Cybercrime law as a weapon vs criticism in a time of pandemic

Amid COVID-19, the Philippine government has focused its attention more on suppressing freedom of expression in the guise of protecting the nation from “anarchy, chaos, fear and confusion” during the pandemic.

The line that has been drawn, however, between legitimate calls for improved health and medical services and “sedition” is unclear.

Philippine President Rodrigo Duterte had already sent a clear message — arrest all his critics.

And what would be the best time to silence critics?

On March 23, Congress passed a law giving Duterte additional powers to effectively deliver social services to millions of Filipinos kept at home by enhanced community quarantine (ECQ).

Known as Bayanihan Heal as One Act (Republic Act No. 11469), the law is valid for only three months. ECQ measures in some areas with no or low infection rates was lifted.

Rule of law except for the few

On May 5, a social studies teacher from Zambales tweeted, “I will give P50 million reward kung sino makakapatay kay Duterte (whoever can kill Duterte).”

He was arrested by the National Bureau of Investigation (NBI).

According to GMA News, NBI Director Eric Distor said the NBI is “serious in carrying out its mandate to pursue cases involving threats to security or assaults against the person of the President as well as of the Vice President, Senate President, Speaker of the House of Representatives and Chief Justice of the Supreme Court”.

It was mandated by the NBI Reorganization and Modernization Act, the NBI chief said.

On the same day, ABS-CBN, the Philippines ’ largest TV network, threatened by Mr. Duterte since 2019, was shut down by the National Telecommunications Commission (NTC) which said the network cannot operate legally after the lapse of its franchise.

On March 27, a 55-year old public school teacher in General Santos City, Juliet Espinosa, was charged with sedition involving cybercrime after posting her criticism on Facebook of alleged lack of relief goods being distributed to people who needed aid.

On April 19, Cebu-based artist Maria Victoria “Bambi” Beltran was arrested for allegedly violating the cybercrime law and the “fake news” provision of the Bayanihan Heal as One law after posting on Facebook that “9,000+ cases of COVID-19 in Zapatera, Cebu makes the city the epicenter in the whole solar system.”

Elanel Ordidor, a Filipina OFW in Taiwan, posted live videos on her Facebook page criticizing Duterte for the lockdown and use of force to enforce quarantine measures. On April 25, the official website of the Department of Labor and Employment (DOLE) posted a statement from Labor Attaché Fidel V. Macauyag asking Taiwan to deport Ordidor for violating the cybercrime law.

Macauyag said Ordidor committed an illegal act by posting “nasty and malevolent” materials against Duterte on Facebook intended to cause
hatred amid the global health crisis brought by the COVID-19 pandemic”.

While the NBI runs after critics of the Duterte administration, the Presidential Communications Operations Office (PCOO) remained unscathed.

The PCOO, headed by former broadcaster Martin Andanar, shared a series of infographics from the National Task Force to End Local Communist ArmedConflict (NTF-ELCAC), accusing ABS-CBN of franchise violations and other propaganda, Red-baiting members of media and legal organizations.

Unlike ordinary Filipinos who suffered humiliation and arrest for violating the cybercrime law, Mocha Uson, Overseas Workers Welfare Administration (OWWA) deputy administrator, was given due process for posting fake news. Uson posted pictures on her social media claiming the personal protective equipment (PPE) she helped distribute was bought by the Department of Health (DOH). It was actually bought by the SM Foundation.

On the contrary, presidential spokesperson Harry Roque assured the international community
that the Philippines has a “free and robust press where the critics and the political opposition remain vocal in their aversion to the current government.”

Cybercrime law in the Philippines

On July 11, 2011, the Cybercrime Prevention Act of 2012 (Republic Act 10175) was signed into law by
then President Benigno S. Aquino III. The Implementing Rules and Regulations (IRR) was signed on Aug. 12, 2015 by then Justice Secretary Leila de Lima and Interior Secretary Mar Roxas.

The law recognized the use of the internet in committing cyber crimes like pornography, trafficking, and fraud among others. However, the law also listed libel as among punishable cyber crimes. Libel is already a criminal case in the Revised Penal Code.

Under the cybercrime law, libel can constitute both oral and written. The internet has provided
users with different avenues to express themselves. These can be Facebook posts, Twitter posts and
live or uploaded videos.

Freedom of expression, a farce

How does it affect media practitioners? In a libel case, the Revised Penal Code under Article 360 includes not only the author but editors as well.

The law has been opposed by journalists, media workers and academics since 2012. In a statement released by the University of the Philippines College of Mass Communication (UP CMC) in October 2012, the Aquino administration was criticized for the chilling effect the law creates not only on communications and journalism students and media practitioners but also everyone else who has an opinion on something.

It covered practically all interpersonal communications processes through new media and “other devices” and imposed penalties, including imprisonment.

While the law was commendable for strengthening the fight against cyber crimes like pornography, cyber sex, cyber bullying and trafficking, it can also lead to abuses.

“While the law has inclusions that protect and help international crimes, it was an unnecessary curtailment of civil liberties and draconian legislation,” Marcel Milliam, a law scholar, said.

Eight years since RA 10175 was enacted, its enforcement has caught on critics of the government.

Maria Ressa, online news site Rappler CEO, and Reynaldo Santos, writer, were charged with cyber libel for a story in 2012 about businessman Wilfredo Keng and his alleged connection with a judge.

“This makes press freedom a farce as early as that time,” said Danilo Arao, UP journalism professor and media practitioner.

“With the weaponization of laws to suppress our basic freedoms, press freedom gets killed with the rise of a tyrant into power in 2016,” he said.

Arao also claimed that RA No. 10175 and laws on inciting to sedition are being used against the people.

In the Revised Penal Code, sedition is a crime which involved speeches, proclamations, writings, emblems, cartoons, banners or other representations leading to the same end or upon any person or persons who shall utter seditious words or speeches, write, publish or circulate libel against the Republic of the Philippines or any of its duly constituted authority.

If the Philippines has an extradition treaty with another country where the offense was committed, the offender can be extradited.

Although this is commonly done to cybercriminals, the law is not specific on which criminal acts. Hence, requesting the deportation of Ordidor from Taiwan was testing the waters. Fortunately, the Taiwan Ministry of Foreign Affairs rejected the request putting emphasis on freedom of expression even among migrant workers.

Applying the territorial principle of Philippine criminal law, the libel must be committed in the Philippines before it becomes punishable. Because of the internet, cyber libel has now a different scope.

“Libel is easy to allege but hard to prove, especially if the complainant is a public official or a public figure,” said Joel Jabal, president of the Integrated Bar of the Philippines Oriental Mindoro chapter.

“But definitely libel laws have always been used to silence critics and suppress dissenters,” Jabal said.

Speak truth to power

The internet, particularly social media, has been instrumental in conveying our messages across the world. It has bound us together as a community particularly in times of pandemic.

Although we are not discounting that social media are also used adversely, these have been effective tools in expressing our disappointments and demanding accountability from our government officials. But the authoritarian tendencies of Duterte are now using social media against us.

In the Bill of Rights of the Philippine Constitution, it is stated that “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for a redress of grievances.”

The Duterte administration is instilling fear to discourage Filipinos from asking legitimate questions. Posting or airing discontent in any form may result in cybercrime charges and worse, sedition.

As the pandemic ravages the Philippines, the administration has been focusing more on its perceived enemies and arresting critics of the government instead of addressing the shortage of PPE, lack of health and medical assistance to the poor, lack of testing kits, increasing poverty and the plummeting economy.

Despite the threats and the likelihood of Red-baiting, journalists, academics, other people refused to be cowered. It is only through our collective efforts that we can end the tyranny.

“The people should not allow this to happen. The silver lining is that there is a critical mass of people who are brave enough to speak truth to power,” Professor Arao said.