Oral arguments vs Cybercrime Law

7/29/2019 Oral arguments vs Cybercrime Law

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PROF. H. HARRY L. ROQUECOUNSEL FOR PETITIONER

Adonis et. al. v. Executive Secretary et. al GR NO. 203378


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Terminals connect to a mainframe, where alldata in a given network is housed.

: The Internet , an interconnection ofcomputer networks, a US defense experiment to testthe survivability of the American militaryscommunication systems in the event of a nuclear strike.(Advanced Research Project Agency Network, ARPANET)

Development of Transmission ControlProtocol and Internet Protocol (TCP/IP) allowed fordifferent networks to communicate with each other.


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http://netforbeginners.about.com/od/i/f/What-Is-The-

Internet.htm


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RENO v. ACLU: NO

A) Requires a series of affirmative steps more

deliberate and directed than turning a dial; B) Not as invasive as broadcast. Users seldom

encounter content by accident


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Hence: Entitled tohighest protection


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1. SECTIONS 4(C)4 AND 4(C)1 ARE VOID ON ITS

FACE FOR BEING SO BROAD AS TO ENCOMPASSEVEN CONSTITUTIONALLY PROTECTED SPEECH

2. BOTH SECTIONS ARE VOID FOR BEING VAGUE

3.VOID FOR BEING CONTRARY TO PACTA SUNDTSERVANDA, A GENERALLY ACCEPTED PRINCLE OFINTERNATIOANL LAW


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[w]hen statutes regulate orproscribe speech and x x x thetranscendent value to all society

of constitutionally protectedexpression x x x justify allowingattacks on overly broad statutes(Broadrick v. Oklahoma)


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In considering whether a statute suffersfrom overbreadth, a court's first task isto determine whether the

.

x x x

.


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The unlawful or prohibited acts oflibel as defined in Article355 ofthe Revised Penal Code, as

amended, committed through acomputer system or any othersimilar means x x x


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1. Since internet is a new technology, 4 c (4)could penalize protected speech;

2. Art. 355 of RPC penalizes protectedspeech: the truth as a defense and and falsestatements without knowledge that it is falseor without utter disregard of its falsity


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Twitter: Are retweets liable for libel?


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Facebook: Are likes and reposting oflibelous materials liable for libel?


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Blogs and on-line publications withcomments space: Are the blog owners liablefor libelous statements in these statements?


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Is reposting a link actionable?


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Art. 360. Persons responsible.

Any personwho shall

Are ISPs liable? Are the owners of social

networking liable? Are Google and Yahooliable? Are Telcos liable? Are cybercafeowners liable?


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civil sanctions could not be imposed based

upon defamatory statements madeconcerning a public official unless the

statements were false and made with "actualmalice.

The Court defined "actual malice" as making a

statement "with knowledge that [thestatement] was false or with recklessdisregard of whether it was false or not." _Id._


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"debate on public issuesshould be uninhibited, robust,

and wide-open, and . . . maywell include vehement,caustic, and sometimes

unpleasantly sharp attacks ongovernment and publicofficials.


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x x x "erroneous statement isinevitable in free debate x x x

it must be protected if thefreedoms of expression are tohave the 'breathing space' that

they 'need . . . to survive' . . . ,


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Curtis Publishing v. Butts: Testof actual malice or utter

disregard applied to publicfigures


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1.Utah: IMA vs. Utah

2.Alaska: Gottschalk v. Alaska

3.Arkansas: Weston v. Arkansas

4.California: Eberle v. Municipal Court of LA

5.Montana: Montana v. Richard

6.Kentucky: Ashton v. Kentucky7.Pennsylvania : Pennsylvania v. Armao

8.South Carolina: Fitts v. Calb


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The plain language of RPCstatute does not comport with

the requirements laid downSullivan :

.


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Vazquez vs. CA; Borajal v. CA and in Guinguinv. CA: even if the defamatory statement isfalse, no liability can attach if it relates toofficial conduct, unless the public official

concerned proves that the statement wasmade with actual malice.


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The statute punishes all statements made"maliciously," The common law definition of"malice" is quite different from the "actualmalice" contemplated by the United States

Supreme. Malice in law includes hatred, ill-will and contempt

IMA v. Utah: We have noted that "malice"and"actual malice" are not interchangeable.


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Second, the statute provides no immunity fortruthful statements:


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RPC infringes upon a substantial amount ofconstitutionally protected speech:

(1) false statements regarding public figuresmade without knowledge or recklessnessoutside of fair and true report of any actperformed by public officials in the exercise

of their functions, and (2) true statements regarding public figures

not covered by qualified privilege.


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(c) Content-related Offenses:(1) Cybersex.

The willful engagement, maintenance,control, or operation, directly or indirectly, of

any lasciviousexhibition of sexual organs orsexual activity, with the aid of a computersystem, for favor or consideration.


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Chavez v. Gonzales: Only when thechallenged act has overcome the

will it pass constitutionalmuster, with the government having the

burden of overcoming the presumedunconstitutionality.

The latter will pass constitutional muster only

if justified by a compelling reason, and therestrictions imposed are neither overbroadnor vague.[74]


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Are the followingslides Lascivious?


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Favor or consideration: whatabout schools, museums,

research tools (lexis/Nexis,JSTOR, SSRN)


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What is defamatory?

Who is liable for libel?

What are justifiable motives?

What are good intentions?

What is lascivious?


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Article II, Section 3 of the Constitutionprovides: the Philippines adopts thegenerally accepted principles of internationallaw as part of the law of the land.

Pacta sundt servanda as a generally acceptedprinciple that forms part of the laws of theland (Secretary v. Lantion,Tanada v. Angara,Kuroda v. Jalandoni, IS Alliance of Educatorsv. Quisumbing)


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Republic vs.Sandiganbayan:

(FreedomConstitution

ICCPR)UDHR

Italics supplied)


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The Human Rights Committee is the body ofindependent experts that monitorsimplementation of the International Covenanton Civil and Political Rights by its State

parties.

First Optional Protocol to the Covenant givesthe Committee competence to examine

individual complaints with regard to allegedviolations of the Covenant by States parties tothe Protocol.
http://www2.ohchr.org/english/bodies/hrc/members.htmhttp://www2.ohchr.org/english/bodies/hrc/members.htmhttp://www2.ohchr.org/english/law/ccpr.htmhttp://www2.ohchr.org/english/law/ccpr.htmhttp://www2.ohchr.org/english/law/ccpr.htmhttp://www2.ohchr.org/english/law/ccpr.htmhttp://www2.ohchr.org/english/law/ccpr-one.htmhttp://www2.ohchr.org/english/bodies/petitions/index.htmhttp://www2.ohchr.org/english/bodies/petitions/index.htmhttp://www2.ohchr.org/english/bodies/petitions/index.htmhttp://www2.ohchr.org/english/bodies/petitions/index.htmhttp://www2.ohchr.org/english/bodies/petitions/index.htmhttp://www2.ohchr.org/english/bodies/petitions/index.htmhttp://www2.ohchr.org/english/bodies/petitions/index.htmhttp://www2.ohchr.org/english/bodies/petitions/index.htmhttp://www2.ohchr.org/english/bodies/petitions/index.htmhttp://www2.ohchr.org/english/law/ccpr-one.htmhttp://www2.ohchr.org/english/law/ccpr-one.htmhttp://www2.ohchr.org/english/law/ccpr.htmhttp://www2.ohchr.org/english/law/ccpr.htmhttp://www2.ohchr.org/english/law/ccpr.htmhttp://www2.ohchr.org/english/bodies/hrc/members.htmhttp://www2.ohchr.org/english/bodies/hrc/members.htm


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International Court of Justice(Guinea v. DRC): x x x

adopted by (the Committee) (because) itwas established specifically

to supervise the applicationof that treaty.


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Sanction of imprisonment imposed on theauthor was with Art. 19, Paragraph3 of this Covenant

Pursuant to Article 2, paragraph 3(a) of the

Covenant, the Committee considers the stateparty to be under obligation to provide theauthor with an effective remedy, includingadequate compensation for time spent in prison.The state party is also under an obligation to

take steps to prevent similar violations fromoccurring in the future, including by reviewingthe relevant libel legislation


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Court must hence declare thatboth Art 355 of the RPC, Art 4(c)4and Art 4(c)1 of the CyberCrime

Prevention Act as void on its face;and additionally art. 4(C)4 forviolating pacta sundt servanda

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Oral arguments vs Cybercrime Law