MS 30th Anniversary XXX

Thrust and parry on the cybercrime law

In a meeting called by Justice Roberto A. Abad and held last Friday, January 4, the 15 petitioners against the constitutionality of the Cybercrime Prevention Act of 2012, with Solicitor General Francis Jardeleza also in attendance, identified the issues to be argued by specific counsels. I was designated to argue the “most objected provision of the law,” Art 4 c (4) penalizing libel. Rep. Neri Colmenares was designated to argue the constitutionality of sections 6 and 7, which increase the penalty for crimes under the new law and provide that prosecution under it is without prejudice to conviction for violations of other laws. Lawyer Jayjay Disini, my colleague at UP Law, was designated to argue the issue of Art. 12 that authorizes the collection of computer data.  Lawyer Rodel Cruz of the Philippine Bar Association was designated to argue the issue of Art. 19 or the “take-down clause’ of the law. Atty. Julius Matibag was designated to discuss the issue of Art 5. which penalizes “aiding and abetting” provided in the new law. Just yesterday, I was designated to argue the additional issue of whether the new law’s penalization of “cybersex” is constitutional. I was allotted a total of 15 minutes to make my arguments on libel and the cybersex provision, while the other counsels were allotted 10 minutes each. I expect though that my grilling will last at least two hours after my prepared submissions. While it would be contemptuous to discuss the merits of the case, it is still acceptable to highlight the issues for argumentation on the 15th. First, petitioners will argue that both the cybercrime law’s provisions on libel and cybersex violate freedom of expression under the Bill of Rights and under International Human Rights Law. They are expected to argue that the law is one that infringes on expression and hence, the fact that the language of the law may cover even constitutionally protected speech renders the law valid on its face. Additionally, petitioners will argue that since there is no fixed definition of what is defamatory and what is immoral or pornographic, the law is also void for being vague. The government will in turn argue that the law’s provisions on libel and cybersex are valid exercise of police power to uphold the public good. It will argue that the criminalization of libel is meant protect one’s honor, which has been recognized also to be a right; while the prohibition on cybersex will uphold good morals. Second, petitioners will argue that the laws prohibition on “aiding and abetting” is also void because it is unclear who, in cyber world, may be guilty of aiding and abetting. Does it include, for instance, an intermediary, a cyber café owner, and even a school where school computers are used to upload data defined as being criminal by the law? The state will argue that the definition of  “aiding and abetting” is clear as the light of day and that the legislative intent is to punish all those who will enable criminal data to be uploaded on the Internet. Third, petitioners will argue that increased penalty for crimes punished under the new law and that conviction is without prejudice to conviction under any other law, including the Revised Penal Code, is unconstitutional because it violates the rule that members of the same class must be treated equally. On the possibility of multiple convictions for the same acts, petitioners will argue that this violates the prohibition on double jeopardy. The state will argue that there is a genuine distinction for the higher penalty as in the case of libel, it is the fact that anything on the internet may be accessed from any corner of this planet. Anent the issue of multiple conviction, it will argue that this is not double jeopardy since the elements of the crimes subject of multiple convictions are not identical. Fourth, on the collection of data, petitioners will argue that this violates the right to privacy, or the right to be left alone, and that this requires judicial intervention. The state will argue that this is a valid exercise of police powers to enable them to conduct police investigation for violations of the new law. The Solicitor-General though has conceded that Congress should consider amending the law to require a judicial warrant for this purpose. And finally, the all controversial provision,Article 19 that authorizes the DOJ secretary to shut down Web sites. While the Solicitor-General has conceded that this is unconstitutional as judicial intervention is required for this purpose, Justice Abad required the issue to still be argued since the parties cannot stipulate on the unconstitutionality of a statute. He asked the Solicitor-General to inform Congress of its position so that the latter may send its own lawyer to defend the questioned section. Next week, I will have a detailed discussion on the issues involving the constitutionality of e-Libel and cybersex. Meanwhile, be at the Supreme Court on January 15 and be counted!  
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