Malacañang on cybercrime and FOI: An ideological connection?

It could have remained Sotto’s Folly, the cybercrime law with the controversial libel provision that Senator Vicente Sotto III inserted during the Senate deliberations on the bill.

But with the president strongly standing by his signing it into law, the bill has now become P-noy’s Cyberfolly.  He could have said, I made a mistake, and I’m open to amending it, like Senators Edgardo Angara and Francis Escudero did.  But he chose to draw a line in the sand and say here I stand.

A flawed law

I belong to the same coalition led by the president, but I have to differ with him on this issue.  Let me state very simply the reasons why.

First of all, instead of decriminalizing libel, as so many legal and constitutional experts have strongly suggested, the law extends it to the cyberspace, thanks to the sly maneuver of that plagiarist Tito Sotto and the somnambulistic behavior of most senators and the members of the Senate-House bicameral committee.

Second, the libel law is invoked for a totally inappropriate context.  There are editorial controls that operate when it comes to the established media. These professional restraints are not available on the Internet and social media, which promote and facilitate the expression of individual opinion in its most spontaneous forms. The Internet is the premium arena for free speech, where people should be able to express themselves without fear.  This does not mean that there are no checks on information and opinion, as Senator Angara claimed when he said without the cybercrime law, the Internet would be the “Wild West.” Opinions expressed on the Internet are taken provisionally by most users, who only get convinced of the truth of an allegation after the flurry of exchanges on the net. The allegation that Senator Sotto is vehemently against the RH Bill because he wants to be the ambassador to the Vatican can be easily proven to be false via the Internet’s self-policing via research-based exchange, just as the allegation that he is a shameless plagiarist can be easily proven true by the same process.

Third, there is absolutely no basis for the provision that makes the penalty for cybercrime, including libel, one degree higher than is provided for in the Revised Penal Code.

There are other disturbing provisions, such as Section 19, which would authorize the Department of Justice to issue an order to take down a website simply on assessment that it is engaged in prima facie violations of the provisions of the cybercrime law.

This power is too broad and can easily be abused.

Why the President’s solution is no solution

Amending the law is obviously the way to go, one that would be strengthened should the Supreme Court find the law unconstitutional. But the President has refused to entertain this route, offering instead to reduce penalties for internet libel.

President Aquino’s offer, however, is no solution at all since the problem is the insertion of the libel provision itself. This is not only against free speech and thus unconstitutional, but it will have a chilling effect on Internet traffic. To reiterate, people should have be able to call Sotto a plagiarist, Vice President Binay a power-hungry politician, Erap a clown, the President a paternalistic elitist, Senator Enrile an unprincipled power broker, and Senator Trillanes an agent of China without fear of being slapped with a libel suit the next day.  Let the Internet process of reply and counter-reply based on the use of evidence and counterevidence resolve the issue.  This process, after all, has been found effective in producing the best and most balanced encyclopedia around, Wikipedia. And believe me, most Internet users are hardened skeptics: they won’t fall for claims that have the slightest whiff of falsehood about them, though there are, of course, always a few exceptions.

My main concern here, however, is to raise the possible connection between the President’s standing firm on cyberlibel and Malacanang’s lack of enthusiasm for the Freedom of Information Bill (FOI), which incidentally P-noy promised to prioritize during his campaign for the presidency. The cybercrime law effectively restricts freedom of expression. FOI is an enabling law that would facilitate freedom of expression by institutionalizing access to government information that would otherwise remain under wraps.

Bad advice or ideological stance?

Some say that Malacanang’s attitude to both bills reflects a wariness of both established and social media. When I asked him why Malacanang did not make FOI a priority, one Palace official, without invoking confidentiality, told me flat out that the Palace had problems with the bill because “the press already has too much power.”  This person might have merited an A+ for frankness but an F on free speech and freedom of information, which are among the pillars of a democracy.

How much of Malacanang’s lack of support for FOI stems from the President himself? And was it the President himself who insisted on standing firm on the libel provision? Or did his stand on both issues come mainly from bad advice?

I certainly hope it is the latter, for that would mean there is a greater possibility of a retreat on the Cybercrime Prevention Act and regaining momentum on FOI. But if it is a case of an ideological position—that is a conservative, elitist stance on free speech and transparency issues—then this is truly disturbing. For the success of the governance reforms, like the anti-corruption campaign, that the President is now promoting, cannot ultimately be separated from the expansion of free speech and deepening of transparency.

Walden Bello represents the party-list Akbayan in the House of Representatives.