Re-examining freedom of expression


I have been the foremost advocate for freedom of expression, at least in the legal profession. I have always said that this freedom is ever important for it enables us to know the truth. It also enables us to form opinions, which taken collectively, have been proven in fiscalizing governments. For instance, we now know that the PDAF and DAP were never intended to benefit our people. They have been intended and used to further enrich our corrupt officials. If anything, the investigative work of journalists on PDAF and DAP has shown how crucial a vibrant press is in informing our people and in keeping our government in line.

But I have had to re-examine my advocacy for freedom of expression recently. This is because have had to reckon with the ugly side of the terrain: irresponsible journalism.

Note that days after my fellow private prosecutor in the Maguindanao massacre case, Nena Santos, claimed that Department of Justice officials were purportedly accepting bribes from the accused, the witness, Lakmudin Saliao, who, even if purportedly under the government’s Witness Protection Program, is actually under the custody of Governor Toto Mangudadatu; spoke to media, This was obviously arranged by Nena Santos herself. Purportedly the “smoking gun” to prove her allegations of bribery, Saliao then related that when he was still under the employ of the Ampatuans, he gave Atty Sigfrid Fortun the amount of P50 million, 20 million of which was to be paid to Undersecretary Francisco Baraan, and the balance of P30 million to be paid to the rest of the public prosecutors.

In the mind of Santos, this disclosure proved that Baraan was indeed on the take. The only problem was that Saliao, as one of the government’s star witnesses in the Ampatuan trial itself, was testifying on matters which occurred in 2009 and 2010 prior to the PNoy administration. Baraan only joined government as part of the PNoy administration. Hence, contrary to what Saliao is saying, Baraan could not have received P20 million since he was not yet in government at the time of the alleged payoff.

So when Ces Orena-Drilon came to my temporary office in the UP College of Law to show me a PDF file of an alleged diary listing personalities which she concluded were lists of individuals having received money form the Ampatuans, my remark to her was: “Ces, you’re the only one who still believes Nena Santos.” It was at that juncture that Ces then said that her informant was different from Nena Santos although she admitted that she met this informant through Nena Santos. Nena would later lie on national televisions and say that she does not know the informant.

I even explained to her that Nena was obviously on the warpath after she was found lying. But Ces was persistent. She then showed me an entry of a phone number, which corresponded to mine -next to the word “speedy”. Another entry had the notation “Speedy 10 M and a car”.

Asked for my reaction, I first explained that the since the diary was provided by an informant who did not prepare the diary, the same was not authenticated. I then said that while the number corresponds to my cell phone, my number is a very public number since it appears in all my press releases, my blog and FB entries, I do not know any “speedy” and do not know why it appears next to my number.

But lo and behold, in the newscast for that evening, it was reported that I received P10 million and a car since I was using the alias “Speedy”.

I am sure that those who know me will not believe this allegation. How do you explain the fact that unlike Nena Santos who has not presented a single witness in the Ampatuan prosecution, we have not only been active in presenting our witnesses (about 35) in the massacre case itself but have field 23 other actions against the Ampatuans? This included the plunder case against the Ampatuans, actions to freeze their assets with the Anti-Money Laundering Council, a separate civil case against former President Gloria Macapagal Arroyo for her complicity in the murder, separate criminal charges against the military officials in the area and international remedies for the victims. And unlike Nena Santos and Prima Quinsayas who are paid for their services, we have been doing our work against the Ampatuans on a pro-bono basis. It is strange that I – who have been working for free in these cases for five long years -was the one maligned as having received money from the same individuals who have in turn, sued me at least 14 times either in the form of contempt petitions or libel in their turf of Cotabato City.

Today, I am in the process of re-examining my advocacy for freedom of expression. I represent today the most number of journalists accused of libel and other families of journalists who have been killed and have not been accorded domestic remedies for their murders. We also continue our advocacy to decriminalize libel. But when a very senior journalist, a graduate of the same state university where I am a full professor, resorts to abuse of the right to a free press, one cannot wonder now if my lifelong passion in defending this freedom is indeed a noble pursuit.

I continue to dwell on it.

This post first appeared in http://manilastandardtoday.com/2014/08/14/re-examining-freedom-of-expression/

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!

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)

Bloggers equally protected as journalists


 

BLOGGERS enjoy the same protection as journalists.

 

This was the recent ruling of the US Court of Appeals in  the case of Obsidian Finance Group v. Cox. In this case, Crystal Cox, a blogger, claimed that Obsidian finance company was guilty of tax fraud. The US District Court earlier found Cox guilty of defamation and awarded the finance company $ 2.5 in damages. The lower court issued its ruling anchored on the assumption that since Cox is a blogger and not a journalist, a complainant in a defamation suit is entitled to the presumption of” legal malice or a presumption that the defamatory statement is presumed malicious.

 

Further, Cox, as a mere blogger is not entitled to invoke the definition of actual malice established in the New York Times vs. Sullivan case.  The 1964 US Supreme Court ruling set the precedent for the rule that journalists can only be held liable for false information if they knew of its falsity or in utter disregard of the same. Ten years after Sullivan, the US Supreme Court ruled in Gertz v. Robert Welch that the First Amendment required only a “negligence standard for private defamation actions.”

 

First Amendment refers to an amendment to the Constitution of the United States guaranteeing the right of free expression that includes freedom of speech, freedom of the press; or the right of the people to peaceful assembly, and to petition the Government for a redress of grievances.

 

In ruling that bloggers are entitled to the same protection as journalists, the US Court of Appeals covering the jurisdiction of California ruled that the case involved an intersection between Sullivan and Gertz “an area not yet fully explored  x x x in the context of a medium of publication—the Internet—entirely unknown at the time of those decisions”. Citing the US Supreme Court, the Appellate Court ruled:” that a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.”

 

The dilemma is precisely because of a lack of precision on who are in fact and in law – journalists. In fact, separate definition on who is a journalist indicates a lack of consensus even from those who profess to practice the profession. For instance, the United States Congress, in a draft of a Federal shield law, defines a journalist as “one who works for a traditional media organization for pay or gain”, a definition adopted as well by the UNESCO. This will exclude bloggers altogether from the protection of the proposed shield law. On the hand, the Human Rights Committee in its General Comment, defines  “it is a function shared by wide variety of actors, including professionals full time reporters and analysts, as well as bloggers and others who engage in forms of self-publications in print, on the internet, or elsewhere”.

 

Crystal Cox caseBut outside the definition of who a journalist is, the actual distinction between a regular media outfit and bloggers is the existence of a hierarchy of editorial controls to ensure accuracy in the news and fairness in commentary. This is why traditional journalists themselves sometimes scoff at the notion that “just about anyone can be a journalist”. In fact, Philippine jurisprudence even distinguishes between the amount of latitude given to the media in making factual errors depending on whether it is a “weekly” or a “daily”, with the latter being given wider latitude for mistakes.

 

But all these miss the point. There is protection accorded by the bill of rights not just to freedom of the press, but to freedom of expression in general. The normative values of these two freedoms are identical: to discern the truth and to facilitate “open, robust and even virulent discussion of pubic issues”. If both freedoms have the same normative content, why should the courts distinguish between an input to the market place of ideas coming from one who earns a living by it and one who does so anyway as a public duty?

 

The US Court of Appeal’s decisions, in my view, correctly refused a distinction between institutional media and bloggers because to recognize such would also violate the equal protection clause. This is another constitutional guarantee that those similarly situated will be treated alike. Had the court limited the protection of freedom of expression to professional journalists alone, it would send the message that only professional journalists can contribute to the public debate on public issues. This is contrary to the basic tenet that freedom of expression is a human right and not just a right of journalists.

 

In any case, the fact that journalists are paid and bloggers are not does not constitute a real basis for distinction. In Abrams, Holmes wrote; “the true test of truth is the power of a thought to be accepted in the market place of ideas”. Certainly, Holmes did not write that only paid journalists could contribute to this market.

 

Tagged 

- See more at: http://verafiles.org/bloggers-equally-protected-as-journalists/#sthash.btKihsIu.dpuf

Prior restraint, Tacloban and Corona


 

I am forced to rush the writing of this column because I have to proceed  to the Pasay Regional Trial Court. Apparently, Jo Imbong and  son filed an application for a temporary restraining order to stop the holding of a conference on Reproductive Health currently being attended by 1,500 delegates from all over the world. The hearing this afternoon is on the prayer for the TRO.

I do not know what Jo Imbong alleged in her petition in support of her prayer for a TRO. Media reports say that she seeks to restrain the management of the Philippine International Convention Center, Health Secretary Enrique Ona and the other organizers of the conference since the affair has three panels on safe abortion and access to medical abortion. Media have reported that Imbong and son argued that these panels violate the Revised Penal Code because it encourages the commission of a crime.

I am almost sure that the Revised Penal Code does not punish any incitement to commit abortion, even if Jo imbong’s assertions are correct, but which I very much doubt. This being the case, the mere inducement or incitement is not a crime in this jurisdiction. Accordingly, what the conference will discuss should be treated by the state as protected speech. Accordingly, the prayer for the remedy of injunction will have the effect of prior restraint on the exercise of free speech. Let’s hope that the RTC of Pasay, my home city, will be true to its mandate to uphold the suprmemacy of civil rights over religious dogmatism.

* * *

I was overwhelmed by the readership of and comments on my column on graft in Tacloban. I’d like to thank the almost unanimous expression of support for my view that public international law, the dictates of conscience and the law of humanity does not discriminate on the basis of partisan political affiliations in the delivery of humanitarian assistance to the typhoon ravaged province of Leyte. By way of follow-up, I have since discovered that Dinky “If We Hold On Together” Soliman has been distributing 25 kilos of rice per week for families in Leyte. This is good but I hope not in aid of her election bid in 2016.

Apparently, this large amount of rice was sourced from the recently seized smuggled rice from Vietnam. I suppose  that distributing the fruits of the crime of smuggling to those in need is the most appropriate means of disposing of fruits of a crime. I just hope that smuggling could be curbed once and for all because in addition to depriving our farmers fair access to the market, it also deprives rice traders and allied industries a share of the market. Let’s also hope that the vultures responsible for the anomalous bunkhouses will not profit from the distribution of smuggled rice.

While we’re at it, the anomalous bunkhouses defended by Secretary Rogelio Singson as not being “overpriced” have all been blown away anew by nature. I’d like to hear the good Secretary and Malacañang say again that these bunk houses were not anomalous. Mind you, they were not blown away by a major typhoon. It was more like mere monsoon rains. Let’s refer to these golden bunkhouses as the Yolanda-gate scandal to remind us of the vultures who will make profit from the miseries of others.

* * *

Let me end by saying kind words to Malacañang.

Senator Bong Revilla was off-tangent when he claimed impropriety when the President talked to him to vote to oust Corona from the Chief Justice post. While I am of the view that PNoy certainly has a lot to answer to us, his boss, talking to the senators to rid us of a lying Chief Justice is not one of them. PNoy had nothing to do with the fact that Corona lied through his teeth o when he withheld information about his millions of dollars in dollar deposits in his Statement of Assets, Liabilities and Net Worth.

Moreover PNoy had nothing to do with the bad acting that Corona exhibited in the Senate which sealed his fate as the first Chief Justice removed through impeachment. Corona only had himself to blame for his ouster. Let’s not pass the buck to Pnoy—not on this issue, at least.

 

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Freedom of expression in ASEAN


(Posted in http://manilastandardtoday.com on November 6, 2013)

HarryRoqueI am in Bangkok, Thailand for training on media defense for lawyers from Cambodia, Vietnam and Burma. This is sponsored by Media Defense Southeast Asia with support from the Konrad Adenaur Stiftung and the American Bar Association Rule of Law Initiative.

The prognosis is very bleak. All throughout Southeast Asia, despots continue to infringe on freedom of expression, a right guaranteed by the International Covenant on Civil and Political Rights and customary international law.

Freedom of expression has three aspects: the right to freely hold opinions which is absolute, as in fact, no government can control our thinking process; the right to expression, which may be limited in cases of national emergencies; and right to information. The latter is of course important because without information, people cannot make judgments. Without personal opinions, there will be no public opinion, which in turn, can be utilized to make governments accountable.

The consensus is that all leaders in the region are averse to freedom of expression because all of them suffer from issues of legitimacy. While the degree of repression varies drastically from the use of brutal force in cracking down on bloggers in Burma, Vietnam and Cambodia, Lest Majeste in Thailand, the use of libel and internal security laws in Singapore and Malaysia, and the  killing of journalists in the Philippines- the commonality is that leaders in the region are all averse to the truth. The fact is  even at this time and age, many of the regimes in the region lack popular mandate.  When they do enjoy the mandate, like PNoy, they are allergic to criticism.

Dean Raul Pangalangan delivered a brilliant lecture on the normative values of free speech. He summarizes these into four: the democratic rationale, the counter-majoritarian rational, the marketplace of ideas, and the “safety valve” function.

The democratic function is summarized in the leading case of American Communications vs. Douds: “but we must not forget that in our country are evangelists and zealots of many different political, economic and religious persuasions whose fanatical conviction is that all thought is divinely classified into two kinds — that which is their own and that which is false and dangerous”. In “Whitney vs. California, it was described as: freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

The counter-majoritarian rationale is best summarized in West Virginia State Board of Education v. Barnette: “one’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

The marketplace of ideas was expressed in Abrams vs. US: “To allow opposition by speech seems to indicate that you think the speech impotent ….. But when men have realized that time has upset many fighting faiths, they may come to believe … 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, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”

The “safety valve” function, finally,  was expressed in Whitney v. California: “The framers of the Constitution “knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”

The Philippines could be the leader in promoting freedom of expression had we not resorted to censorship by murder. It does not help either that our President, despite having a popular mandate, appears antithetic  to criticisms. Nonetheless, the good news is that our media lawyers—led by Centerlaw’s Romel Bagares and Media Defense Southeast Asia’s Gilbert Andres—will be at the forefront of availing of international remedies to support the cause of expression in Burma, Vietnam and Cambodia. That’s good news.

Pugad Baboy and freedom of expression


imagesThere appears to be some misunderstanding on the nature of freedom of expression lately. The trigger was a comic strip, the renowned Pugad Baboy. In the strip that invited protest from the normally nonchalant nuns of St. Scholastica’s College, a character remarked : “Galit kayo sa mga gays and lesbians pero sa mga sagrado Katolikong all-girls iskul na pinapatakbo pa mandin ng mga madre e kino-condone ang pagka-tibo ng mga estudyante.” Another character then said: “O’ nga ‘no? Sa St. Scho e wala kang makikitang magandang Kulasa na walang girlfriend.” It was then reported that upon receiving a letter of complaint from the Catholic school, the Inquirer removed the comic strip from its paper and has since apologized through its publisher, Dean Raul Pangalangan. It would later be clarified that the newspaper only “suspended publication of the comic strip pending an investigation of the issue”.

The Concerned Artists of the Philippines then protested that what happened to the comic strip was a “breach of freedom of expression”. Moreover, the group said that “suspension and censorship of Pugad Baboy set a dangerous precedent for other publications and media institutions under similar situations.”

Let me begin by acknowledging that comic strips have always been considered protected speech. Even if patently offensive to some, it has been protected as a form of parody and satire which have been accepted as legitimate inputs to the free market place of ideas.

But my point though is that in terms of legal structure, the protection of freedom of expression is intended as a guarantee against government infringement. Historically, the right has been protected as a means of ascertaining the truth and as a means of formulating public opinion intended to fiscalize government. It hence operates as a to bar to government from imposing either prior restraint to its exercise, or from subsequent punishment for the same. It was not intended to be a bar for private entities, such as a private newspaper, from exercising self-imposed restraint when it chooses to. That is what is called editorial discretion.

Obviously, the rationale for the Inquirer in suspending the cartoon strip was the seemingly homophobic slur of the comic strip. It implied that being LGBT should not be countenanced, especially by the religious. But taken in its totality, I actually do not understand why St. Scho even protested the strip. Certainly, we all respect St. Scho for being the bastion of progressive thought that it is and in a manner that sometimes makes UP look conservative. The comic strip could be read as homage to the school that respects its students’ right to choose their romantic partners. This, despite the fact that we still live in a society where the state, in mandating that a marriage can only be between a man and a woman, still regulates the choice of one’s partner by law. But much as we were perplexed by St. Scho’s action, the fact is they did protest and the Inquirer had no choice but to act on it. In doing so, it could have simply brushed off St Scho’s protest and maintain that the strip was legitimate parody, or it could determine, pursuant to its own editorial judgment, if the strip was in fact worthy of publication.

It turns out that the publication of the comic strip was by reason of an editorial lapse. It was apparently already previously rejected for publication, but inadvertently published later. The protest merely caused the newspaper to review what its editorial policy was on the comic strip. When it discovered that it had published it only by mistake, it took the noble path and apologized to the public for it. While I have always been an advocate of freedom of expression (basically because I have always had a big mouth that has frequently put me in some trouble) part of the advocacy for the right is to uphold editorial discretion on what a newspaper would want to publish. This includes apologizing for content, which in their judgment, was only published by mistake. The Inquirer of course should take care to exercise stronger editorial control and ensure it will publish only content that it wants to publish. Pugad Baboy is already the second time recently when the newspaper has had to apologize to the public for its erroneous publication. The first time was when it published a hoax of P Noy’s photograph depicting him in a not so dignified manner. While to err is human, to err this frequently maybe construed as carelessness. This may ultimately undermine the newspaper’s role as a public trust.

Do I respect Inquirer any less because of its apologies? Let’s just say that it helps that they were made by a face that I trust. Thank goodness it has Pangalangan as its publisher!

Text of our Memorandum Against the Cybercrimes Prevention Act


REPUBLIC OF THE PHILIPPINES

SUPREME COURT

MANILA

 

 

ALEXANDER ADONIS, VERAFILES INCORPORATED, represented by its President, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, AND GILBERT T. ANDRES,

Petitioners,

 

-versus- G.R. No. 203378

For: Certiorari and Prohibition, with Prayer for a Preliminary Prohibitory Injunction and/ or Temporary Restraining Order

 

 

THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT,THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY,

Respondents.

x——————————————-x

 

HON. RAYMOND V.  PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO of ANAKBAYAN,    MA. KATHERINE ELONA      of  the   Philippine      Collegian, ISABELLE   THERESE   BAGUISI     of    the     National Union    of    Students    of    the    Philippines,   et al.,

Petitioners,

 

-       versus         -                                                         

HON.   PAQUITO   N.   OCHOA,   JR.,   in   his  capacity as     Executive     Secretary     and alter-ego     of     President Benigno   Simeon   Aquino   III,  and   HON.   LEILA  DE LIMA,  in  her  capacity  as  Secretary of  Justice,

Respondents.

 

 

 

 

 

 

 

 

 

G.R. No. 203391

 

x——————————————-x

 

 

CONSOLIDATED MEMORANDUM

 

 

PETITIONERS, through counsel, respectfully file this Memorandum before the Honorable Court and state that:

 

 

PREFATORY STATEMENT

 

Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an indispensable condition to the exercise of almost all other civil and political rights. No society can remain free, open and democratic without freedom of expression. Freedom of expression guarantees full, spirited, and even contentious discussion of all social, economic and political issues. To survive, a free and democratic society must zealously safeguard freedom of expression.

-J. Carpio, separate concurring opinion, Chavez vs. Gonzales, G.R. No. 168338,   Feb. 15, 2008

The passage of a new cybercrime law, purportedly made to address new crimes inaugurated by the brave new world of cyberspace, gives an opportune occasion for this Honorable Court to reexamine our society’s continuing commitment to time-honored constitutional values.

 

As an exercise of police power, the value of a legislative enactment  intended to grapple with new technological realities is not being questioned.

 

What is put forward is the necessity of measuring such exercise against the standards of  accepted limitations to police power, which is the Bill of Rights enshrined in our Constitution.

The Constitution provides that the exercise of police power should be in a manner that would not infringe on guaranteed freedoms.

 

And the exercise of police power, through the enactment of the Cybercrime Prevention Act, may have grave effects on the  exercise of the constitutionally protected  speech, among other freedoms. Indeed, the assailed provisions may result in a “chilling effect” on the exercise of the right as fundamental as freedom of expression.

 

Our Constitution’s commitment to freedom of expression may not be the best means at arriving at the truth. It may not be the best means to administer government. But unless we change our constitutional commitment to freedom of expression, we need to continue to protect it vigilantly.

 

What is at stake in this case are fundamental constitutional freedoms, which have, in the very first place, enabled our democracy state to exist.

 

This Court has said that freedom of expression is the foundation of all other rights.  Which is why every other legislative enactment seeking to limit that freedom must come under strict constitutional scrutiny; that is, those statutes that infringe on protected freedoms are heavily presumed to be unconstitutional.

 

The Filipinos’ Constitutional right to freedom of expression is the animating spirit behind our republican and democratic way of government. The Filipino people cherish this right in any medium, more so with the use of the Internet which eases communication across any borders.

 

Ironically, our right to freedom of expression is now imperiled by a law that trespasses on that right with respect to the internet:  Republic Act No. 10175 or the “Cybercrime Prevention Act of 2012.”

 

Hence, Petitioners, as concerned citizens of this nation’s democratic way of life, respectfully ask the Honorable Court to wield its supreme Constitutional duty, by declaring Republic Act No. 10175 and the libel provisions of the Revised Penal Code—as unconstitutional.

 

 

i. timeliness of the memorandum

 

Petitioners were given twenty (20) days from 30 January 2013, or until 19 February 2013—which is today, within which to file this Memorandum. Hence, this Memorandum is timely filed.

 

 

ii. statement of facts

 

 

1)            On 8 December 1930, Act No. 3185, otherwise known as the Revised Penal Code, was signed into law.

 

 

2)            The Revised Penal Code (“RPC”) penalizes libel committed by means of writing or similar means, to wit:

 

Article 355. Libel means by writings or similar means. – A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

 

 

 

 

 

3)            Libel is defined under Article 353 of the RPC as, to wit:

 

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

 

 

4)            Moreover, under Article 354 of the RPC, malice is presumed for every defamatory imputation—even if it be true—subject to very limited exceptions, to wit:

 

Article. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

 

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

 

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

 

 

5)            Further, although Article 361 of the RPC provides for truth as a defense, nevertheless, Article 361 additionally provides that for such a defense to be effective, the material in question must be published with good motives and for justifiable reasons, to wit:  

 

 

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.

 

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

 

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

 

6)            Also, under Article 362 of the RPC, a showing of mere “malice” will still result in criminal liability even for a matter considered privileged under Article 354, to wit:

 

Art. 362. Libelous remarks. — Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.

 

 

7)            On 23 October 1986, the Philippines ratified the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR provides that:

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

8)            On 02 February 1987, the 1987 Philippine Constitution was ratified. Article III, Section  4 of the 1987 Constitution provides:

 

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.

 

 

9)            Furthermore, on August 22, 1989, the Philippines ratified the Optional Protocol to the ICCPR, which meant its acceptance of the individual complaints mechanism provided for by the Optional Protocol.

 

10)         On 03 July 2008, herein Petitioner Alexander Adonis filed a communication against the Philippines before the United Nations Human Rights Committee (UNHRC), alleging that the Philippines violated Article 19 of the International Covenant on Civil and Political Rights (ICCPR) in connection with a libel case filed against him by then House Speaker Prospero Nograles. He alleged, inter alia, that his conviction and imprisonment for libel under Article 355 of the Philippine Revised Penal Code constitutes an unlawful restriction on his right to freedom of expression under Article 19 of the ICCPR. The communication is entitled Alexander Adonis v. The Philippines and designated as Communication No. 1815/2008.[1]

 

 

11)         On 26 October 2011, the UNHRC expressed its View on Alexander Adonis vs. Republic of the Philippines.[2]In its View, the UNHRC declared that the imprisonment imposed on Mr. Adonis for libel under the Philippine Revised Penal Code is “incompatible with Article 19, paragraph three of the International Covenant on Civil Political Rights,”or freedom of expression. Further, the UNHRC View ruled that the Philippines is “also under an obligation to take steps to prevent similar violations occurring in the future, including by reviewing the relevant libel legislation.”

 

 

12)         On 04 June 2012 and on 05 June 2012, and despite the UNHRC view on Adonis v. The Philippines, the House of Representatives and the Senate, respectively, passed Republic Act No. 10175, or otherwise known as the  “Cybercrime Prevention Act of 2012.″  

 

13)         On 12 September 2012, despite the UNHRC view on Adonis v. The Philippines, President Benigno Simeon Aquino III signed into law R.A.10175.

 

 

14)         On 28 September 2012, Petitioners filed before the Honorable Court a  “Petition for Certiorari and  Prohibition, with Prayer for the issuance of a writ of Prohibitory Injunction and/ or Temporary Restraining Order,” therein assailing the constitutionality of the following five (5) sections of R.A. 10175:

 

 

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

 

(c) Content-related Offenses:

xxx xxx xxx

 

4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

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.

SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

SEC. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

 

xxx xxx xxx

xxx xxx xxx

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.

 

 

15)         On 18 December 2012, Petitioners filed before the Honorable Court a “Motion to Admit Attached Amended Petition” together with the “Amended Petition for Certiorari and Prohibition, with Prayer for the issuance of a writ of Prohibitory Injunction and/ or Temporary Restraining Order.” In the Amended Petition, Petitioners additionally assailed the constitutionality of Sections 4(c)(1) and 4(c)(2)  of R.A. 10175 (underscored portions), as well as Article 355 of the RPC:

 

SEC. 4.Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

 

(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.

 

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

 

xxx xxx xxx

xxx xxx xxx

 

 

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

 

 

16)         On the instructions of this Honorable Court during the oral arguments in this case conducted on 29 January 2013, Petitioners filed before the Honorable Court on 30 January 2013, a “Motion to Admit the Attached Second Amended Petition” together with the “Second Amended Petition for Certiorari and Prohibition, with Prayer for the issuance of a writ of Prohibitory Injunction and/ or Temporary Restraining Order.”

 

17)         In the Second Amended Petition, Petitioners additionally assailed the constitutionality of Articles 353, 354, 361, and 362 of the RPC, to wit:

 

 

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

 

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

 

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Art. 362. Libelous remarks. — Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.

 

 

18)         On 05 February 2013, the Honorable Court issued a Resolution which, inter alia, granted Petitioners’  “Motion to Admit the Attached Second Amended Petition.”

 

 

19)         Hence, Petitioners respectfully file before the Honorable Court this Memorandum raising the following issues.

 

 

iii. issues

 

  1. I.               WHETHER OR NOT R.A. 10175 IS UNCONSTITUTIONAL FOR INFRINGING ON THE CONSTITUIONAL RIGHT TO FREEDOM OF EXPRESSION DUE TO ITS OVERBROAD PROVISIONS.

 

 

  1. II.             WHETHER OR NOT R.A. 10175 IS UNCONSTITUIONAL FOR VIOLATING THE DUE PROCESS CLAUSE DUE TO ITS VAGUE PROVISIONS.

 

 

  1. III.          WHETHER OR NOT THE PROVISIONS OF                   R.A. 10175, AS WELL AS ARTICLES 353, 354, 355, 361, AND 362 OF THE RPC— VIOLATE  Philippine state obligations under the International Covenant of Civil and Political Rights (ICCPR) WTH RESPECT TO THE Un Human Rights Committee view on Adonis v. Republic of the Philippines.

 

 

  1. IV.           WHETHER OR NOT SECTION 4(C)(2) AND SECTION 6 OF R.A. 10175 VIOLATE THE EQUAL PROTECTION CLAUSE ENSHRINED IN ARTICLE III, SECTION 1, OF THE CONSTITUTION— SINCE THESE PROVISIONS  ARBITRARILY INCREASE THE PENALTY IMPOSED ON “CYBER CHILD PORNOGRAPHY” AND“CYBER LIBEL” AS COMPARED TO THE PENALTY FOR ORDINARY CHILD PORNOGRAPHY AND ORDINARY LIBEL—WITHOUT ANY VALID LEGAL BASIS FOR SUCH A HIGHER PENALTY.  

 

 

  1. V.             WHETHER OR NOT SECTION 7 OF R.A. 10175 VIOLATES THE CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY ENSHRINED IN ARTICLE III, SECTION 21 OF THE CONSTITUTION AS IT PLACES AN ACCUSED IN DOUBLE JEOPARDY. 
  2. VI.           WHETHER OR NOT SECTION 19 OF R.A. 10175 VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF POWERS AS IT DELEGATES TO THE DOJ WHAT IS PROPERLY A JUDICIAL FUNCTION.

 

 

  1. VII.        WHETHER OR NOT The presumption of constitutionality applies to r.a. 10175.

 

 

  1. VIII.      WHETHER OR NOT PETITIONERS HAVE STANDING TO ASSAIL THE CONSTITUTIONALITY OF R.A. 10175 AND CERTAIN PROVISIONS OF THE RPC.

20)         To address the foregoing issues, Petitioners present the following legal arguments.

 

 

iV. legal arguments

 

  1. I.              R.A. 10175 IS UNCONSTITUTIONAL FOR INFRINGING ON THE CONSTITUIONAL RIGHT TO FREEDOM OF EXPRESSION, SINCE ITS PROVSIONS ARE OVERBROAD CONSEQUENTLY ENCROACHING ON PROTECTED SPEECH.

 

  1. A.            Sections 4(c)(1),  4(c)(2), and 4(c)(4) of R.A. 10175 are content based penal provisions.

 

  1. B.             since Sections 4(c)(1),  4(c)(2), and 4(c)(4) of R.A. 10175 are content based penal provisions, these are overbroad and subject to facial invalidation. 

 

  1. C.            Sections 4(c)(1),  and 4(c)(2) of R.A. 10175 are void on its face for being so broad as to encompass even constitutionally protected speech.  

 

D. Section 4(c)(4) on “libel” of r.a. 10175,    as well as articles 353, 354, 355, 361, and 362 of the revised penal code are void on its face for being so broad as to encompass even constitutionally protected speech.  

 

 

II. R.A. 10175 IS UNCONSTITUTIONAL FOR VIOLATING THE DUE PROCESS CLAUSE, SINCE ITS PROVISIONS ARE UTTERLY VAGUE.

 

A. section 4(c)(1) on “cybersex,” section 4(c)(2) on “child pornography,” section 4(c)(4) on “libel,” and section 5 on “other offenses”— are vague since these cybercrimes were not sufficiently defined so as to be applicable to the complex world of cyberspace.

 

B. moreover, section 4(c)(1) on “cybersex,” section 4(c)(2) on “child pornography,” and section 4(c)(4) on “libel” — are vague since these cybercrimes can be committed using “computer systems” that can include anything related to a computer. 

 

 

III. THE PROVISIONS OF  R.A. 10175, AS WELL AS ARTICLES 353, 354, 355, 361, AND 362 OF THE RPC— VIOLATE  Philippine state obligations under the International Covenant of Civil and Political Rights (ICCPR) WTH RESPECT TO THE Un Human Rights Committee view on Adonis v. Republic of the Philippines.

 

IV. SECTION 4(C)(2) AND SECTION 6 OF R.A. 10175 VIOLATE THE EQUAL PROTECTION CLAUSE ENSHRINED IN ARTICLE III, SECTION 1, OF THE CONSTITUTION— SINCE THESE PROVISIONS  ARBITRARILY INCREASE THE PENALTY IMPOSED ON “CYBER CHILD PORNOGRAPHY’ AND“CYBER LIBEL” AS COMPARED TO THE PENALTY FOR ORDINARY CHILD PORNOGRAPHY ANDLIBEL—WITHOUT ANY VALID LEGAL BASIS FOR SUCH A HIGHER PENALTY.               

 

 

V. SECTION 7 OF R.A. 10175 VIOLATES THE CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY ENSHRINED IN ARTICLE III, SECTION 21 OF THE CONSTITUTION AS IT PLACES AN ACCUSED IN DOUBLE JEOPARDY. 

 

 

VI. SECTION 19 OF R.A. 10175 VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF POWERS AS IT DELEGATES TO THE DOJ IS PROPERLY A JUDICIAL FUNCTION.

 

 

VII. The presumption of constitutionality does not apply to r.a. 10175 since it violates constitutionally protected fundamental rights.

 

 

VIII. PETITIONERS HAVE STANDING TO ASSAIL THE CONSTITUTIONALITY OF R.A. 10175 AND CERTAIN PROVISIONS OF THE RPC.

                                          

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

V. DISCUSSION

 

 

I. R.A. 10175 IS UNCONSTITUTIONAL FOR INFRINGING ON THE CONSTITUIONAL RIGHT TO FREEDOM OF EXPRESSION, SINCE ITS PROVSIONS ARE OVERBROAD CONSEQUENTLY ENCROACHING ON PROTECTED SPEECH.

——————————————————

 

21)         R.A. 10175 is unconstitutional for infringing on the Constitutional right to freedom of expression, since its provisions are overbroad consequently encroaching on protected speech.

 

 

22)         Specifically, Sections 4(c)(1),  4(c)(2), and 4(c)(4) of                    R.A. 10175 are characterized by over-broadness  since these provisions  encroach upon the Constitutional right to freedom of expression.

 

23)         As to how, we discuss in detail below:

 

 

A. Sections 4(c)(1),  4(c)(2), and 4(c)(4) of R.A. 10175 are content based penal provisions.

 

 

24)         Sections 4(c)(1), 4(c)(2), and 4(c)(4) of R.A. 10175 are content-related offenses committed using computer systems (such as the internet). This is clear from the heading of Section 4(c) of                    R.A. 10175:

 

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(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.

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

xxx xxx xxx

xxx xxx xxx

 

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

 

(Emphasis and underscoring supplied)

 

 

25)         On a broader perspective, the United Nations Special Rapporteur on Freedom of Expression has stated that the internet is a key tool for free expression:

 

 

26)         From the heading of Section 4(c) of R.A. 10175, it is clear that Sections 4(c)(1), 4(c)(2), and 4(c)(4) are content-related penal provisions.  And content-related offenses necessarily include protected speech.

 

 

B. since Sections 4(c)(1),  4(c)(2), and 4(c)(4) of R.A. 10175 are content based penal provisions, these are overbroad and subject to facial invalidation. 

 

 

27)         Consequently, since Sections 4(c)(1), 4(c)(2), and 4(c)(4) of R.A. 10175 are overbroad for encroaching on protected speech. These provisions violate the Constitutional right to freedom of expression protected in Section 4, ARTICLE III of the Constitution, to wit:

 

 

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.

 

28)         As held by the Honorable Court in Estrada v. Sandiganbayan,[3] to wit:

 

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible “chilling effect” upon protected speech.  The theory is that “[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.” The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

 

29)         Moreover, though R.A. 10175 is a penal statute, this should not deter the Honorable Court from facially invalidating Sections 4(c)(1), 4(c)(2), and 4(c)(4) of R.A. 10175—since these provisions precisely regulate speech and encroach upon protected speech. Hence, it is apropos to cite the relevant portions of Estrada v. Sandiganbayan,[4] to wit:

 

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing “on their faces” statutes in free speech cases or, as they are called in American law, First Amendment cases.  They cannot be made to do service when what is involved is a criminal statute.  With respect to such statute, the established rule is that “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” As has been pointed out, “vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] ‘as applied’ to a particular defendant.” Consequently, there is no basis for petitioner’s claim that this Court review the Anti-Plunder Law on its face and in its entirety.[5] (Emphasis and underscoring supplied. Internal citations omitted.)

 

C. Sections 4(c)(1),  and 4(c)(2) of R.A. 10175 are void on its face for being so broad as to encompass even constitutionally protected speech.  

 

 

30)         Sections 4(c)(1),  and 4(c)(2) of R.A. 10175 are void on its face for being so broad as to encompass even constitutionally protected speech.

 

 

Section 4(c)(1) on “cybersex”

 

31)         Specifically, Section 4(c)(1) of R.A. 10175 on “Cybersex” is overbroad for infringing on Constitutionally protected speech. This provision states that:

 

SEC. 4.Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

 

(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. (Emphasis and underscoring supplied)

 

32)         Section 4(c)(1) on “Cybersex” is overbroad since it does not set clearly the lines which divide the permissible exhibition of a sexual organ or engagement in sexual activity. In fact, museums abroad display online, for a fee, certain works of art that depict sexual activities, as shown by the following example:

 

 

Marina Abramović. This is a performance art conducted in the

MoMa.

 

 

33)         Moreover, with respect to the phrase “for favor or consideration” in Section 4(c)(1), what about museums, university websites, research tools online (ex. LexisNexis, JSTOR, SSRN)?

 

 

34)         As the examples provided above show, the language in which the law was coached as far as cybersex is concerned does not provide a reasonable standard for distinguishing between art works with arguably socially redeeming value and pure smut or pornographic sexual activity, or prostitution through the internet.

 

 

35)         Even a  married couple presently living in two different parts of the globe may be prosecuted under this provision for engaging in intimate relations with each other through the simple device of computers with web cameras connected to the Internet; no matter how morally reprehensible such an intimate connection may be to some, it is not the business of the State to pry into  it, as it concerns a matter that pertains only to the privacy of the marriage bed, which is outside any legitimate interest of the State to regulate. The American Supreme Court in Griswold v. Connecticut,[6] held that:

 

NAACP v. Alabama, 377 U.S. 288, 307. Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The [p486] very idea is repulsive to 1relationship.

We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.[7]

 

36)         This Honorable Court may find guidance on this matter in a similar US case of Reno v. American Civil Liberties Union,[8] where the Supreme Court of the United States declared as unconstitutional two (2) provisions of the “Communications Decency Act of 1996” (CDA) which aimed to protect minors from “indecent” and “patently offensive” communications on the Internet. Said the American Supreme Court–

 

“The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech… Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images…. As a practical matter, this increased deterrent effect, coupled with the “risk of discriminatory enforcement” of vague regulations, poses greater First Amendment concerns….”[9]

 

 

37)          Indeed, the cybersex provision in the assailed law, well-meaning it may be, cannot stand constitutional scrutiny inasmuch as by its vagueness, it opens itself to a high risk of discriminatory enforcement.

 

 

D. Section 4(c)(4) on “libel” of r.a. 10175,    as well as articles 353, 354, 355, 361, and 362 of the revised penal code are void on its face for being so broad as to encompass even constitutionally protected speech.  

 

 

38)         Section 4(c)(4) of R.A. 10175 explicitly refers to Article 355 of the RPC, to wit:

 

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(c) Content-related Offenses:

xxx xxx xxx

xxx xxx xxx

 

(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

 

(Emphasis and underscoring supplied)

 

 

39)    Article 355 of the Revised Penal Code provides-

 

Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prisioncorreccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

 

40)         Consequently, Section 4(c)(4) also refers, by implication, to Articles 353, 354, 361, and 362 of the RPC.

 

 

41)         Libel is defined under Article 353 of the RPC, to wit:

 

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

 

 

42)         Petitioners respectfully contend that Article 355, as well as Articles 353, 354, 361, and 362, of the RPC are unconstitutional as these stifle freedom of expression.

43)         Section 4(c)(4) of R.A. 10175 and Articles 353, 354, 355, 361, and 362 of the RPC—penalize protected speech under established jurisprudence:

 

(a)  Speech wherein truth is a defense; and

(b) Speech comprising of false statements without knowledge that it is false or without utter disregard of its falsity.

 

 

44)         Specifically, Articles 53, 354, 355, 361, and 362, of the RPC are unconstitutional since the plain language of these provisions do not comport with the “actual malice” requirement laid down in New York Times Sullivan which the Philippines adopted in Vazquez v. Court of Appeals, [10] and in Borjal v. Court of Appeals.[11]

 

 

45)         The Honorable Court held in Vazquez v. Court of Appeals,[12] that a false defamatory statement against a public official is protected speech unless “actual malice” is shown, to wit:

 

For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not.  This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this Court has cited with approval in several of its own decisions. This is the rule of “actual malice.” In this case, the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not. [13] (Emphasis and underscoring supplied)

 

46)         On the other hand, the Honorable Court in Borjal v. Court of Appeals,[14] applied the “actual malice” standard in New York Times to public figures as well, to wit:

 

The U. S.  Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against Sullivan holding that honest criticisms on the conduct of public officials and public figures are insulated from libel judgments. The guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not.

The raison d’etre  for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it.

 

In the present case, we deem private respondent a public figure within the purview of the New York Times ruling. At any rate, we have also defined “public figure” in  Ayers Production Pty., Ltd. v. Capulong as -

x x x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a ‘public personage.’  He is, in other words, a celebrity.  Obviously, to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer.  The list is, however, broader than this.  It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge.  It includes, in short, anyone who has arrived at a position where the public attention is focused upon him as a person.[15]

(Internal citations omitted)

 

47)         Nevertheless, the RPC does not require the higher standard of “actual malice” for libelous statements concerning public officials and figures.

 

48)         In fact, under Article 354 of the RPC, there is already a presumption of malice—for every defamatory imputation—even if it be true, to wit:

 

Article. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

 

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

 

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.[16]

 

 

49)         For Article 361 of the RPC, though truth is a defense, Article 361 additionally provides that the matter charged must be published with good motives and for justifiable ends, to wit:

 

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.

 

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

 

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted. [17]

 

 

50)          During the oral arguments on 25 January 2013,                          the Solicitor General, under questioning from Hon. Justice Carpio, conceded that Article 354 of the RPC cannot stand constitutional scrutiny, given jurisprudential developments, by saying that “we agree, your Honor.”

 

51)         By direct implication, neither can Article 361 of the RPC survive a constitutional challenge on the same grounds invalidating                   Article 354.

 

52)         For Article 362 of the RPC, a showing of mere ‘malice’—and not the higher standard of “actual malice”—will already result in criminal liability even for a privileged matter under Article 354, to wit:

 

Art. 362. Libelous remarks. — Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.

 

 

53)         The Hon. Associate Justice Marvic Mario Victor F. Leonen, in his interpellation of Solicitor General Jardeleza, pointed out that despite prevailing jurisprudence stating the contrary, the cybercrime law still uses the definition of libel found in Article 355 of the Revised Penal Code.

 

54)         To this the Solicitor General replied that the Courts can always read the “actual malice” rule into the provisions of the cybercrime law.

 

55)         Precisely, the Hon. Justice Leonen retorted, doesn’t such fact already raise a question of overbreadth?

 

56)         Indeed, it does, because on its face, the definition of libel found in the cybercrime law is expansive, not to mention that it comes from a provision of the Revised Penal Code already long discredited by the jurisprudence of the Philippine Supreme Court on libel.

 

57)         Hence, Articles 353, 354, 355, 361, and 362, of the RPC are unconstitutional since these only require mere “malice” for libel conviction, while, at the same time, enumerating stringent requirements for libel defense. Consequently, these provisions wantonly disregard the “actual malice” standard adopted in  Vazquez v. Court of Appeals, [18] and in Borjal v. Court of Appeals[19] for public officers and figures.

 

58)         In addition, they are unconstitutional as they do not allow truth as a defense without any further qualification.

 

 

59)         Therefore, the libel provisions in the RPC are unconstitutional, for infringing on the Constitutional right to freedom of expression and for contradicting jurisprudence established by the Honorable Court.

 

 

60)         Moreover, it is clear that any discussion on the constitutionality of the libel provisions in R.A. 10175 cannot be divorced from a serious consideration of the aforementioned libel provisions in the RPC, which are referred to in the former directly or by implication.

 

61)         Indeed, in the proceedings already conducted before this Honorable Court, the Office of the Solicitor General has repeatedly asserted the broad proposition that the use of the internet to commit libel is a qualifying circumstance to the elements of libel described in the RPC, and for which reason it has supported a penalty for online libel that is one degree higher than the penalty for traditional libel.

 

 

62)         Such proposition disregards in one sweep of the hand what this Honorable Court has already recognized as constitutional proscriptions in its rulings in Vazquez v. Court of Appeals, [20] and in Borjal v. Court of Appeals.[21]

 

 

63)         Moreover, mere reliance on libel jurisprudence is not adequate to guarantee freedom of expression. There are instances when mere ‘malice’ standard provided in the RPC— instead of the higher standard of “actual malice”— was applied in order to uphold a conviction of libel targeted against a public figure. This was precisely the situation in Fermin v. People[22] —which was decided despite Borjal v. Court of Appeals,[23] to wit:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact, as there was motive to talk ill against complainants during the electoral campaign.

Neither can petitioner take refuge in the constitutional guarantee of freedom of speech and of the press. Although a wide latitude is given to critical utterances made against public officials in the performance of their official duties, or against public figures on matters of public interest, such criticism does not automatically fall within the ambit of constitutionally protected speech. If the utterances are false, malicious or unrelated to a public officer’s performance of his duties or irrelevant to matters of public interest involving public figures, the same may give rise to criminal and civil liability. While complainants are considered public figures for being personalities in the entertainment business, media people, including gossip and intrigue writers and commentators such as petitioner, do not have the unbridled license to malign their honor and dignity by indiscriminately airing fabricated and malicious comments, whether in broadcast media or in print, about their personal lives. (Internal citations omitted)

 

64)         Such proposition disregards in one sweep of the hand what this Honorable Court has already recognized as constitutional proscriptions in its rulings in Vazquez v. Court of Appeals, [24] and in Borjal v. Court of Appeals.[25]

 

 

65)         In fact, in the United States, various state supreme courts have already declared their respective state libel laws—which only requires malice for libel— as unconstitutional for being incompatible with the New York Times v. Sullivan standard of “actual malice.” These states are shown in the table below:

 

DEFAMATION CASES IN THE UNITED STATES

State

 

Case

Ruling

Alaska George Gottschalk v. State of Alaska

575 P.2d 289

(February 10, 1978)

We decide in this case that Alaska’s criminal defamation statutes are unconstitutionally vague, and therefore overbroad.
Alabama Garfield W. Ivey v. State of Alabama

821 S.2nd 937

(July 06, 2001)

13A-11-163 is unconstitutional because it does not conform with the requirement of New York Times and Garrison.
Arkansas Joseph H. Weston v. State of Arkansas

528 S.W.2d 412, 416

(20 October 1975)

The Arkansas criminal libel statute is unconstitutional under the rulings of the US Supreme Court in New York times v. Sullivan and Garrison v. Louisiana.
California Paul Eberle et al., v. The Municipal Court For The Los Angeles Judicial District Of Los Angeles County

55 Cal. App. 3d at 432-33

(February 19, 1976)

 

That section 250 is unconstitutional because the presumption of “malice” contained therein constitutes one of the elements of the crime and is not constitutionally permissible.

 

That section 251 is unconstitutional because it places the limitations upon the defense of truthfulness to publications “with good motives and for justifiable ends.

 

Section 248 defines “libel” as a “malicious defamation,” and section 249 imposes a penalty for the publication of a “libel” with a “malicious” intent to injure another. These two sections (248 and 249) cannot meet the test of constitutionality, standing alone, as the principal supports of the California criminal libel scheme because (a) Penal Code section 7, subdivision 4 defines “malice” for purposes of these statutes as “a wish to vex, annoy, or injure another person, or an intent to do a wrongful act,” which is prohibited by the Garrison and New York Times rule holding that it is the intent to injure another through falsehood which is constitutional; and (b) once sections 250 and 251 are deleted, there are no guidelines whatsoever to assist the interpretation of the statute in respect to truth or falsity.

Montana State of Montana v. Richard Helfrich

922 P.2d 1159, 1161 & 1163

(9 August 1996)

Accordingly, we determine that s 45-8-212, MCA, is constitutionally overbroad. It violates the First and Fourteenth Amendments of the United States Constitution as interpreted by the United States Supreme Court in New York Times and Garrison and Article II, section 7 of the Montana Constitution because, on its face the statute prohibits truthful criticism when not communicated for good motives and justifiable ends.
Pennsylvania Commonwealth v. Armao et al.

(286 A.2d 626, 632)

January 20, 1972

Applying these principles to the statutes underlying appellants’ convictions (Article I, Section 7 will be considered separately infra), we find the legislative scheme inadequate in several areas. The statutory language makes no provision for truth being an absolute defense. Likewise, no recognition is given the reckless disregard and knowing falsity standard mandated by New York Times and Garrison. The Pennsylvania criminal libel statutes are only limited in their application to criticisms of “public officers” or “candidates”, but Rosenbloom clearly extends the First Amendment guarantees in this area to public issues and events of public or general interest. Finally, as New York Times  and Garrison strongly intimate “negligence” is a wholly inappropriate concept in the area of freedom of speech and of the press. Only a knowing falsity or reckless disregard of the truth are actionable in civil defamation. It would violate all sound and fundamental principles of justice to have a merely negligent statement an occasion for the imposition of criminal penalties, and the First Amendment as interpreted by the United States Supreme Court forbids such a result.
South Carolina Fitts et al., v. Kolb

779 F.Supp. 1502

(November 20, 1991)

For the foregoing reasons, the court hereby declares that the South Carolina criminal libel statute, S.C.Code Ann. § 167-150 (Law.Co-op.1976), as presently drafted, is overbroad and vague in violation of the First and Fourteenth Amendments to the United States Constitution.

 

 

 

66)         This Honorable Court now has a perfect opportunity to make it clear once and for all the constitutionally infirm status of the aforementioned provisions dealing with libel in the RPC.

 

 

II. R.A. 10175 IS UNCONSTITUTIONAL FOR VIOLATING THE DUE PROCESS CLAUSE, SINCE ITS PROVISIONS ARE UTTERLY VAGUE.

————————————————————-

 

67)         The due process clause is enshrined in Section 1,                ARTICLE III of the Constitution, to wit:

 

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

 

 

68)         The Honorable Court has held that a penal statute violates the due process clause of the Constitution if it is vague— which is also known as the “void for vagueness” doctrine. As held by the Honorable Court in Estrada v. Sandiganbayan[26] citing People v. Nazario:

 

A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application.   In such  instance, the statute is repugnant to the Constitution in two (2) respects – it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.[27]

 

 

69)         Moreover, a law is void on its face for vagueness if persons of common intelligence must necessarily guess at its meaning and differ as to its application.[28] The more important aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine—the requirement that legislatures place reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement.[29]

 

 

70)         Given the vagueness of the language in which the assailed provisions of the law was coached, and the lack of such clear guidelines in the assailed law, such provisions are highly susceptible to official abuse.

 

 

A. section 4(c)(1) on “cybersex,” section 4(c)(2) on “child pornography,” section 4(c)(4) on “libel,” and section 5 on “other offenses”— are vague since these cybercrimes were not sufficiently defined so as to be applicable to the complex world of cyberspace.

 

 

71)         There are realities in the physical world that cannot be automatically carried over to the more complex cyberspace.

 

 

72)         And Section 4(c)(1) on “cybersex,” Section 4(c)(2) on “child pornography,” Section 4(c)(4) on “libel,” and Section 5 on “other offenses” of R.A. 10175— are vague since these cybercrimes were not sufficiently defined so as to be applicable to the complex world of cyberspace.

 

73)         These provisions of R.A. 10175 are utterly vague as these sections lack comprehensible standards to guide the authorities and citizens as to what acts constitute “cybersex,” “child pornography,” “libel,” “aiding or abetting in the commission of cybercrime,” or “attempt in the commission of cybercrime.”

 

 

Section 4(c)(1) on “cybersex”

 

74)         R.A. 10175 defines “cybersex” in Section 4(c)(1) as:

 

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(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.

xxx xxx xxx

 

(Emphasis and underscoring supplied)

 

 

75)         “Cybersex” as penalized under the law has not been sufficiently defined. A citizen is left guessing as what, to cite an example, an indirect willful engagement in sexual activity with the aid of a computer, for favor or consideration, would be. Neither is he sufficiently informed as to what may constitute direct control of any lascivious exhibition of sexual organs with the aid of a computer, for favor or consideration, These acts are penalized under the law and the citizens are not afforded fair notice to allow them to refrain from engaging in such acts.

 

76)         What constitutes a “lascivious” conduct under this provision is not specifically defined and leaves both the citizen and the law enforcer guessing; no clear standards are given for the determination of cybersex.

 

77)         The same problem raised for overbreadth also arises in vagueness:  what may well be legitimate intimate relations conducted through the internet  between couples presently found in different parts of the globe  may be subjected to prosecution for the simple reason that such relations involve sexual activity.

 

 

Section 4(c)(4) on “libel”

 

 

78)         R.A. 10175 defines “libel” in Section 4(c)(4) as:

 

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(c) Content-related Offenses:

xxx xxx xxx

xxx xxx xxx

 

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

(Emphasis and underscoring supplied)

 

79)         In the context of cyberspace, “libel” is very difficult to determine since there are many actors in cyberspace. To illustrate, in an alleged “libel” conducted in cyberspace, the possible actors are:

a)        the blogger;

b)       the blog service provider;

c)        the internet service provider (ISP);

d)       the person who favorable comments in the blog; and

e)        the person who posts a link to the blog site.

f)         the owner of the social networking site;

g)       the search engine (ex. Google, Yahoo);

h)       the telecommunications company;

i)         the cyber café owner.

80)         Now which of these possible actors above are criminally liable for “libel” under Section 4(c)(4) of R.A. 10175? The law as it stands does not provide a clear answer.

 

 

81)         Moreover, who is criminally liable for “aiding or abetting in the commission of libel”? Is the owner of an internet café where the alleged cyber libel took place criminally liable for such crime? Is the mere posting of a blog allegedly carrying a libelous statement in cyberspace already considered “aiding or abetting in the commission of libel”?

 

 

82)         In fact, in  the physical world, the criminal liability for libel are clearly provided for in Article 360 of the Revised Penal Code (RPC), to wit:

Section Two. — General provisions

Art. 360. Persons responsible. — 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 author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.

The criminal and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the court of first instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila, or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published: Provided, further, That the civil action shall be filed in the same court where the criminal action is filed and vice versa: Provided, furthermore, That the court where the criminal action or civil action for damages is first filed, shall acquire jurisdiction to the exclusion of other courts: And, provided, finally, That this amendment shall not apply to cases of written defamations, the civil and/or criminal actions which have been filed in court at the time of the effectivity of this law.

Preliminary investigation of criminal action for written defamations as provided for in the chapter shall be conducted by the provincial or city fiscal of the province or city, or by the municipal court of the city or capital of the province where such action may be instituted in accordance with the provisions of this article.

No criminal action for defamation which consists in the imputation of a crime which cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed by the offended party. (As amended by R.A. 1289, approved June 15, 1955, R.A. 4363, approved June 19, 1965).

 

83)         Nevertheless, unlike the RPC, Section 4(c)(4) is totally devoid of any identification as to who is/are criminally liable for “libel” in cyberspace. And this lack of specific identification as to who are criminally liable for “libel” in cyberspace is dangerous since it is a freer and most accessible medium compared to traditional media; the immediacy of this new medium cannot be overstated.

 

84)         Indeed, there is also the matter pointed to by                           the Hon.  Associate Justice Antonio T. Carpio in his interpellation of the Hon. Solicitor General Francis Jardeleza during the oral arguments last 29 January 2013:  the fact that under the cybercrime law, libel may be committed by a “standalone” computer.

 

85)         The Hon. Justice Carpio was referring to the definition of “computer systems” in Section 3(g) of the law, which states that:

“(g) Computer system refers to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media” (Emphasis supplied)

 

 

86)         The Hon. Justice Carpio asked the Solicitor General what kind of libel is committed if the offending article is made on a computer printout. To this, Solicitor General Jardeleza replied: “it is ordinary libel.”

 

 

87)         The Hon. Justice Carpio then asked him what will be applicable in the case where the offending material is instead emailed. According to the Solicitor General, this will be considered online libel.

 

 

88)         But the Hon. Justice Carpio pointed out that by the definition of computer systems found in the law, a computer printout  can be considered libel using an ICT, and therefore subject to prosecution under the new cybercrime law.

 

 

89)         In fact, the Hon. Justice Carpio noted that the law does not require that the computer system be connected to the internet for a crime to be considered falling under its purview, because the above provision states that a libel may be committed through the use of a device consisting of hardware and software which may include input, output and storage components and which may stand alone.

 

 

90)         Indeed, most modern newspaper editorial offices utilize a network of interconnected computers. Thus, by the terms of the new cybercrime law, newspapers may be sued for libel in two ways: online or traditional.

 

91)         Hence, if Article 360 of the RPC provides for specific ways of determining criminally liability for libel in the traditional media, with more reason should Section 4(c)(4) of R.A. 10175 provide for specific ways of determining libel for a porous space such as cyberspace. Unfortunately R.A. 10175 fails to do so.

 

 

92)         The American Supreme Court has repeatedly stressed the principle that “a governmental purpose to control or prevent activities constitutionally subject [to] regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”[30]

 

 

93)         Because R.A. 10175 has no clear indicators as to who might be prosecuted for cyber libel, it runs the risk of being applied in a sweeping and arbitrary manner; for this reason, it arouses the fear among citizens that anything they say or do online, especially on social networking sites, may be held to be criminal in nature; the result is the voluntary suppression of a robust public discussion on public issues.

 

 

 

Section 5 on “(a) Aiding or Abetting in the Commission of Cybercrime” and “(b) Attempt in the Commission of Cybercrime”                                                                                                                       

 

 

94)         R.A. 10175 defines “other offenses” in Section 5 as:

 

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.

(Emphasis and underscoring supplied)

 

 

95)         Section 5 is vague since “aiding or abetting” and “attempt” are not defined in RA 10175.

 

96)         More importantly, Section 5 is vague since one cannot know whether the offense of “(a) Aiding or Abetting in the Commission of Cybercrime” refers to “aiding or abetting” in the physical world or “aiding or abetting” in cyberspace. The same situation holds for “(b) Attempt in the Commission of Cybercrime.”

 

97)         To illustrate, we use the example of the cyber offense of “cybersex.” There is obvious doubt as to who among the following are liable for aiding or abetting in the Commission of “cybersex”:

 

(a) in the Physical world- those who provided the women to an internet prostitution ring; and/or

 

(b) in Cyberspace- the blogger who posts a link of the cybersex website, the blog service provider, the internet service provider.

 

98)         Hence, there is a need for Section 5 to specify whether “aiding or abetting” and “attempt” are acts that are committed in cyberspace or whether these are committed in the physical world. If “aiding or abetting” and “attempt” are acts committed in cyberspace, then Section 5 of R.A. 10175 has to identify who are liable for such acts according to the different actors in cyberspace, such as:

 

(a)  the blogger;

(b) the blog service provider;

(c)  the internet service provider (ISP);

(d)          the person who posts a link to an allegedly offensive website.

 

 

99)         Moreover, the Hon. Associate Justice Bienvenido L. Reyes said in his interpellation of the Hon. Solicitor General, that in the Revised Penal Code, an attempted felony always involves an overt act; in the cybercrime law however, an attempted crime is not defined.

 

100)     The Hon. Justice Reyes was evidently referring to Art. 6 (2) of the Revised Penal Code, which provides that:

 

“Art. 6. Consummated, frustrated, and attempted felonies. — Consummated  felonies as well as those which are frustrated and attempted, are punishable.

 

A felony is consummated when all the elements necessary for its execution  and accomplishment are present; and it is frustrated when the offender  performs all the acts of execution which would produce the felony as a  consequence but which, nevertheless, do not produce it by reason of causes  independent of the will of the perpetrator.

 

There is an attempt when the offender commences the commission of a  felony directly or over acts, and does not perform all the acts of execution  which should produce the felony by reason of some cause or accident other than this own spontaneous desistance.(Emphasis supplied)

 

 

B. moreover, section 4(c)(1) on “cybersex,” section 4(c)(2) on “child pornography,” and section 4(c)(4) on “libel” — are vague since these cybercrimes can be committed using “computer systems” that can include anything related to a computer. 

101)     Moreover, Section 4(c)(1) on “cybersex,” Section 4(c)(2) on “child pornography,” and Section 4(c)(4) on “libel”—  are vague since these crimes can be committed using “computer systems” that can include anything related to a computer.

 

102)     Section 4(c)(1) on “cybersex,” Section 4(c)(2) on “child pornography,” and Section 4(c)(4) on “libel”— are all committed through a “computer system,” to wit:

 

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(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.

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

xxx xxx xxx

xxx xxx xxx

 

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

 

(Emphasis and underscoring supplied)

 

103)     And “computer system” as defined in Section 3(g) of          R.A. 10175 refers to anything under the sun that concerns computers, to wit:

 

SEC. 3. Definition of Terms. — For purposes of this Act, the following terms are hereby defined as follows:

 

xxx xxx xxx

 

(g) Computer system refers to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media. (Emphasis and underscoring supplied)

 

104)     It is clear from the definition that a “computer system” does not have to be connected to the internet, since it “may stand alone.”This was pointed out during the oral arguments by the Hon. Justice Carpio.

 

 

105)     Further, from the definition of “computer system“ in Section 3(g), it covers “any type of device with data processing capabilities,” and also includes “computer data storage devices or media.” Clearly, the definition of “computer system” is so encompassing that it can cover any devices with data processing capabilities such as a fax machine, a printer, a scanner, a DVD player, an MP3 player, or even a scientific calculator.  Moreover, the definition of “computer system” is so encompassing that it can cover any computer data storage device or media such as a flash disk, a hard drive, an external hard drive, and even the so-called “cloud.”

 

106)     Hence, the definition of “computer systems” under Section 3(g) of R.A. 10175 is so encompassing, that almost any electronic device is covered. Consequently, this additionally makes Section 4(c)(1) on “cybersex,” Section 4(c)(2) on “child pornography,” and Section 4(c)(4) on “libel”—  vague since these crimes can be committed using “computer systems” that can include any electronic device.

 

 

III. THE PROVISIONS OF                   R.A. 10175, AS WELL AS ARTICLES 353, 354, 355, 361, AND 362 OF THE RPC— VIOLATE  Philippine state obligations under the International Covenant of Civil and Political Rights (ICCPR) WTH RESPECT TO THE Un Human Rights Committee view on Adonis v. Republic of the Philippines.

——————————————————

 

 

107)     The United Nations Human Rights Committee recently declared that the Revised Penal Code’s provisions penalizing libel is “incompatible with Article 19, paragraph three of the International Covenant on Civil Political Rights,” which pertains to the freedom of expression.[31]

 

108)      Recalling its General Comment No. 34, the UN body stressed that defamations laws should not stifle freedom of expression. It also emphasized that “imprisonment is never an appropriate penalty.”

 

109)     At present, the penalty for libel under Article 355 of the Revised Penal Code may include imprisonment by prision correccional in its minimum and medium periods, in addition to or in lieu of a fine. It is clear that one prosecuted for libel under the said law may face imprisonment which is in stark contrast to the assertion of the UN HRC that “imprisonment is never an appropriate penalty.”

 

110)     Moreover, the UN HRC reiterated that “(P)enal defamation laws should include defense of truth,” and that:

 

“xxx At least with regard to comments about public figures, consideration should be given to avoiding penalizing 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 defence…. State parties should consider the decriminalization of defamation…..”[32]

 

 

111)     The UNHRC’s view was expressed in connection with a complaint filed with it by Davao City broadcast journalist Alexander Adonis, who spent two years in jail after he was convicted of libeling former Speaker of the House Prospero Nograles.

 

112)     Adonis’s crime was reading and dramatizing over his popular radio program a news report that then Congressman Nograles was seen running naked in the corridors of a hotel in the city after he was caught in bed by the husband of the woman who was said to the legislator’s mistress. The incident entered the collective memory of the citizens of Davao City as the “Burlesque King” scandal.

 

 

113)     After serving two years in prison Adonis questioned before the UNHRC, among other things,  whether criminal libel is compatible with the freedom of expression protected  under Art 19 of the ICCPR, to which the Philippines is a state party.

 

114)     And the UNHRC‘s answer is a resounding no.

 

115)     Again, to reiterate, in ruling in favor of Adonis, the UN HRC ruled that Philippine criminal libel law was inconsistent with freedom of expression. The UN HRC recalled its General Comment No. 34 which reads: “Defamations laws should not   x xx stifle freedom of expression. … Penal defamation laws should include defense of truth…”

 

 

116)     Nevertheless, under article 354 of the RPC, truth is not a defense in a libel case.  Clearly, Article 354 of the RPC conflicts with the view of the UNHRC in Adonis v. Philippines that “…penal defamation laws should include defense of truth…”

 

 

117)     Further, although Article 361 of the RPC provides for truth as a defense, nevertheless, Article 361 additionally provides that the matter charged must be published with good motives and for justifiable ends.

 

 

118)     Moreover, under Article 362 of the RPC, a showing of mere ‘malice’ will still result in criminal liability even for a privileged matter under Article 354.

 

 

119)     Consequently, Articles 354, 361, and 362 of the RPC conflict with the Adonis v. Philippines UNHRC view.

 

 

120)     Moreover, Articles 354, 361, and 362 of the RPC also conflict with Article 19 of the International Covenant on Civil and Political Rights (ICCPR). As stated in General Comment No. 34 of the UNHRC issued in regards to Article 19 of the ICCPR, truth should be a defense in libel laws, to wit:

 

47. Defamation laws must be crafted with care to ensure that they comply with paragraph 3, and that they do not serve, in practice, to stifle freedom of expression.All such laws, in particular penal defamation laws, should include such defences as the defence of truth and they should not be applied with regard to those forms of expression that are not, of their nature, subject to verification. At least with regard to comments about public figures, consideration should be given to avoiding penalizing 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 defence. Care should be taken by States parties to avoid excessively punitive measures and penalties. Where relevant, States parties should place reasonable limits on the requirement for a defendant to reimburse the expenses of the successful party. States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty. It is impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial expeditiously – such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others.[33](Emphasis and underscoring supplied. Internal citations omitted)

 

121)     In addition, according to its General Comment No. 34, on the question of 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,” as stated in the General Comment, “…a public interest in the subject matter of the criticism should be recognized as a defence…..State parties should consider the decriminalization of defamation….”

 

 

122)     The UNHRC is a treaty monitoring body created under an optional protocol to the ICCPR with the power to declare that a State party to the Convention is in breach of its obligations under the covenant.

 

123)     The Adonis View is evidence of a breach of Philippine state obligations under international law.

 

 

124)     Under the 1987 Constitution, the Philippines adopts the generally accepted principles of international law which therefore form part of the law of the land. It is also axiomatic that all treaties are binding on the State party ratifying the same and must be performed by them in good faith.[34]

 

 

125)     As a State party to the ICCPR, the Philippines has bound itself to fulfill the obligations under the Covenant. The relevant provision of the ICCPR reads:

 

Article 2 

 

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

 

3. Each State Party to the present Covenant undertakes:

 

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

 

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

 

(c) To ensure that the competent authorities shall enforce such remedies when granted. “

 

126)     Treaties such as the Covenant become part of the law of the land through transformation pursuant to the Constitution which provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.”[35]

 

127)     The Covenant and the Optional Protocol is such a treaty as it has been concurred in by at least two-thirds of all the members of Senate. Therefore the duties and obligations found under the Covenant are State obligations that form part of the “law of the land.” Therefore by the force of the Constitution, both the Covenant and the Optional Protocol to the Covenant are “valid and effective” under the doctrine of transformation and form part of domestic law.[36]

 

 

128)     However even under the doctrine of incorporation these obligations continue to be valid and subsisting, as they form part of customary international law. As stated:

 

Generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion jurissive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. (Emphasis supplied)”[37]

 

….

 

Generally accepted principles of international law” refers to norms of general or customary international law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity, a person’s right to life, liberty and due process, and pacta sunt servanda, among others. The concept of “generally accepted principles of law” has also been depicted in this wise…”

 

 

129)     The Philippines therefore has the obligation to carry out the obligations under the Covenant as interpreted and decided by the UNHRC, itself an organ created under the Covenant which is a duly ratified treaty.[38]

 

 

130)     The Philippines recognized that the UNHRC is competent to make such findings when it ratified the Optional Protocol to the Covenant on 22 August 1989. Therefore like any international instrument or treaty, this recognition is valid and effective and constitutes even more reason to accord great weight and validity to these findings of a breach of an international obligation under the Covenant.

 

131)     The rules and standards laid down in the ICCPR and the Optional Protocol are indeed valid and effective because such was transformed by the concurrence to both instruments by the Philippine Senate as required by Article VII Section 21 of the Constitution.

 

132)     Again, under the 1987 Philippine Constitution:

 

Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.[39] (Emphasis supplied)

 

 

133)     One of the generally accepted principles of international law is pacta sunt servanda.[40] State parties must comply with their treaty obligations in good faith. The Philippines has to comply with its treaty obligations in good faith, and at least take steps to fulfill these obligations. Under the doctrine of incorporation, the principle of pacta sunt servanda forms part of municipal law.

 

134)     After recognizing the Committee’s competence in matters regarding the obligations under the Covenant, the Philippines therefore has the obligation to exert reasonable efforts to fulfill obligations under the Covenant, part and parcel of which is Philippine compliance with the views of the Committee.

 

135)     Therefore, the View of the UNHRC in Adonis v. The Philippines assailing criminal libel in the RPC forms part of the law of the land, and the Philippines has an obligation to abide by the said View.

 

 

IV. SECTION 4(C)(2) AND SECTION 6 OF R.A. 10175 VIOLATE THE EQUAL PROTECTION CLAUSE ENSHRINED IN ARTICLE III, SECTION 1, OF THE CONSTITUTION— SINCE THESE PROVISIONS  ARBITRARILY INCREASE THE PENALTY IMPOSED ON “CYBER CHILD PORNOGRAPHY’ AND“CYBER LIBEL” AS COMPARED TO THE PENALTY FOR ORDINARY CHILD PORNOGRAPHY ANDLIBEL—WITHOUT ANY VALID LEGAL BASIS FOR SUCH A HIGHER PENALTY.                                                          ————————————————–

 

 

136)     Sections 4(c)(2) and6 of R.A. 10175 violate the equal protection clause enshrined in Article III, Section 1 of the Constitution—since it arbitrarily increases the penalty imposed on “cyber child pornography” and“cyberlibel” compared to ordinary libel—without any valid legal basis for such a higher penalty.

 

137)     Section 6(c)(2) of RA 10175 increased by one degree the penalty for the unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system.

 

138)     There is no rational basis for considering child pornography committed through a computer system a different class from that committed through the means defined by R.A. 9775. This is a violation of the equal protection clause.

 

139)     Section 6 of R.A. 10175 also increased the penalty for cyber libel to prision mayor from the current prision correctional for ordinary libel provided under the RPC, to wit:

SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

 

140)     This means that cyber libel is now punished with imprisonment from 6 years and one day to up to 12 years, while those convicted for ordinary libel under the RPC are subject to imprisonment only from 6 months and one day to four years and two months.

 

141)     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 6 months and one day, anyone convicted for cyber libel will inevitably serve a prison term.

 

142)     And because 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 since the fact that an allegedly libelous writing appeared on the internet is already sufficient to prove the element of publication.

 

143)     The Office of the Solicitor General, during the oral arguments last 29 January 2013, claimed the opposite: that is, that the penalty for traditional libel is the same for cyberlibel.

 

144)     However, as the Hon. Associate Justice Teresita J. Leonardo-De Castro pointed out in reaction to the Hon. Solicitor General’s claim, this assertion is not reflected in the law, as it does not say that libel will not be included in the section of the law providing for the application of penalties.

 

145)     The Hon. Associate Justice Diosdado M. Peralta agreed with this point raised by the Hon. Justice De Castro, saying that  internet is just a means of committing the crime but Sec. 6 of the cybercrime law uses it as a qualifying circumstance as it increases the penalty.

 

146)     Thus, it is clear that there is no legal basis for putting cyber libel in a different class from ordinary libel. This is a clear violation of the equal protection clause.

 

147)     In Adonis vs. Republic of the Philippines,  the UNHRC declared that the imprisonment imposed on Mr. Adonis for libel under the Philippine Revised Penal Code is “incompatible with Article 19, paragraph three of the International Covenant on Civil Political Rights,”or freedom of expression. 

 

148)     Further, in Adonis vs. Republic of the Philippines, the UNHRC expressed that the Philippines is “also under an obligation to take steps to prevent similar violations occurring in the future, including by reviewing the relevant libel legislation.”

 

 

149)      Nevertheless, despite the UNHRC View that Philippine criminal libel is incompatible with Article 19 of the ICCPR on freedom of expression, the Philippines still included “libel” in its new Cybercrime law.

 

150)     Worse, this new Cybercrime law increased the penalty for cyber libel to prision mayor from the current prision correctional provided under the Revised Penal Code (RPC) for traditional libel, which now removes it from the contemplation of the provisions on parole and probation under the same Code.

 

151)     This in turn enlarges the prescription period for libel.

 

152)     Hence, the inclusion of libel in Section 4(c)(4) of R.A. 10175 is a clear violation of the Philippines’ treaty obligation under Article 19 of the ICCPR.

 

 

 

V. SECTION 7 OF R.A. 10175 VIOLATES THE CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY ENSHRINED IN ARTICLE III, SECTION 21 OF THE CONSTITUTION AS IT PLACES AN ACCUSED IN DOUBLE JEOPARDY. 

——————————————————

 

153)     Section 7 of R.A. 10175 provides that:

 

SEC. 7.Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

xxx xxx xxx

xxx xxx xxx

 

 

154)     Section 7 of R.A. 10175 is a clear violation of the right against double jeopardy in Article III, Section 21 of the Constitution, to wit:

 

Section 21.No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

 

 

155)     This is because under Section 7 of R.A. 10175, an accused under the Cybercrime Prevention Act of 2012, can also be an accused under the RPC.

 

156)     And this danger of double jeopardy is best illustrated in this wise, in this day and age when print newspapers now also come out with their online versions:.

 

157)     In the case of Petitioners Tordesillas, Roque and Bagares,  the print publications they write for also have an online presence; more often than not,  their columns see publication in both the print and the online versions of the papers they write for. Thus, they can be charged and tried for ordinary libel under the RPC and for cyber libel under the assailed law for the same column. . This is a clear violation of the right against double jeopardy.

 

158)     The high probability that s/he may be charged and imprisoned twice for the same offense produces a “chilling effect”  on any journalist.

 

159)     Any such “chilling effect” constitutes prior restraint on free expression.

 

160)     The Hon. Justice Carpio, during the oral arguments of                29 January 2013, illustrated this by noting that on page 96 of the Office of the Solicitor General’s Comment to the petitions, it made the point that the second sentence of Section 6 of the assailed law effectively makes the commission of a crime with the use of ICT a qualifying circumstance.

 

161)     According to him, if applied to estafa, using the ICT, the elements remain the same, only that this time around, it is committed using the ICT.

 

162)     The problem in the interpretation of the Office of the Solicitor General is that by making the use of an ICT as a qualifying circumstance, it opens the possibility of an Accused who uses computer technology in committing a crime being prosecuted twice; the first one, through the traditional understanding of the crime, and the second, through the application of the cybercrime law.

 

 

 

VI. SECTION 19 OF R.A. 10175 VIOLATES THE CONSTITUTIONAL

PRINCIPLE OF SEPARATION OF POWERS AS IT DELEGATES TO THE DOJ IS PROPERLY A JUDICIAL FUNCTION.

——————————————————

 

163)     Section 19 of R.A. 10175 provides that:

 

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.

 

164)     First, the power to issue an order to restrict or block access to computer data is a judicial function. Nevertheless, Section 19 of R.A. 10175 delegates a judicial function to the DOJ—which is under the Executive Department.

 

165)     Second, Section 19 of R.A. 10175 impliedly delegates to the DOJ a judicial function— the determination of whether or not a computer data is prima facie found to be in violation of the provisions of this Act. Again, such a function is essentially judicial in character. Hence, Section 19 of R.A. 10175 clearly violates the constitutional principle of separation of powers.

 

166)     The Office of the Solicitor General admitted during oral arguments that the standard to be used is “due cause”, which standard is met by a mere complaint.

 

167)     According to the Hon. Associate Justice Mariano C.              Del Castillo, even such standard is not defined, such that the power of the government to collect data is subject to abuse, because of the wide discretion that such an undefined concept allows.

 

168)     The Hon. Chief Justice Maria Lourdes P.A. Sereno is even more emphatic, saying that this is the first time the Court has encountered such an animal (“due cause”).

 

 

 

 

VII. The presumption of constitutionality does not apply to r.a. 10175 since it violates constitutionally protected fundamental rights.

——————————————————

 

 

169)     The presumption of constitutionality does not apply to R.A. 10175 since it violates Constitutionally-protected fundamental rights, namely the right to freedom of speech, of expression, and of the press.

 

170)     The Honorable Court has held in Social Weather Station, Inc. v. COMELEC,[41] that due to the preferred status of the constitutional rights of speech, expression, and of the press, a law that imposes a prior restraint on said rights is vitiated by a weighty presumption of invalidity,  to wit:

….Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity.Indeed, “any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government ‘thus carries a heavy burden of showing justification for the enforcement of such restraint.’”There is thus a reversal of the normal presumption of validity that inheres in every legislation.(Emphasis supplied, internal citations omitted)[42]

 

171)     The Honorable Court has even held in Ople v. Torres[43] that when the integrity of a  fundamental right is at stake, it will give the challenged law a stricter scrutiny, and that in case of doubt, the Court will lean towards a stance that will not put in danger the rights protected by the Constitution, to wit:

 

….And we now hold that when the integrity of a  fundamental right is at stake, this court will give the challenged law, administrative order, rule or regulation a stricter scrutiny. .. This approach is demanded by the 1987 Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism.  In case of doubt, the least we can do is to lean towards the stance that will not put in danger the rights protected by the Constitution. (Emphasis by the Honorable Court, italics supplied)[44]

 

172)     Also, the Honorable Court has stated as far back as Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor,[45] that the standard for the validity of governmental acts is ‘much more rigorous’ if the liberty involved were freedom of the mind or the person, to wit:

 

….What may be stressed sufficiently is that if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of property, the permissible scope of regulatory measure is wider.[46]

 

 

 

VIII. PETITIONERS HAVE STANDING TO ASSAIL THE CONSTITUTIONALITY OF R.A. 10175 AND CERTAIN PROVISIONS OF THE RPC.

——————————————————

 

173)     Petitioners as Filipino citizens, taxpayers, as concerned citizens, and as either— journalists, bloggers, or social network netizens— have standing to file the instant suit. In a host of jurisprudence locus standi means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the act being challenged.[47] Otherwise stated, a proper party is one who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of.[48]  Thus, for a party to have personal standing, he need only prove, first, injury to his right or interest[49], and second, a “fairly traceable” causal connection between the claimed injury and the challenged conduct.[50]

 

174)     With regard to the first requisite, which requires injury in fact,[51] there is no rigid rule as to what may constitute such injury. It may refer to aesthetic or environmental injury[52] or pertain to a “spiritual stake” in the values of the Constitution,[53] and may be held to exist when the assailed administrative ruling entail future loss of profits.[54]  Indeed, even the mere fact that many people suffer the same injury claimed does not preclude a finding that the requisite standing exists.[55]  As for the second requisite, it is complied with when the Petitioners show that there is a substantial likelihood that the relief requested will redress the claimed injury.[56]   Even if the line of causation between the injury and the conduct is attenuated, the existence of “an identifiable trifle” is sufficient for meeting this requisite.[57]

 

 

175)     Petitioners stand to suffer directly from the “chilling effect” of an unconstitutional imposition as the assailed law, whose provisions on cyber libel are so vague and so overbroad that these can be applied arbitrarily on all users of social media,  Petitioners included.

 

 

176)     In the instant petition, Petitioners assert their  public rights as citizens to be able to freely express their views on the raging issues of the day against the the Constitutionally-infirm portions of R.A. 10175. Thus their standing as citizens is founded on this unassailable constitutional entitlement. As this Honorable Court held in the landmark case of  Francisco, Jr. et al v. House of Representatives:

 

….In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.[58]

 

177)     Moreover, the annual appropriations for the implementation of RA 10175, amounting to Fifty million pesos (PhP50,000,000.00) entails the expenditure of public funds. Petitioners therefore raise as well their right as taxpayers to enjoin the implementation of RA 10175 for its unconstitutionality. Public money should not be wasted on a statute that is void.

 

178)     More importantly, the Solicitor General never questioned, in his Comment, the standing of herein Petitioner Alexander Adonis.

 

179)     Hence, as argued above, Petitioners have standing to file the instant suit.

 

PRAYER

 

 

WHEREFORE, premises considered, Petitioners respectfully pray that the Honorable Court GRANT the instant Petition and:

 

(a) DECLARE Articles 353, 354, 355, 361, and 362, of the “Revised Penal Code” to be unconstitutional;

 

(b) DECLARE R.A. 10175, otherwise known as the ”Cybercrime Prevention Act of 2012,” to be unconstitutional for infringing against Constitutionally-protected fundamental rights of citizens – that is, of journalists and their audience alike; and

 

(c) PERMANENTLY PROHIBITING Respondents Executive Secretary, the Department of Budget and Management, the Department of Justice, the Department of the Interior and Local Government, the National Bureau of Investigation, the Philippine National Police, and the Information and Communications Technology Office-Department of Science and Technology from implementing the same laws.

 

Other reliefs that are just and equitable under the premises are likewise prayed for.

 

Makati City for Manila. 19 February 2013.

 

 

By the Counsel for Petitioners in G.R. No. 203378:

ROQUE & BUTUYAN LAW OFFICES

1904 Antel 2000 Corporate Center

121 Valero Street, Salcedo Village

Makati City 1200

Email: mail@roquebutuyan.com

Tel. Nos. 887-4445/887-3894; Fax No: 887-3893

 

By:

H. Harry L.  Roque, Jr.

PTR No. 3692462 / Jan 18, 2013/Makati City

IBP No. 499912 / Lifetime/Makati City

Roll No. 36976

         MCLE Exemption No. III-001000

(issued on 26 April 2010)

 

 

ROMEL REGALADO  BAGARES

PTR No. 3692460 / Jan 18, 2013/Makati City

IBP No. 924439/ Jan. 10, 2013/Socsargen

Roll No. 49518

MCLE Compliance No. III-0017855

(issued on 08 July 2010)

 

 

GILBERT TERUEL ANDRES

PTR No. 3692459/ Jan 18, 2013/Makati City

IBP No. 924437/ Jan 10, 2013/ Negros Occ.

Roll No. 56911

MCLE Compliance No. III-0013698

(issued on 22 April 2010)

 

 

         GEEPEE ACERON GONZALES

PTR No. 3692464/Jan. 18, 2013/Makati City

IBP No. 924436 /Jan. 10, 2013/Oriental Mindoro

Roll No. 59686

MCLE Compliance No. IV-0005346

(issued on 28 March 2012)


 

JAMES MARK TERRY L. RIDON
Counsel for Petitioners in Palatino vs. DOJ Secretary
89 K-7 St., Barangay East Kamias, Quezon City.
Roll of Attorneys No. 61374
IBP Receipt No. 892955/4 Jan 2013/Quezon City
PTR No. 6698353/4 Jan 2013/Quezon City
MCLE compliance in the process of completion as counsel was admitted to the Bar only in 2012.

 

 

 

Copy Furnished (by personal service and registered mail):

 

THE OFFICE OF THE SOLICITOR GENERAL

Counsel for Respondents

134 Amorsolo Street, Legaspi Village,

Makati

 

Explanation

(Pursuant to Section 11, Rule 13 of the 1997 Rules of Civil Procedure)

 

This pleading is being, served to Respondents and filed before the Honorable Court, by registered mail in accordance with                 Section 11, Rule 13 of the Revised Rules of Court due to lack of personnel to effect personal service and/or filing, and due to lack of material time.

 

 

GEEPEE ACERON GONZALES

 


[1] Attached as ANNEX B to the Second Amended Petition was a copy of the UNHRC View on Adonis v. The Philippines.

[2]Communication No. 1815/2008.

[3] G.R. No. 148560, Nov. 19, 2001.

[4] G.R. No. 148560, Nov. 19, 2001.

[5] Id.

[6] 381 U.S. 479.

[7] Id.

[8]521 U.S. 844 (1997).

[9]Id. citing Gentile v. State Bar of Nev., 501 U.S. 1030, 1048-1051 (1991), Dombrowski v. Pfister, 380 U.S. 479, 494 (1965), and Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. (1996).

[10] G.R. No. 118971, Sept. 15, 1999.

[11]G.R. No. 126466,  Jan. 14, 1999.

[12] G.R. No. 118971, Sept. 15, 1999.

[13] Id.

[14]G.R. No. 126466,  Jan. 14, 1999.

[15] Id.

[16]Second Amended Petition.

[17]Second Amended Petition.

[18] G.R. No. 118971, Sept. 15, 1999.

[19]G.R. No. 126466,  Jan. 14, 1999.

[20] G.R. No. 118971, Sept. 15, 1999.

[21]G.R. No. 126466,  Jan. 14, 1999.

[22] G.R. No. 157643, March 28, 2008.

[23]G.R. No. 126466,  Jan. 14, 1999.

[24] G.R. No. 118971, Sept. 15, 1999.

[25]G.R. No. 126466,  Jan. 14, 1999.

[26] G.R. No. 148560, Nov. 19, 2001.

[27] G.R. No. 148560, Nov. 19, 2001.

[28] Connally v. General Construction Co. 269 U.S. 385 (1926).

[29] Please see Smith v. Goguen 415 U.S. 566 (1974).

[30] NAACP v. Alabama, 357 US 449 (1958), 78 S.Ct. 1163, 2L.Ed.2d 1488 (1958).

[31] See attached as ANNEX B.

[32] Communication No. 1815/2008.

 

[33] U.N.G.A., U.N. H.R. Committee, General Comment No. 34: Article 19: Freedoms of opinion and expression, U.N. Doc. No. CCPR/C/GC/34 (Sep. 12, 2011), ¶ 47.

[34]Article 26, Vienna Convention on the Law of Treaties.

[35]Article VII Section 21, 1987 Constitution.

[36] Pharmaceutical Health Care Association vs. Health Secretary Duque et al., G.R. No. 173034, October 9, 2007.

[37]Mijares vs. Ranada, G.R. No. 139325, April 12, 2005, 455 SCRA 397.

[38]Article 28 of the ICCPR.

[39] ARTICLE II, Section 2 of the 1987 Constitution.

[40]Tanada v. Angara, 338 Phil. 546, 592.

 

[41] G.R. No. 147571, May 5, 2001.

[42] G.R. No. 147571, May 5, 2001.

[43] G.R. No. 127685, July 23, 1998.

[44] G.R. No. 127685, July 23, 1998.

[45]G.R. No. L-24693, July 31, 1967.

[46]G.R. No. L-24693, July 31, 1967.

[47] Tankiko v. Cezar, G.R. No. 131277, February 2, 1999.

[48] Isagani Cruz, Constitutional Law 25 (2000), citing Ex Parte Levitt, 303 US 633.

[49] Tankiko v. Cezar, G.R. No. 131277, February 2, 1999; Cruz, Id.,at 25; Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978).

[50]Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978).

[51] Association of Data Processing Service Organizations v. Comp., 397 US 150 (1970) in Ronald Rotunda, Modern Constitutional Law: Cases and Notes 1054  (3rd ed., 1989) [Hereinafter, ROTUNDA].

[52] John E. Nowak and Ronald ROTUNDA, Constitutional Law 78 (4th ed., 1991), citing Sierra Club v. Morton, 405 U.S. 727 (1972).[Hereinafter, NOWAK & ROTUNDA].

[53]  Id., at 77

[54] Association of Data Processing Service Organizations v. Comp., 397 US 150 (1970), cited in ROTUNDA, supra note 13,  at 1054

[55] Sierra Club v. Morton, 405 U.S. 727 (1972) , cited in  NOWAK AND ROTUNDA, supra note 14, at 78.

[56] Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978).

[57] ROTUNDA, supra note 6, at 1055, citing U.S. v. SCRAP, 412 U.S. 669 (1973).

[58] Ernesto V. Francisco Jr., et al, v. House of Representatives, GR. No. 160261, Nov. 10, 2003.

Offending religious feelings


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I did not want to write about Carlos Celdran. As a religious person myself, I found what he did—picketing and disturbing a religious event—offensive and in bad taste. I probably would have been incensed if I were one of those then worshipping at Manila Cathedral.

But because public opinion, at least among netizens, appears to be evenly split between those who support and condemn his conviction for offending religious feelings penalized by Article  133 of the Revised Penal Code, it appears that as a legal educator, I should at least comment on the case.

Art. 133, like the Revised Penal Code’s provisions on libel, is yet another archaic and Jurassic crime which has lost its place in modern-day democracies. It is a form of Lest Majeste that finds reason in the fact that Spanish colonial rule was exemplified by the union of church and state. Criticize the church and one criticizes the crown, as well.

Given the precarious nature of Spanish colonial rule in the Philippines, with us Indios even rejecting to speak the language, I suppose during those times, the law could be defended as an exercise of police power of a waning colonial power.

It is sad hence that when the Philippine Commonwealth enacted the current Revised Penal Code that took effect on January 2, 1930, its drafters still incorporated the crime of offending religious feelings when the Supreme Court had already ruled that Lest Majeste, being a political crime, had ceased to be a crime with the onslaught of American colonial rule.

As a crime intended to bolster Spanish colonial rule, it is utterly inconsistent with the modern-day concept of freedom of expression and freedom of religion. The rule, as we argued in the Supreme Court in our challenge against the Cybercrime Prevention Act, is that because of our constitutional commitment to freedom of expression as a means of arriving at the truth and as a means of reigning in abusive government though a full discussion of public issues, words alone should not be actionable unless they lead to a clear and present danger that the State has a right to prevent. Anent religious freedom, the Constitution guarantees the absolute freedom to believe, referred to as the free exercise clause, and a non-derogable guarantee that it will not favor or endorse a religion, referred to as the establishment clause.

Here, Art. 133 of the Revised Penal Code which punishes “anyone who, in a place devoted to religious worship or during a celebration of nay religious ceremony, shall perform acts notoriously offensive to the feelings of the faithful“ violate both constitutional guarantees. For one, even assuming what he did was “notoriously” offensive, which is doubtful given that the priest themselves have opted not to charge him with the crime, the reality is such cannot amount to a “clear and present danger”. Furthermore, to subject Celdran to imprisonment for offending feelings would be tantamount to the state endorsing a religion.  Why else would it jail a person solely because he offended the feelings of members of a religion?

Perhaps in this controversy, it is best to remember the ruling of the Supreme Court in Iglesia ni Kristo versus Court of Appeals. This was a case where the MTRCB gave an “x” rating to pre-taped programs of the Iglesia ni Kristo criticizing religious dogmas of the Catholic Church, including the satire of the Virgin Mary. Here, the Court ruled that the “x” rating was a prior restraint and a violation of the guarantee of state neutrality in the realm of religious beliefs. According to former Chief Justice Reynato Puno. “The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion.  Religious dogmas and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion.  Vis-a-vis religious differences, the State enjoys no banquet of options.  Neutrality alone is its fixed and immovable stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the most numerous church in our country.  In a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology.  The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas.  When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.”