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Legal impediments to Internet censorship

In the years before cyberspace became a reality, the dissemination of information was largely done manually.  Research work meant trips to  libraries and the acquisition, either by sale or by loan, of reference books and materials.  In some extreme cases, this meant archival work or trips to dark building attics where dusty crates house rare documents.  If one wanted to find a particular photograph of a famous person or a historic event, one had to check out an encyclopedia or a book that specialized in that particular line of interest or concern.  In all instances requiring research work, one who had a private library had a pronounced advantage over one who did not.

Back then, cinema and television, on account of their inaccessibility to ordinary researchers, did not provide a convenient source of research information.  To put it simply, it was basically impossible to cite television, and motion pictures were exhibited at the cinema houses at the whim of the film distributors.  

The Internet radically changed the information landscape not only for the contemporary researcher but for everyone seeking information about anything.  At the touch of a key on a laptop computer or a mobile telephone, anyone can access information on just about any subject of human interest, including pornography and subversive literature. 

In addition, cyberspace paved the way for the birth of the so-called social media, by which private citizens can be sources of both general and specific information.  Because of social media, the dissemination of information, once a lucrative monopoly of the traditional media, can now be undertaken by private citizens through cyberspace.

The unprecedented accessibility of cyberspace to ordinary citizens eventually triggered numerous issues and concerns.  Many “netizens,” as the users of the social media came to be called, had no regard for the laws on libel and invasion of privacy.  Quite a number of “information sources” on cyberspace likewise disregarded the basic rules on news gathering and dissemination, namely, news accuracy and the treatment of victims of heinous crimes.  

In 1996, the United States Congress enacted the Communications Decency Act, which made it a felony to send indecent material over computer networks.  It also prohibited using a telecommunications devise to, among others, transmit obscene material. 

A year later, the US Supreme Court declared the law unconstitutional on First Amendment (free speech-free press) grounds.  More specifically, the Court said that cyberspace is entitled to the fullest possible free speech protection, and that content posted on the Internet deserves the same protection as content printed on paper.  The Court likewise held that First Amendment rights to free speech and a free press are essential to online media; that a free Internet is essential to the rights of all Americans; and that government regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it.  Moreover, the Court said, the Internet is not as “invasive” as radio or television because users of the Internet seldom encounter content “by accident.”        

The Court, however, emphasized that the door is not closed to legal measures designed to protect against copyright violations, invasions of privacy, and consumer fraud.

American jurisprudence also posits that a public school library may use cyber filters to block access to pornographic sites by minors, provided that the filters must be removed whenever an adult requests access to the same sites.

In fine, the US Supreme Court was unwilling to authorize the construction of humps in what the tribunal called the unprecedented information highway of the world.

The Philippine approach to cyberspace regulation is not too different.

In 2012, the Congress of the Philippines enacted Republic Act No. 10175, or the Cybercrime Prevention Act of 2012.  Under this law, the penalty for libel, if committed through a computer system, was increased one degree higher than that for libel committed through other means.  This meant that one who is convicted for cyber libel will not be entitled to probation, and must, therefore, serve time in prison. 

One provision of Republic Act No. 10175 authorized the Secretary of Justice to close down, without any court authorization, any website or information provider suspected of criminal activity.  Another provision required e-mail and mobile phone service providers to submit to the government “traffic data” regarding their clients’ use of their services. 

As expected, the constitutionality of Republic Act No. 10175 was challenged in the Supreme Court.  Eventually, the tribunal upheld the main provisions of the law, particularly the one regarding cyber libel, but voided the provision authorizing the justice secretary to close down, without the benefit of a valid judicial warrant, suspect websites and information providers, as well as the provision on “traffic data.”  The ruling of the Court was welcomed by well-meaning users of cyber technology.   

There is word that the government intends to filter pornographic sites on the Internet.  If that is so, there is a good chance of that measure getting questioned in the Supreme Court.

Just recently, however, the Secretary of Health espoused the view that censorship of pornographic sites in the Internet is an effective measure against the spread of HIV among the students and the youth.  In fine, that view suggests that internet pornography effectively encourages the youth to be promiscuous, and to engage in unprotected sex.  

While the Health Secretary’s view appears to be well-meaning, it is legally untenable and impractical because, first, the jurisprudence on cyberspace regulation indicates that it is virtually impossible for the State to impose restrictions on Internet access on the part of adults. Second, Philippine law provides that a person above 18 years of age is an adult. Third, many college students are, legally speaking, adults already.

The government’s crusade against the spread of HIV is laudable, but it should not be at the expense of free speech and freedom of expression.

Topics: Victor Avecilla , Internet , censorship , cyberspace , information
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