MANILA, Philippines (2nd UPDATE) – The Supreme Court on Tuesday, February 18, upheld as constitutional most provisions of Republic Act 10175 or the Cybercrime Law, including online libel – subject to one condition.
The High Court also struck down a provision of the law that gives the state the power to take down online content without a court warrant.
Seeking to strike a balance between fundamental freedoms and government control, the High Court decided on the constitutionality of Republic Act 10175 a little over a year after oral arguments were heard on Jan 15, 2013.
Among the hotly-debated issues during the oral arguments was the law’s provision on online libel. (READ: ‘Libel gone is best-case scenario for SC cybercime ruling’)
The Supreme Court decision, penned by Justice Roberto Abad, ruled online libel to be constitutional but with an exception – that is, in cases where it covers persons other than the original author. Recipients of, and netizens who react to a potentially defamatory post, will not be covered by online libel.
Three provisions were voted down as categorically unconstitutional:
- Section 4 (c)(3) which pertains to unsolicited commercial communications
- Section 12 which pertains to real-time collection of traffic data
- Section 19 which pertains to restricting or blocking access to computer data
The SC decided that Section 19 – granting power to the Department of Justice (DOJ) to restrict computer data on the basis of prima facie or initially observed evidence – was not in keeping with the Constitution. The said automatic take-down clause is found in Section 19 of the cybercrime law.
Even the Solicitor General, in his defense of RA 10175, admitted before the SC that Section 19 is “constitutionally impermissible, because it permits a form of final restraint on speech without prior judicial determination.”
Section 12 would have allowed law enforcement authorities with due cause to collect or record by technical or electronic means “traffic data” in real time.
Section 4 (c)(3) of the law says that “the transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited” unless certain conditions – such as prior affirmative consent from the recipient – are met. This was ruled unconstitutional.
A separability clause contained in Section 29, Chapter VIII of the law allows the rest of the law to “remain in full force and effect” even if certain provisions are held invalid.
Nuances in other provisions
Three other provisions were not struck down and remain in the law, but they will not apply in certain cases as decided by the SC. Among these provisions is online libel, which is constitutional as far as the original author is concerned.
Section 5, which pertains to aiding or abetting the commission of a cybercrime and to the attempt to commit a cybercrime, was declared unconstitutional only in the following cases: child pornography, unsolicited commercial communications (or spam), and online libel. Section 5 will apply to all other cybercrimes outlined in the law.
National Bureau of Investigation (NBI) Cybercrime Division Chief Ronald Aguto explained to Rappler that it will also be hard for both law enforcement and the prosecution to prove the “attempt to commit a cybercrime.”
Aiding and abetting the commission of a cybercrime, he added, might unduly cover certain players in the online industry.
Section 7, which pertains to liability of a cyber criminal under other laws, was declared unconstitutional only in the following cases: online libel and child pornography.
The SC cited the guarantee against double jeopardy or being punished more than once for the same offense – a guarantee outlined in the Constitution – in deciding on Section 7.
Libel is punishable by Article 353 of the Revised Penal Code, while child pornography is punishable by RA 9775 or the Anti-Child Pornography Act.
A person convicted of libel or child pornography can only be punished once, under the coverage of a single law.
The Cybercrime Prevention Act was signed into law in September 2012, 11 years after a first version was filed in Congress. A temporary restraining order, which was later on extended, was issued a month after, pending the decision of the High Court.
Aguto said his division – which deals with cybercrimes – welcomes the SC decision, as the law will help in their operations and can bolster the state’s legal defense against cyber criminals.
“I understand this will be an additional cost to the telecommunication companies. But as far as the law enforcement is concerned, it would be a good and a very effective tool for us to get the necessary information from the telcos (telecommunication companies),” he said of the law.
Activist Nato Reyes of leftist group Bayan said they welcome the striking down of the law’s take-down clause and warrantless collection of data but have concerns over online libel.
“This constitutes a continuing threat against free speech. It is another huge step back for freedom of expression,” he said, adding that his group will file a motion for reconsideration before the High Tribunal.
Earlier, Reyes and other protesters rallied outside the SC while waiting for the decision. Watch below.