Misdirected critiques of Cybercrime Law

Critics of the Cybercrime Law (RA 10175) err when they target its punishment of defamation. Libel has been punished in the Revised Penal Code since 1930, and presumably before that in the Spanish-era Codigo Penal. The Cybercrime Law didn’t invent it.

That is completely understandable. After all, libel is defined as “a crime against honor,” and its punishment a measure to protect people’s reputations. Just to show you how far that protection goes, when a private citizen is maligned, the malicious imputation is punishable even if it’s true. Malice doesn’t have to be proved for as long as “no good intention and justifiable motive for making it is shown.” It is only when the victim, the person maligned, is a public officer or a public figure that he needs to prove actual malice. These principles, adopted under the famed New York Times and Rosenberg rulings, have long been embraced in Philippine law.

Some critics have raised a fine point of law: Old-school libel is “malum  in  se” or an “evil in itself” for which you need to prove malicious intent, and Internet libel is contained in a so-called “special law” which makes it a mere “malum  prohibitum” or “wrong only because prohibited by law” that doesn’t require intent. In other words, RA 10175 piggybacks on an old law, but makes it easier to prosecute. Not quite. As already explained, it is the substantive requirements of libel law that determines whether malice needs to be proved, not the  malum in se/prohibitum  distinction.

What the Cybercrime Law does is merely to include a new medium, the Internet, in the “publication” requirement. The law’s enumeration is obviously archaic: “writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.” E-mail or social media are so obviously included in “any similar means” but there are judges and prosecutors out there who still insist on seeing the rule in black and white.

Thus far, no problem. However, the law remains vulnerable at three points. One, the nature of the social media really expands the meaning of what it means “to speak.” In other words, in the predigital world, the “speaker” is he who originally utters the message. But today anybody who “likes,” “shares,” reposts, or retweets actually “speaks” the message, too. RA 10175 thus goes too far, but this is admittedly the most difficult point to remedy. In other words, how different are they from gossipers who repeat a rumor?

Two, the law allows the Department of Justice “to restrict or block access” to purloined computer data, or what University of the Philippines law professor Jose Jesus Disini calls the “takedown” clause. RA 10175 thus dispenses with the usual safeguard against abuse of these powers, namely, a prior court order.

Third, the UN Human Rights Committee has already chastised our government for its “excessive” punishment of libel, and here we have even expanded its scope and upped the criminal penalties! UP law professor Harry Roque, counsel for Filipino broadcaster Alexander Adonis before the UN body, reminds us that in fact the Committee held that the Philippine rule that truth is no defense is incompatible with our treaty obligations on free expression.

Finally, I realize genuine concerns about the law’s provisions on “Real-Time Collection of Traffic Data.” The starting point here is that telecommunications companies routinely know a lot of information about us in the ordinary course of business. “Traffic data” is the typical information that the telco needs to collect your money, similar to data in your monthly cell phone billing statement if you have a postpaid account. Even the Philippine Supreme Court has found no protected privacy interest in information stored in existing databases. Two issues arise here: search-and-seizure and data retention.

RA 10175 says that law enforcement bodies need a court-issued warrant only for “content” but not for “traffic data.” Perhaps that line is easier to draw for cell phone technology, but the line gets blurred for the Internet where even content-neutral traffic data can actually reveal private information. Police access to both kinds of data should require a judicial warrant.

Moreover, the law prescribes a 6-month “data retention period” for both traffic and content data. (Some EU states’ antiterrorism laws allow a 12-month retention period.) If police access requires a prior warrant, the data-retention period is indispensable for law enforcement. Otherwise the evidence may be erased before it can be secured. Again the prior court warrant requirement should easily address any concerns on data retention.

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More than 35 years ago, as a college sophomore at UP, I made a decision that I scarcely realized would affect my life deeply: I joined the Alpha Sigma Fraternity. I was then a lowly section editor in the Philippine Collegian, and after one staff meeting, several staffers led by editor in chief Diwa Guinigundo, now Bangko Sentral deputy governor, sat around me to make the pitch.

Alpha Sigma was still young then, envisioned by Kabataang Makabayan founder Nilo Tayag as a leftist organization that has taken the form of a fraternity. Today I still treasure the lessons I learned from the fraternity, including from those innumerable protest rallies where teenage rebellion fused with the loftier politics of revolution, and coming face to face with the Metrocom’s antiriot squad was as much a test of political commitment as it was of brotherhood.

The fraternity calls on its Diliman, Manila and Los Baños alumni to celebrate its golden anniversary on Oct. 10, 6 p.m., at Makati Shangri-la hotel.

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