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!

Request for coverage : Centerlaw, on behalf of Alexander Adonis, to file Motion for Partial Reconsideration re: Cybercrime Law at SC tomorrow


Radio broadcaster Alexander Adonis, represented by Centerlaw, will lead petitioners in filing a Motion for Partial Reconsideration at the Supreme Court, tomorrow, March 13, 2014 at 1:00 pm, re: Cybercrime Law of 2012.

Reference Prof. Harry L. Roque 09175398096

 

 

The fight versus cyberlibel continues


The Supreme Court on Tuesday upheld the constitutionality of libel in the Cybercrimes Prevention Act of 2012. This is both unfortunate and disturbing. Our Supreme Court, as early as Angara vs. Electoral Tribunal, is recognized as a co-equal branch of government despite its lack of political and military power because its task is to uphold the supremacy of the Constitution. But with this unfortunate decision, the Court has clearly abdicated its role to uphold fundamental freedoms.

I represented journalists in this constitutional challenge led by Alexander Adonis. Adonis spent a year behind bars for libel courtesy of former Speaker Prospero “Burlesque King” Nograles. He went to the UN Committee on Human Rights for a view that criminal libel here is contrary to freedom of expression enshrined in the International Covenant on Civil and Political Rights. He succeeded and the Committee declared, for the first time, that criminal libel is unnecessary and disproportional for the protection of privacy of private individuals. The Committee ruled that the alternative to achieve this aim is civil damages and not incarceration.

The rationale for why criminal libel infringes on the right to free expression is because of a principle known as “overbreadth”. Under this, legislation so broadly tailored should be annulled on its face since its enforcement may cover even protected speech. This is why many states in the United States have stricken down much criminal libel legislation as being unconstitutional. Specifically, it may criminalize criticisms against public officials, which even if untrue, were nonetheless said without knowledge of falsity or in utter disregard thereof. The rationale for this in turn was summarized in the case of New York Times vs. Sullivan: “debate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Garrison v. Louisiana then said why speech motivated even by hatred and ill-will should not be penalized: “Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth”.

The fact that the cyber prevention act criminalizes libel in the Internet, a different medium form print or broadcast, also adds to the confusion. For instance, the Revised Penal Code provision on libel says: “Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same”. The issue now is who else, besides the author, should be held liable for libel. Should the ISP and the intermediary, whose facility is indispensible for Internet publication, also be held liable? Are cybercafé owners, because bulk of our netizens goes to these cafes, also liable?

The Court attempted to narrow the scope of application of the cyberlibel law by ruling that only original posts may be penalized. This reflects that the court does not fully appreciate the nature of the Internet as a technology. Netizens today not only repost Facebook entries, they also reproduce them through cut and paste. So in the case of cut and paste, who are the original authors? Moreover, the court spokesperson said that comments are not liable for persecution. But how can these be when comments, by their very nature are in fact original posts distinct to the Web page or the Facebook entry that they seek to propagate?

Ultimately, the objection to the cybercrime law is that it seeks to penalize individual space on the Internet, which is recognized as the realization of the free market place of ideas. The theory of free speech is right or wrong; information should be made available to everyone, as ultimately, people will use their own intelligence in distilling the truth from falsity.

Karen Davila in her show yesterday was correct. The Internet is the medium of communication of the future. This is why they now seek to regulate it. For unless they instill fear in the hearts of those who criticize government, the possibility exists that government will cease to be a business and be  a means to serve the public. This is what they seek to prevent by legislating the draconian cybercrime prevention act.

But make no mistake about it: the fight shall continue. There shall be a motion for reconsideration in due course and a new petition in the future, for the alternative that of having the draconian law in force is simply unacceptable.

The high court should not abdicate its duty to protect freedom of expression


After the oral argument on the 'Anti-Cybercrime Act of 2012' at the Supreme Court (Jan. 15, 2013)

After the oral argument on the ‘Anti-Cybercrime Act of 2012′ at the Supreme Court (Jan. 15, 2013)

“The high court should not abdicate its duty to protect freedom of expression. No less than the U.N. Human Rights Committee has already declared that Philippine Criminal Libel Law is contrary to Freedom of Expression. The Court’s decision failing to declare libel as unconstitutional is therefore contrary to Human Rights Law.

“Centerlaw and our client, Alexander Adonis, welcome the other provisions of the Act such as the Take Down clause and the decision to strike down the real time gathering of information. This is indeed a major victory for privacy and the right of the people
to be secure in their communication.

“We will continue the fight to nullify criminal libel. Cyber libel is an infringement on free speech.”

Centerlaw issued this statement following today’s announcement that the Philippine Supreme Court ruled that online libel is constitutional.

Centerlaw, through Harry Roque, argued before the Supreme Court on January 15, 2013 that Republic Act 10175 or the anti-cybercrime law is against the law. Four other lawyers argued, representing 15 groups that petitioned against the law.#

The Centerlaw team after the oral argument on the 'Anti-Cybercrime Act of 2012' at the Supreme Court (Jan. 15, 2013)

The Centerlaw team after the oral argument on the ‘Anti-Cybercrime Act of 2012′ at the Supreme Court (Jan. 15, 2013)

ADONIS PETITION VS CYBERCRIMES LAW AMENDED


PETITION VS CYBERCRIMES LAW AMENDED

The Center for International law and the Southeast Asia Media Defense, counsels for Davao based broadcaster Alexander Adonis, amended yesterday their petition to have the recent Cybercrimes Prevention Act of 2012 declared unconstitutional. In their amended Petition, Centerlaw asked the Supreme Court to expressly declare Art. 355 of the Revised Penal Code providing for the crime of libel also to be unconstitutional. Previously, the Center asked the Court to declare only the provision of the Cybercrimes Prevention Law provision on libel as being unconstitutional.

Prof. H. Harry L. Roque, Jr  of  Centerlaw and the UP College of Law explained the rationale for the amendment:

“We’ve had to clarify that pursuant to the View of the  UN Human Rights Committee in Adonis vs. Republic of the Philippines, libel under the Revised Penal Code is contrary to freedom of expression. In its annual report this year on the Philippines, the UN Human Rights Committee also decried that instead of complying with this view and repeal Art 355 of the RPC, the Philippines even expanded the coverage of libel through the  Cyberprevention Act. Hence, its important to have both libel under the RPC and under the new law be declared as illegal., Prior to the amended petition, the petition only asked the Court to indirectly declare the ordinary crime of libel as unconstitutional by implication. Since Art. 355 was reproduced by way of reference in the definition of electronic libel with the additional element that its should have been published electronically, it is incumbent for the Court to also consider the issue of whether ordinary libel is constitutional. The amended was necessary since the law does not favor implied declarations of unconstitutionality”.

Alexander Adonis was detained fro three years upon being convicted for libel in a complaint filed by former Speaker Prospero Nograles. According to the United Nations, Philippine criminal libel is contrary to Art. 19 of the International Covenant on Civil and Political Rights because it is disproportionate to the ends that it seeks, that is, the protection of privacy of private individuals; and that there are an alternative in the form of civil libel.

Roque expressed the view that those whose right to privacy may be violated by the media after criminal libel is declared unconstitutional or repealed by a law of Congress can still have recourse to a civil case for damages and recourse to the media’s self-regulating mechanisms such as the Philippine Press Institute for the print media and the Kapisanan ng Brodkasters ng Pilipinas for radio and television.

The Adonis Petition against the Cyberprevention Act is the only petition that challenges the constitutionality of libel law in the country. “We’re excited to argue this issue since we believe that there are now changed circumstances to warrant a reversal of previous Supreme Court decisions upholding the legality of libel. Some of this include our ratification of the ICCPR itself and the View of the UN Human Rights Committee”, Roque added.

 

Here’s the text of the amended petition: http://www.scribd.com/doc/118190190

#30#

A (temporary) victory for free speech


 

In the 1936 case of Tañada versus Electoral Commission, the Supreme Court held that when the Court strikes down an act of any other branch of government for being contrary to law and the Constitution, it is not exercising judicial supremacy but upholding the supremacy of the Constitution. This was exactly what the Court did last Tuesday when protesters joining the “second black Tuesday” protest were given by the Court an unexpected treat: a temporary restraining order on the enforcement of the controversial Cybercrime Prevention Act of 2012.

Of course the victory, from the Order itself, a TRO—merely temporary and not yet an adjudication on the merits of the 15 petitions questioning the validity of the law. Still, it is a victory. It is a clear decision by the Court that unless restrained, the enforcement of the law will result in an injustice and irreparable injury to all the petitioners, And because a common allegation of the petitions is that the law violates freedom of expression, the TRO in effect, may be read as the Court’s judgment that unless restrained, the enforcement of the law may result in a violation of this constitutional freedom. Moreover, because a TRO may be issued only upon showing of an imminent injustice and an irreparable injury, the Court has implied that unlike other statutes that are presumed constitutional, the questioned law does not enjoy this presumption. Otherwise, why would the court conclude that its enforcement might result in both injustice and irreparable injury?

Senator Miriam Defensor-Santiago, a former jurist, is right (again) when she opined that the TRO shows the Court’s leanings on the issue. It is now up to the administration to justify and show how the law’s offensive provisions —including the criminalization of electronic libel, the increased penalty for it, and the absence of clear language on what is covered by it and who may be liable thereof, plus its most controversial provision, sec. 19 which grants the Secretary of Justice draconian powers to close down web pages unilaterally– are compatible with the Bill of Rights. Certainly, the TRO has turned the tables as far as presumptions are concerned.

The fight is far from over. Oral arguments were scheduled on January 15 next year where the Office of the Solicitor General is expected to argue that the legislation is valid since it was enacted pursuant to the inherent police power of the state to uphold the public good. I wish my friend, Solicitor-General Francis Jardeleza the very best in this regard as the TRO has shown that it would be an uphill battle for the government. In any case, this is why a career in the OSG is most appealing to those who love the law. Counsels in this case are expected to put forth their best arguments in the best manner that they could, considering the transcendental importance of the issues to be resolved in the case. Regardless of the final outcome, we cannot deny that with the issuance of the TRO, the Court has once again proven that it will not shirk in its responsibility to defend particularly the Bill of Rights- even if the administration that may violate it enjoys unprecedented popularity. Hail to the Court!

In any case, while the petitions against the Cybercrime Prevention Act has taken center stage in the market place of idea, a companion case, that which prays for the restraining of the public showing of the notorious film, “The Innocence of Muslims”, has all been forgotten. The Court also issued a TRO against the MTRCB from allowing the public showing of the film. This appears to be tantamount to public restraint since jurisprudence is clear: offensive speech is protected because as Mike Godwin said, “ nobody ever tries to ban the other kind”. The American Civil Liberty Union succinctly argued in a case involving hate and offensive speech: “The First Amendment really was designed to protect a debate at the fringes. You don’t need the courts to protect speech that everybody agrees with, because that speech will be tolerated. You need a First Amendment to protect speech that people regard as intolerable or outrageous or offensive — because that is when the majority will wield its power to censor or suppress, and we have a First Amendment to prevent the government from doing that.”

In other words, while the public has rightfully protested against the infringement of freedom of expression by RA 10175, the public should also be equally indignant over the suppression of a bad film if only because without such bad films, we cannot appreciate the truly good ones.

UNITED NATIONS: PHILIPPINE LIBEL LAW ILLEGAL


Savioli: Committee should have asked RP to repeal its libel law

The Revised Penal Code’s provisions penalizing libel is “incompatible with Article 19, paragraph three of the International Covenant on Civil Political Rights”, or freedom of expression. This was the View expressed by the Human Rights Committee in a View adopted during the 103rd session of the UN Body. The Committee is a treaty monitoring body created by the Optional Protocol of the International Covenant on Civil and Political Rights. It has power to declare that a State party to the Convention is in breach of its obligations as provided in the Covenant.

The View was expressed in a complaint filed by Davao based Alexander Adonis who was jailed for more than two years pursuant to a conviction for libel . In his radio broadcast, Adonis read and dramatized a newspaper report that then Congressman and former Speaker Prospero Nograles was seen running naked in a hotel when caught in bed by the husband of the woman with whom he was said to have spent the night with. Davaoenos  have since referred to this as the “burlesque” king incident. In a decision rendered by the Regional Trial Court of Davao, Adonis was sentenced to imprisonment from 5 months and one day to four years, six days and one day imprisonment. In the said decision, the local court decided that Adonis was guilty of “malicious, arbitrary, abusive, irresponsible act of maligning the honor, reputation and good name of Congressman Nograles”.

After having served two years in prison, Adonis questioned the compatibility of libel with freedom of expression under Art 19 of the ICCPR. He argued that the  sanction of imprisonment for libel meets fails to meet the standard of necessity and reasonableness. Imprisonment is unnecessary since there are other effective means available for protection for the rights of others. He also argued that it was not a reasonable restriction because it does not admit proof of truth as a complete defense but only allows it under very restricted conditions..

In ruling in favor of Adonis, the UN Body ruled that Philippine criminal libel law was inconsistent with freedom of expression, the Committee recalled its General Comment No. 34 which reads: “Defamations laws should not   x x x stifle freedom of expression. … Penal defamation laws should include defense of truth.  x x” comments about public figures, consideration should be given to avoiding penalties or otherwise rendering unlawful untrue statements that have been published in error but without ,malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defense. State parties should consider the decriminalization of libel”

As counsel for Adonis in the UN, I believe that the  Committee’s view is  a very big win for freedom of expression. It’s a step towards the right direction where no person should be held criminally responsible for the exercise of a cherished freedom. Hopefully, President Noynoy Aquino’s administration  will comply with the Committee’s view and proceed to decriminalize libel and to provide reparations to Adonis for time he spent in prison. No one should be imprisoned for expressing his or her views, full stop.

The Committee ordered the Philippine government to “provide the author with an effective remedy, including adequate compensation for time served in prison, The State is also under obligation to take steps to prevent similar violations occurring in the future”.

Two Committee members dissented only insofar as the Committee did not expressly order the Philippine government to decriminalize libel. Fabian Omar Salvioli argued that pursuant to Art 2.2 of the Covenant, the State party undertakes to take all necessary steps, in accordance with constitutional processes, to give effect to right recognized in the Convention”. Hence, by not ordering the repeal of Philippine libel laws, Salvioli argued that  “ the Committee has missed a clear opportunity expressly and unambiguously to indicate to the State party that it must change its criminal law.

The Adonis View is the first view of the UN Committee on Human Rights that criminal liable infringes on freedom of expression.