The Restraint in the Cyber World

7/25/2019 The Restraint in the Cyber World

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Introduction

Background of the Study

In democratic and enthusiastic country the most

fundamental rights that emboast the ideals of a

democratic society is the freedom of expression which

includes the freedom of speech,the press and the like.

It is primodial that these freedom are free from

restraint in order for a pool of ideas to flow freely.

However, be that as it may, as already been settled

every right found in the 1!" #onstitution especially

that of the $reedom of Speech and %xpression is not

absolute. &est, the enactment of the 'epublic (ct 1)1"*

(n (ct +efining #ybercrime, roviding $or -he

revention, Investigation,Suppression and -he

Imposition of enalties -herefor (nd $or ther urposes

or otherwise known as the #ybercrime revention (ct of

/)1/. 1

Section / of the +eclaration of olicy states that -he

State recogni0es the vital role of information and

communications industries such as content production,

telecommunications, broadcasting electronic commerce,

and data processing, in the nations overall social and

economic development. -he State also recogni0es the

1 Republic Act 10175 (An Act Defning Cybercrime, Providing or the Prevention,nve!tig"tion, #uppre!!ion, "nd the mpo!ition o Pen"ltie! thereor "nd or other Purpo!e!$http%&&'''$gov$ph&01&0)&1&republic*"ct*no*10175&


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importance of providing an environment conducive to the

development, acceleration, and rational application and

exploitation of information and communications

technology 2I#-3 to attain free, easy, and intelligible

access to exchange and4or delivery of information5 and

the need to protect and safeguard the integrity of

computer, computer and communications systems,

networks, and databases, and the confidentiality,

integrity, and availability of information and data

stored therein, from all forms of misuse, abuse, and

illegal access by making punishable under the law such

conduct or conducts. In this light, the State shall

adopt sufficient powers to effectively prevent and

combat such offenses by facilitating their detection,

investigation, and prosecution at both the domestic and

international levels, and by providing arrangements for

fast and reliable international cooperation. /

-husly, based on the aforementioned declaration of

policy of the same law, the law was proposed to answer

the growing number of crimes committed in the online

world which seems to be unreachable considering the

volume of the internet violators and violations that

have been occuring since the rise of the new media.

(fter a rigorous processes the legislators where

adamant to finally enact the #ybercrime &aw of /)1/ as

Republic Act 10175 (An Act Defning Cybercrime, Providing or the Prevention,nve!tig"tion, #uppre!!ion, "nd the mpo!ition o Pen"ltie! thereor "nd or other Purpo!e!$#ection , Decl"r"tion o Policy http%&&'''$gov$ph&01&0)&1&republic*"ct*no*10175&


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evidenced by the thirteen Senators who voted for the

implemmentation of the law. -he 'epublic (ct 1)1"* was

finally signed and sealed on September 1/, /)16.

-he main contents of the law provided the following

punishable acts as follows and defined. -hese are

according to the law offenses against confidentiality,

integrity and availability of computer data and

systems. Illegal (ccess, the access to the whole or any

part of a computer system without right.7Illegal

Interception, the interception made by technical means

without right of any non8public transmission of

computer data to, from, or within a computer system

including electromagnetic emissions from a computer

system carrying such computer data.6+ata Interference,

the intentional or reckless alteration, damaging,

deletion or deterioration of computer data, electronic

document, or electronic data message, without right,

including the introduction or transmission of viruses.*

ther computer related forgery5 -he input, alteration,

or deletion of any computer data without right

resulting in inauthentic data with the intent that it

be considered or acted upon for legal purposes as if it

were authentic, regardless whether or not the data is

directly readable and intelligible5 or the act of

+ Republic Act 10175, #ection (1-

Republic Act 10175, #ection (-

5 Republic Act 10175, #ection (+-


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knowingly using computer data which is the product of

computer8related forgery as defined herein, for the

purpose of perpetuating a fraudulent or dishonest

design.9(nd the most controversial provision5 &ibel

:nlawful or prohibited acts of libel as defined in

(rticle 7** of the 'evised enal #ode, as amended

committed through a computer system or any other

similar means which may be devised in the future.

'evised enal #ode (rt. 7** states &ibel means by

writings or similar means. ( 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 /)) to 9,)))

pesos, or both, in addition to the civil action which

may be brought by the offended party.-he #ybercrime

revention (ct strengthened libel in terms of penalty

provisions.

-he electronic counterpart of libel has been

recogni0ed since the year /))) when the %8#ommerce &aw

was passed. -he %8#ommerce &aw empowered all existing

laws to recogni0e its electronic counterpart whether

commercial or not in nature. "

. Republic Act 10175, #ection (1- Computer rel"ted orgery (i- (ii-

7 Revi!ed Pen"l Code Article ++5Republic Act 10175, #ection (5-


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+ue to a seem encompassing provisions of the #ybercrime

law most if not all the citi0ens were hesistant as to

its implementation. -he citi0ens mostly the ;neti0enshich is not an ideal scenario to a

society who once were sub=ected to a malignant era of

martial.

?eanwhile5 before this law came into effect there

were laws and policies regulating internet access in

the country5 Such as the hilippine %8commerece &aw,

was enacted in @une /))) as a result to online risks

caused by the ;I &ove Aou< virus. ( certain nel +e

u0man, a $ilipino citi0en created a computer virus or

worm which was known as ;I &ove Aou< virus or ;&ove

&etter Cirus< which left almost *.* billion :S+ worth

of damage worldwide. -he law protects the users with

regard to privacy, confidentiality, anonymity and

content control. -he accused was never prosecuted

prompting the government to pass laws to remedy the

predicament and to further the efforts of the

government in terms of strengthening the policies

regarding the internet use.

-his paper will specifically deal with the immenent

violation of this law on the $reedom of Speech,

%xpression and +ue process of the neti0ens and the


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citi0ens in general. $urthermore, this paper will also

give an analysis of online libel that will serve as the

basis of the restraint in the $reedom of Speech and

%xpression.


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'eview of 'elated &iterature

In /))), a virus which resulted a havoc to the

cyberspace system called the ;I &ove Aou< virus

prompted the congress to enact 'epublic (ct !"/

otherwise known as the %lectronic #ommerce (ct or the

%8commerce &aw. Such that the H#%'- was created and a

Budapest #onvention was held due to the number of

hacking attacks and cybercrimes recorded in /))1. In

/))7, a computer crime section of the hilippine

Dational olice was created and the first cybercrime

conviction occured last /))*, with @@ ?aria iner

convicted under the e8commerce law. -he growth of

cybersex has recorded on its speek on /))" including

child trafficking. (s such various laws connection with

these crimes have been enacted. 'epublic (ct ""* or

the (nti8#hild ornography and 'epublic (ct * or the

(nti8hoto and Cideo Coyeurism (ct were enacted in

/)). In /)1), it was reported that our of 1)

$ilipinos are victims of various forms of cybercrime

ranging from hacking attacks to online scams. (nd in

/)1), congress passed an all encompassing law which

will cover all areas of crimes committed in the

cyberspace the #ybercrime revention (ct of /)1/.

However, due to its legal challenges which prompted

different sectors to file petitions which their main

contention was that the law is a violation of the


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freedom of speech and expression to include due

process. -he law was temporarily suspended for meantime

as the highest tribunal discusses the petitions on the

table.

In /)16, the Supreme #ourt lifted the suspension

and finally set the law into its full implementation.

'epublic (ct 1)1"* then became effective afterwards. !

/he Philippine Cybercrime Prevention Act o 01 by Alberto $#"lv"dor, 2r$http%&&'''$crc$gov$mn&fle&ne'fle&C#3*5*4P*1/*P*Cybercrime*Prevention*Act$pd


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+iscussion and #onclusion

'epublic (ct 1)1"* otherwise known as the #ybercrime

revention (ct of /)1/ was signed on September 1/, /)1/

which created a barraged in the entire country most

especially in t cyberspace world. Its enactment

prompted different human rights organi0ations to go out

and protest as to the unconstitutionality of the said

law. -he main contention of those who oppose the law is

that it is a blatant threat to the most en=oyed freedom

in the country, the freedom of speech to specifically

mention the provision which creates ;online libel


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these watchdogs. -he Supreme #ourt upheld the

constitutionality most of the provisions of the law

including online libel.

Indeed, looking at the letter of the law its

primary purpose is to curve crimes involving the use of

the internet. #onsider the excalating number of child

pornography, cybersex and the like. (ll these are

stipulated in the law. However, this paper will only

focus on the provision which generally touches the core

of the general public who are probably writing

something right now without even an afterthought that

they are already committing an act that could put them

behind bars. #learly, an infringment of the freedom of

speech and expression explicitly protected by the 1!"

#onstitution.

-he hilippines has been considered to be the most

active internet users all over the world. In fact, the

$ilipinos are one of the most active $acebook, -witter

and Instagram. -o include all the blogging websites

where it is now a modern forum where they vent their

frustration over the government4government officials.

It has been an effective mobili0ation for the online

activist to encourage the populace to take an active

move not necessarily against the government but to

inform the public of their social civic responsibility

towards the government. Here comes the new law


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threatening this freedom the $ilipinos have en=oyed

since the internet era started.

-he internet is the best avenue of expression and

speech. It has been wide free medium that has been an

effective and instant dessimination of thoughts and

information not =ust between regions but all borders of

the world. It has been a forum of different expressions

because then there was no such law that criminali0es

acts or utterences which is being posted through the

internet. In short, a restraint on this freedom has

been created and has put a hunchback on the necks of

any of the active internet users.

-hus, (rticle III of the 1!" #onsitution

specifically Section 6 provides that5 Do 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 overnment for redress of

grievances.

-he #ybercrime law provides that Fthe unlawful and

prohibited acts of libel as defined in (rticle 7** of

the 'evised enal #ode, as amended, committed through a

computer system or any other similar means which may be

devised in the future.F &ibel is defined by (rticle

77* of the 'evised enal #ode5 as a public imputation

and malicious imputation of a crime, or of a vice or

) 1)/7 Con!titution, Article #ection (-


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defect, real or imaginary, or any act, omission,

condition, status, or circumstances tending to cause

the dishonor, discredit, or contempt of a natural or

=uridical person, or to blacken the memory of one who

is dead.

FublicF means that the imputation was heard, read

or seen by somebody else, regardless of number, other

than the person to whom the imputation was directed.

(rticle 7** provides that this can be committed Fby

means of writing, printing, lithography, engraving,

radio, phonograph, painting, theatrical exhibition,

cinematographic exhibition, or any similar meansF.

&ibel is punishable by imprisonment that can last as

long as 6 years and / months in =ail.

rior to the #ybercrime &aw, it was not clear whether

or not the phrase For any similar meansF in our libel

law included computers. #omputers were non8existent in

17/, the year our !)8year8old 'evised enal #ode took

effect, and therefore could not have been contemplated

or even foreseen by the framers of the law.

It is a rule in the implementation and

interpretation of laws that what is not included in the

law is excluded. 1)(nd if there is any ambiguity

concerning the application of the phrase For any

similar meansF in this criminal statute, the same will

10 See: Velasco vs. Blas 115 SCRA 540


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always be applied liberally in favor of the accused and

strictly against the state .11-he rule in statutory

construction on ejusdem generis, which states that an

all8encompassing phrase at the end of the provision

must be construed in the same nature as the specific

words preceding it, does not apply considering that the

specific words are not of the same nature.1/

#onsidering all these well8entrenched rules, it is

most likely that any libel case based on written

messages, comments, blogs, or posts in sites such as

$acebook, -witter, or any other comment8spaces of other

social media in the Internet could be dismissed as it

is doubtful that computers are included in the law and

the uncertainty should be applied in favor of the

accused. ?oreover, considering that statements and

opinions written in the Internet are within the

penumbra of the peopleGs constitutional right of

speech, the preference is for the protection of the

expressions made.

erhaps this was the reason why the unchecked and

uncensored inter8active written communications,

comments, replies, blogs, and messages in the Internet

have at times bordered on libel, if not actually

constituting libel. ne only has to look at the

11People vs. Subido 66 SCRA 545

1Colgate Palmolive vs. Jimee!".R. #o. 14$%$ Jaua&' (%) 1*61


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comment8spaces in the various articles written in the

pinion section of Interaksyon.com, and in the websites

of various newspapers. Cery strong and negative

comments can readily be read. %ven comments in $acebook

and -witter show these. But somehow, this kind of free8

wheeling interaction, though at times very offensive,

has developed through time a kind of special tolerance

among the inter8actors. -he public has found an

accessible direct medium to ventilate their opinions,

and people are learning to go beyond offensive opinions

and accept them as =ust another point of view. -his is

a very healthy development in a democracy where free

expression must be actively robust.17

(s former @ustice >illiam +ouglas of the :nited

Supreme #ourt said a

F...function of free speech under our system of

government is to invite dispute. It may indeed best

serve its high purpose when it induces a condition of

unrest, creates dissatisfaction with conditions as they

are, or even stirs people to anger. Speech is often

provocative and challenging. It may strike at

pre=udices and preconceptions and have profound

unsettling effects as it presses for acceptance of an

idea. -hat is why freedom of speech, though not

1+ An"ly!i!% he Cybercrime 6"' "nd o' it Aect! 8our 3reedom o #peech by Atty9 :el#t"$ :"ri"http%&&'''$inter";!yon$com&"rticle&++/&"n"ly!i!**the*cybercrime*l"'*"nd*ho'*it*"ect!*your*reedom*o*e


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absolute, is nevertheless protected against censorship

or punishment, unless shown likely to produce a clear

and present danger of a serious substantive evil that

rises far above public inconvenience, annoyance or

unrest -here is no room under our #onstitution for a

more restrictive view. $or the alternative would lead

to standardi0ation of ideas either by legislatures,

courts, or dominant political or community groups.F

2Terminiello vs.Chicago 77" :S 1316

But now, by adopting the '# libel provisions, the

#ybercrime law has clearly put the spectre of

imprisonment as an imminent threat to our free8wheeling

bloggers, commentators, repliers and others who write

in the internet. -his is a step8back in our respect,

appreciation and implementation of freedom of

expression and indeed in our democratic way of life.

-his may engender an environment of Fsilence coerced by

lawF as characteri0ed by former @ustice Brandeis of the

:nited Supreme #ourt 2Whitney vs. California/"6 :.S.

7*"3.1*

-he #onstitution provides that any law restricting the

freedom of speech and expression carries with it the

burden of proving its constitutionality. #learly, the

aforementioned law is a form of prior restraint and

1+e&miiello vs.C,icago --$ S 1

15/,ite' vs. Calio&ia ($4 .S. -5$


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subseuent punishment. -he former is technically an act

of the government imposing restriction to freely

express his thoughts and ideas on a certain matter and

the latter which go hand in hand with the former, since

the freedom of speech and expression is an illusory

whereby one is free from expressing his thoughts but is

endangared of subseuent punishment. -he #ybercrime law

clearly violates these two aspects of the freedom of

expression. -he highest tribunal in fact upheld the

constitutionality of online liber with respect to the

original author of the post and null and void with

respect to the others who simply receive and reacted on

this.

Here comes another defect of the law. Its

overbroad and all encompassing provisions in connection

with the online libel. #onsidering the scenario5

someone tweeted or published something, subseuently

someone retweeted it. It is a modified form of re8

posting a partular post, then unknown to the original

author someone copied an posted it on $acebook and so

on and so forth. -he uestion here is, since the law

provides that the original author will be held liable5

how can the enforcer in this particular situation alone

find the culprit of the particular malicious post

without undergoing some fishing expeditionJ >ill the

government authori0e such action =ust to pin down the

author of the libelous postJ


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It has been considered that an overbreadth law

creates some sort o chillin effect since it gives the

government an unbridled power =ust to implement the

law. In further analysis, this will not only affect the

ordinary neti0ens but the media who are mostly inclined

to be committing the prohibited act considering their

exposure in the internet. Hence, it can be deduced that

its effect is curtailing the freedom of the media to

inform and criti0e anything and everything that

involves public interest.

-he cybercrime law affects the media in the sense

that the Supreme #ourt still sustains libel as a

criminal offense sub=ect to the penalty of

imprisonment. #ritics of the law say libel laws provide

a ;chilling effect< on media and freedom of speech and

expression. ;iven the ease with which libel complaints

can be initiated the malice presumption rule can have a

chilling and daunting effect to the public,

particularly to media practitioners,< (teneo School of

overnment +ean -ony &a CiKa said on his take on the

cybercrime law. 19

?oreover, the internet is a medium of modern

demonstration wherein tit creates a wave of protest

against any erring public official and their official

acs. Dow the Supereme #ourt ruled that there are two

1. Ateneo #chool o =overnment De"n ony 6" >i?" #ee% http%&&'''$r"ppler$com&thought*le"der!&51./*l"*vin"*uture*o*libel


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different standards of malice applied between private

and public individuals the same vein shall be construed

as it renders it illusory the mandate of the

#onstitution that no law shall be passed abridging the

freedom of speech and expression. $reedom of expression

should be eually apllied to the new means of

communication specifically that of the internet.

(nother stressing point is the excessive and

heavier penalty on the online libel than the libel

provided in the 'evised enal #ode. -he new law 5

drastically increases the penalty for computer8related

libel, with the minimum punishment raised 1/8fold, from

six months to six years. -he maximum punishment is

doubled from six to 1/ years in prison. 1"In

incoporating the !)8year old libel provision from the

'evised enal #ode creates a disproportionate standards

of libelous statements and even malice since the

circumstances back compared to what is current and

trending is far different. -hese advances in technology

was perhaps not contemplated when the libel provision

in the '# was included. (t best, a different standard

of malice should have been carried in the new law. Dot

=ust stricter standard, perhaps that standards that

clearly seperates from the libel committed in the

written instrumments than that the internet because the

differences are so bold and prominent.

17 http%&&gulne'!$com&ne'!&"!i"&philippine!&philippine!*"nti*cybercrime*l"'*'ill*

h"rm*ree*!peech*intern"tion"l*right!*'"tchdog*!"y!*1$10/1+


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In a mouthful decision of the Supreme #ourt5 it

further divided online libel between public official

and private individual.

-he uest of repealing the law did not stop within

the hilippine borders as it awaken the attention of

the different international human rights organi0atons.

Dew Aork based International Human 'ights >atch 2H'>3.

Brad (dams director for H'> underscored the #ybercrime

&aw violates the freedom of expression and is

incompatible with the hilippines obligation under the

international law.

-he International #ovenant on #ivil and olitical

'ights, to which the hilippines has been a partner

since 1!9, ensures Fthe right to freedom of

expression5 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.F1!

In an article made by rof. 'oue it was further

emphasi0ed -he new #ybercrime law is an outright

defiance of the :D Human 'ights #ommittee Ciew in the

case of Alexander Adonis vs. Republic of the

Philippines.

1/ http!%&&ph$ne'!$y"hoo$com&hum"n*right!*'"tch**cybercrime*l"'*viol"te!*ree*

e


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In that Ciew, the :DH'# declared that hilippine

libel law under the '# contravenes freedom of

expression on two countsL one, it is a disproportionate

means by which to achieve its avowed goal of protecting

the privacy of private persons5 and two, because there

is an alternative in the form of civil libel, or the

payment of damages. -he :DH'# also took the view that

our libel in the hilippines, because it does not

recogni0e truth as a defense, is additionally defective

on this ground.1

-he right to freedom of opinion and expression is

as much a fundamental right on its own accord as it is

an ;enabler< of other rights, including economic,

social and cultural rights, such as the right to

education and the right to take part in cultural life

and to en=oy the benefits of scientific progress and

its applications, as well as civil and political

rights, such as the rights to freedom of association

and assembly. -hus, by acting as a catalyst for

individuals to exercise their right to freedom of

opinion and expression, the Internet also facilitates

the reali0ation of a range of other human rights. -he

vast potential and benefits of the Internet are rooted

in its uniue characteristics, such as its speed,

1) #ee% http%&&'''$r"ppler$com&thought*le"der!&1715*cybercrime*l"'*!ee*you*in*

court*pnoy


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worldwide reach and relative anonymity. (t the same

time, these distinctive features of the Internet that

enable individuals to disseminate information in ;real

time< and to mobili0e people has also created fear

amongst overnments and the powerful. -his has led to

increased restrictions on the Internet through the use

of increasingly sophisticated technologies to block

content, monitor and identify activists and critics,

criminali0ation of legitimate expression, and adoption

of restrictive legislation to =ustify such measures/)

ver the last years, indeed, the hilippines has

meade no move to curve the crimes being committed in

the cyberworld. >hich made easy for large syndicates or

even the small ones to take avdvantage of such

deficiency on the part of the government. iven the

lack of financial and technical facilities it took the

hilippines to finally enact a law that will answer to

these prevailing and growing crimes such as child

pornography, cybersex and other content related crimes.

However, in doing so an important aspect of the freedom

of the people to express their views, thoughts or even

give information to the public is greatly in peril.

-here is no doubt as to the intention of the government

to clean the country of such enormous immoral dealings

being done with the aid of the internet. >hat cannot be

0 um"n Right! Council #eventeenth !e!!ion Agend" item + Promotion "nd

protection o "ll hum"n right!, civil, politic"l, economic, !oci"l "nd cultur"l right!,

including the right to development$


22/23

=ustified is the fact that as the internet as the

medium of fast, spontaneous and effective means to

inform the passive members of society who turns out to

be active ones now will be meted an imprisonment =ust

because they have posted something malicious and

libelous in the internet. -ruly, there should be some

sort of stricter policy impose in the internet

considering the veracity of its reach. ne single

activity can go one thousand miles across the pacific,

that is how powerful the internet particulary the use

of $acebook, -witter and other blogging websites but

the government should have thought that penalty which

appears to be heavier and disproportionate can directly

affect the protected freedom of speech embeded in the

#onstitution.

:nlike any other medium, the Internet enables

individuals to seek, receive and impart information and

ideas of all kinds instantaneously and inexpensively

across national borders. By vastly expanding the

capacity of individuals to en=oy their right to freedom

of opinion and expression, which is an ;enabler< of

other human rights, the Internet boosts economic,

social and political development, and contributes to

the progress of humankind as a whole.1

1 Conclu!ion% #ee .7$

http%&&'''$ohchr$org&engli!h&bodie!&hrcouncil&doc!&17!e!!ion&A$RC$17$7@en$pd


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It is high time for the lawmakers to dicriminali0e

libel because as far as the public is concern the

hilippines is a democratic country where every citi0en

has their right to sprout their bad feelings towards

the government and even to any lay individual in

consonnance with good motives and absent of ill will.

+emocracy demans a free market of idea in all forums.

It may not be absolute but it shall never be hindered

absent a government compelling reason to do so.

+emocracy needs active citi0ens not passive ones. (nd

this law slowly but surely develops that kind of

mentality amongst people. -o keep uiet in fear of

prosecution. :ntil and unless the government repeal or

amend the libel provision of the law5 until and unless

the government creates a new standard of libel which

appropriately applies to activities pertaining the use

of internet5 the law stands as a violation of the

$reedom of Speech and %xpression of the $ilipino

people.

Documents

The Restraint in the Cyber World