ANALYSIS | The Cybercrime Law and How It Affects Your Freedom of Expression
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On September 12, 2012, President Aquino signed Republic Act No. 10175 otherwise known as the Cybercrime Prevention Act of 2012. It provides a number of provisions which penalize a number of acts which may be committed only by individuals who are deep in cyber-technology.
It also provides provisions which may put anybody, computer-savvy or not, in trouble of ending up in prison.
I would rather talk about the latter implications of the new law because they involve the members of the general public who probably may not even know that, in writing something in their computer, they may already be committing an act that may put them behind bars. These provisions may infringe their constitutional freedom of expression.
Section 4 (4) of the Cybercrime law provides that "the unlawful and 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." Libel is a content-related offense that can be committed by just about anybody using the computer.
Libel is defined in Article 353 of the Revised Penal Code (RPC) as a "public imputation and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstances tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead."
"Public" means that the imputation was heard, read or seen by somebody else, regardless of number, other than the person to whom the imputation was directed. Article 355 provides that this can be committed "by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means". Libel is punishable by imprisonment that can last as long as 4 years and 2 months in jail.
Prior to the Cybercrime Law, it was not clear whether or not the phrase "or any similar means" in our libel law included computers. Computers were non-existent in 1932, the year our 80-year-old Revised Penal Code took effect, and therefore could not have been contemplated or even foreseen by the framers of the law.
It is a rule in the implementation and interpretation of laws that what is not included in the law is excluded (Velasco vs. Blas 115 SCRA 540). And if there is any ambiguity concerning the application of the phrase "or any similar means" in this criminal statute, the same will always be applied liberally in favor of the accused and strictly against the state (People vs. Subido 66 SCRA 545). The rule in statutory construction on ejusdem generis, which states that an all-encompassing phrase at the end of the provision must be construed in the same nature as the specific words preceding it, does not apply considering that the specific words are not of the same nature (see Colgate Palmolive vs. Jimenez G.R. No. 14787 January 28, 1961).
Considering all these well-entrenched rules, it is most likely that any libel case based on written messages, comments, blogs, or posts in sites such as Facebook, Twitter, or any other comment-spaces of other social media in the Internet could be dismissed as it is doubtful that computers are included in the law and the uncertainty should be applied in favor of the accused. Moreover, considering that statements and opinions written in the Internet are within the penumbra of the people's constitutional right of speech, the preference is for the protection of the expressions made.
Perhaps this was the reason why the unchecked and uncensored inter-active written communications, comments, replies, blogs, and messages in the Internet have at times bordered on libel, if not actually constituting libel. One only has to look at the comment-spaces in the various articles written in the Opinion section of Interaksyon.com, and in the websites of various newspapers. Very strong and negative comments can readily be read. Even comments in Facebook and Twitter show these. But somehow, this kind of free-wheeling interaction, though at times very offensive, has developed through time a kind of special tolerance among the inter-actors. The public has found an accessible direct medium to ventilate their opinions, and people are learning to go beyond offensive opinions and accept them as just another point of view. This is a very healthy development in a democracy where free expression must be actively robust.
As former Justice William Douglas of the United Supreme Court said a
"...function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest… There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups." (Terminiello vs.Chicago 337 US 1)
But now, by adopting the RPC libel provisions, the Cybercrime law has clearly put the spectre of imprisonment as an imminent threat to our free-wheeling bloggers, commentators, repliers and others who write in the internet. This is a step-back in our respect, appreciation and implementation of freedom of expression and indeed in our democratic way of life. This may engender an environment of "silence coerced by law" as characterized by former Justice Brandeis of the United Supreme Court (Whitney vs. California 274 U.S. 357).
While it is right to have those who abuse their right to free expression answerable for injury which their libelous statements have inflicted on innocent people, putting them in prison for a length of time is just too severe. Indeed, prior to the Cyberlaw, Senator Gringo Honasan, following the trend all over the world to further protect free expression and pursuant to our obligations under the International Convention of Civil and Political Rights (ICCPR), already filed Senate Bill 2344 which, if it becomes law, will be known as "An Act to Decriminalize Libel." This is also in consonance with Article 3 Section 4 of the 1987 Constitution which provides that "no law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievance."
New technologies give us new opportunities to connect with a lot of people not only in this country but all over the world. They can also provide us with a medium through which our political, public and even private views can have an immediate and direct impact on individuals, communities and even countries. It is just so disappointing that our government, in adopting our 80-year-old antiquated libel laws to the Cybercrime Law, again seems to have retarded our march with the rest of the world with respect to giving full force to the people's freedom of expression.