IS THE Anti-Cybercrime Law really a threat to freedom of speech?

The Republic Act (RA) 10175, known as the “Cybercrime Prevention Act of 2012” or the Anti-Cybercrime Law, aims to deal with cyber offenses or crimes committed online by imposing penalties and punishment. But the new law continues to anger Internet users who view it as a threat to freedom of expression, a fundamental human right stated in Article 3, Section 4 of the 1987 Constitution, along with other provisions that most netizens deem unconstitutional.

According to Vicente Topacio, a lawyer teaching the Constitution at the Faculty of Engineering, the realization of the law may have sprung from a need to act on the increasing number of crimes committed online.

“In the advent of the age of computer technology, the state tried to answer the need to comply with the demand to deal with crimes committed over the Internet,” he said.

Libelous posts and tweets

One of the most controversial provisions is the one on libel. When committed with the use of the Internet or any computer device, the penalty is higher.

“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,” Section 4 of the law stated.

The Human Rights Watch (HRW), an international non-governmental organization, believes that online libel may threaten freedom of speech in the country.

“The law’s criminal penalties for online libel and other restrictions are a serious threat to free expression in the Philippines,” the group said in its website.

Brad Adams, director of HRW Asia, said online libel “violates Filipinos’ rights to free expression and it is wholly incompatible with the Philippine government’s obligations under international law.”

Internet users also worry that the enactment of the law may suppress their use of the World Wide Web, which the United Nations’ Human Rights Council (UNHRC) considers as a basic human right as supported by a resolution signed by the 47 members of UNHRC, which includes the Philippines.

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RA 10175 also states that the online violators of the said provision will be penalized by prision mayor, or six to 12 years in jail, a penalty which is a degree higher than the four-year imprisonment in the Revised Penal Code (RPC) for libel committed in printed media.

Sen. Teofisto Guingona III, one of the senators who voted against passing the law, said the provision violates the equal protection clause of the Constitution.

“[The Anti-Cybercrime Law] unduly discriminates persons of the same class, as it penalized the act of publishing libelous materials through Internet more heavily than those which are committed by means of writing or printing,” he said.

However, Topacio said there is a problem concerning the identification of the commission of libel.

“Libel is very hard to prove, whether online or the actual libel under the RPC. The raise of penalty for libel will create fear in expressing opinion,” he said. “This serves as a warning in using such media, as the proponents of the law have singled out the use of information technology.”

Kabataan party-list Rep. Raymond Palatino warned that the Anti-Cybercrime Law might be used as a tool to punish those who criticize the government online.

“Under this law, politicians can easily file charges against ‘hostile and combative’ critics and witnesses by claiming that virtual protesters have threatened their life and property,” Palatino said.

But Topacio explained that even those who have no intention of defaming others become vulnerable to being penalized by the law.

“In libel, intent is material. There should be intent to defame. But in this law, which is malum prohibitum or special law, intent becomes immaterial. One could be held liable even without the intention to hurt or defame,” he said.

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Topacio said actions that will limit and repress freedom of speech should not be executed.

Section 5 of the law states that “any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.”

In a statement, Sen. Miriam Defensor-Santiago warned that mundane activities in social networking sites like liking, sharing, and retweeting can make a person liable to the law, as these could be considered aiding or abetting—acts which are also punishable by the law.

“Simply repeating things, you made a comment, you liked, you shared, you’re already guilty, because you’re aiding and abetting. You can interpret it that way. That’s why I’m saying it is too vague,” Santiago said.

‘Caught in the act’

The law also gives the Department of Justice (DOJ) the power to shut down or prevent access to sites which are considered to be in violation, at first scrutiny or prima facie, which may cause harm to Internet users because identity can easily be copied and faked online.

The provision, found in Section 19, is also known as the takedown clause.

“A highly-skilled person who wants to frame another person could just create a lot of prima facie evidence against him, or an entire community of people,” said digital forensics expert Drexx Laggui in an interview with InterAksyon.com.

Jerralyn Padua, Information and Computer Studies professor from the Faculty of Engineering, said the mimicking of identity is possible through data interference, where middleman attack occurs.

“In middleman attack, the identity of the server is being cloned, which makes the user think he is connected to the server, when in fact, he is actually connected to a middleman,” she said. “What happens is that the information thrown to the server can be taken and altered by the middleman.”

Topacio pointed out that one of the law’s flaws is the authority given to the justice secretary in determining a person’s liability.

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“The problem here (Anti-Cybercrime Law) is the blanket authority given to the DOJ secretary in determining probable cause in searching websites or personal accounts,” he said.  “As stated in our bill of rights, the probable cause in issuing search warrants shall be determined personally by the judge but here, the judicial function of the judge is now being exercised by the executive function of the justice secretary.”

The law also allows DOJ to collect real-time traffic data, which, as defined by the law, refer to “the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities,” as stated in Section 12,  which could possibly violate privacy of communication.

A search of property, except in special cases, will call for a Court warrant, Topacio said.

“In our law, there should be a search warrant before the authority can access these data unless it is a case of plain view, caught-in-the-act, or search incidental to lawful arrest,” he said.

Malacañang believes that the responsibilities present in media should also apply in cyberspace and what the Anti-Cybercrime Law does is“to attach responsibilities in cyberspace.”

“I think we should know where licentiousness stops. If you want to express yourself, we can express ourselves in a decent manner. If you want to criticize, you can criticize without getting to licentious,” said presidential spokesperson Edwin Lacierda.

The law began to take effect last October 3 without the Implementing Rules and Regulations (IRR), to which Topacio said can lead to confusion concerning the execution of the law.

“IRR is not required, but as a matter of practice and in the exercise of due process, the government should have shown how the law will be implemented because there could be different interpretations of the law,” he said. Altir Christian D. Bonganay

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