Unembarrassed

When the Supreme Court issued a four-month-long temporary restraining order against the controversial Cybercrime Prevention Act last October, the unusual length of the TRO was widely interpreted as a deferential gesture. The high court wanted to spare Congress the embarrassment of a new law being declared unconstitutional, by giving it enough time to amend or revise the law’s controversial provisions.

That is certainly how the Inquirer saw it at the time. But we should have known better, because it has become obvious that escaping the specter of embarrassment does not rank high on Congress’ list of priorities.

The lack of action on the part of Congress has forced the Supreme Court’s hand. It conducted two lengthy rounds of oral arguments in the last three weeks, and on Tuesday, in the clearest sign that the cybercrime law is in trouble, it extended the TRO indefinitely. “The temporary restraining order in the cybercrime case is extended until further orders from the court,” the tribunal’s information office announced through a text message.

We join the many who welcome the extension of the TRO; we realize, together with other free speech advocates and critics of sweeping government powers online, that until the patently unconstitutional law is struck down, we cannot rest or take victory for granted. But we do recognize that the indefinite extension of the restraining order has already had an immediate impact. None of the law’s provisions, including the absurd and unthinking application of antiquated libel laws to online content, can be used to harass online users.

The so-called “chilling effect” on online speech and Internet user habits remains a potential, not an actual, threat. (Still, in a ruling dated Dec. 28, 2012, the Court of Appeals upheld a decision by the Marikina Regional Trial Court to proceed with a libel case and the issuance of arrest warrants on a minor and five other persons for supposed defamatory posts on a social networking site.)

Extrapolating court rulings from oral arguments is always a tricky undertaking. It is possible to view the justices’ demeanor during the oral arguments on the cybercrime law, however, as a kind of role-playing conducted in public; they wanted to place themselves in the lawmakers’ shoes.

In the first round, at least two justices launched inquiries with disquieting implications. The questions they raised during the second round, however, together with those raised by other justices, suggest that the high court as a whole was bending over backward to think like the legislators who produced the law. As more than one of them said, they want to save the law as much as they can.

But what, really, is there to save? Solicitor General Francis Jardeleza is on record as saying that one of the main and most controversial provisions, the so-called takedown clause that allows the Department of Justice to “take down” websites it deems problematic, is unconstitutional. And this is the part of the law that benefited from considerable preparation!

Other unconstitutional provisions, such as the unthinking extension of the antiquated provisions on libel in the Revised Penal Code to “cyberspace” and the alarming increase in the penalties for cyber-libel, were rushed, as even a cursory reading of the legislative journals will readily prove. Is it any surprise that the law’s real-world consequences are so cavalier, so casually cruel?

The Senate’s manifest lack of due diligence means, for example, that a person logged on to Facebook who “Likes” a possibly libelous post on that social networking site is also liable for cyber-libel—an interpretation of the law with which Jardeleza himself agreed during the oral arguments. And if convicted, that person will be meted a penalty one degree higher than a person convicted of committing libel through the old-fashioned way.

The rank unfairness of it all explains the widespread revulsion that met the law when President Aquino signed it in September.

If the prospect of embarrassment did not move Congress, perhaps opportunity will. We hope the Supreme Court will give the members of the incoming Congress a chance to craft a much better law, by ruling that the cybercrime law is unconstitutional, and taking it down for good.