Understanding the cybercrime decision
The Supreme Court’s decision (Jesus Disini vs SOJ, Feb. 18, 2014) on the Cybercrime Prevention Law (CPL) is a delight for constitutional law scholars. The 50-page, single-space majority ruling penned by Justice Roberto A. Abad as well as the concurring and dissenting opinions of Chief Justice Maria Lourdes P.A. Sereno (43 pages) and Justices Antonio T. Carpio (32 pages), Arturo D. Brion (26 pages plus a 9-page annex) and Mario Victor F. Leonen (100 pages) are veritable treatises on the freedom of expression.
Old doctrines. They explained the nature and ramifications of the Internet, but Justice Leonen’s was the most extensive. He discussed many details like: “The allocation of unique identifiers for the internet, such as IP addresses and domain names, is administered not by a public entity but by a nonprofit corporation based in the United States: the Internet Corporation for Assigned Names and Numbers (ICANN).”
(While reading them, I remembered that, unknown to many, a talented and lovely Filipino, Judith Duavit-Vasquez, was elected as the first Asian woman to the ICANN board of trustees in 2011 for a 3-year term.)
These treatises indubitably show that the Court understands the complexity of cyberspace. They were able to correlate and apply the traditional doctrines on freedom of expression to the many complicated aspects of this Information Age marvel.
The freedom of expression—along with its derivatives like the freedom of the press, freedom of peaceful assembly, and, most important, freedom to oppose and to disagree—is the most basic ingredient of democracy. Without free expression, liberty cannot flourish. Without the freedom to oppose, elections will be meaningless and democracy will perish.
The freedom of expression started with verbal speech, and with the march of science, it encompassed all emerging media, like newspapers, books, placards, leaflets, pulpits, theaters, picket lines, radio, television, billboards, cell phones and now, cyberspace.
Majority ruling. The judicial opinions were crafted in legalese and directed mainly to a legal audience. I will try to explain them in simple language for the lay readers to understand them. And to help Congress decriminalize libel without sacrificing the reputation of maligned citizens.
Let me begin with the majority’s ruling which reviewed each of the 21 challenged provisions of the CPL. This item-by-item review is unusual because the petitions, “save possibly for one,” failed—as ably pointed out by CJ Sereno and Justice Leonen—to raise an “actual case or controversy.” Explained Justice Leonen: “None of the petitioners … have been charged [with] any offense arising from the law being challenged…” No one has alleged any actual or imminent violation of any right.
In any event, of the 21 challenged provisions, 16 were deemed constitutional. Three were declared unconstitutional. First, the provision criminalizing the sending of spam mails. The Court reasoned: “To prohibit the transmission of unsolicited ads [under the conditions imposed in the law] would deny a person the right to read his emails… Unsolicited advertisements are legitimate forms of expression.”
Second, the provision allowing real-time collection of traffic data, like an e-mail’s “origin, destination, route, time, date, size, duration, or type of underlying data.” The Court said the real-time bulk (as distinguished from isolated) collection of a person’s data violates the right to privacy. “The power is virtually limitless, enabling law enforcement authorities to engage in ‘fishing expeditions,’ choosing whatever specified communication they want.”
Third, the provision authorizing the Department of Justice to restrict or block access to computer data that the DOJ suspects violate the CPL. It gives the DOJ, the Court said, the virtual power to search and seize private data without the requisite judicial search warrant, in stark violation of the Constitution.
Online libel. To recall, 16 provisions were deemed constitutional, while three were not. On the remaining two, the ruling was mixed. The Court upheld the provision penalizing online libel but only with respect to the original author of the post. Those who simply received the post and reacted to it, say, by resending it via Facebook or Twitter or other social media, are not criminally liable.
The Court explained that the CPL copied the provision on cyberlibel from the Revised Penal Code (RPC), which had not been declared unconstitutional during the last 50 years. The CPL merely extended its application to cyberspace, and should thus remain constitutional.
The majority also upheld the higher penalty imposed on cyberlibel, reasoning that the determination of penalties is a legislative prerogative. The Court justified the more severe punishment by citing the inherent difficulty of identifying the cyberlibel culprit who “is able to reach far more victims or cause greater harm.”
However, the Court clarified that a prosecution for libel under the RPC bars a prosecution for the same post under the CPL, and vice versa, pursuant to the doctrine of double jeopardy. A printed article that is also posted online can be the subject of only one libel charge.
The majority’s refusal to invalidate libel is the most controversial part of the Court’s decision. Reacting to widespread protests, many legislators filed bills to decriminalize libel altogether. Next Sunday: the dissents, and why I agree with some of them.
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