Chaff and grain of the cybercrime law

The controversy over the Cybercrime Prevention Act of 2012 (Republic Act 10175) digs deep into one of the most revered rights in a democracy—the right to free expression. The guardians of liberty are always alarmed when a new law tends to suppress free expression.

Punishable acts. Not surprisingly then, many libertarians—including Teofisto Guingona III, the only senator who voted against it—petitioned the Supreme Court to invalidate it in whole or in part. And the Court, not surprisingly, too, obliged by promptly issuing ex-parte “a temporary restraining order, effective immediately and for a period of 120 days, enjoining the respondents from implementing and/or enforcing” RA 10175 and set the case for oral argument on Jan. 15, 2013.

To be sure, the cybercrime law defines and penalizes (a) certain acts that violate the “confidentiality, integrity and availability of computer data and systems,” namely, “illegal access, illegal interception, data interference, system interference, misuse of devices and cyber squatting;” (b) “computer-related offenses,” namely, “computer-related forgery, computer-related fraud, and computer-related identity theft;” and (c) “content-related offenses,” namely, “cybersex, child pornography, unsolicited commercial communications and libel.”

The first two groups of cybercrimes appear to be constitutionally unremarkable. For instance, item (a) penalizes “computer-related identity theft,” which is the “intentional or reckless alteration, damaging, deletion or deterioration of computer data… without right, including the introduction or transmission of viruses.” This provision in fact protects computers and computer data from hackers and jabbers.

So, too, item (b) punishes “computer-related identity theft,” which is the “intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right.” Simply stated, the law penalizes the intentional misuse of an e-mail address belonging to another. This is like stealing or misusing a person’s name and identity, without that person’s authority.

What could be objectionable is item (c), the “content-related offenses.” The “chilling effect” of this provision could make it unconstitutional. Communications made through the Internet, like e-mail, Twitter or Facebook, are a species of free expression that are protected by the Constitution from (1) previous restraint or censorship and (2) subsequent punishment.

Derivatives of the right. Free expression began in the Middle Ages with free speech and the right to peaceful assembly for a redress of grievances. When the printing press was invented, freedom of expression was expanded to include freedom of the press. Labor’s right to strike and to picket also became modes of protected speech when the Industrial Age dawned. Thereafter, radio, television and cinema came up and were likewise given constitutional mantle. In “ABS-CBN vs Comelec” (Jan. 28, 2000), our Supreme Court deemed exit polls to be a part of free expression.

Indeed, as mankind pushes the frontiers of science in mass communications, so must the scope of free expression expand. Thus, I believe the Internet and its derivatives, like Twitter and Facebook, are also technological expansion of freedom of expression and should be given the same mantle of protection.

In the same way that a person is not required to get a permit from any official to be able to speak at any gathering, or to print a newsletter or to publish a book, or to assemble peacefully to petition for a redress of grievances, a netizen can freely send and receive communications over cyberspace without previous restraint or censorship.

The freedom to assemble cannot be banned but local governments may reasonably regulate the public place, date and time of the assembly.

Censorship need not be total; even the restriction of print circulation or the electronic interference of radio or television signals is unconstitutional. Thus, the imposition of a tax on a publication that exceeds a circulation of, say, 50,000 would violate freedom of the press. Similarly, a tax on the excess of, say, 100 e-mails a day would be unconstitutional.

Not absolute. Of course, freedom of expression is not absolute. Like other constitutional rights, it is subject to the police power of the state. Hence, lewd, obscene, seditious and libelous words are unprotected for they violate other people’s rights.

To be subject to punishment, the words employed must constitute a “clear and present danger… whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the State has a right to prevent.”

Justice Oliver Wendell Holmes, who invented the rule, explained: “It is a question of proximity and degree. The character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting ‘fire, fire’ in a crowded theater and causing a panic.” If these words were shouted in an open field, there would be no liability because there is no clear and present danger to public welfare.

In sum, I welcome the suits filed to test the constitutionality of the cybercrime law. The Supreme Court will separate the chaff from the grain in protecting cyberspace communications via the crucibles of freedom of expression.

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