DOJ holds dialogue on 'E-martial law'

MANILA, Philippines - The Department of Justice (DOJ) will hold a multisectoral forum on the Cybercrime Prevention Act of 2012 on Tuesday, October 9, in an attempt to allay fears that the law could give way to "E-martial law."

The Supreme Court is also expected to tackle petitions against the law today, Tuesday.

Critics of the Cybercrime Prevention Act of 2012 have raised these fears given the law's penalties on libel and its provisions authorizing law enforcement agencies to restrict, collect data and determine what information is harmful or not. Various groups and media organizations, including Rappler, are opposed to the law because of questionable provisions that impinge on press freedom.

DOJ Assistant Secretary Geronimo Sy, tasked to oversee Cybercrime Office at the DOJ, said this scenario is far-fetched. "If it gets there, I'll join you on the streets to protest," he said in an interview. 

Sy, who wrote the book "E-Commerce Act of the Philippines" (published in 2001) after the "I Love You Virus" caused an estimated $2 billion-$5 billion damage worldwide, explained the rationale behind some of the law's provisions and clarified how the law would be implemented. 

1. Why increase penalties to one degree higher? 

Section 6 of the new law states: "...The penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be."

Ordinary libel is punishable with imprisonment from 6 months to 4 years; online libel gets a jail time of 6-12 years. 

Why is the penalty for libel more severe when committed using information and communication technologies?

Sy said that as opposed to having libelous statements published in newspapers, the Internet allows people to destroy the reputation of someone in a minute, with one click.  

"The technical, practical side is this, before, in the traditional media, you would need to write it, print it, distribute it physically. Right now, in the comfort of your home, you can decide to destroy somebody's reputation. The barrier is very low, all you need to do is to access," he said.

"You can even use anonymous email, make it difficult to crack you down and say anything against anyone. That is a big difference. "

He added that one degree higher is not oppressive. "One degree is not reclusion perpetua, it's not life imprisonment, it's not death. It's just 4 years-12 years. In the context of the discussion of one degree, ano ba talaga 'yung one degree? Nakakatakot ba ?(Is it something to be scared of?) It's not anything that is non-bailable," he said. 

2. Can people be held liable for libel for "liking" or "retweeting" statements that are considered defamatory?

Lawyers such as Jose Jesus Disini and Harry Roque have raised concerns on the ambiguities of the coverage of online libel. Under the Revised Penal Code, those who can be sued for libel are the editor, publisher and author. 

In online libel, however, these "roles" are not that defined given the dynamic nature of social media. Some lawyers have said that the liability may include those who "like" Facebook posts and retweet statements that could be libelous.

But Sy said that liking or retweeting libelous posts would not land someone in jail. 

"The law has to be practical," he said. "If you have 15,000 likes, the first thing you do is to make sure that that particular material is libelous and attributable to a specific person if you get there. I don't think personally and professionally, pressing the like button will make you a criminal."

What if the Facebook, email, Twitter accounts or the website itself were hacked? Sy said due process will be observed. 

"If it's hacked, it can be shown. You have a public site like Rappler, you put a contraband website in your site, the least we can do is say, hey Rappler, do you know that your site has been hacked, this is ABC, and you say can we do something about it."

He said though that if a website refuses to take down contraband information, then that's when the authorities can block the site.

3. When can a site be shut down for having harmful content?

Section 19 of the cybercrime law states that the DOJ is given the power to "issue an order to restrict or block access" to computer data that is "prima facie found to be in violation of the provisions of this Act."

This has been referred to as the takedown clause. But Sy said the description is off. 

"I want to correct, we should not be using takedown, takedown seems very arbitrary, it's not a takedown provision as you would have extraordinary rendition, or crossing borders without the consent of a national authority. It's not of that nature," he said.

"The proper phrasing is restricting or blocking. Of course if you wanna be pilosopo about it, it's takedown, but it's of a very different connotation."

This is how it will work, Sy explained.

If you see a man beating a child on the street, would you try to stop him or just go on walking, because he is just after all, using his right to parent a child? The same goes for seeing a website that contains data on human or drug trafficking. The "harmful" content...if you see a site selling children, will you just turn a blind eye or alert the authorities?"

Sy said once they receive complaints, that's when they will block access to the site. 

"If a website is selling children for P20,000, that's a nuisance, that's contraband. Every child, man, woman, Filipino, whether private citizen or is from the government, should have the right to say - that should not be there. It's like putting a filter on website that is patently or immoral or illegal. We don't need a debate on certain things that are black and white," he said. 

4. Collection of data 

Sy clarified that if the data are content-related, they will secure a court warrant first before they collect them. But if it's traffic data -- "traffic data, the movement - how many emails were received,who is sending what, the threatening emails, the extortion email, the drop-off for the money, where do we deliver those goods, how to kill a person, those kind of data" -- Sy said they can collect them without a court order. 

He said this will be helpful in stopping terrorism. 

"You are about to detonate a bomb right beside a hotel. If you know this number, this number is now in XYZ place and the detonation is in Z place, that traffic data is important. We don't want to eavesdrop on people who just say I love you, I just hate you, I just like you, that's not our business. But if we know that this particular number, if there are reports that this number is being used to detonate that, do you want us to stop that, and get a warrant first? It's physically impossible, it's legally impossible. That is the context of the appreciation of traffic data, not content data." - Rappler.com