The Cybercrime Law: What’s next?


I just read media reports that the Supreme Court had just denied all pending motions for reconsideration on its earlier ruling declaring the Cybercrime Prevention Act’s provision on libel as being constitutional.

As counsel for journalists Alexander Adonis, Ellen Tordesillas et al., I am of course deeply disappointed with this latest turn of events. In my opinion, the Supreme Court just lost a great opportunity to rectify the inconsistencies in our jurisprudence on freedom of expression. Simply put, while we have adopted the normative value of freedom of expression as the means to ascertain the truth and as the means to form informed public opinion which is indispensable in a democracy, the fact that the Court continues to sanction the imposition of imprisonment for libel contradicts our so-called constitutional commitment to freedom of expression.

Moreover, I believe that this latest decision is a blatant disregard of the view expressed by the UN Human Rights Committee declaring criminal libel in the Philippines as being contrary to freedom of expression. It is thus a breach of “pacta sundt servanda”, or that treaty obligations must be complied with in good faith. The view expressed by the UN Human Rights Committee in the case of Adonis vs. Philippines that criminal libel in the Philippines violates freedom of expression is as clear as the light of day. Whether or not the Committee actually expressed the view that the Philippines should repeal its criminal libel law is not the issue. What is clear is that with the declaration, we are in breach of our international obligation to protect and promote the right to freedom of expression, the Supreme Court should have ensured: one, that we cease and desist from the breach by declaring criminal libel as being contrary to international law; and two, it should have provided compensation to all those wrongfully sentenced for criminal libel. Certainly, to uphold a law that provides for an even more draconian libel law since it provides for a longer penalty of imprisonment doing away with the possibility of parole is a continuing breach of our international obligation.

So, what will we do now? This latest Supreme Court decision is tantamount to exhaustion of domestic remedies. When we filed our challenge versus cyber libel with Alexander Adonis as petitioner, we were aiming to implement the UN Human Rights Committee view through jurisprudence. Since the highest court of the land has instead put its stamp of approval on the draconian law, the decision is evidence that we have again exhausted all domestic remedies. This will qualify Adonis et al to return to the UN to complaint that instead of implementing its earlier view, the Republic of the Philippines has openly defied it. We will pray for a second declaration that not only does libel under the Revised Penal Code violate Art. 19, but additionally, the Cybercrime Prevention Act equally violates freedom of expression.

The difference is while the earlier view issued by the UN was against a decision of a Regional Trial Court Judge, this time around, we will ask the Committee to declare a collegial decision of our highest judicial organ as violating international law.

If we succeed — and chances are that we will — the Court will be put in an embarrassing situation where proven experts in the field of human rights will find a decision of our 15-man court as being erroneous and violates human rights law. This would be downright embarrassing for the Court. When this happens,  we can say that when we filed our motion for reconsideration, we gave our Courts the opportunity to avoid the spectacle of an experts view that its decision is wrong.  In the end,  the Court will only have   itself to blame for the ignominy of a decision, which could be condemned by the international human rights community as a violation of human rights law.

In Adonis vs. Republic of the Philippines, the UN Human Rights Committee declared that criminal libel under the Revised Penal law is contrary to Freedom of Expression under Article 19 of the ICCPR because it is not necessary, the existing alterative being civil libel. The Committee also ruled that imprisonment is not proportionate to the means sought to be enforced by the law, which is the protection of the right to privacy of private individuals.

The Philippines has also not complied with the view that journalist Alexander Adonis should be paid compensation for the one-year imprisonment he served for his conviction for libel.

While the views of the Committee are non-binding, no less than the International Court of Justice has said that since these views are the opinions of the most authoritative experts in the field of human rights tasked with monitoring states compliance with their obligations under the International Covenant on Civil and Political Rights, the views should be given much weight.

The Philippines also undertook to comply with the views expressed by the Committee because it ratified the optional Protocol to the ICCPR.

Simply put, the denial of our Motion for Reconsideration now triggers the availability of international remedies against the draconian law. Thank goodness for international law!

Cybercrimes and Freedom of Expression


Despite the view of the United Nations Committee on Human Rights that Philippine criminal libel is contrary to Article 19 of the International Covenant on Civil and Political Rights (ICCPR) on freedom of expression, Congress and President Benigno Aquino III still enacted the Cybercrime Prevention Law which, among other things, added electronic libel as a new criminal offense.

Worse, this new law increased the penalty for cyber libel to prision mayor from the current prision correctional provided under the Revised Penal Code.

This means that electronic libel is now punished with imprisonment from six years and one day to up to 12 years, while those convicted for ordinary libel under the RPC are subject to imprisonment only from six months and one day to four years and two months. And because parole, a means by which a convict may be spared from actual imprisonment may be granted only to those sentenced to serve a prison term for no more than six months and one day, anyone convicted for cyber libel will inevitably serve a prison term.

Since the Philippines leads the rest of the world in terms of Facebook and Twitter usage, this means that unlike ordinary libel complaints which are oftentimes brought against printed newspapers -given the element of publication, any user of these leading social media tools is now liable for prosecution. The fact that an allegedly libelous writing appeared on the Internet is already sufficient to prove the element of publication.

The new Cybercrime law is an outright defiance of the UN Human Rights Committee View in the case of Alexander Adonis vs. Republic of the Philippines.

In that View, the UNHRC declared that Philippine libel law under the RPC contravenes freedom of expression on two counts: one, it is a disproportionate means by which to achieve its avowed goal of protecting the privacy of private persons; and two, because there is an alternative in the form of civil libel, or the payment of damages.

The UN HCR also took the view that our libel in the Philippines, because it does not recognize truth as a defense, is additionally defective on this ground.

While the View of the UNHRC is this instance is non-binding, the Philippines nonetheless is under an obligation to heed it because of the maxim “pacta sundt servanda”, or that treaty obligations must be complied with in good faith. The UN Human Rights Committee Views, since the membership of the body consist of leading experts in human rights, are accepted as authoritative on the issue of states compliance with their obligations under the ICCPR.

Simply put, the view against our libel law is very strong evidence of breach of a state obligation under the ICCPR And instead of heeding the UN’s call to review its existing libel law, Congress and President Aquino appeared to have slammed the body by enacting an even more draconian legislation against cyber libel.

Our constitutional commitment to freedom of expression has long been recognized. Justice Holmes, for instance, wrote: “When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .”

The commitment exists because it is only through freedom of expression that we are able to discern the truth and able to fiscalize despotic regimes: “The freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.

By criminalizing internet libel, government expanded the infringement of freedom of expression even to the realm that has enabled us to give life to the principle of a free market place of ideas- the internet. Prior to this law, it is ironic that the Philippines was even cited by the United Nations for not interfering with the internet. The law is a testament to the reality that despite the overwhelming mandate given to this administration, coupled with its unprecedented public approval ratings, it continues to be insecure and unable to compete in the market place of ideas.

We will see the Aquino administration in court on this one. And we will prevail. For unlike other laws that enjoy the presumption of regularity, this cybercrime law, insofar as it infringes on freedom of expression, will come to court with a very heavy presumption of unconstitutionality.

There can be nothing sadder than suing the son of icons of democracy for infringement into a cherished right.