Republic Act 10175: Cybercrime Prevention Act of 2012

Posted on 22 September 2012 | Leave a comment

I Introduction There has been a lot of discussions observed days subsequent to the promulgation of Republic ct 101!"# or the $ybercrime Prevention ct of 2012# on 12 September 2012% There are some &ho assail the la& to be unconstitutional as it acts as a prior restraint to freedom of speech# or that it provides undue e'panded interference of private activities in the (nternet by the Philippine )overnment# among others% Let me form my opinion herein# &ithout providing legal advice# regarding the present la& in its final form% Past proposals for an Anti-CyberCrime a! The nti*$ybercrime la& &as not a recent proposal% Prior versions have been introduced in previous $ongresses but &hich have been archived &hen the previous $ongresses ad+ourned# including the 1,th $ongress% (t appears that prior versions &ere being pushed to meet -1. the urgency to penali/e child pornography0 -2. rectify the perceived &ea1ness of provision-s. on computer*related crimes in Republic ct 2!32# or the 4lectronic $ommerce ct -2000.0 -5. the necessity of e'panding the coverage of the applicability of electronic documents# or (T$* enable acts# to criminal6penal la&s# especially those in the Revised Penal $ode# &here documents# or in &hich a computer may be used in the commission thereof# are involved0 -,. the necessity to provide an efficient legal procedure6allo&ance in the acquisition of evidence by government agencies &hen crimes are being committed# or have been committed# through electronic means0 and -". arrangement to&ards international cooperation# as acts may be transnational% II "ffenses under RA 10175 C#ild porno$rap#y under RA %775& vi' (ection )*c+*2+ of RA 10175 The main legislation regarding child pornography &as enacted in 1! 7ovember 2003# through Republic ct 3!!"# or the nti*$hild Pornography ct of 2003% s to the matter in meeting the urgency to penali/e child pornography# this concern in past cybercrime bill proposals has been resolved by the enactment of R 3!!"% s for international cooperation relating thereto# this is provided for under Sections 22 and 25 of R 3!!" 819# s for evidence that &ould be acquired therein# R 3!!" dumped the responsibility of monitoring# and preservation of data# relevant to infringing activities prohibited by R 3!!" to (nternet Service Providers#829 :all o&ners6operators and o&ners6lessors of business establishments# 859 and (nternet $ontent hosts%8,9 ;hether evidence acquired by government agencies# as a result of the notifications made by private entities# is not violative of Sections 2 and 5# rticle ((( of the 132! Philippine $onstitution8"9may be a separate $onstitutional question that needs to be resolved in the future% <ue to the prior promulgation of R 3!!" to the nti*$ybercrime ct# details regarding measures against child pornography are no longer e'tensively included in the la&=s body unli1e prior proposals% 7evertheless# reference to child pornography in R 101!" can be found in Section ,-c.-2. 8>9# and the fifth paragraph of Section 2 8!9 thereof%

(ection ,, *a+ of RA -7%2& vi' (ection )*a+*1+ to *5+ of RA 10175 R 101!" modified Section 55 -a.829 of R 2!32# through Section 50 839 thereof% Relevant to this matter# R 101!" no&# in Section ,-a.-1. to -". thereof# enumerates ?offenses against the confidentiality# integrity and availability of computer data and systems#@ such as illegal access# illegal interception# data interference# system interference# and misuse of devices0 8109 and the penalties therefor%8119 The modification of Section 55 -a. of R 2!32 through the iteration of the specific acts under Section , -a.-1. to -". in R 101!"# someho& clarifies questions6apparent confusions relevant to ?&hite hat hac1ing%@ 7evertheless# ?access@ ?&ithout right#@ in the manner articulated in the la&# does not resolve &hether such access &ithout right involves only those applying technical means or also includes violations of non*technical6layman computer6net&or1 usage policies% ;ill the (mplementing Rules and Regulations clarify the matterA ( don=t 1no&% .e! offenses under RA 10175 There are acts punishable under R 101!"# &hich have not been covered by previous statutes# or not covered by the elements of similar acts in previous statutes% These include $yber*squatting in ?Bffenses against the confidentiality# integrity and availability of computer data and systems@ under Section ,-a.->. 81290 $omputer*related forgery# computer*related fraud# and computer*related identity*theft in ?$omputer*related offenses@ under Section ,-b. 8159% The penalties thereof are prescribed in the first and third paragraphs of Section 2% 81,9These also include ?content*related offenses@ such as $yberse' under Section ,-c. -1. 81"9 and Cnsolicited $ommercial $ommunications under Section ,-c.-5.% 81>9 The penalties for $yberse' and Cnsolicited $ommercial $ommunications are provided in the fourth 81!9 and si'th 8129 paragraphs of Section 2# respectively% Butside of this la&# disputes pertaining to cyber*squatting are usually covered by administrative proceedings in pursuance of the ($ 77=s Cniform <omain*7ame <ispute* Resolution Policy % This provision &as introduced by Senator ngara -at least for Senate Dill 2!3># &hich &as later consolidated &ith Eouse Dill "202 to create the present la&0 see 50 Fanuary 2012 Fournal of the Senate .% (t may be argued that the act of $ongress to ma1e this a criminal act is e'cessive else inappropriate# but the decision of $ongress to ma1e it a criminal act &ould be a political question% Fudicial remedy might not be appropriate# and advocacy for a legislative amendment or repeal might be more suited# if one is opposed to it% s to cyberse'# under the la&# such act is restrictively defined or described under the la&% Thus# although engagement in any lascivious e'hibition of se'ual organs or se'ual activity &ith the aid of a computer system &ould be cyberse' in layman understanding# the absence of ?for favor or consideration@ &ould not necessarily ma1e it a criminal act% This effectively removes the State from interfering in the personal intimate activities of persons in relationships# especially those separated by distance% 7evertheless# the la& does not penali/e e'hibitionism# possibly to the consternation of moralists &ho intend to stamp out these allegedly se'ually*deviant behavior% s to unsolicited commercial communications# this is similar to the mechanics of the 2005 $an*Spam ct in the Cnited States% That being said# this does not cover non*ommercial such as unsolicited political advertisements from politicians# communications#

not&ithstanding the fact that they have the same annoying effect as common spams and hams% "t#er offenses under (ection 5& RA 10175 iding or betting in the $ommission of $ybercrime@ penali/es non*principals in the commission of cybercrimes enumerated under the la&# &hile ? ttempt in the $ommission of $ybercrime@ recogni/es the commission of the crime# not&ithstanding the act is merely on the attempted stage% These offenses are mentioned in Section "# R 101!"% 8139 These are penali/ed under the last paragraph of Section 2%8209 Applicability to ot#er penal la!s& !#en crime committed usin$ IC/& under (ection 0& RA 10175 R 101!"# in Section > thereof 8219# recogni/es that crimes under Revised Penal $ode and other special criminal6penal la&s may be committed using (nformation and $ommunication Technology -($T.# and imposes a penalty one degree higher than those prescribed under said la&s% III Contentious issue: ibel vi' 1reedom of 23pression ibel under C#apter 1& /itle 4III of t#e Revised Penal Code *Act ,-15 5RPC6& 7ecember 1%,0+ Cnder rticle 5"5 of the Revised Penal $ode# libel is defined as a 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. Grom such definition# the elements of libel thus areH (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) e istence of malice.(!uingguing vs. "ourt of #ppeals# )R 1223"3# 50 September 200"0 Second <ivision# Tinga
8F90 citing Iicario v% $ourt of of ppeals# et% al% # 5>! Phil% 232# 23! 8133090 citing in turn <ae/ v% $ourt ppeals # )%R% 7o% ,!3!1# 51 Bctober 1330# 131 S$R >1# >!.

(n elaborating the first element# the $ourt has held that $a%n allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead.(&hilippine 'ournalists, (nc. vs. )hoenen # )R 1,55!2# 15 <ecember 200"0 Second
<ivision# $hico*7a/ario 8F90 citing Iasque/ v% $ourt of 1333# 51, S$R ,>0# citing in turn <ae/ v% $ourt of S$R ppeals# )%R% 7o% 1123!1# 1" September ppeals# )%R% 7o% ,!3!1# 51 Bctober 1330# 131

>1# &ith other citations omitted as per te't of the decision%. %

s to the second

element#$t%here is publication if the material is communicated to a third person. (t is not re*uired that the person defamed has read or heard about the libelous remark. +hat is material is that a third person has read or heard the libelous statement, for ,a man-s reputation is the estimate in which others hold him, not the good opinion which he has of himself.- ((bid.) s to the third element# to satisfy the element of identifiability, it must be shown that at least a third person or a stranger was able to identify him as the object of the

defamatory

statement.((bid.) #s

to

the

last

element,

malice

or

ill

will

must

be

present. ((bid.) Cnder

rticle 5", of the Revised Penal $ode# .very defamatory imputation is

presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, e cept in the following cases/ (0) # private communication made by any person to another in the performance of any legal, moral or security duty; and (1) # fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the e ercise of their functions. (t is often been said that truth is not a defense in libel cases in the Philippines# but such is a s&eeping statement% The $ourt provides a caveat# to &itH )ruth then is not a defense, unless it is shown that the matter charged as libelous was made with good motives and for justifiable ends. (#lon2o vs. "ourt of #ppeals , !3 004455, 0 6ebruary 0778; 6irst 9ivision,
9avide 'r. $'%)

lbeit limited#

rticle 5>1 of the Revised Penal $ode provides for acquittal in

instances &here truth is proven% rticle 5>1 providesH &roof of the truth. : (n every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and moreover, that it was published with good motives and for justifiable ends, the defendant shall be ac*uitted. &roof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted unless the imputation shall have been made against !overnment employees with respect to facts related to the discharge of their official duties. (n such cases if the defendant proves the truth of the imputation made by him, he shall be ac*uitted. $onsidering the availability of other media beyond those contemplated in the 1350s that &ould allo& publication of controversial utterance# and considering our history relevant to the primacy of constitutional rights# there appears a need to revisit the provisions of our libel la& and tune it to the requirement of our times# through appropriate amendatory legislation% $urrent e'ceptions to these apparently archaic provisions include the limited defense of truth# the propriety of the presumption of malice in one=s articulation# and the shift of the burden of proof to the accused to demonstrate the truth of his6her articulation% n accused should remain to be presumed innocent of any &rongdoing# and those &ho impute against another person the commission of a crime or &rongdoing in a court of la& should be the one tas1ed to discharge the burden of proving the same# and not the other &ay around% ibel under (ection )*c+*)+& RA 10175 Libel is enumerated as a content*related offense under Section ,-c.-,.# R 101!"% 8229% (f libel &as not included as a separate entry in Section ,# it &ould have been covered by Section > anyho&% $uriously enough# nothing in Section 2 provides for a penalty therefor# unli1e those in Section > &here such acts &ould solicit a penalty one degree higher if committed using ($T%

The question# as to &hether such omission &as inadvertent# is something one ponders on# absent clearer indications% ;as the inclusion of libel as a content*related offense a mere emphasis# a recognition that libel can be committed through the use of ($T# li1e all those mentioned in Section > thereof# and thus the additional degree for penalty &ould applyA Br &as the separation of libel# from other crimes under Section ># an indication that libel is removed from the ambit of Section ># &hich imposes an additional degree as penaltyA The provision stic1s li1e a sore thumb# and is the rallying point on reactions against the la&# for allegedly being a prior restraint on free e'pression% Parenthetically# Senator Sotto introduced the amendment in Section ,-c.-,.# according to the Senate Fournal of 50 Fanuary 2012 % s to the question# as to &hether the introduction of the same is connected to the sle& of online reactions against the Senator for his alleged plagiarism# as retribution# that seems to be unfounded% The amendment &as introduced months before his ?turno en contraspeeches#@ -Pope issue - ugust 2012. # Jennedy issue -September 2012. % The timeline# on its face# militates against a causal connection% De as it may# the inclusion of libel in R 101!" should not impose an increase penalty of imprisonment +ust because ($T has been utili/ed in the commission thereof# &hether no& or in the future# in 1eeping &ith our treaty obligation# especially under the (nternational $ovenant on $ivil and Political Rights -($$PR.% Less severe sanctions than imprisonment should be resorted to# as much as practicable% Relevant to this# the Philippine Supreme $ourt already had promugated the guidelines in the observance of a rule of preference in the imposition of penalties in libel cases# through dministrative $ircular 2*2002 on 2" Fanuary 2002% 1reedom of 23pression vi' libel Section ,# rticle (((# of the 132! $onstitution states that ;o law shall be passed abridging the freedom of speech, of e pression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

)he right of free speech is not absolute at all times and under all circumstances. )here are
certain well<defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any "onstitutional problem. )hese include the lewd and obscene, the profane, the libelous, and the insulting or ,fighting- words = those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. (t has been well observed that such utterances are no essential part of any e position of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. (&hilippine 'ournalists,
(nc. vs. )hoenen, supra.; citing "haplinsky v. ;ew >ampshire, ?08 @.A. 8B5, B1 "t. CBB, 5B D..d. 04?0) Libel is not protected speech%((bid.)

The issue bet&een the freedom of speech and press and assembly# and the la&s on libel and slander# &as first discussed in US v. Bustos 4nglish and
(?C &hil. C?0 $0705%). pplying the prevailing

merican +urisprudence therein# the $ourt declared to the effect thatH )he

interest of society and the maintenance of good government demand a full discussion of

public affairs. "omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. )he sharp incision of its probe relieves the abscesses of officialdom. Een in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. # public officer must not be too thin<skinned with reference to comment upon his official acts. Fnly thus can the intelligence and dignity of the individual be e alted. Ff course, criticism does not authori2e defamation. ;evertheless, as the individual is less than the Atate, so must e pected criticism be born for the common goodG 3ising superior to any official, or set of officials, to the "hief . ecutive, to the Degislature, to the 'udiciary = to any or all the agencies of !overnment = public opinion should be the constant source of liberty and democracy. (&hilippine 'ournalists, (nc. vs. )hoenen,
supra.; citing @A v. Hustos, ?C &hil. C?0 $0705%; with original citations omitted)

7octrine of privile$ed communication

)he demand to protect public opinion for the welfare of society and the orderly
administration of government inevitably lead to the adoption of the doctrine of privileged communication. (&hilippine 'ournalists, (nc. vs. )hoenen, supra.) # privileged communication may be either absolutely privileged or *ualifiedly privileged. #bsolutely privileged communications are those which are not actionable even if the author has acted in bad faith. #n e ample is found in Aec. 00, #rt. I( of the 075C "onstitution which e empts a member of "ongress from liability for any speech or debate in the "ongress or in any "ommittee thereof. @pon the other hand, *ualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. )o this genre belong ,private communications- and ,fair and true report without any comments or remarks.-((bid.; citing Horjal v. "ourt of #ppeals, !.3. ;o. 01BJBB, 0J
'anuary 0777, ?40 A"3# 0) Kualified

privileged communications correspond to those

enumerated in

rticle 5", of the RP$# &here malice is not presumed%

Section 5", -1. &hich provides the privilege involving ?8a9 private communication made by any person to another in the performance of any legal# moral or security duty@ &ould not have issues &hen it involves a private person% declaration that ?8a9 &ritten letter containing libelous matter cannot be classified as privileged &hen it is published and circulated in public@ (9ae2 v. "ourt of #ppeals, !.3. ;o. JC7C0, ?0 Fctober 0774, 070 A"3# B0, B7; citing Dacsa
v. (#" , !.3. ;o. CJ74C, 1? Eay 0755, 0B0 A"3# J1C) &ould be understandable in such a case%

7evertheless# it has been previously declared that # communication made bona fide upon any subject<matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable. # pertinent illustration of the application of *ualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. (&hilippine 'ournalists, (nc. vs. )hoenen, supra.; citing @A v. Hustos, ?C &hil. C?0, CJ1<CJ?

$0705%) This is e'pounded subsequently# that $a%s a rule, it is the right and duty of a citi2en

to make a complaint of any misconduct on the part of public officials, which comes to his notice, to those charged with supervision over them. Auch a communication is *ualifiedly privileged and the author is not guilty of libel. )he rule on privilege, however, imposes an additional re*uirement. Auch complaints should be addressed solely to some official having jurisdiction to in*uire into the charges, or power to redress the grievance or has some duty to perform or interest in connection therewith. ((bid.; citing 9ae2 v. "ourt of #ppeals, !.3. ;o.
JC7C0, ?0 Fctober 0774, 070 A"3# B0, B7)

This presents a problem &hen the fine line bet&een criticism and perceived defamation blurs# as it &ould due to the contending claims of parties involved% (t could be contended that the additional requirement that ?such complaints should be addressed solely to some official having +urisdiction to inquire into the charges# or po&er to redress the grievance or has some duty to perform or interest in connection there&ith@ provides a prior restraint in the e'ercise of free e'pression and the right to petition the government for redress of grievances% This apprehension or fear magnifies &hen it is made applicable in online speech# as it &ill affect more people% The declarations in Guingguing vs. Court of Appeals appear more reasonable# &hen public officials or public figures are involved% (n said case# the $ourt heldH &articularly, this "ourt has accepted the proposition that the actual malice standard governs the prosecution of criminal libel cases concerning public figures. (n Adiong v. COMELEC , (!.3. ;o. 04?78B, ?0 Earch 0771, 14C
A"3# C01) the "ourt cited New York

i!es in noting that $w%e have

adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. ((d. at C0B). )he "ourt was even more e plicit in its affirmation of ;ew Kork )imes in "as#ue$ v. Court of Appeals Apeaking through 'ustice Eendo2a/ 6or that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice : that is, with knowledge that it was false or with reckless disregard of whether it was false or not. )his is the gist of the ruling in the landmark case of New York i!es v. Sullivan, which this "ourt has cited with approval in several of its own decisions. (&articularly cited are Dope2
v. "ourt of #ppeals , 0J8 &hil. 107 $07C4%; Eercado v. "ourt of 6irst (nstance , 140 &hil. 8B8 $0751%; Habst v. (?C? &hil. 1?5 $0777%).

;ational (ntelligence Hoard , 0?1 A"3# ?0B, ?18 $075J% $6ernando, ".'., concurring%) )his is the rule of actual

malice. (n this case, the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not. (Ias*ue2 v. "ourt of
#ppeals, ?C? &hil. 1?5, 18J $0777%)

)he "ourt has likewise e tended the actual malice rule to apply not only to public officials, but also to public figures. (n A%er &rodu'tions &t%. Ltd. v. Capulong
(!.3. ;os. 51?54 and 51?75, 17 #pril 0755, 0B4 A"3# 5B0), the "ourt cited with approval the following definition of a public

figure propounded by an #merican te tbook on torts/ # public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a ,public personage.- >e is, in other words, a celebrity. Fbviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. )he list is, however, broader than this. (t includes public officers, famous inventors and e plorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the !rand . alted 3uler of a lodge. (t includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person. ((d. at
5CJ<5C8; citing &rosser and Leeton on )orts, $8th ed.% at 587<5B0)

#yer did not involve a prosecution for libel, but a complaint for injunction on the filming of a dramati2ed account of the 075B .9A# 3evolution. ;onetheless, its definition of a public figure is important to this case, as it clearly establishes that even non<governmental officials are considered public figures. (n fact, the definition propounded in #yer was e pressly applied by the "ourt in Bor(al v. Court of Appeals
(?B0 &hil. 0, C $0777%) in ascertaining whether the complainant therein was a public

figure, thus warranting the application of the actual malice test.

+e considered the following proposition as settled in this jurisdiction/ that in order to justify a conviction for criminal libel against a public figure, it must be established beyond reasonable doubt that the libelous statements were made or published with actual malice, meaning knowledge that the statement was false or with reckless disregard as to whether or not it was true. :ore importantly# the $ourt held# in the same case# thatH

$#rticle ?8J of the 3evised &enal "ode%, as applied to public figures

complaining of criminal libel, must be construed in light of the constitutional guarantee of free e pression, and this "ourt-s precedents upholding the standard of actual malice with the necessary implication that a statement regarding a public figure if true is not libelous. )he provision itself allows for such leeway, accepting as a defense good intention and justifiable motive. )he e ercise of free e pression, and its concordant assurance of commentary on public affairs and public figures, certainly *ualify as justifiable motive, if not good intention. (t cannot be helped if the commentary protected by the Hill of 3ights is accompanied by e cessive color or innuendo. "ertainly, persons in possession of truthful facts are not obliged to present the same in bland fashion. )hese true facts may be utili2ed to convince the listenerMreader against a particular position, or to even dissuade one against accepting the credibility of a public figure. 9ry facts, by themselves, are hardly stirring. (t is the commentary thereupon that usually animates the discourse which is encouraged by the "onstitution as integral to the democratic way of life. )his is replete in many components of our daily life, such as political addresses, televised debates, and even commercial advertisements. #s adverted earlier, the guarantee of free speech was enacted to protect not only polite speech, but even e pression in its most unsophisticated form. "riminal libel stands as a necessary *ualification to any absolutist interpretation of the free speech clause, if only because it prevents the proliferation of untruths which if unrefuted, would gain an undue influence in the public discourse. Hut in order to safeguard against fears that the public debate might be muted due to the reckless enforcement of libel laws, truth has been sanctioned as a defense, much more in the case when the statements in *uestion address public issues or involve public figures.

(n ascertaining the degree of falsity that would constitute actual malice, the "ourt, citing New York i!es, has even gone so far as acknowledging/ .ven assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. .rrors or misstatements are inevitable in any scheme of truly free e pression and debate. "onsistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. )here must be some room for misstatement of fact as well as for misjudgment. Fnly by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. The reiteration of this holding could alleviate concerns regarding articulation of criticism of and6or grievances against the government and its agents by individuals# not directed to +udicial or administrative fora# over the various media# including the (nternet% ICCPR and 8eneral Comment .o9 ,) (n a submission &here rticle 13 8259 of the (nternational $ovenant on $ivil and Political Rights &as in point# the Cnited 7ations Euman Rights $ommittee=s -C7ER$. declaration in $ommunication 121"62002 # adopted 2> Bctober 2011# provided# in part# thatH 5.C )he "ommittee takes note of the author-s allegation that his conviction for defamation under the &hilippine &enal "ode constitutes an illegitimate restriction of his right to freedom of e pression because it does not conform to the standards set by article 07, paragraph ? of the "ovenant. )he author maintains, in particular, that the criminal sanction of imprisonment established by the &hilippine 3evised &enal "ode for libel is neither necessary nor reasonable, because of the following reasons/ a) there are less severe sanctions available; b) it admits no proof of truth as a defense e cept for very limited cases; c) it does not take into account the public interest as a defense; or d) it presumes maliced in the allegedly defamatory statements placing the burden of proof on the accused. 5.5 #rticle 07, paragraph ? lays down specific conditions and it is only subject to these conditions that restrictions may be imposed, i.e. the restrictions must be provided by law; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph ?; and they conform to the strict tests of necessity and proportionality. (!eneral "omment ;o. ?J, cit. para. 11)

5.7 )he "ommittee recalls its !eneral "omment ;o. ?J according to which 9efamation laws must be crafted with care to ensure that they comply with paragraphs ? and that they do not serve, in practice, to stifle freedom of e pression. #ll such laws, in particular penal defamation laws, should include such defences as the defence of truth and they should not be applied with regard to those forms of e pressions that are not, of their nature, subject to verification. #t least with regards to comments about public figures, consideration should be given to avoiding penalising or otherwise rendering unlawful untrue statements that have been published in error but without malice. (n any event, a public interest in the subject matter of the criticism should be recognised as a defence. "are should be taken by Atates parties to avoid e cessively punitive measures and penalties. (N) Atate parties should consider the decriminali2ation 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 ((bid. para. JC) 5.04 (n light of the above the "ommittee considers that, in the present case the sanction of imprisonment imposed on the author was incompatible with article 07, paragraph ? of the "ovenant. 7. )he >uman 3ights "ommittee, acting under article 8, paragraph J, of the Fptional &rotocol to the (nternational "ovenant on "ivil and &olitical 3ights ((""&3), is of the view that the facts before the "ommittee disclose a violation by the &hilippines of articles 0J, paragraph ? and 07 of the "ovenant. (t must be recalled that the +ournalist# &ho sought remedies from the C7ER$# &as sentenced to imprisonment of a minimum of five months and one day to a ma'imum of four years# si' months and one day and to pay a fine of P100#000 in Fanuary 200! for publishing reports that the Eouse Spea1er and his alleged mistress had been caught in a hotel by the latter=s husband% The sentence &as imposed before the promulgation of recommended the preference of fine over imprisonment% That being said# the possibility of imprisonment remains to be available not&ithstanding $ 2* 2002% (t &ould thus be understandable that there is a push to decriminali/e libel la&s% Proposals for the decriminali/ation of libel are already being pushed through Eouse Dill >531 and Senate Dill 52,, % Doth bills propose the decriminali/ation of libel# and shift the responsibility of utmost imposing discipline among practitioners of mass communications -&ho should be# under the bills# members of registered professional organi/ations.% The proposed bills appear abbreviated and s&eeping# but at the same time oriented to a specific class% There are questions that ( &ould not acquire ans&ers for# based on the current contents of the proposed bills% $ 2*2002# &hich

I: Contentious issue: Privacy Ri$#t to privacy

)he right to privacy, as an inherent concept of liberty, has long been recogni2ed as a
constitutional right. (!amboa vs. "han, !3 07?B?B, 1J 'uly 1401; .n Hanc, Aereno $'%) Diberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. )he right to be let alone is indeed the beginning of all freedom. (Eorfe vs. Eutuc, !3 D<14?5C, ?0 'anuary
07B5, .n Hanc, 6ernando $'%; citing 9ouglas $'%, dissenting, &ublic @tilities "ommission of the 9istrict of "olumbia et al. vs. &ollak et al. , ?J? @A J80) $#%s against the government, the right

to be let alone<the most comprehensive of rights and the right most valued by civili2ed men. (Eorfe vs. Eutuc, !3 D<14?5C, ?0 'anuary 07B5, .n Hanc, 6ernando $'%; citing Hrandeis $'%,
dissenting, in Flmstead et al. vs. @nited Atates , 1CC @A J?5)

(n Morfe vs. Mutu' # )R L*2052!# 51 Fanuary 13>2# 4n Danc# Gernando 8F9H )he right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. )he language of &rof. .merson is particularly apt/ )he concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citi2en. )his is indeed one of the basic distinctions between absolute and limited government. @ltimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. (n contrast, a system of limited government, safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. &rotection of this private sector : protection, in other words, of the dignity and integrity of the individual : has become increasingly important as modern society has developed. #ll the forces of a technological age : industriali2ation, urbani2ation, and organi2ation : operate to narrow the area of privacy and facilitate intrusion into it. (n modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society. (.merson, ;ine 'ustices in Aearch of a 9octrine, BJ Eich. Daw. 3ev.
107, 117 $07B8%)

)he right of privacy is recogni2ed and enshrined in several provisions of our

"onstitution. (Fple v. )orres, !3 01CB58, 1? 'uly 0775; .n Hanc, &uno $'%; citing Eorfe v. Eutuc, 11 A"3# J1J, JJJ $07B5%; "ortes, )he "onstitutional 6oundations of &rivacy, p. 05 $07C4%) (n the same case# it &as stated that it is e'plicitly recogni/ed under Section 5-1.# rticle ((( of the 132! $onstitution%82,90 and that certain facets of the right of privacy can also be found in other provisions of the 132! $onstitution# such as Section 1 82"90 Paragraph 1 of Section 2 82>9# Section > 82!9# Section 2 8229# and Section 1! 8239 of rticle (((# 132! $onstitution% (n Ople v. orres # )R 12!>2"# 25 Fuly 13320 4n Danc# Puno 8F9H

Oones of privacy are likewise recogni2ed and protected in our laws. )he "ivil "ode provides that $e%very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. (#rticle 1B, "ivil "ode) (t also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, (#rticle ?1, "ivil "ode) and recogni2es the privacy of letters and other private communications. (#rticle C1?, "ivil "ode) )he 3evised &enal "ode makes a crime the violation of secrets by an officer, (#rticle 117,
3evised &enal "ode) the revelation of trade and industrial secrets, (#rticles 174<171, 3evised &enal "ode) and trespass to dwelling. (#rticle 154, 3evised &enal "ode) (nvasion of privacy is an offense in special laws like the #nti<

+iretapping Daw, (3epublic #ct J144) the Aecrecy of Hank 9eposits #ct (3epublic #ct 0J48) and the (ntellectual &roperty "ode. (3epublic #ct
517?) )he 3ules of "ourt on privileged communication likewise recogni2e

the privacy of certain information. (Aection 1J, 3ule 0?4 $"%, 3evised 3ules
on .vidence)

(n Ga!)oa vs. C*an # )R 135>5># 2, Fuly 20120 4n Danc# Sereno 8F9H $)%he right to privacy is considered a fundamental right that must be protected from intrusion or constraint. >owever, in Standard C*artered Bank v. Senate Co!!ittee on Banks not absolute, vi2/ +ith respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is not an absolute right. +hile it is true that Aection 10, #rticle I( of the "onstitution, guarantees respect for the rights of persons affected by the legislative investigation, not every invocation of the right to privacy should be allowed to thwart a legitimate congressional in*uiry. (n Aabio v. !ordon, we have held that the right of the people to access information on matters of public concern generally prevails over the right to privacy of ordinary financial transactions. (n that case, we declared that the right to privacy is not absolute where there is an overriding compelling state interest. .mploying the rational basis relationship test, as laid down in Eorfe v. Eutuc, there (!.3. ;o. 0BC0C?, 1C 9ecember 144C, 8J0 A"3# J8B), this "ourt underscored that the right to privacy is

is no infringement of the individual-s right to privacy as the re*uirement to disclosure information is for a valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions ade*uately protect the public who invest in foreign securities. Auffice it to state that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation. ((d. at JC8<
JCB $citing Eorfe v. Eutuc, 0?4 &hil. J08 $07B5%; !ordon v. Aabio , 8?8 &hil. B5C $144B%)

)herefore, when the right to privacy finds tension with a competing state objective, the courts are re*uired to weigh both notions. (n these cases, although considered a fundamental right, the right to privacy may nevertheless succumb to an opposing or overriding state interest deemed legitimate and compelling. (ection 12 to 17& RA 10175 Section 12 to 1!# of R 101!"# 8509 provides for the mechanism in &hich evidence &ould be acquired# maintained# and disposed# pursuant to the la&% Some sectors fear the import of Section 12 as it appears to be a blan1et allo&ance for the government to conduct surveillance against the general populace &ith impunity% The paragraphs one# t&o# and four of Section 12 provideH Daw enforcement authorities, with due cause, shall be authori2ed 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. )raffic data refer only to the communication-s origin, destination, route, time, date, si2e, duration, or type of underlying service, but not content, nor identities. Aervice providers are re*uired to cooperate and assist law enforcement authorities in the collection or recording of the above<stated information. Privacy in relation to (ection 12& RA 10175 To reiterate# Section 5 -1.# rticle (((# 132! $onstitution providesH )he privacy of communication and correspondence shall be inviolable e cept upon lawful order of the court, or when public safety or order re*uires otherwise as prescribed by law. <ata relating to offenses committed under R 101!"# to be sei/ed &ould be covered by paragraphs three and five of Section 12 to comply &ith the la&# as to the requirement of ?upon la&ful order of the court#@ to &itH

#ll other data to be collected or sei2ed or disclosed will re*uire a court warrant. )he court warrant re*uired under this section shall only be issued or granted upon written application and the e amination under oath or affirmation of the applicant and the witnesses he may produce and the showing/ (0) 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/ (1) 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 (?) that there are no other means readily available for obtaining such evidence. The only contention thus &ould gravitate to&ards the collection of data# prior to the issuance of a court &arrant# specified under paragraphs one# t&o and four of Section 12% (t is e'pected to be argued that these provisions are the ones covered by the clause ?&hen public safety or order requires other&ise as prescribed by la&%@ The 1ey to the determination of &hether the la& is narro&ly dra&n may lie in the phrase ?&ith due cause#@ and its actual import% (s this a mere legal formali/ation of methods and procedures# &ith due regard to probable cause# in the conduct of investigation by police agencies -such as the 7ational Dureau of (nvestigation 8P7P9# the Philippine 7ational Police* nti Jidnapping )roup 8P7P* J)# formerly Police nti*$rime and 4mergency Response or P $4R9. &hen crimes are being committed# or &ere +ust committed# through the use of ($TA Br is it the allo&ance for government to conduct active monitoring of the (nternet activities of the populace# premised on any alleged pursuit of public safety or orderA (t has been held# in Ople vs. orres, supra., that $+%hen the integrity of a fundamental right is at stake, this court will give the challenged law, administrative order, rule or regulation a stricter scrutiny. (t will not do for the authorities to invoke the presumption of regularity in the performance of official duties. ;or is it enough for the authorities to prove that their act is not irrational for a basic right can be diminished, if not defeated, even when the government does not act irrationally. )hey must satisfactorily show the presence of compelling state interests and that the law, rule or regulation is narrowly drawn to preclude abuses. )his approach is demanded by the 075C "onstitution whose entire matri is designed to protect human rights and to prevent authoritarianism. (n case of doubt, the least we can do is to lean towards the stance that will not put in danger the rights protected by the "onstitution. The constitutionality of Section 12 can only be resolved# through the presentation of proof by the government% (n the same case# the $ourt held that $)%he right to privacy is a fundamental right guaranteed by the "onstitution, hence, it is the burden of government to show that the

measure or legislationis justified by some compelling state interest and that it is narrowly drawn. International Cooperation $onsidering that the acts prohibited in the la& may be transnational# Section 22 of the la& providesH #ll relevant international instruments on international cooperation in criminal matters, arrangements agreed on the basis of uniform or reciprocal legislation, and domestic laws, to the widest e tent possible for the purposes of investigations or proceedings concerning criminal offenses related to computer systems and data, or for the collection of evidence in electronic form of a criminal, offense shall be given full force and effect. :I ;urisdiction Section 21# R 101!" providesH )he 3egional )rial "ourt shall have jurisdiction over any violation of the provisions of this #ct, including any violation committed by a 6ilipino national regardless of the place of commission. 'urisdiction shall lie if any of the elements was committed within the &hilippines or committed with the use of any computer system wholly or partly situated in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the &hilippines. )here shall be designated special cybercrime courts manned by specially trained judges to handle cybercrime cases. The +urisdiction of the Regional Trial $ourt is fi'ed under R 101!" on all punishable acts -Sections ,*! thereof.% The phrase attached to such +urisdiction including any violation committed by a 6ilipino national regardless of the place of commission # ho&ever# appears oddly placed% The second sentence is more understandable# as it provides qualification to a basic precept in criminal procedure that $@%nlike in civil cases, in criminal cases venue is jurisdictional.(&eople vs. Eetropolitan )rial "ourt of Pue2on "ity, !3 01?1B?, 0B 9ecember 077B;
)hird 9ivision, ;arvasa $"'%; citing &eople v. Eercado, B8 &hil. BB8; #lfelor, et al. v. (ntia, et al., C4 A"3# JB4, citing in turn Dope2 v. "ity 'udge, 05 A"3# B0B, and in turn citing @A v. &agdayuman, 8 &hil. 1B8; Heltran v. 3amos, 7B &hil. 0J7; 3agpala v. 'ustice of the &eace of )ubod, 047 &hil. ?C?; &eople v. Kumang, 00 A"3# 1C7; &eople v. Aan #ntonio, 0J A"3# B?; Hala v. Eartine2, 050 A"3# J87, 8B7, citing in turn 3agpala v. )ubod, 047 &hil. ?C?) lthough it may be implied

that including any violation committed by a 6ilipino national regardless of the place of commission provides an e'ception to the venue*+urisdiction requirement# similar to rticle 2 of the Revised Penal $ode but this time directed to the specific nationality of the actor in the commission of offenses under R 101!"# such articulation is currently deficient in its form%

Parenthetically# it must be noted# even before the promulgation of the la&# the Supreme $ourt has tac1led the proper +urisdiction of ?online libel@ in Bonifa'io vs. +egional rial Court of Makati # )R 12,200# " :ay 20100 Girst <ivision# $arpio*:orales 8F9 :I Admissibility of 2vidence :y opinion on the matter has been previously articulated in Repost 106Fan612# updateH ?Phantom resolution@ (Friginal post, 04 'anuary 1401; updated, 17 #ugust 1401) # &hich tac1les the Rules on 4lectronic 4vidence - : 01*!*01*S$. in light of the case of Ang vs. Court of Appeals # )R 12225"# 20 pril 20100 Second <ivision# :II Conclusion R 101!" has been recently promulgated and# as of this &riting# the (mplementing Rules and Regulations are yet to be promulgated% R 101!" attempts to enumerate offenses that can be committed using (nformation and $ommunication Technologies# and to e'tend its application to crimes and offenses already available under other la&s but &here ($T may be used in its commission% The fear of the populace regarding the perceived encroachment of the la& in the e'ercise of Gree 4'pression# and the right to privacy# is &ell*ta1en# and in some degree# shared% (t can be sho&n that our present libel la& is not in tune &ith the times# and in some shades of its archaic notion may indeed infringe upon the right of the people to free speech and to right to air its grievances against the government% mendment-s. of the source la& in the Revised Penal $ode appears necessary# so as to safeguard the people=s freedom of speech and of the press# considering ne& avenues for publication% ( reserve my agreement &ith the movement to decriminali/e libel la&s for the meantime# for lac1 of personal research so far to form a concrete opinion on the matter% Bn the other hand# the provision in the la& that &ould &arrant the collection and sei/ure of data# prior to the acquisition of a &arrant of search &ith the proper court# in compliance &ith the provisions of the $onstitution# should be li1e&ise be narro&ly dra&n% The la& should not be the source of unbridled authority by the government to pry into the private lives of people% Brdinarily# ( tend to support the government=s drive to pursue public &elfare# especially as to public order# and tried my best to sho&# in this discussion# &here the la& may not necessarily be invalid# in light of the fear articulated in its passage% 7evertheless# our recent history provided us the e'perience on ho& abuses may be &rought due to unbridled po&er provided to the State% 4vil does occur# even in pursuit of best intentions# and the people should be assured that the certain evils &ould be prevented or avoided in pursuit of such intentions% This &ee1=s commemmoration of the ,0th anniversary of the proclamation of :artial La& by the late and former dictator Gerdinand 4% :arcos this &ee1 -21 September 13!2 as dated# 25 September 13!2 as actually proclaimed. should provide us &ith the reminder that la&s &hich &ere crafted for the public good may be used to unduly deprive people life# liberty and bad 8F9%

property% The government should assure the people# &ith clear proof# that it does not emasculate people=s civil liberties%