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.