A continuing threat

More than a year after oral arguments, the Supreme Court has voted to uphold almost all of the controversial Cybercrime Prevention Act of 2012. Only four of 19 assailed provisions were declared unconstitutional. This means that this legal sword of Damocles we feel hovering above our heads has been pared down, made smaller—but it remains poised in midair, a continuing threat to the fundamental freedoms of speech and expression.

It doesn’t matter, as President Aquino said the day after the ruling came down, that the new law was not meant to curtail these basic freedoms. Intention is one thing; the use of the law to harass, intimidate, or persecute those on the wrong side of the political or legal or popular fence is entirely another.

We know this from painful experience; libel in the Philippines remains a criminal offense (unlike in most other countries), and it has been used and continues to be used, not so much to convict journalists, as to impede, or even to influence, their journalism.

To be sure, the Court’s decision to strike down some of the onerous provisions was good news. We welcome, for instance, the ruling on the infamous takedown clause, or Section 19, which would have allowed the Department of Justice to “restrict or block access” to databases or websites without need for a court order. Even Solicitor General Francis Jardeleza agreed that the clause, which gave the executive branch a sort of veto on the fundamental right of free speech, was “constitutionally impermissible”; it would have been strange for the Court to preserve a provision that the chief government lawyer himself did not attempt to defend.

Jardeleza had also expressed reservations about another controversial provision, saying Section 12, which allows real-time collection of computer traffic data, should be amended to specify the need for prior court authorization. In the wake of the Edward Snowden revelations, however, the possibility of grave abuse of real-time data collection by a sprawling or unscrupulous government has loomed large over this provision.  The Court’s finding of Section 12 as unconstitutional is thus doubly welcome.

But the law’s hurriedly inserted provision on online libel has been preserved. On Sept. 20, 2012, in a front-page editorial, we had noted thus: The Cybercrime Law “takes the dangerously outmoded provisions on libel in the Revised Penal Code—and dumps them online.”

To be sure, the Court has now limited the scope of the dumping. According to Court spokesperson Ted Te, the justices ruled that online libel was “not unconstitutional with respect to the original author of the post but unconstitutional only when it penalizes those who simply receive the post or react to it.” In other words, only the original story or post carries a legal liability.

This is, again, a welcome step. Our Sept. 20 editorial, “A blow against free speech” (the first of many editorials we have written on the Cybercrime Law), we posed four hypothetical questions; the first three were illustrations of the social-media dilemma many Filipinos faced under the new law: Would forwarding a possibly libelous article by e-mail, or tweeting the link to someone else’s offensive video, or “liking” a problematic post on Facebook, be considered online libel, too? We are pleased that the Court has categorically said no to all of the above.

But the Court has not only upheld the extension of libel laws to the online space; it has also upheld the new law’s raising of the penalty by one degree. This sets the campaign for the decriminalization of libel at least two steps back.

In that first editorial, we attempted to pinpoint those who we thought were ultimately responsible for the Cybercrime Law: “The burden of responsibility—and it is a heavy one, with historical consequences—remains with the legislators who voted for the new law, and with the President who enacted it.” To that cautionary list, and while mindful of the mitigating aspects of the ruling that came down the other day, we can add the justices of the Supreme Court.