Republic of the Philippines SUPREME COURT Manila

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES JR., National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN, Secretary General Gabriela Womens Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners, - versus G.R. No. ______________ Petition for Certiorari and Prohibition with Application for a Temporary Restraining Order and/or Preliminary Injunction

BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE JR., LEILA DE LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents. x------------------------------------------------------------x

PETITION FOR CERTIORARI AND PROHIBITION

WITH APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION PETITIONERS, by counsels, unto the Honorable Supreme Court, most respectfully state that:
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PREFATORY STATEMENT There is a long-standing tradition of special judicial solicitude for free speech, meaning that governmental action directed at free expression must satisfy a greater burden of justification than governmental action directed at most other forms of behavior. We had said in SWS v. Comelec: 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 validityThe 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. xxx xxx xxx The Court is of the position that the actions xxx warrant heightened or strict scrutiny from the Court, the test which we have deemed appropriate in assessing content-based restrictions on free speech, as well as for laws dealing with freedom of the mind or restricting the political process, of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The immediate implication of the application of the strict scrutiny test is that the burden falls upon respondents as agents of government to prove that their actions do not infringe upon petitioners constitutional rights. A content regulation cannot be done in the absence of any compelling reason, the burden lies with the government to establish such compelling reason to infringe the right to free expression. (Newsounds Broadcasting Network Inc. v. Dy, G.R. No. 170270 & 179411, April 2, 2009) (Emphasis supplied) STATEMENT OF THE CASE (1) This petition is a very strong assertion for the protection and defense of the most basic rights of the people upon which the fabric of a supposed republican and democratic state, such as ours, is foundedthe freedom of speech, of expression, and of the press, the right against unreasonable searches and seizures, and the right to privacy, and other fundamental freedoms of the people. (2) This is a special civil action for Certiorari and Prohibition, with application for the issuance of a temporary restraining order and/or preliminary injunction, brought under Rule 65 of the Rules of Court for the nullification of, and for enjoining the public respondents from implementation, Sections 4(a)(3), 4(b)(3), 4(c)(4), 5(a)(b), 6, 7, 12, 17, 19, and 20 of Republic Act No. 10175 or the Cybercrime Prevention Act of 2012 either for being void-for-vagueness or overbreadth, constituting prior restraint or content-based restrictions on freedom of speech clause, violation of the right to privacy, right against unreasonable searches and seizures, right not be subjected to double jeopardy, or deprivation of property without due process of law, and thus unconstitutional.
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(3) RA 10175, through its assailed provisions, infringes unconstitutionally and constitutes a sweeping intrusion into the peoples freedom of speech, of expression, and of the press, right against unreasonable searches and seizures, and right to privacy, and other fundamental freedoms. (4) RA 10175 is a Machiavellian statute that has the same far-reaching and injurious repercussion of Marcosian martial law against the exercise by the people of the freedom of speech, of expression, and of the press, the right against unreasonable searches and seizures, and the right to privacy in the cyberspace, without actually formally proclaiming martial law itself. (5) RA 10175 grants unconstitutional and immense powers to the public respondents and other State agents, that are even much greater than when a martial law under the 1987 Philippine Constitution is proclaimed, as even such proclamation does not suspend the operation of the Constitution under Article VII, Section 18(4), which necessarily includes the Bill of Rights of the people under Article III of the Constitution. (6) Any citizen of the Republic, from a poor peasant to an ordinary student, a simple housewife to an online blogger or journalist, anyone that is a social media (e.g. Facebook or Twitter) user, an average worker to a politician, judge or even the Honorable Justices of the Honorable Court, as long as they are using mobile phones, computers, computer data storage devises (e.g. USB, external hard disks), emails, social media and anything that is related to the internet, cyberspace and information and communications technology, is a marked target of RA 10175. (7) RA 10175, through its assailed component provisions, isparaphrasing the words of New York Supreme Court Justice Nicholas Colabellashort of a gun to the head, a greater threat to the freedom of speech clause, right against unreasonable searches and seizures, and right to privacy can scarcely be imagined in this age of information and communications technology. (8) According to @govph, the official Twitter account of the governments Official Gazette, RA 10175 was published in two (2) newspapers of general circulation in the Philippines on September 18, 2012 per Malacaang Records Office. As such, said law will take effect on October 3, 2012 pursuant to Section 31 thereof that, This Act shall take effect fifteen (15) days after the completion of its publication in the Official Gazette or in at least two (2) newspapers of general circulation. (9) While RA 10175 is yet to take effect merely two (2) days upon the filing of this petition, and that another remedy may appear to be appropriate in such a situation than a special civil action for certiorari and prohibition, the fact remains that such two-day period is practically immaterial as before the Honorable Court can fully dispose of this petition, and pass upon the transcendental issues raised herein, RA 10175 takes effect already. (10) The remedies of certiorari and prohibition availed of by this petition are proper in raising constitutional issues against the assailed provisions of RA 10175, and for the nullification thereof and the prohibition against the public respondents from implementing the same, as RA 10175, with its assailed provisions, is an unconstitutional act of public respondents Senate of the Philippines and the
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House of Representatives by passing the same, and of the executive by the approval thereof and signing into law by public respondent President and the imminent implementation of the said statute by the other public respondents. (11) The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain (G.R. No. 183591, October 14, 2008) reiterated the fact that the remedies of certiorari and prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify acts of legislative and executive officials, to wit: The present petitions pray for Certiorari, Prohibition, and Mandamus. Certiorari and Prohibition are remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Mandamus is a remedy granted by law when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use or enjoyment of a right or office to which such other is entitled. Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. xxx xxx xxx xxx. When an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. (Emphasis supplied) (12) As such, public respondents acted without or in excess of their respective jurisdictions and with grave abuse of discretion amounting to lack or excess of jurisdiction, by public respondents Senate of the Philippines and the House of Representatives in the enactment of RA 10175 containing the assailed provisions that unconstitutionally infringe and constitute a sweeping intrusion into the peoples freedom of speech, of expression, and of the press, right against unreasonable searches and seizures and right to privacy; by the executive in public respondent President approving and signing into law said RA 10175; and by the other public respondents in the imminent implementation of a statute (RA 10175) containing unconstitutional provisions. (13) By virtue of the clear effectivity of RA 10175 in a mere two (2) days after the filing of this petition, petitioners have no plain, speedy, and adequate remedy in the ordinary course of law which will promptly and immediately relieve petitioners from the injurious and unconstitutional effects of the assailed provisions of RA 10175, other than by praying for the great writs of certiorari and prohibition. (14) Petitioners most respectfully invoke this petition as an exception to the rule on hierarchy of courts. In La Bugal-Blaan Tribal Association, Inc., et al. v. Victor
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O. Ramos, et al. (G.R. No. 127882, January 27, 2004), the Honorable Court elucidated the rule on hierarchy of courts, to wit: This Court has consistently enjoined litigants to respect the hierarchy of courts. Although this Court has concurrent jurisdiction with the Regional Trial Courts and the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give a party unrestrained freedom of choice of court forum. The resort to this Courts primary jurisdiction to issue said writs shall be allowed only where the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify such invocation. We held in People v. Cuaresma that: A becoming regard for judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (inferior) courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only where there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. xxx. The repercussion of the issues in this case on the Philippine mining industry, if not the national economy, as well as the novelty thereof, constitute exceptional and compelling circumstances to justify resort to this Court in the first instance. (Emphasis supplied) (15) In the instant petition, the serious constitutional questions involved and the farreaching and injurious repercussions of the assailed provisions of RA 10175 on the cherished constitutional rights of the peoplefreedom of speech, of expression, and of the press, right against unreasonable searches and seizures, and right to privacy, and other fundamental freedomsconstitute exceptional and compelling circumstances that justify resort to the Honorable Courts jurisdiction in the first instance. Moreover, the core of the issues raised herein, as involving the peoples basic constitutional rights, is imbued with utmost public interest. (16) Petitioners are all suing in their capacity as concerned citizens and taxpayers, and are all users of information and communications technologies including computers, internet, mobile phones, and social media: Renato M. Reyes Jr., Secretary General, Bagong Alyansang Makabayan (BAYAN) and political blogger; National Artist Bienvenido L. Lumbera, Chairperson, Concerned Artists of the Philippines (CAP) and internet user; Elmer C. Labog, Chairperson, Kilusang Mayo Uno (KMU) and internet user; Cristina E. Palabay, Secretary General, Karapatan (Alliance for the Advancement of Peoples Rights) and internet user; Ferdinand R. Gaite, Chairperson, Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) and internet user; Joel B. Maglunsod, Executive Vice President, Anakpawis Party-List and internet user; Lana R. Linaban, secretary
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general of Gabriela Womens Party and internet user, Adolfo Ares P. Gutierrez, netizen, multimedia journalist and copy editor for print and web media; and Julius Garcia Matibag, netizen and human rights lawyer, to wit: (a) The issues raised herein are of transcendental and overarching importance which must be settled early by the Honorable Court given the far-reaching and injurious repercussions of the assailed provisions of RA 10175 on the aforesaid basic constitutional rights of the people, and the exercise thereof. As such, petitioners have legal standing as concerned citizens; and (b) The implementation of RA 10175, as the assailed provisions thereof are unconstitutional, involves an illegal disbursement of public funds since Section 27 (Appropriations) thereof provides that, The amount of Fifty million pesos (PhP50,000,000.00) shall be appropriated annually for the implementation of this Act. Thus petitioners have legal standing as taxpayers. (17) In David, et al. v. Arroyo, et al. (G.R. No 171396, May 3, 2006), the Honorable Court summarized the rules on the matter of locus standi, thus: By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) the cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. (Emphasis supplied) (18) As clearly alleged in paragraph 16 (a)(b) above, petitioners have met numbers (1), (2) and (4) in the above-quoted David v. Arroyo, supra, since this petition involves constitutional issues, an illegal disbursement of public funds, and a clear showing that the issues raised are of transcendental importance which must be settled early. As such, all petitioners have locus standi by virtue of the constitutional issues raised in this petition, and as concerned citizens and taxpayers. (19) Petitioners implead Benigno Simeon C. Aquino III, President of the Republic of the Philippines, as public respondent in this petition as he signed RA 10175 into law on September 12, 2012. The Honorable Court has rendered a decision that the President, during his tenure of office or actual incumbency, may not be sued,
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as the head of state, who is deemed the personification of the State, is inviolable, and thus enjoys immunity from suit. The reason behind this rule is for the President xxx [t]o be freed from any form of harassment, hindrance, or distraction to enable him to fully attend to the performance of his official duties and functions. xxx. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people but he may be removed from office only in the mode provided by law and that is by impeachment. (David v. Arroyo, supra) (20) Petitioners, however, most humbly submit that this petition constitutes an exception to the aforesaid decision, for the following vital reasons: (a) First, this petition is a special civil action for certiorari and prohibition brought under Rule 65 of the Rules of Court. The purposes of this petition is to subject the President neither to any penalty nor punishment, or even damages for unconstitutional acts, but rather to nullify the assailed provisions of RA 10175 for being unconstitutional and to enjoin the public respondents from the implementation thereof; (b) Second, since this petition raises issues that are of transcendental and overarching importance, and because the assailed provisions of RA 10175 have far-reaching and injurious repercussions on the foregoing basic constitutional rights of the people, it cannot be gainsaid that this case is filed not for purposes of harassment, hindrance, or distraction to the President in the performance of his official duties and functions. Verily, this petition is filed precisely for the President to act on his official duties and functions, and exercise his powers and discretion, pursuant to the 1987 Philippine Constitution; (c) Third, it is well-settled that State immunity from suit, as well as the immunity from suit of public officers, is unavailing when any of the following wellrecognized exceptions are present: (i) Where the government itself has violated its own laws, because the doctrine of state immunity cannot be used to perpetrate an injustice; and (ii) To restrain the public officer from enforcing an act claimed to be unconstitutional (Sanders v. Veridiano, 162 SCRA 88). All these exceptions are present in this petition. (d) Lastly, since this petition is a special civil action for certiorari and prohibition, it is evident from the nature thereof that it does not require any significant attention, or even direct participation, of the President in the preparation of his comment thereto or in any pleadings relative to this case that will constitute any hindrance, distraction or harassment to the President as he attends to his official duties and functions. This is so because the Office of the Solicitor General, surely, will be the one in charge of the preparations in opposing this petition on behalf of public respondent President and the other public respondents.
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Thus, in view of the foregoing reasons, petitioners most respectfully submit that impleading the President as public respondent in this petition is proper and not without any legal basis. (21) Petitioners are likewise praying for the issuance of a temporary restraining order and/or preliminary injunction on the following grounds, repleading by reference the foregoing allegations, as well as the allegations hereunder, as part of this application, thus: (a) The seriousness and extreme urgency of the matters involved, including the grave and irreparable injuries that will be sustained by petitioners and all other persons not before the Honorable Court by virtue of the assailed provisions of RA 10175, in relation to the freedom of speech clause and other fundamental freedoms of the people; (b) Grave and irreparable injury will undermine the paramount rights of the people to freedom of speech, of expression, and of the press, and other fundamental freedoms including the right against unreasonable searches and seizures and the right to privacy; (c) The assailed provisions of RA 10175 will undermine the supremacy of the 1987 Philippine Constitution as the fundamental law of the land that sets all the bounds and limits of the powers that may be exercised by the different branches of government, particularly the executive and legislatives departments as represented by public respondent-officials; (d) Public respondents, and the State, will not suffer any injury if public respondents are restrained from the implementation of the assailed provisions during the pendency of this petition. (e) There is no other plain, speedy and adequate remedy to address the pervasive injuries that the fundamental constitutional rights, and the exercise thereof by the people, will suffer by virtue of the assailed provisions. (22) Hence, this petition. THE PARTIES THE PETITIONERS (23) All petitioners are of legal age and Filipinos, and suing in their capacity as concerned citizens, internet users and taxpayers as lengthily discussed above, to wit: (a) RENATO M. REYES JR., Secretary General, Bagong Alyansang Makabayan (BAYAN) and political blogger (b) BIENVENIDO L. LUMBERA, National Artist and Chairperson, Concerned Artists of the Philippines (CAP) and internet user (c) ELMER C. LABOG, Chairperson, Kilusang Mayo Uno (KMU) and internet user
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(d) CRISTINA E. PALABAY, Secretary General, Karapatan (Alliance for the Advancement of Peoples Rights) and internet user (e) FERDINAND R. GAITE, Chairperson, Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) and internet user (f) JOEL B. MAGLUNSOD, Executive Vice President, Anakpawis Party-List and internet user, (g) LANA R. LINABAN, secretary general of Gabriela Womens Party and internet user (h) ADOLFO ARES P. GUTIERREZ, netizen, multimedia journalist and copy editor for print and web media; (i) JULIUS GARCIA MATIBAG, netizen and human rights lawyer. All petitioners may be served notices, orders, resolutions, judgment and other court processes at the addresses of the undersigned counsels stated hereunder. THE RESPONDENTS (24) Public respondent BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, signed RA 10175 into law on September 12, 2012. His office is at the Office of the President, New Executive Building, Malacaang Palace, J.P. Laurel St., San Miguel, Manila, where he may be served notices, orders, resolutions, judgment and other court processes. (25) Public respondent PAQUITO N. OCHOA JR., Executive Secretary, is the primary alter ego of the President of the Republic of the Philippines who is the head of the executive department with the duty to implement the laws of the land, including RA 10175. His office is at the Office of the Executive Secretary, New Executive Building, Malacaang Palace, J.P. Laurel St., San Miguel, Manila, where he may be served notices, orders, resolutions, judgment and other court processes. (26) Public respondents SENATE OF THE PHILIPPINES and HOUSE OF REPRESENTATIVES, represented by SENATE PRESIDENT JUAN PONCE ENRILE and SPEAKER FELICIANO BELMONTE JR., respectively, passed the consolidated version of Senate Bill No. 2796 and House Bill No. 5808, which became RA 10175, on June 5, 2012 and June 4, 2012, respectively. Public respondent Senate of the Philippines address, through the Senate President, is at Room 606 6th Floor, Senate of the Philippines, Government Service Insurance System (GSIS) Building, Financial Center, Roxas Boulevard, Pasay City where it may be served notices, orders, resolutions, judgment and other court processes.

Public respondent House of Representatives address, through the Speaker, is at Room S-102, House of Representatives, Constitution Hills, Quezon City, Philippines 1126 where it may be served notices, orders, resolutions, judgment and other court processes. (27) Public respondent LEILA DE LIMA, Secretary of the Department of Justice (DOJ), is one of the government officials, including the DOJ itself, named under RA 10175 as responsible for the implementation of the said law. Her office is at the Office of the Secretary, Department of Justice, Padre Faura St., Ermita, Manila 1000 where she may be served notices, orders, resolutions, judgment and other court processes. (28) Public respondent LOUIS NAPOLEON C. CASAMBRE, Executive Director, Information and Communications Technology Office Department of Science and Technology (ICTO-DOST), is one of the government officials, including ICTO itself, named under RA 10175 as responsible for the implementation of the said law. His office is at the Office of the Executive Director, Information and Communications Technology Office, NCC Building, C.P. Garcia Avenue, Diliman, Quezon City 1101 where he may be served notices, orders, resolutions, judgment and other court processes. (29) Public respondent NONNATUS CAESAR R. ROJAS, Director, National Bureau of Investigation (NBI), is one of the government officials, including NBI itself, named under RA 10175 as responsible for the implementation of the said law. His office is at the Office of the Director, National Bureau of Investigation, Taft Avenue, Ermita, Manila 1000 where he may be served notices, orders, resolutions, judgment and other court processes. (30) Public respondent DIR. GEN. NICANOR A. BARTOLOME, Chief, Philippine National Police (PNP), is one of the government officials, including the PNP itself, named under RA 10175 as responsible for the implementation of the said law. His office is at the Office of the Chief PNP, Camp General Rafael Crame, Quezon City 1111 where he may be served notices, orders, resolutions, judgment and other court processes. (31) Public respondent MANUEL A. ROXAS II, Secretary, Department of the Interior and Local Government (DILG), as the government office which exercises control and supervision over the PNP, is responsible for the implementation of RA 10175, and is tasked, together with the DOJ and ICTODOST, under RA 10175 to formulate the implementing rules and regulations of the said law. His office is at the Office of the Secretary, DILG, A. Francisco Gold Condominium II, EDSA cor. Mapagmahal St., Diliman, Quezon City 1100 where he may be served notices, orders, resolutions, judgment and other court processes. STATEMENT OF FACTS (32) RA 10175, a consolidation of Senate Bill No. 2796 and House Bill No. 5808, was passed by the Senate and the House of Representatives on June 5, 2012 and June 4, 2012, respectively.

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(33) Public respondent President Aquino III approved and signed RA 10175 into law on September 12, 2012. (34) On September 18, 2012, RA 10175 was published in two (2) newspapers of general circulation in the Philippines. (35) Section 31 of RA 10175 provides that, This Act shall take effect fifteen (15) days after the completion of its publication in the Official Gazette or in at least two (2) newspapers of general circulation, or on October 3, 2012 as the publication was made on September 18, 2012. (36) The two (2) days left prior to the effectivity of RA 10175 upon the filing of this petition is practically immaterial as said law will certainly take effect on October 3, 2012 during the pendency of petition before the Honorable Court for its complete disposition and ruling. (37) RA 10175, through its assailed provisionsSections 4(a)(3), 4(b)(3), 4(c)(4), 5(a)(b), 6, 7, 12, 17, 19, and 20is a Machiavellian, shrewd, and cunning statute that creates the same far-reaching and injurious effects of Marcosian martial law against the exercise by the people of the freedom of speech, of expression, and of the press, the right against unreasonable searches and seizures, and the right to privacy in the cyberspace, without an actual and formal proclamation of martial law itself. (38) RA 10175, through its assailed provisions, grants unconstitutional and immense powers to the public respondents, including other State agents, that are even much greater than an actual proclamation of martial law under the 1987 Philippine Constitution, as even such proclamation does not suspend the operation of the Constitution under Article VII, Section 18(4), which necessarily includes the Bill of Rights of the people under Article III of the Constitution. (39) Any citizen of the Republic, from a poor peasant to an ordinary student, a simple housewife to an online blogger or journalist, anyone that is a social media (e.g. Facebook or Twitter) user, an average worker to a politician, judge or even the Honorable Justices of the Honorable Court, as long as they are using mobile phones, computers, computer data storage devises (e.g. USB, external hard disks), emails, social media and anything that is related to the internet, cyberspace and information and communications technology, is a marked target of RA 10175. (40) As such, this petition for the nullification of, and for enjoining the public respondents from implementation, Sections 4(a)(3), 4(b)(3), 4(c)(4), 5(a)(b), 6, 7, 12, 17, 19, and 20 of RA 10175 for being unconstitutional. GROUND I. RA 10175 IS NOT AN ORDINARY PENAL STATUTE AS IT INVOLVES, OR RATHER INFRINGES ON, FREEDOM OF SPEECH, OF EXPRESSION, AND OF THE PRESS AND OTHER FUNDAMENTAL RIGHTS OF THE PEOPLE
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THAT ARE INHERENT IN THE EXERCISE OF FREEDOM OF SPEECH CLAUSE IN CYBERSPACE, INCLUDING THE RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES AND THE RIGHT TO PRIVACY. AS SUCH, THE DOCTRINES OF VAGUENESS AND OVERBREADTH ARE APPLICABLE IN THE INSTANT CASE, AND SECTIONS 4(A)(3), 4(B)(3), 4(C)(4), 5(A)(B), 6, 7, 12, 17, 19, AND 20 OF RA 10175 ARE HEREBY ASSAILED EITHER FOR BEING VOID-FOR-VAGUENESS, OVERBREADTH, CONSTITUTING PRIOR RESTRAINT OR CONTENT-BASED RESTRICTIONS ON FREEDOM OF SPEECH CLAUSE, VIOLATION OF THE RIGHT TO PRIVACY, RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES, RIGHT NOT BE SUBJECTED TO DOUBLE JEOPARDY, OR DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW, AND THUS UNCONSTITUTIONAL. DISCUSSION Section 4(a)(3) of RA 10175 suffers from overbreadth as the means employed in said provision sweep unnecessarily broadly and thereby invade the area of protected speech, in relation to the supposed purposes of RA 10175, and constitutes prior restraint and contentbased restrictions. (41) As can be gathered from the Declaration of Policy of RA 10175 under Section 2 thereof, the purpose of the said statute is 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 for the nations overall social and economic development and to provide an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information. (42) Such purposes are, under said Section 2, supposed to be achieved by making punishable under the law (RA 10175) such conduct or conducts involving all forms of misuse, abuse, and illegal access. (43) The assailed Section 4(a)(3) of RA 10175 creates the new offense of cybercrime through data interference, to wit: SEC. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this Act: (a) Offenses against the confidentiality, integrity and availability of computer data and systems: xxx xxx xxx (3) Data Interference. The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic
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document, or electronic data message, without right, including the introduction or transmission of viruses. (Emphasis supplied) (44) The gravamen of this offense is the mere alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of virus, whether such act is done in an intentional or reckless manner. (45) At first, it appears that this provision regulates conduct, but a scrutiny of the same reveals that the prohibited act sweeps unnecessarily broadly and includes an intrusion into the area of protected speech. Let us consider the definition of computer data under RA 10175, which includes electronic documents and electronic data messages whether stored in local computer systems or online: Section 3(e) Computer data refers to any representation of facts, information, or concepts in a form suitable for processing in a computer system including a program suitable to cause a computer system to perform a function and includes electronic documents and/or electronic data messages whether stored in local computer systems or online. (Emphasis supplied) And the definition of computer system under RA 10175: Section 3(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) (46) By virtue of the broad definition of computer data, which includes any electronic documents and electronic data messages, whether stored in a computer system (including computers and mobile phones, and USB flash drives and external hard disks as computer data storage devices) or online (emails, blogs, social media networks like Facebook and Twitter, websites), and that the mere alteration, damaging, deletion or deterioration of the same, without right, already constitutes a punishable act under the assailed Section 4(a)(3), the area of protected speech has certainly been invaded thereby. (47) If we consider the punishable act as defined in the assailed provision, even the mere making and production, without right, of internet memes and online posters that are spreading over the cyberspace, especially those for purposes of social and political criticisms, which is necessarily intentional on the part of the one making the same, and necessarily involves an alteration, damaging, deletion or deterioration of an electronic document (e.g. photos of politicians in the internet) or electronic data message (e.g. quotes or statements of politicians, thinkers, movie actors in the internet), and even the mere paraphrasing (which necessarily involves alteration and deletion) of such examples of electronic data messages earlier mentioned, that are ordinarily
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covered by the area of protected speech already constitute punishable acts under the assailed provision. (48) What is more contemptible about the assailed provision is that it does not even consider the output/content of the alteration, damaging, deletion or deterioration made on an electronic document or electronic data message; that as long as there is an alteration, damaging, deletion or deterioration made without right, the punishable act is already committed. As the assailed provision covers both the intentional or reckless manner of commission thereof, one certainly cannot escape prosecution and punishment unless the act is made not without right. (49) The term without right is defined in Section 3(h) of RA 10175 as one that refers either to (i) conduct undertaken without or in excess of authority, or (ii) conduct not covered by established legal defenses, excuses, court orders, justifications, or relevant principles under the law. But it is silent as to what constitutes without or in excess of authority on data, documents and data messages in the complex and infinite universe of cyberspace, as whether authority is based on ownership of a computer data, electronic document or electronic data message (e.g. a persons ownership over online photos or articles, or by a delegated authority from said ownership) or mere interest therein is sufficient (e.g. a persons interest over an online photo or article as that person is the one depicted on the said photo or article, or that a person has an interest over a subject matter that is depicted thereon). In the second classification, the only thing clear is court orders as the definition simply made a convenient enumeration pertaining to established legal defenses, excuses, justifications, or relevant principles under the law, without bothering to state what actually constitutes the same. Surely, this issue of whether one has acted with or without right would create chaos for online artists, writers and journalist as they do not know how they will be guided accordingly in order not be subjected to prosecution and punishment. (50) Since the matter of acting without right is part of the prohibited act, it may be said that the assailed Section 4(a)(3) likewise suffers from vagueness as the term without right, in relation to the complex and infinite universe of cyberspace, lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. (51) At first glance, the assailed Section 4(a)(3) may appear to be not constituting content-based restrictions as it punishes the prohibited act without regard to its subject matter or the viewpoint involved; it is only necessary that there is alteration, damaging, deletion or deterioration without right. But that is also precisely the reason why the assailed provision constitutes content-based restrictionsit constitutes any and all acts of alteration, damaging, deletion or deterioration, without right, as prohibited and punishable acts that sweep unnecessarily broadly and invade the area of protected speech, that such area of protected speech is already barred and considered an offense.

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(52) In this cyber-sphere, under the assailed provision, one cannot actually exercise the freedom of speech clause (if the intention is to produce internet memes and online posters, and do a paraphrasing of electronic documents and data messages, as examples) without the act of alteration, damaging, deletion or deterioration as such act is already prohibited and punishable. (53) As such, if one wants to exercise the freedom of speech clause, there is really no sufficient alternative that would not constitute prior restraint, especially on matters of social and political criticisms online (unlike in public assemblies or any form of mass or concerted action where there is an alternative in time, place or manner of the assemblies), as the alternatives are only either, first, not to exercise the freedom of speech clause in such a manner; or second, perform the act not without right, which as elucidated above may be said to suffer from vagueness, but acting not without right, nonetheless, constitutes a prior restraint as it becomes very burdensome, onerous and patently discouraging especially if the act is for purposes of social and political criticisms. Section 4(b)(3) of RA 10175 suffers from overbreadth as the means employed in said provision sweep unnecessarily broadly and thereby invade the area of protected speech and right to privacy, in relation to the supposed purposes of RA 10175, and constitutes prior restraint. (54) The present discussion repleads with reference the previous allegations above. (55) The assailed Section 4(b)(3) of RA 10175 creates the new offense of cybercrime through computer-related identity theft, thus: SEC. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this Act: xxx xxx xxx (b) Computer-related Offenses: xxx xxx xxx (3) Computer-related Identity Theft. The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower. (Emphasis supplied) (56) The assailed provision sweeps unnecessarily broadly and thereby invades the area of protected freedoms, particularly the freedom of speech clause and the right to privacy, and constitutes prior restraint. As long as one intentionally acquires or transfers or even possesses any identifying information of another person, natural or juridical, without right, and even if no damage has been caused by such acquisition, transfer or possession, the act is already prohibited and punishable under RA 10175.
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(57) So the mere acquisition, possession, or transfer of the identifying information (e.g. a politicians full name, age, education, employment background, names of parents, siblings, wife, children and other members of immediate family) of another person (e.g. by intentionally obtaining such identifying information, without any consent, from Facebook, website, or any online article or document) for purposes of news reporting or even simply for social investigation, the prohibited act is already committed. How would the authorities be aware that one is in possession of such identifying information of another person, if such information has not yet been used publicly, other than to intrude into the privacy of the possessor of such information? (58) The assailed provision does not provide a nexus between the mere intentional acquisition, possession, or transfer of such identifying information, without right, on one hand, and how such act becomes a prohibited act, on the other hand, when the identifying information is openly and publicly available on the cyberspace. The assailed Section 4(b)(3) does not even require that the identifying information of another person that one intentionally acquires, possesses or transfers, without right, is used for purposes of the crime, nor is damage necessary. (59) The assailed provision likewise uses the term intentional, as such good faith or lack of criminal intent becomes an available defense. But good faith or lack of criminal intent from what? When one acquires, possesses, or transfers any identifying information of another person, such act is necessarily intentional unless one is not aware of the contents of what he or she acquires, possesses or transfers, or one actually restrains himself or herself from acquiring, possessing or transferring such identifying information, which clearly constitutes a prior restraint on the part of the members of the press as it is part of their job to gather such information on anyone that is a subject of their news reporting, even without consent from such subject. Section 4(c)(4) of RA 10175 suffers from vagueness as it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application, and that infringes on protected speech. (60) The present discussion repleads with reference all the previous allegations above. (61) The assailed Section 4(c)(4) is supposed to constitute the new offense of cybercrime of libel committed through a computer system or any other similar means which may be devised in the future: SEC. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this Act: xxx xxx xxx (c) Content-related Offenses:
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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 supplied) (62) Again, the definition of computer system under RA 10175: Section 3(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) (63) Apparent from the assailed Section 4(c)(4) of RA 10175 is the fact that it makes a direct reference only to Article 355 (RPC) by the simple and expedient statement the unlawful or prohibited acts of libel as defined in Art. 355 of the Revised Penal Code. The problem, however, is that the definition of libel is in Article 353 (RPC), and not in Article 355 (RPC). (64) Article 355 (RPC) simply provides the following, thus: 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. (65) Under the Revised Penal Code, as amended, Article 355 cannot stand alone as a felony therein without Article 353, which is under the same Title Thirteen, Chapter One of the Code. This is because the definition and elements of the felony of libel are not provided for under Article 355 but are stated in Article 353: 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. (66) It is very clear from the phraseology of the assailed provision that it is not intended to amend Article 355 (RPC) but is supposed to create and constitute a new offense that is intended to be punishable under RA 10175, and not under
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the RPC. If the assailed provision acts as an amendment to Article 355 (RPC), there would not be a supposed new offense under Section 4(c)(4) of RA 10175, and such cybercrime of libel would still be a felony of libel punishable under the RPC. But that is not so. (67) As such, petitioners most respectfully submit that the assailed provisions omission of any reference at least to Article 353 (RPC) constitutes a fatal defect or infirmity that hinders Section 4(c)(4) from actually constituting the new offense of cybercrime of libel, precisely because Articles 355 and 353 are separate but related provisions that one cannot validly stand without the other. (68) Additionally, we cannot validly assume that the mere reference of the assailed provision only to Article 355 (RPC) automatically adopts by operation of law the definition and elements of libel under Article 353 (RPC) for the simple reason that cyberspace is a completely different animal from the traditional means by which libel under the RPC is committed, due to the complex, intricate and public interactive nature of the former, and such necessarily requires a qualification on the elements of libel if committed through a computer system or any other similar means which may be devised in the future. (69) Otherwise, even ordinary conversations that may be deemed defamatory through comments or by mere sharing of alleged defamatory online article on Facebook or Twitter, or even the intentional likes thereof, would either constitute a cybercrime of libel or the offense of abetting in the commission of cybercrime of libel punishable under the assailed Section 5(a) of RA 10175. Or an absurd scenario would be created that even the old and previous Facebook status, Twitter tweets, blog entries, or online news articles and videos that may be considered defamatory would constitute a cybercrime of libel even if the same had been placed in the cyberspace prior to the effectivity of RA 10175, as the publication thereof in the cyberspace is continuing in nature unless removed therefrom. In any of such situations, the assailed provision would constitute an infringement of protected speech. Suffice it to say that penal statutes, especially one the involves an abridgement of the freedom of speech clause such as RA 10175, should be strictly construed against the State and liberally in favor of its citizens. (70) Moreover, the term the unlawful or prohibited acts of libel as defined in Art. 355 of the Revised Penal Code of the assailed Section 4(c)(4) suffers from vagueness. Under the RPC, the unlawful and prohibited acts in Article 355 (RPC) refer to libel committed by any of the means stated hereunder: 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.

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(71) Article 355 (RPC) is just that, a provision that only contains an enumeration of the several means by which libel is committed, or simply the means of publication, and provides a penalty therefore. Any of such means is relevant in the determination of the manner by which the publication of the malicious imputation, publication being one of the elements of libel, has been made. Thus, any of such means is an inherent part of the element of publication. If such publication is not made through any of such means, libel is not committed. (72) The phrase committed through a computer system or any other similar means which may be devised in the future under the assailed provision appears to be a new means by which libel is supposed to be committed, albeit the same is supposed to be punishable under RA 10175 and not under RPC, that if committed by such means, the offense of cybercrime of libel is supposed to be committed under RA 10175. (73) It becomes clear that the omission of any reference to Article 353 (RPC) by the assailed Section 4(c)(4) is indeed fatal, as the unlawful or prohibited acts of libel stated under the assailed provision should refer instead to Article 353 (RPC), which contains the definition and elements of libel, and not to Article 355 (RPC). (74) Furthermore, what is the penalty for the supposed new offense of cybercrime of libel Chapter III of RA 10175 on penalties does not mention the assailed provision. As Section 4(c)(4) does not serve as an amendment to Article 355 (RPC), the penalty of 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 for libel under Article 355 (RPC) does not apply to the assailed provision. (75) Does the penalty of one (1) degree higher under the assailed Section 6 of RA 10175 apply as the penalty for the supposed new offense of cybercrime of libel? Petitioners most respectfully submit that the answer is in the negative. Said Section 6 provides that: 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. (Emphasis supplied) (76) Let us determine the nature of application of Section 6 of RA 10175, thus: First, it refers only to crimes defined and penalized by the RPC and special laws. This means that this provision applies to crimes that are already defined and penalized by the RPC (felonies), and special laws (offenses) prior to the enactment of RA 10175, or offenses by special laws enacted after the effectivity of RA 10175; Second, it applies if such crimes are committed by, through and with the use of information and communications technology;
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Third, if such crimes are committed by, through and with the use of information and communications technology, such crimes shall be covered by the provisions of this Act (e.g. interception of traffic data, search and seizure, custody of data); and Fourth, the penalty to be imposed for such crimes is one (1) degree higher than that provided for by the RPC or special laws. (77) It must be made clear that said Section 6 does not constitute new offenses under RA 10175, as the crimes referred to therein remain to be defined and penalized under either the RPC or special laws. It merely provides for the coverage thereof by the relevant provisions of RA 10175, and the imposition of one (1) degree higher penalty than that provided for under the RPC or special laws, as the case may be. (78) Therefore, considering the enumeration of the characteristics of Section 6 above, the penalty imposable as provided for by said Section 6 is not applicable for the supposed new offense of cybercrime of libel under the assailed Section 4(c)(4) for the simple reason that such alleged new offense is not a crime defined and penalized under the RPC, but is supposed to punishable as a new offense under RA 10175. (79) Likewise, the reference of Section 6 to special laws where their offenses shall be covered by the relevant provision of this Act (RA 10175) logically does not include RA 10175 for the simple reason that it is already covered by its own provisions, and in fact it is the one that contains such relevant provisions of this Act. (80) Therefore, Section 4(c)(4) suffers from vagueness, first, for not sufficiently constituting the new offense of cybercrime of libel, and second, for not providing any imposable penalty for violation thereof. Verily, the assailed provision, first, violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid, and second, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.1 Section 4(c)(4) of RA 10175 suffers from overbreadth as the means employed in said provision sweep unnecessarily broadly and thereby invade the area of protected speech, in relation to the supposed purposes of RA 10175. (81) The present discussion repleads with reference all the previous allegations above. (82) In addition to the fatal infirmity of the assailed Section 4(c)(4) due to vagueness pursuant to the immediately foregoing discussion, it likewise suffers from overbreadth as the means of committing the supposed new offense of
1

Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council (G.R. No. 178552, October 5, 2010). 20

cybercrime of libel sweep unnecessarily broadly and thereby invade the area of protected speech, as it employs the means of computer system or any other similar means which may be devised in the future. (83) This is unduly oppressive to begin with, as the computer system is defined under RA 10175 as including anything that is a product of todays technology like computers, mobile phones, and even computer data storage devices such as USB flash drives and external hard disks. The last clause, on the other hand, is a catch-all proviso that even public respondents have no idea or sense on the nature and form of such any other similar means that may be devised in the future. The employment of such means practically makes anyonethe general publica target of prosecution and punishment, and most likely of persecution and harassment. As a consequence thereof, its chilling effects on the general public would be very evident, particularly on the exercise of freedom of speech clause in cyberspace. (84) Again, by not considering the complex, intricate and public interactive nature of cyberspace, the means employed by the assailed provision makes ordinary conversations over mobile phones or the use of interactive functions of the internet a target of imposition of the States immense powers. The means employed are truly disproportionate to the supposed purpose of RA 10175, thereby invading the protected area of free speech. (85) All these immense powers of the government will be brought to bear on the general public on the simple matter of preventing defamation, despite the developments in international human rights law, particularly in General Comment No. 34 of the United Nations Human Rights Committee that State 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. 2 Certainly, the enactment and signing into law of RA 10175 constitutes a violation, or a disregard at the very least, of the Philippine governments obligations under the International Covenant on Civil and Political Rights to promote and protect freedom of expression. Section 5(a)(b) of RA 10175, in relation to the offenses that includes speech related matters under said statute, suffers from overbreadth as the means employed in said provision sweep unnecessarily broadly and thereby invade the area of protected speech, in relation to the supposed purposes of RA 10175. (86) The present discussion repleads with reference all the foregoing allegations. (87) The assailed Section 5 of RA 10175 states:
2

Adopted by the Human Rights Committee during its 102 nd Session on July 11-29, 2011, as part of the implementation of Article 19 under the International Covenant on Civil and Political Rights, to which the Philippines is a State Party. 21

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 supplied) (88) How do public respondents expect the general public to conduct themselves in the cyberspace on speech related acts when even aiding, abetting or attempt is a prohibited and punishable act? The assailed provision acts without regard to the promotion and protection of the freedom of speech clause, and the exercise thereof, particularly in the cyberspace. (89) In cyberspace, there is an influx of information at every minutes and the general public regularly interacts in the dissemination and analysis thereof. This is particularly true in social media networking sites. If the assailed provision is not nullified in relation to speech related acts, the exercise of the freedom of speech clause in cyberspace will be greatly depreciated as Section 5 creates a chilling effect that undermines the active and conscious participation of the public in social and political affairs. Sections 6 and 7 of RA 10175 constitute a violation of the right of the people not to be subjected to double jeopardy, and Section 6 suffers from overbreadth. (90) The present discussion repleads with reference all the foregoing allegations. (91) The assailed Sections 6 and 7 of RA 10175 provide that: 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. (Emphasis supplied) (92) If the assailed Section 6 is applied on speech related acts, particularly on online libel, and if the assailed provisions are not nullified and public respondents are not restrained from implementing the same, one who publishes online an alleged defamatory article will face a prosecution, first, for the
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supposed new offense of cybercrime of libel under Section 4(c)(4) of RA 10175, and second, another prosecution for the felony of libel under Article 355 (RPC) in relation to Article 353 (RPC) and Section 6 of RA 10175, and the penalty thereof would be one (1) degree higher than the penalty of prision correccional minimum to medium periods under Article 355 (RPC). (93) This situation clearly violates Section 21, Article III of the 1987 Philippine Constitution, thus: SEC. 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. (Emphasis supplied) (94) And if the said alleged online defamatory article is likewise published in printed copies of a newspaper, there will be a third prosecution for libel by means of writing and printing under Article 355 (RPC) in relation to Article 353 (RPC) and Section 7 of RA 10175, and be subjected to an imposition of prision correccional minimum to medium periods under Article 355 (RPC). (95) This situation that one may possibly face three (3) prosecution for libel is, crystal clear, an act of oppression against the alleged offender. The Honorable Court should not countenance this reprehensible scenario, in view of the following reasons: (a) As previously discussed above, the assailed Section 4(c)(4) suffers from vagueness and overbreadth and the supposed new offense of cybercrime of libel therein is not sufficiently and validly constituted by the assailed provision. (b) The qualifying aggravating circumstance of committed by, through and with the use of information and communications technologies suffers from overbreadth, especially if applied to speech related acts. The Honorable Court is fully cognizant of the fact that a high number of Filipinos are either in possession of or using a device that is considered within the scope of information and communications technology, such as mobiles phone, email accounts and social networking sites. The possession and use of the same in the everyday life and transactions of Filipinos necessarily subject the exercise of the freedom of speech clause and other fundamental freedoms into sweeping intrusion and invasion that is unnecessary in the achievement of the supposed purposes of RA 10175. This qualifying aggravating circumstance, by the simple use of a mobile phone or email or website as an incident in the commission of an alleged crime, likewise unnecessarily creates undue burden on the alleged offenders as felonies and offenses that used to be bailable as a matter of right would no longer be such in view of the increase of penalty to one (1) degree. This is undeniably a disproportionate means if the supposed purpose merely of RA 10175 is to regulate the use of cyberspace. (c) If despite the foregoing, the assailed Section 6 is still rendered valid by the Honorable Court, with respect now to its application on libel (Article 355 in
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relation to Article 353) under the RPC, petitioners most respectfully submit that before said Section 6 may be made applicable to such libel under the RPC, a statute amending the libel provisions under the RPC has to declare first that libel committed by, through and with the use of information and communications technologies is a felony therein. This is so because Section 6 does not constitute new offenses, and does not actually amend Article 355 (RPC). The more important reason is that the means of committing libel under the RPC is an inherent part of the element of publication, which is one of the elements of libel, and is not a mere qualifying aggravating circumstance thereof. As such, the assailed Section 6 which merely provides a qualifying aggravating circumstance of committed by, through and with the use of information and communications technologies is not applicable to the libel provisions under the RPC. Section 12(1) of RA 10175 constitutes a patent violation of the right of the people against unreasonable searches and seizures and the right to privacy. (96) The present discussion repleads with reference all the foregoing allegations. (97) The assailed Section 12 of RA 10175 states that: SEC. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system. Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities. All other data to be collected or seized or disclosed will require a court warrant. Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information. The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence. (Emphasis supplied)
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(98) If the assailed Section 12 of RA 10175 is not nullified, and the public respondents are not restrained from the implementation thereof, that is the day that the right against unreasonable searches and seizures and the right to privacy will all be lost on the part of anyone who uses information and communications technology, whether through a simple mobile phone or an email account. (99) The assailed provision is patently unconstitutional on its face, as it allows law enforcement authorities, without the need of a court warrant, to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system. Since traffic data refers to the communications origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities, a law enforcement officer engaged in such collection or recording of traffic data can obtain information, in real-time, as to where anyone used a mobile phone or email, the destination of the call or text or message, the route, time, date, size, and duration thereof, or the type of underlying service that the user avails of. This is real, and this is Big Brother watching our activity in cyberspace. (100) The only requirement of the assailed provision is due cause, which a court is not required to examine or scrutiny under Section 12 to prevent abuse, as the third paragraph thereof states that All other data to be collected or seized or disclosed will require a court warrant. This means that data such as content data, other than traffic data, will need a court warrant for their collection, seizure or disclosure. Thus, this is patently illegal and unconstitutional. (101) One wonders, if the law enforcement authorities can have access to traffic data of any person in real-time for collection or recording, what prevents them from obtaining or viewing content data if the same are already available to them during such collection or recording of traffic data which does not require a court warrant? Nothing, nothing prevents them. (102) If the Honorable Court would not nullify the assailed provision, and public respondents are not restrained from the implementation thereof, anyone, as in anyone, including the Honorable Justices of the Court, is a potential victim of this unbridled exercise of intrusion by State agents into our privacy in cyberspace. Sections 17 of RA 10175 constitutes deprivation of property without due process of law. (103) The present discussion repleads with reference all the foregoing allegations. (104) The assailed Section 17 of RA 10175 states that: SEC. 17. Destruction of Computer Data. Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination. (Emphasis supplied)
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(105) This is a patent violation of the constitutional right of a person not to be deprived of property without due process of law, as such destruction of computer data is made even when the owner thereof, who is the alleged offender under RA 10175, has not been convicted by the proper court. (106) What would happen if after the said computer data have been destroyed, the owner thereof has been acquitted by the proper court, or a complaint or criminal case against the owner is dismissed? The assailed provision is unnecessarily broad and disproportionate to the purposes of RA 10175, since it does not distinguish between computer data that have the nature of a contraband or data that are speech related (e.g. films, poems, blog entries, photos, or database) where there is a possibility that the owner may not be convicted at all, and the said data are of significant importance to the owner, in relation to the exercise of the freedom of speech clause. Section 19 of RA 10175 is a patent infringement of the freedom of speech clause and a grant of unbridled power to public respondent Secretary of Justice. (107) The present discussion repleads with reference all the previous allegations. (108) The assailed Section 19 of RA 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. (Emphasis supplied) (109) The assailed provision makes public respondent Secretary of Justice, as the head of the Department of Justice, and the immediate past Chairperson of the Commission on Human Rights, the personification of a Great Firewall as she can, simply by virtue of her own prima facie determination, issue an order herself to restrict or block access to a computer data. This makes public respondent Secretary of Justice acting both as a judge and executioner. (110) Verily, this grant of unbridled power to said public respondent is violative of both procedural and substantive due process, as the legality of the method or manner, on one hand, and the legality of the act, on the other hand, of restricting or blocking access to a computer data are seriously questionable. (111) Moreover, the assailed provision infringes on the exercise of the freedom of speech clause, as said public respondent may order the take down of any internet website or block access to ones email account or social networking site without the proper and reasonable observance of procedural and substantive due process. (112) Aside from Section 12 of RA 10175, the assailed Section 19 is a tangible and manifest proof that RA 10175 has far-reaching and injurious implications akin to Marcosian martial law in matter related to the exercise of the freedom of speech clause by the people.
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Sections 20 of RA 10175 constitutes a violation of procedural and substantive due process. (113) The present discussion repleads with reference all the foregoing allegations. (114) The assailed Section 20 of RA 10175 states that: SEC. 20. Noncompliance. Failure to comply with the provisions of Chapter IV hereof specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities. (115) The assailed provision creates the offense of non-compliance with the orders from law enforcement authorities punishable under Presidential Decree No. 1829 or Obstruction of Justice. As such, mere failure to comply is already considered a prohibited act. (116) This constitutes a manifest violation of procedure and substantive process, as the assailed provision does not consider the instances of a valid and lawful non-compliance of a person, in order to prevent any injury or damage to third persons, against whom an order has been issued by law enforcement authorities, such as when the order is not supported by a court warrant, the order contains matters that are beyond the scope of the court warrant, or the court warrant itself is patently illegal and unconstitutional. (117) What would be the recourse of a person who has been ordered to comply by law enforcement authorities in any of such valid and lawful instances when the assailed provision simply provide that a mere failure to comply is already a prohibited and punishable act?

PRAYER
WHEREFORE, in view of the premises, petitioners most respectfully pray of the Honorable Court the following: (1) That this petition be given due course; (2) That a temporary restraining order and/or a preliminary injunction be issued in order to restrain the public respondents from the executive department from the implementation of the assailed provisions Sections 4(a)(3), 4(b)(3), 4(c)(4), 5(a)(b), 6, 7, 12, 17, 19, and 20 of Republic Act No. 10175 or the Cybercrime Prevention Act of 2012 during the pendency of this petition; (3) That after notice and hearing, a final order be issued: (a) Declaring all the assailed provisions of RA 10175 as null and void for being unconstitutional; and
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(b) Permanently enjoining all public respondents from the executive departments from the implementation of the assailed provisions of RA 10175. Petitioners most respectfully for other relief that are just and equitable under the premises. RESPECTFULLY SUBMITTED. Quezon City for Manila, October 1, 2012. NATIONAL UNION OF PEOPLES LAWYERS Counsel for the Petitioners Third Floor, Erythrina Building No. 1 Maaralin cor. Matatag Sts. Central District, Quezon City 1100 Philippines Tel. (02) 920 6660

By

JULIUS GARCIA MATIBAG Roll No. 55254 IBP No. 903599 / 09-28-12 / Oriental Mindoro PTR No. 7266753-B / 09-28-12 / Quezon City MCLE Compliance No. III-0014341 / 04-16-10 / Quezon City

CARLOS ISAGANI T. ZARATE Roll No. 39571 IBP No. 870720 / 01-04-12 / Davao City PTR No. 0092571 / 01- 03-12 / Davao City MCLE Compliance No. III-0016163 / 05-07-11 / Pasig City

GREGORIO T. FABROS Roll No. 26072 IBP No. 831157 / 01-05-12 / Quezon City PTR No. 607437 / 01- 05-12 / Quezon City MCLE Compliance No. IV-0007924 / 10-17-11

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MARIA CRISTINA P. YAMBOT Roll No. 59700 IBP No. 897760; 4/13/12; Rizal PTR No. 8568227; 4/20/12; Rizal MCLE exempt until 2013

MINERVA F. LOPEZ Roll No. 60637 IBP No.891991/03/02/12;Quezon City PTR No. 6555672; 03/26/12; Pangasinan MCLE exempt until 20 13

Copy furnished: BENIGNO SIMEON C. AQUINO III President Republic of the Philippines New Executive Building, Malacaang Palace J.P. Laurel St., San Miguel, Manila PAQUITO N. OCHOA JR. Executive Secretary New Executive Building, Malacaang Palace J.P. Laurel St., San Miguel, Manila SENATE OF THE PHILIPPINES SENATE PRESIDENT JUAN PONCE ENRILE Room 606 6th Floor GSIS Building, Financial Center Roxas Boulevard, Pasay City HOUSE OF REPRESENTATIVES SPEAKER FELICIANO BELMONTE JR. Room S-102, Constitution Hills Quezon City, Philippines 1126 LEILA DE LIMA Secretary Department of Justice Padre Faura St., Ermita, Manila 1000 LOUIS NAPOLEON C. CASAMBRE Executive Director Information and Communications Technology Office NCC Building, C.P. Garcia Avenue, Diliman, Quezon City 1101 NONNATUS CAESAR R. ROJAS
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Director National Bureau of Investigation Taft Avenue, Ermita, Manila 1000 DIR. GEN. NICANOR A. BARTOLOME Chief Philippine National Police Camp General Rafael Crame, Quezon City 1111 MANUEL A. ROXAS II Secretary Department of the Interior and Local Government A. Francisco Gold Condominium II EDSA cor. Mapagmahal St., Diliman, Quezon City 1100 SOLICITOR GENERAL OFFICE OF THE SOLICITOR GENERAL OSG Building, 134 Amorsolo St. Legaspi Village, Makati City 1229

EXPLANATION OF SERVICE OF PETITION THROUGH REGISTERED MAIL The service of copies of the instant Petition is made through registered mail, as personal service thereof cannot be made due to distance and lack of available personnel. This explanation is made pursuant to Rule 13, Section 11 of the Rules of Court.

JULIUS GARCIA MATIBAG

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