Cybercrime and cyberspeech

With the passage of the Cybercrime Prevention Act (RA 10175), the government has entered the online thicket in a substantial way. Petitions have been filed questioning the validity of the Act, giving the Supreme Court the opportunity to define our rights in digital space. This is an important case because the Internet has become an important platform for individual and social activities that generate meaning and profits, produce identities and opportunities, or structure views and conversations. In my opinion, even a generous reading will not save RA 10175; it is unconstitutional because it is overbroad.

Let us assume that the government can prohibit online all the activities it can prohibit offline—libel, identity theft, child porn, trespass, malicious mischief, estafa, among others. Further assume that the government can legitimately increase the penalties for online crimes on the theory that cybercrime poses greater dangers to society. Assume even further that the government can engage in “real-time collection of traffic data” in the same way that it can monitor traffic on public streets. Finally, assume that the Department of Justice’s authority to “issue an order to restrict or block access to computer data” that prima  facie violates the law is akin to the authority of a police officer to make arrests for crimes committed in her presence. Will the law still be unconstitutional?

The answer is yes. This is because of the special nature of freedom of speech and of the press. What this means is that our Constitution requires that the government make a distinction between speech that offends private citizens and those that hurt public officers and public figures or talk about matters of public interest. The government has the right to protect private identity and reputation, whether online or offline; it also has the right to protect its citizens against fraud, trespass, and malicious commercial activity.

But the Constitution disables it from interfering with citizens’ attempt to praise, criticize, or even make fun of public figures and public officers, or discuss public issues. Decisional rules compel the government to clearly make this distinction under pain of nullity.

The Cybercrime Prevention Act is a classic case of a law that suffers from the vice of overbreadth. In constitutional parlance, the doctrine states that “a government’s purpose to control or prevent activities constitutionally subject to regulation may not be achieved by unnecessarily broad means that sweep into and thereby invade the area of protected freedoms.” Such constitutional policy is meant to impose upon the legislature a high standard of precision in the drafting of laws that affect free speech. Whereas ordinarily the poor draftsmanship of a law is not a ground to have it declared unconstitutional, in cases where free speech is affected the courts require both clarity in language and fidelity to speech-protective norms. The reason for this is that a badly written or overbroad statute can produce a chilling effect, a situation where people who are otherwise within their rights to speak choose to err on the side of caution and thus decide to keep their peace. This risk-averse attitude freezes the speech environment and prevents citizens from exercising their freedoms in order to check the government, make public officials accountable, or talk about controversial ideas.

As a preventive measure, constitutional litigation rules allow in these situations what is known as a facial challenge or an attack on the validity of the entire statute. Normally, citizens are allowed to question only the constitutional validity of laws that apply to and have been enforced against them. But given the importance of avoiding a chilling effect on free speech, an exception is made. The consequence is that the rules of standing (on whether or not a citizen has the right to file the case in the first place) are substantially relaxed, enabling courageous citizens whose rights are secure the opportunity to litigate the case in favor of the silent majority. Finally, if the court finds even a single portion of the statute violative of free speech rights, it is justified in striking down not only the offending proviso but the entire statute. The net effect is to give the legislature another shot at drafting the statute, bearing in mind the need to protect free speech values while regulating non-speech-related activity.

Applying these rules, the only defect that the various petitioners before the Supreme Court need to show is the absence of a distinction in the DOJ’s so-called takedown powers between speech and non-speech-related activity. Thus, even if the DOJ can block access to computer data used to commit cybersquatting, identity theft, defamation of private persons, or fraud, the absence of a distinction in the law that protects citizens from the takedown clause for cyberspeech against public officers and public figures nullifies the entire statute.

For those less interested in constitutional theory, I offer some basic rules: What the government cannot do offline with your rights, it likewise cannot do just because you went online. If you have the right to bully Sen. Vicente Sotto and his loyal staff of unrepentant plagiarists by rallying in front of the Senate and spending hard-earned money on leaflets and tarpaulins to criticize them, then you certainly also have the right to spend precious bandwidth to cyberbully them.

Florin T. Hilbay is an associate professor at the University of the Philippines College of Law, where he teaches constitutional law. He is also the director of the Institute of Government and Law Reform of the UP Law Center.