MANILA, Philippines - The government asked the Supreme Court on Monday, December 10, to uphold the constitutionality of Republic Act 10175 or the Cybercrime Prevention Act, even as it agreed that the "takedown clause" or the provision allowing authorities to shut down websites with harmful content based only on prima facie evidence "violates the freedom of speech and expression clauses of the Constitution."
The government, through the Office of the Solicitor General (OSG), said Sec. 19 - which authorizes the Department of Justice to bar access to websites that on prima facie (at first sight) contain content that violates the Cybercrime law - should be amended by Congress.
The government, however, stoody by the legality of the law, saying "it is meant only to curb and fight the evil of cybercrime, nothing more and nothing less."
"It criminalizes conduct, not free speech or free expression," the government said in a comment that also asked for the lifting of the October 9 temporary restraining order issued by the SC on the implementation of the law.
The government said the High Court should dismiss the 15 petitions that moved for the scrapping of the Cybercrime law because of the the following reasons:
1.) Five of the petitions named President Benigno Aquino III as a respondent (Aquino signed the law in September). The case does not hold water because he enjoys presidential immunity, the OSG said.
2.) The OSG also said the petitioners do not have the legal standing to file a case because they failed to show how the provisions of the Cybercrime Act would affect them. "They fail to particularize how the implementation of specific provisions of RA No. 10175 would result in direct injury to their organization and members," the government said.
The petitioners have questioned Sections 4(c) 3, 4(c) 4, 5,6,7, 12, 13, 15, 19 and 20 and of the Cybecrime law. They pointed out the following:
Sec. 4(c) 3 punishes unsolicited commercial communication systems while Sec.4 (c) 4 includes online libel as a cybercrime. Section 5 punishes those who abetted in the commission of a cybercrime, while sections 6, 7 increase penalties for all crimes in the Revised Penal Code.
Section 12 allows real-time collection of traffic data, while Sections 13 and 17 authorize the preservation and destruction of said data.
Section 15, which allows the search, seizure and examination of computer data, allegedly violates the constitutional right against unreasonable search and seizure;
Section 19 gives the DOJ the power to "issue an order to restrict or block access" to computer data that are "prima facie found to be in violation of the provisions of this Act."
Sec. 20 punishes those who do not comply with Chapter IV of the Cybercrime Act; the said chapter covers the disclosure and collection of data.
All legal and valid
The government insisted that the above provisions are lawful.
Unsolicited commercial communication system or spam, they said, intrudes into the user's Internet right to privacy and should therefore be prohibited as stated in Sec. 4(c)3.
Online libel, on the other hand, is not a new crime, the OSG said. It is punishable under the Revised Penal Code. Article 360 of the Revised Penal code states that "Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means," can be sued for libel.
The government said "other means" include using the computer system.
The OSG also said it does not believe that Sec. 4(c) 4 impinges on the constitutional guarantee to freedom of expression and speech, because libel is "not constitutionally protected speech."
The government said Sec. 5, which also holds those who "abetted or aided" in the commission of cybercrimes "liable" is also not a new rule, because the Revised Penal Code punishes accomplices to crimes.
Sec.6 - which increases penalties for crimes in the Revised Penal Degree to one degree - does not violate the right to equal protection, the OSG added. Petitioners have said that this unfairly increases punishment; those who used information and communications technology to commit crimes will suffer stiffer, bigger penalties.
The government said though that using ICT allows people to increase the impact of crimes, as defamatory statements could be spread online while ordinary crimes have "physical limitations."
As for Sec. 12 - which allows collection of traffic data - the government asserted that there is no need for a court order before said data can be gathered because said traffic data, which refer to "any computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration or type of underlying service" " do not involve "intrusion into an individual's private space."
The government added that a related provision - Sec.13, which authorizes government to preserve said data - is directed to service providers, not to individual users. Sec.15, on the other hand, which allows the Philippine National Police and the National Bureau of Investigation to search and seize computer data, is an ordinary exercise of the government's law enforcement function, the OSG said.
Sec. 20 is again, not new, because it simply refers to obstruction of justice, which the government said is already an offense under the Revised Penal Code.
The SC is expected to tackle these points in oral arguments to be held in January. - Rappler.com.