional.
 
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical departure from the previous COMELEC resolutions relative to
the airtime limitations on political advertisements. This essentially consists in computing the airtime on an
aggregate basis involving all the media of broadcast communications compared to the past where it was done on
a per station basis. Thus, it becomes immediately obvious that there was effected a drastic reduction of the
allowable minutes within which candidates and political parties would be able to campaign through the air. The
question is accordingly whether this is within the power of the COMELEC to do or not. The Court holds that it is
not within the power of the COMELEC to do so.
 
Section 9(a) of COMELEC Resolution No. 9615 on airtime limits also goes against the constitutional
guaranty
of freedom of expression, of speech and of the press
 
The guaranty of freedom to speak is useless without the ability to communicate and disseminate what is said. And
where there is a need to reach a large audience, the need to access the means and media for such dissemination
becomes critical. This is where the press and broadcast media come along. At the same time, the right to speak
and to reach out would not be meaningful if it is just a token ability to be heard by a few. It must be coupled with
substantially reasonable means by which the communicator and the audience could effectively interact. Section
9(a) of COMELEC Resolution No. 9615, with its adoption of the “aggregate-based” airtime limits unreasonably
restricts the guaranteed freedom of speech and of the press.
 
Political speech is one of the most important expressions protected by the Fundamental Law. “[F]reedom of
speech, of expression, and of the press are at the core of civil liberties and have to be protected at all costs for
the sake of democracy.” Accordingly, the same must remain unfettered unless otherwise justified by a compelling
state interest.
 
Section 9(a) of COMELEC Resolution No. 9615 comes up with what is challenged as being an unreasonable basis
for determining the allowable airtime that candidates and political parties may avail of. Petitioner GMA came up
with its analysis of the practical effects of such a regulation:
5.8. Given the reduction of a candidateʼs airtime minutes in the New Rules, petitioner GMA estimates
that a national candidate will only have 120 minutes to utilize for his political advertisements in television
during the whole campaign period of 88 days, or will only have 81.81 seconds per day TV exposure
allotment. If he chooses to place his political advertisements in the 3 major TV networks in equal
allocation, he will only have 27.27 seconds of airtime per network per day. This barely translates to 1
advertisement spot on a 30-second spot basis in television.
 
5.9. With a 20-hour programming per day and considering the limits of a stationʼs coverage, it will be
difficult for 1 advertising spot to make a sensible and feasible communication to the public, or in political
propaganda, to “make known [a candidateʼs] qualifications and stand on public issues.”
 
5.10. If a candidate loads all of his 81.81 seconds per day in one network, this will translate to barely
three 30-second advertising spots in television on a daily basis using the same assumptions above.
 
5.11. Based on the data from the 2012 Nielsen TV audience measurement in Mega Manila, the
commercial advertisements in television are viewed by only 39.2% of the average total day household
audience if such advertisements are placed with petitioner GMA, the leading television network
nationwide and in Mega Manila. In effect, under the restrictive aggregate airtime limits in the New Rules,
the three 30-second political advertisements of a candidate in petitioner GMA will only be
communicated to barely 40% of the viewing audience, not even the voting population, but only in Mega
Manila, which is defined by AGB Nielsen Philippines to cover Metro Manila and certain urban areas in the
provinces of Bulacan, Cavite, Laguna, Rizal, Batangas and Pampanga. Consequently, given the voting
population distribution and the drastically reduced supply of airtime as a result of the New Rulesʼ
aggregate airtime limits, a national candidate will be forced to use all of his airtime for political
advertisements in television only in urban areas such as Mega Manila as a political campaign tool to
achieve maximum exposure.
 
 5.12. To be sure, the people outside of Mega Manila or other urban areas deserve to be informed of the
candidates in the national elections, and the said candidates also enjoy the right to be voted upon by
these informed populace.
 
The Court agrees. The assailed rule on “aggregate-based” airtime limits is unreasonable and arbitrary as it unduly
restricts and constrains the ability of candidates and political parties to reach out and communicate with the
people. Here, the adverted reason for imposing the “aggregate-based” airtime limits — leveling the playing field
— does not constitute a compelling state interest which would justify such a substantial restriction on the
freedom of candidates and political parties to communicate their ideas, philosophies, platforms and programs of
government. And, this is specially so in the absence of a clear-cut basis for the imposition of such a prohibitive
measure. In this particular instance, what the COMELEC has done is analogous to letting a bird fly after one has
clipped its wings.
 
It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time
when we consider that the Philippines is not only composed of so many islands. There are also a lot of languages
and dialects spoken among the citizens across the country. Accordingly, for a national candidate to really reach
out to as many of the electorates as possible, then it might also be necessary that he conveys his message
through his advertisements in languages and dialects that the people may more readily understand and relate to.
To add all of these airtimes in different dialects would greatly hamper the ability of such candidate to express
himself — a form of suppression of his political speech.
 
Respondent itself states that “[t]elevision is arguably the most cost-effective medium of dissemination. Even a
slight increase in television exposure can significantly boost a candidateʼs popularity, name recall and electability.”
If that be so, then drastically curtailing the ability of a candidate to effectively reach out to the electorate would
unjustifiably curtail his freedom to speak as a means of connecting with the people.
 
Finally on this matter, it is pertinent to quote what Justice Black wrote in his concurring opinion in the landmark
Pentagon Papers case: “In the First Amendment, the Founding Fathers gave the free press the protection it must
have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The
Governmentʼs power to censor the press was abolished so that the press would remain forever free to censure the
Government. The press was protected so that it could bare the secrets of government and inform the people.
Only a free and unrestrained press can effectively expose deception in government.”
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
9. THE DIOCESE OF BACOLOD, represented by the MOST REV. BISHOP VICENTE M. NAVARRA and THE
BISHOP HIMSELF IN HIS PERSONAL CAPACITY, petitioners, vs. COMMISSION ON ELECTIONS and the
ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, respondents.
G.R. No. 205728. January 21, 2015.*
LEONEN, J.:
 
FACTS: On February 21, 2013, petitioners posted 2 tarpaulins within a private compound housing the San
Sebastian Cathedral of Bacolod. Each tarpaulin was approximately 6 feet by 10 feet in size. They were posted on
the front walls of the cathedral within public view. The first tarpaulin contains the message “IBASURA RH Law”
referring to the Reproductive Health Law of 2012 or RA 10354. The second tarpaulin is the subject of the present
case.
 
This tarpaulin contains the heading “Conscience Vote” and lists candidates as either “(Anti-RH) Team Buhay”
with a check mark, or “(Pro- RH) Team Patay” with an “X” mark. The electoral candidates were classified
according to their vote on the adoption of RH Law. Those who voted for the passing of the law were classified by
petitioners as
comprising “Team Patay,” while those who voted against it form “Team Buhay”.
 
COMELEC Law Department issued a letter ordering the immediate removal of the tarpaulin; otherwise, it will be
constrained to file an election offense against petitioners.
 
Concerned about the imminent threat of prosecution for their exercise of free speech, petitioners initiated this
case through this petition for certiorari and prohibition with application for preliminary injunction and temporary
restraining order.
 
ISSUE: WON there was violation of free speech in the case at bar
 
RULING: YES.
 
COMELEC had no legal basis to regulate expressions made by private citizens
 
Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the power to
regulate the tarpaulin. However, all of these provisions pertain to candidates and political parties. Petitioners are
not candidates. Neither do they belong to any political party. COMELEC does not have the authority to regulate
the enjoyment of the preferred right to freedom of expression exercised by a noncandidate in this case.
 
“Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise
holders nor the candidates[,]” thus, their right to expression during this period may not be regulated by
COMELEC.
 
Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
 
Petitioners assail the “Notice to Remove Campaign Materials” issued by COMELEC. This was followed by the
assailed letter regarding the “election propaganda material posted on the church vicinity promoting for or against
the candidates and party list groups. . . .” Section 9 of the Fair Elections Act on the posting of campaign materials
only mentions “parties” and “candidates”.
 
Section 3 of Republic Act No. 9006 on “Lawful Election Propaganda” also states that these are “allowed for all
registered political parties, national, regional, sectoral parties or organizations participating under the party list
elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on
authorized expenses of candidates and political parties. . . .” Section 6 of COMELEC Resolution No. 9615 provides
for a similar wording.
These provisions show that election propaganda refers to matter done by or on behalf of and in coordination with
candidates and political parties. Some level of coordination with the candidates and political parties for whom the
election propaganda are released would ensure that these candidates and political parties maintain within the
authorized expenses limitation.
 
The tarpaulin was not paid for by any candidate or political party. There was no allegation that petitioners
coordinated with any of the persons named in the tarpaulin regarding its posting. On the other hand, petitioners
posted the tarpaulin as part of their advocacy against the RH Law.
 
In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of either
appreciation or criticism on votes made in the passing of the RH Law. Thus, petitioners invoke their right to
freedom of expression.
 
Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their fundamental
right to freedom of expression.
 
On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their regulation
pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter
ordering its removal for being oversized are valid and constitutional.
 
Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:
Section 4. 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.
 
No law. . .
While it is true that the present petition assails not a law but an opinion by the COMELEC Law Department, this
court has applied Article III, Section 4 of the Constitution even to governmental acts.
 
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The prohibition against the abridgment of
speech should not mean an absolute prohibition against regulation. The primary and incidental burden on speech
must be weighed against a compelling state interest clearly allowed in the Constitution. The test depends on the
relevant theory of speech implicit in the kind of society framed by our Constitution.
 
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression, separate and in addition to the freedom of
speech and of the press provided in the US Constitution. The word “expression” was added in the 1987
Constitution by Commissioner Brocka for having a wider scope.
 
Speech may be said to be inextricably linked to freedom itself as “[t]he right to think is the beginning of freedom,
and speech must be protected from the government because speech is the beginning of thought.”
 
Communication is an essential outcome of protected speech.
 
Communication exists when “(1) a speaker, seeking to signal others, uses conventional actions because he or she
reasonably believes that such actions will be taken by the audience in the manner intended; and (2) the audience
so takes the actions.” “[I]n communicative action[,] the hearer may respond to the claims by . . . either accepting
the speech actʼs claims or opposing them with criticism or requests for justification.”
 
Speech is not limited to vocal communication. “[C]onduct is treated as a form of speech sometimes referred to as
‘symbolic speech[,]ʼ” such that “‘when ‘speechʼ and ‘nonspeechʼ elements are combined in the same course of
conduct,ʼ the ‘communicative elementʼ of the conduct may be ‘sufficient to bring into play the [right to freedom of
expression].ʼ”
 
The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to
conduct enacted, and even to inaction itself as a symbolic manner of communication.
 
Freedom of speech includes the right to be silent.
 
Size does matter
The form of expression is just as important as the information conveyed that it forms part of the expression. The
present case is in point.
 
It is easy to discern why size matters.
 
First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it easier to view
its messages from greater distances. Furthermore, a larger tarpaulin makes it easier for passengers inside moving
vehicles to read its content. Compared with the pedestrians, the passengers inside moving vehicles have lesser
time to view the content of a tarpaulin. The larger the fonts and images, the greater the probability that it will
catch their
attention and, thus, the greater the possibility that they will understand its message.
 
Second, the size of the tarpaulin may underscore the importance of the message to the reader. From an ordinary
personʼs perspective, those who post their messages in larger fonts care more about their message than those
who carry their messages in smaller media. The perceived importance given by the speakers, in this case
petitioners, to their cause is also part of the message. The effectivity of communication sometimes relies on the
emphasis put by the speakers and on the credibility of the speakers themselves. Certainly, larger segments of the
public may tend to be more convinced of the point made by authoritative figures when they make the effort to
emphasize their messages.
 
Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more opportunities to
amplify, explain, and argue points which the speakers might want to communicate. Rather than simply placing the
names and images of political candidates and an expression of support, larger spaces can allow for brief but
memorable presentations of the candidatesʼ platforms for governance. Larger spaces allow for more precise
inceptions of ideas, catalyze reactions to advocacies, and contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the possibilities of both good governance and accountability
in our government.
 
These points become more salient when it is the electorate, not the candidates or the political parties, that
speaks. Too often, the terms of public discussion during elections are framed and kept hostage by brief and
catchy but meaningless sound bites extolling the character of the candidate. Worse, elections sideline political
arguments and privilege the endorsement by celebrities. Rather than provide obstacles to their speech,
government should in fact encourage it. Between the candidates and the electorate, the latter have the better
incentive to demand discussion of the more important issues. Between the candidates and the electorate, the
former have better incentives to avoid difficult political standpoints and instead focus on appearances and empty
promises.
 
Large tarpaulins, therefore, are not analogous to time and place. They are fundamentally part of expression
protected under Article III, Section 4 of the Constitution.
 
There are several theories and schools of thought that strengthen the need to protect the basic right to freedom
of expression.
 
First, this relates to the right of the people to participate in public affairs, including the right to criticize
government actions.
 
Proponents of the political theory on “deliberative democracy” submit that “substantial, open, [and] ethical
dialogue is a critical, and indeed defining, feature of a good polity.” This theory may be considered broad, but it
definitely “includes [a] collective decision-making with the participation of all who will be affected by the
decision.” It anchors on the principle that the cornerstone of every democracy is that sovereignty resides in the
people. To ensure order in running the stateʼs affairs, sovereign powers were delegated and individuals would be
elected or nominated in key government positions to represent the people. On this note, the theory on
deliberative democracy may evolve to the right of the people to make government accountable. Necessarily, this
includes the right of the people to criticize acts made pursuant to governmental functions.
 
Speech that promotes dialogue on public affairs, or airs out grievances and political discontent, should thus be
protected and encouraged.
 
Second, free speech should be encouraged under the concept of a market place of ideas. This theory was
articulated by Justice Holmes in that “the ultimate good desired is better reached by [the] free trade in ideas:”
 
Third, free speech involves self-expression that enhances human dignity. This right is “a means of assuring
individual self-fulfillment,” among others. In Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills Co., Inc., this court discussed as follows:
 The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to manʼs enjoyment of his life, to his happiness and to his full and complete
fulfillment. Thru these freedoms the citizens can participate not merely in the periodic
establishment of the government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights
so that he can appeal to the appropriate governmental officers or agencies for redress and
protection as well as for the imposition of the lawful sanctions on erring public officers and
employees.
 
Fourth, expression is a marker for group identity. For one, “[v]oluntary associations perform [an] important
democratic role [in providing] forums for the development of civil skills, for deliberation, and for the formation of
identity and community spirit[,] [and] are largely immune from [any] governmental interference.” They also
“provide a buffer between individuals and the state — a free space for the development of individual personality,
distinct group identity, and dissident ideas — and a potential source of opposition to the state.” Free speech must
be
protected as the vehicle to find those who have similar and shared values and ideals, to join together and forward
common goals.
 
Fifth, the Bill of Rights, free speech included, is supposed to “protect individuals and minorities against
majoritarian abuses perpetrated through [the] framework [of democratic governance].” Federalist framers led by
James Madison were concerned about two potentially vulnerable groups: “the citizenry at large — majorities —
who might be tyrannized or plundered by despotic federal officials” and the minorities who may be oppressed by
“dominant factions of the electorate [that] capture [the] government for their own selfish ends[.]” According to
Madison, “[i]t is of great importance in a republic not only to guard the society against the oppression of its rulers,
but to guard one part of the society against the injustice of the other part.” We should strive to ensure that free
speech is protected especially in light of any potential oppression against those who find themselves in the
fringes on public issues.
 
Lastly, free speech must be protected under the safety valve theory. This provides that “nonviolent
manifestations of dissent reduce the likelihood of violence[.]” “[A] dam about to burst . . . resulting in the ‘banking
up of a menacing flood of sullen anger behind the walls of restrictionʼ” has been used to describe the effect of
repressing nonviolent outlets. In order to avoid this situation and prevent people from resorting to violence, there
is a need for peaceful methods in making passionate dissent. This includes “free expression and political
participation” in that they can “vote for candidates who share their views, petition their legislatures to [make or]
change laws, . . . distribute literature alerting other citizens of their concerns[,]” and conduct peaceful rallies and
other similar acts. Free speech must, thus, be protected as a peaceful means of achieving oneʼs goal, considering
the possibility that repression of nonviolent dissent may spill over to violent means just to drive a point.
 
Every citizenʼs expression with political consequences enjoys a high degree of protection.
 
Respondents argue that the tarpaulin is election propaganda, being petitionersʼ way of endorsing candidates who
voted against the RH Law and rejecting those who voted for it. As such, it is subject to regulation by COMELEC
under its constitutional mandate.
 
On the other hand, petitioners invoke their “constitutional right to communicate their opinions, views and beliefs
about issues and candidates.” They argue that the tarpaulin was their statement of approval and appreciation of
the named public officialsʼ act of voting against the RH Law, and their criticism toward those who voted in its
favor. It was “part of their advocacy campaign against the RH Law,” which was not paid for by any candidate or
political party. Thus, “the questioned orders which . . . effectively restrain[ed] and curtail[ed] [their] freedom of
expression should be declared unconstitutional and void.”
 
This court has held free speech and other intellectual freedoms as “highly ranked in our scheme of constitutional
values. These rights enjoy precedence and primacy. In Philippine Blooming Mills, this court discussed the
preferred
position occupied by freedom of expression:
Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human
 rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of
government and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the
influential and powerful, and of oligarchs — political, economic or otherwise.
 
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as
they are essential to the preservation and vitality of our civil and political institutions; and such priority “gives
these liberties the sanctity and the sanction not permitting dubious intrusions.”
 
This primordial right calls for utmost respect, more so “when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of suffrage.”
 
Not all speech are treated the same.
 
We distinguish between political and commercial speech. Political speech refers to speech “both intended and
received as a contribution to public deliberation about some issue,” “foster[ing] informed and civic-minded
deliberation.” On the other hand, commercial speech has been defined as speech that does “no more than
propose a commercial transaction.”
 
The expression resulting from the content of the tarpaulin is, however, definitely political speech.
 
While the tarpaulin may influence the success or failure of the named candidates and political parties, this does
not necessarily mean it is election propaganda. The tarpaulin was not paid for or posted “in return for
consideration” by any candidate, political party, or party list group.
 
Speech with political consequences is at the core of the freedom of expression and must be protected by this
court.
 
Justice Brion pointed out that freedom of expression “is not the god of rights to which all other rights and even
government protection of state interest must bow.”
 
The right to freedom of expression is indeed not absolute. Even some forms of protected speech are still subject
to some restrictions. The degree of restriction may depend on whether the regulation is content-based or
content-neutral. Content-based regulations can either be based on the viewpoint of the speaker or the subject of
the expression.
 
Content-based regulation
 
COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The order was
made simply because petitioners failed to comply with the maximum size limitation for lawful election
propaganda.
 
On the other hand, petitioners argue that the present size regulation is content-based as it applies only to political
speech and not to other forms of speech such as commercial speech. “[A]ssuming arguendo that the size
restriction sought to be applied . . . is a mere time, place, and manner regulation, itʼs still unconstitutional for lack
of a clear and reasonable nexus with a constitutionally sanctioned objective.”
 
The regulation may reasonably be considered as either content- neutral or content-based. Regardless, the
disposition of this case will be the same. Generally, compared with other forms of speech, the proposed speech is
content-based.
 
As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order applies only to
posters and tarpaulins that may affect the elections because they deliver opinions that shape both their choices.
It does not cover, for instance, commercial speech.
 
Worse, COMELEC does not point to a definite view of what kind of expression of noncandidates will be adjudged
as “election paraphernalia.” There are no existing bright lines to categorize speech as election-related and those
that are not. This is especially true when citizens will want to use their resources to be able to raise public issues
that should be tackled by the candidates as what has happened in this case. COMELECʼs discretion to limit
speech in this case is fundamentally unbridled.
 
Size limitations during elections hit at a core part of expression. The content of the tarpaulin is not easily divorced
from the size of its medium.
 
Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear and present
danger rule as measure. Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity and is measured against
the clear and present danger rule. The latter will pass constitutional muster only if justified by a
compelling reason, and the restrictions imposed are neither overbroad nor vague.
 
Under this rule, “the evil consequences sought to be prevented must be substantive, ‘extremely serious and the
degree of imminence extremely high.ʼ” “Only when the challenged act has overcome the clear and present danger
rule will it pass constitutional muster, with the government having the burden of overcoming the presumed
unconstitutionality.”
 
Even with the clear and present danger test, respondents failed to justify the regulation. There is no compelling
and substantial state interest endangered by the posting of the tarpaulin as to justify curtailment of the right of
freedom of expression. There is no reason for the state to minimize the right of noncandidate petitioners to post
the tarpaulin in their private property. The size of the tarpaulin does not affect anyone elseʼs constitutional rights.
 
Content-based restraint or censorship refers to restrictions “based on the subject matter of the utterance or
speech.” In contrast, content-neutral regulation includes controls merely on the incidents of the speech such as
time, place, or manner of the speech.
 
A content-neutral 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 incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the
furtherance of that interest.
 
On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the tarpaulin. As
discussed earlier, this is protected speech by petitioners who are noncandidates.
 
On the second requirement, not only must the governmental interest be important or substantial, it must also be
compelling as to justify the restrictions made.
 
The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing the
restriction, but more so at the effects of such restriction, if implemented. The restriction must not be narrowly
tailored to achieve the purpose. It must be demonstrable. It must allow alternative avenues for the actor to make
speech.
 
In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum size of the
tarpaulin would render ineffective petitionersʼ message and violate their right to exercise freedom of expression.
 
The COMELECʼs act of requiring the removal of the tarpaulin has the effect of dissuading expressions with
political consequences. These should be encouraged, more so when exercised to make more meaningful the
equally important right to suffrage.
 
The restriction in the present case does not pass even the lower test of intermediate scrutiny for content-neutral
regulations.
 
The action of the COMELEC in this case is a strong deterrent to further speech by the electorate. Given the
stature of petitioners and their message, there are indicators that this will cause a “chilling effect” on robust
discussion during elections.
 
The form of expression is just as important as the message itself.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
15. PHILIP SIGFRID A. FORTUN, Petitioner, vs. PRIMA JESUSA B. QUINSAYAS, MA. GEMMA OQUENDO,
DENNIS AYON, NENITA OQUENDO, ESMAEL MANGUDADATU, JOSE PAVIA, MELINDA QUINTOS DE
JESUS, REYNALDO HULOG, REDMOND BATARIO, MALOU MANGAHAS, DANILO GOZO, GMA NETWORK
INC., through its new editors Raffy Jimenez and Victor Sollorano, SOPHIA DEDACE, ABS-CBN
CORPORATION, through the Head of its News Group, Maria Ressa, CECILIA VICTORIA OREÑA-
DRILON, PHILIPPINE DAILY INQUIRER, INC. represented by its Editor-in-Chief Letty Jimenez
Magsanoc, TETCH TORRES, PHILIPPINE STAR represented by its Editor-in-Chief Isaac Belmonte, and
EDU PUNAY, Respondents.
G.R. No. 194578               February 13, 2013
CARPIO, J.:
 
FACTS: On 23 November 2009, a convoy of 7 vehicles carrying the relatives of then Maguindanao vice-mayor
Esmael "Toto" Mangudadatu, as well as lawyers and journalists, was on their way to the COMELEC office in Shariff
Aguak to file Mangudadatuʼs Certificate of Candidacy when they were accosted by a group of about 100 armed
men at a checkpoint in Sitio Malating, Ampatuan town, some four to ten kilometers from their destination. The
group was taken hostage and brought to a hilly and sparsely-populated part of Sitio Magating, Barangay Salman,
Ampatuan, Maguindanao. The gruesome aftermath of the hostage-taking was later discovered and shocked the
world. The hostages were systematically killed by shooting them at close range with automatic weapons, and their
bodies and vehicles were dumped in mass graves and covered with the use of a backhoe. These gruesome
killings became known as the Maguindanao Massacre. A total of 57 victims were killed, 30 of them journalists.
Subsequently, criminal cases for Murder were filed and raffled to the RTC-QC. Petitioner is the counsel for Datu
Andal Ampatuan, Jr. the principal accused in the murder cases.
 
In November 2010, Atty. Quinsayas, et al. filed a disbarment complaint against petitioner before this Court,
docketed as Bar Matter No. A.C. 8827. The disbarment case is still pending.
 
Petitioner alleged that on 22 November 2010, GMA News TV internet website posted an article, written by
Dedace, entitled "Mangudadatu, others seek disbarment of Ampatuan lawyer," a portion of which reads:
On Monday, Maguindanao Governor Esmael "Toto" Mangudadatu and four others filed a 33 page
complaint against lawyer Sigrid Fortun whom they accused of "engaging in every conceivable
chichancery or artifice to unduly delay the proceedings by using and abusing legal remedies available."
 
On even date, Inquirer.net, the website of PDI, also published an article, written by Torres, which according to
petitioner also stated details of the disbarment case, as follows:
"Respondent Atty. Fortun had astutely embarked in an untiring quest to obstruct, impede and degrade
the administration of justice by filing countless causes of action, all in the hope of burying the principal
issue of his clientʼs participation or guilt in the murder of 57 people that ill-fated day of November 23,
2009," the petitioners said.
 
Petitioner further alleged that on 23 November 2010, PhilStar published an article, written by Punay, which gave
details of the disbarment allegations, thus:
"Attorney Fortun used and abused legal remedies available and allowed under under the rules, muddled
the issues and diverted the attention away from the main subject matter of the cases, read the
complaint.
***** ***** *****
 
"Respondent Attorney Fortunʼs act of misleading the prosecution and trial court is a dishonest/deceitful
conduct violative of Code of Professional Responsibility," read the complaint.
 
"In so doing, he diminished the public confidence in the law and the legal profession, rendering him unfit
to be called a member of the Bar."
Further, petitioner alleged that on 23 November 2010, Channel 23 aired on national television a program entitled
"ANC Presents: Crying for Justice: the Maguindanao Massacre." Drilon, the programʼs host, asked questions and
allowed Atty. Quinsayas to discuss the disbarment case against petitioner, including its principal points. Petitioner
was allegedly singled out and identified in the program as the lead counsel of the Ampatuan family.
 
Petitioner alleged that Atty. Quinsayas, et al. actively disseminated the details of the disbarment complaint against
him in violation of Rule 139-B of the Rules of Court on the confidential nature of disbarment proceedings.
Petitioner further alleged that respondent media groups and personalities conspired with Atty. Quinsayas, et al. by
publishing the confidential materials on their respective media platforms. Petitioner pointed out that Drilon
discussed the disbarment complaint with Atty. Quinsayas in a television program viewed nationwide
 
Petitioner alleged that the public circulation of the disbarment complaint against him exposed this Court and its
investigators to outside influence and public interference. Petitioner alleged that opinion writers wrote about and
commented on the disbarment complaint which opened his professional and personal reputation to attack. He
alleged that the purpose of respondents in publishing the disbarment complaint was to malign his personal and
professional reputation.
 
It was alleged by respondents that the news article on the disbarment complaint is a qualified privileged
communication. They alleged that the article was a true, fair, and accurate report on the disbarment complaint.
The article was straightforward, truthful, and accurate, without any comments from the author. They alleged that
Punay reported the plan of Mangudadatu, et al. to file the disbarment complaint against petitioner as it involved
public interest and he perceived it to be a newsworthy subject. They further alleged that assuming the news
article is not a privileged communication, it is covered by the protection of the freedom of expression, speech,
and of the press under the Constitution. They also alleged that the case is a criminal contempt proceeding and
intent to commit contempt of court must be shown by proof beyond reasonable doubt. They further alleged that
they did not commit any contemptible act. They maintained that the news article did not impede, interfere with, or
embarrass the administration of justice. They further claimed that it is improbable, if not impossible, for the article
to influence the outcome of the case or sway this Court in making its decision. The article also did not violate
petitionerʼs right to privacy because petitioner is a public figure and the public has a legitimate interest in his
doings, affairs, and character.
 
ISSUE: WON respondents violated the confidentiality rule in disbarment proceedings, warranting a finding of guilt
for indirect contempt of court.

RULING: Only Atty. Quinsayas was found liable for contempt.

 
Violation of Confidentiality Rule by Respondent Media Groups and Personalities
 
Section 18, Rule 139-B of the Rules of Court provides:
Section 18. Confidentiality. - Proceedings against attorneys shall be private and confidential. However,
the final order of the Supreme Court shall be published like its decisions in other cases.
 
The Court explained the purpose of the rule, as follows:
 x x x. The purpose of the rule is not only to enable this Court to make its investigations free from
any extraneous influence or interference, but also to protect the personal and professional
reputation of attorneys and judges from the baseless charges of disgruntled, vindictive, and
irresponsible clients and litigants; it is also to deter the press from publishing administrative
cases or portions thereto without authority. We have ruled that malicious and unauthorized
publication or verbatim reproduction of administrative complaints against lawyers in newspapers
by editors and/or reporters may be actionable. Such premature publication constitutes a
contempt of court, punishable by either a fine or imprisonment or both at the discretion of the
Court. x x x
 
In People v. Castelo, the Court ruled that contempt is akin to libel and that the principle of privileged
communication may be invoked in a contempt proceeding. The Court ruled:
While the present case involves an incident of contempt the same is akin to a case of libel for both
constitute limitations upon freedom of the press or freedom of expression guaranteed by our
Constitution. So what is considered a privilege in one may likewise be considered in the other. The same
safeguard should be extended to one whether anchored in freedom of the press or freedom of
expression. Therefore, this principle regarding privileged communications can also be invoked in favor
of appellant.
 
The Court recognizes that "publications which are privileged for reasons of public policy are
protected by the constitutional guaranty of freedom of speech." As a general rule, disbarment
proceedings are confidential in nature until their final resolution and the final decision of this Court.
In this case, however, the filing of a disbarment complaint against petitioner is itself a matter of
public concern considering that it arose from the Maguindanao Massacre case. The interest of the
public is not on petitioner himself but primarily on his involvement and participation as defense
counsel in the Maguindanao Massacre case. Indeed, the allegations in the disbarment complaint
relate to petitioners supposed actions involving the Maguindanao Massacre case.
 
The Maguindanao Massacre is a very high-profile case. Of the 57 victims of the massacre, 30 were journalists. It
is understandable that any matter related to the Maguindanao Massacre is considered a matter of public interest
and that the personalities involved, including petitioner, are considered as public figure. The Court explained it,
thus:
But even assuming a person would not qualify as a public figure, it would not necessarily follow that he could not
validly be the subject of a public comment. For he could; for instance, if and when he would be involved in a public
issue. If a matter is a subject of public or general interest, it cannot suddenly become less so merely
because a private individual is involved or because in some sense the individual did not voluntarily
choose to become involved. The publicʼs primary interest is in the event; the public focus is on the
conduct of the participant and the content, effect and significance of the conduct, not the
participantʼs prior anonymity or notoriety.
 
Since the disbarment complaint is a matter of public interest, legitimate media had a right to publish
such fact under freedom of the press. The Court also recognizes that respondent media groups and
personalities merely acted on a news lead they received when they reported the filing of the
disbarment complaint.
 
The distribution by Atty. Quinsayas to the media of the disbarment complaint, by itself, is not
sufficient to absolve the media from responsibility for violating the confidentiality rule. However,
since petitioner is a public figure or has become a public figure because he is representing a matter
of public concern, and because the event itself that led to the filing of the disbarment case against
petitioner is a matter of public concern, the media has the right to report the filing of the disbarment
case as legitimate news. It would have been different if the disbarment case against petitioner was
about a private matter as the media would then be bound to respect the confidentiality provision of
disbarment proceedings under Section 18, Rule 139-B of the Rules of Court.
 
Section 18, Rule 139-B of the Rules of Court is not a restriction on the freedom of the press. If there
is a legitimate public interest, media is not prohibited from making a fair, true, and accurate news
report of a disbarment complaint. In the absence of a legitimate public interest in a disbarment
complaint, members of the media must preserve the confidentiality of disbarment proceedings
during its pendency. Disciplinary proceedings against lawyers must still remain private and
confidential until their final determination. Only the final order of this Court shall be published like its
decisions in other cases.
 
Petitioner also failed to substantiate his claim that respondent media groups and personalities acted in bad faith
and that they conspired with one another in their postings and publications of the filing of a disbarment complaint
against him. Respondent media groups and personalities reported the filing of the disbarment complaint without
any comments or remarks but merely as it was – a news item. Petitioner failed to prove that respondent media
groups and personalities acted with malicious intent. Respondent media groups and personalities made a fair and
true news report and appeared to have acted in good faith in publishing and posting the details of the disbarment
complaint. In the televised broadcast of the commemoration of the Maguindanao Massacre over ANC, the
disbarment case was briefly discussed but petitioner was not named. There was also no proof that respondent
media groups and personalities posted and published the news to influence this Court on its action on the
disbarment case or to deliberately destroy petitionerʼs reputation. It should also be remembered that the filing of
the disbarment case against petitioner entered the public domain without any act on the part of the media. As we
will discuss later, the members of the media were given copies of the disbarment complaint by one of the
complainants.
 
Indeed, petitioner failed to prove that, except for Atty. Quinsayas, the other respondents, namely De Jesus, Hulog,
Batario, Mangahas, and even Gozo, who did not file his separate comment, had a hand in the dissemination and
publication of the disbarment complaint against him. It would appear that only Atty. Quinsayas was responsible for
the distribution of copies of the disbarment complaint. In its Comment, GMA Network stated that the publication
"had already been done and completed when copies of the complaint for disbarment were distributed by one of
the disbarment complainants, Atty. Prima Quinsayas x x x." Dedace also stated in her Comment that "Atty.
Quinsayas gave copies of the disbarment complaint against Atty. Fortun and she received one."
 
Atty. Quinsayas is bound by Section 18, Rule 139-B of the Rules of Court both as a complainant in the disbarment
case against petitioner and as a lawyer. As a lawyer and an officer of the Court, Atty. Quinsayas is familiar with the
confidential nature of disbarment proceedings. However, instead of preserving its confidentiality, Atty. Quinsayas
disseminated copies of the disbarment complaint against petitioner to members of the media which act
constitutes contempt of court. In Relativo v. De Leon, the Court ruled that the premature disclosure by
publication of the filing and pendency of disbarment proceedings is a violation of the confidentiality rule. In that
case, Atty. Relativo, the complainant in a disbarment case, caused the publication in newspapers of statements
regarding the filing and pendency of the disbarment proceedings. The Court found him guilty of contempt.
 
WHEREFORE, we find Atty. Prima Jesusa B. Quinsayas GUILTY of indirect contempt for distributing copies of the
disbarment complaint against Atty. Philip Sigfrid A. Fortun to members of the media and we order her to pay a
FINE of Twenty Thousand Pesos (P20,000).
 
SO ORDERED.