Cybersex, media, privacy, and the cybercrime law

Aries Rufo
In this concluding part, we explain key provisions that touch on cybersex, online child pornography, media freedom, and the right to privacy

Last of 3 parts

Part 1: Can’t understand the jargon in the Cybercrime Law?
Part 2: Making sense of online libel

MANILA, Philippines – After discussing the important provisions of the recent Supreme Court decision on the cybercrime law, particularly online libel, we proceed to other equally important sections. (Read second part of this series)

The High Court ruled on February 18 that most provisions were constitutional. (READ: FULL TEXT: Cybercrime law constitutional – Supreme Court)

This is the concluding part of our cybercrime law explainer that touches on 3 areas: cybersex, the media, and privacy. The basic information and definition of some legal terms are available from a previous story. (Read first part of this series.)

Cybersex and online child pornography

1) What are the acts that constitute cybersex and therefore a violation of the cybercrime law?

The law – to which the SC agrees – differentiates between cybersex between husband and wife or two consenting adults, and cybersex for purely financial gain. It is the latter type that the law seeks to punish, defining it as “willful engagement, maintenance, control or operation, directly or indirectly of any lascivious exhibition sexual organ or sexual activity, with the aid of computer system, for favor or consideration.”

2) What did the Court say on cybersex between a couple or two consenting adults?

Quoting congressional deliberations on the cybercrime law, the SC observes that the discussions “show a lack of intent to penalize a private showing xxx between and among two private persons xxx although that may be a form of obscenity to some.”

3) When is cybersex criminally liable?

When it is geared towards financial gain. Citing the congressional deliberations, the SC says Congress made it clear “that the element of ‘engaging in business’ is necessary to constitute the illegal cybersex. The Act actually seeks to punish cyber prostitution, white slave trade and pornography for favor and consideration.”

4) If financial gain is the yardstick for liability, can I store or maintain pornographic materials in my computer provided it is for private consumption only? Can I ‘save’ the private cybersex for my private consumption?

At your own risk. The SC cites the case of Nogales v. People which involved the destruction of pornographic materials found in the computer hardware of one company. In that case, “the Court weighed the property rights of individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited or destroyed.” The Court says that “engaging in sexual acts privately through internet connection, perceived by some as a right, has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.”

5) But can law enforcement authorities, like the National Bureau of Investigation, just conduct a search and seizure operation on my computer or laptop?

No. There must be a duly issued court order. Not even the Department of Justice can do this without court permission. Without a court order, the SC says this is tantamount to “unreasonable searches and seizures.” Computer data may constitute personal property and are constitutionally protected. “The DOJ order cannot substitute for judicial search warrant.”

6) On the matter of pornography, which is a content-related offense, am I liable for online child pornography if I re-tweet or reply to a tweet containing child pornography, or shared it on Facebook? Am I guilty of “aiding and abetting” the commission of online child pornography?

No. In the first place, the SC pointed out that the law is unclear as to the liability of Internet providers or users, something which the American laws on child pornography have clearly delineated. The Court reminds lawmakers that they have to “address these clearly to relieve users of annoying fear of possible criminal prosecution. Like online libel, the liability of other Internet users is blurred when it involves online child pornorgraphy. “In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Sec. 5 in relation to….Sec. 4(c)(2) on child pornography cannot stand scrutiny,” the Court says.

7) What is the penalty for cybersex that fosters cyber prostitution, white slave trade and pornography?

Like all other violations already defined and penalized under the Revised Penal Code and covered under the cybercrime law, the penalty is “one degree higher” than what is provided in Republic Act 9775, or the Anti-Child Pornography Act of 2009.

8) Can I be simultaneously charged for violation of the Anti-Child Pornography Act  (ACPA) and the Cybercrime law at the same time?

No. The Court observes that the cybercrime law’s definition of online child pornography “merely expands” ACPA’s scope. Thus charging the offender for both laws would be “tantamount to a violation of the constitutional prohibition against double jeopardy.”

The media 

1) How does the cybercrime law affect Philippine media?

The cybercrime law affects the media in the sense that the Supreme Court still sustains libel as a criminal offense subject to the penalty of imprisonment. Critics of the law say libel laws provide a “chilling effect” on media and freedom of speech and expression. “Given the ease with which libel complaints can be initiated the malice presumption rule can have a chilling and daunting effect to the public, particularly to media practitioners,” Ateneo School of Government Dean Tony La Viña said on his take on the cybercrime law. (READ: The future of libel)

2) Does it really curtail press freedom?

Yes. The law’s provision on libel, and the way by which public officials use the threat of libel to silence critics, could be used as a weapon to curtail press freedom. As the SC, in its ruling, acknowledges: “All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect, or the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is proper.”

3) Does it further expand or strengthen libel laws targeting journalists?

Yes and no. The SC sustains the higher degree of penalty for online libel, as against libel committed on print or any other means of communication. With the growing practice of news organizations to have online versions of published printed materials, an offended party or public figure can opt to file for libel under the Cybercrime law and secure a higher degree of penalty for the journalist. (See Questions 11, 12, 13 under Online Libel.) On the other hand, the SC stresses that libel provisions in the Cybercrime law “mainly target libel against private persons.” As such, “the Court recognizes that these laws imply a stricter standard of ‘malice’ to convict the author of the defamatory statement where the offended party is a public figure.” To the Court, “society’s interest and the maintenance of good governance demand a full discussion of public affairs.”

4) Still, the bottom line is, the law disadvantages the journalist?

Yes. Local media organizations have been lobbying for the decriminalization of libel to defang public officials who use it to intimidate and harass journalists.

5) But doesn’t the law violate the country’s obligation under the International Covenant of Civil and Political Rights (ICCPR)?

The Court disagrees. Although the ICCPR “states that everyone should enjoy freedom of expression, its exercise carries with it special duties and responsibilities,” the Court says. “Free speech is not absolute. It is subject to certain conditions as may be necessary and as may be provided by law,” the Court adds.

6) Can the journalist be charged for libel under the Revised Penal Code and under the cybercrime law?

No. As the Office of the Solicitor General argued, online libel “is not a new crime but is one already punished under Article 353” of the Revised Penal Code. Filing two separate cases of libel for a single offending article will be tantamount to double jeopardy. The SC states that published material on print and posted online are essentially “identical material” and “cannot be the subject of two separate libels.”

The right to privacy 

1) What is the right to privacy?

The right to privacy, or the right to be left alone, is a right against unreasonable searches and seizures, and the right to privacy of communication and correspondence. Although institutionalized in the 1987 Constitution, the SC acknowledges its existence as early as 1968 in the case Morfe v. Mutuc, where the Tribunal said the right to privacy “exists independently of its identification with liberty; it is in itself fully deserving of constitutional protection.”

2) Is the right to privacy absolute?

No. The SC says “that right is not unqualified.” As contained in a US SC ruling, privacy is categorized into two: decisional privacy and informational privacy. Decisional privacy “involves the right to independence in making certain important decisions,” while informational privacy “refers to the interest in avoiding disclosure of personal matters.” 

3) Does the cybercrime law intrude on the right to privacy?

Yes, as regards informational privacy. In particular, Sec 12  of the cybercrime law, which empowers law enforcement agencies “with due cause…to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.”

4) Was Sec 12 sustained by the SC?

No. The SC struck down Sec 12 of the cybercrime law as unconstitutional.

5) How did the Court arrive at this conclusion?

The Court points out that Sec 12 suffers from ambiguity, in particular the phrase “with due cause” that gives power to law enforcement agencies that is “too sweeping and lacks restraint.”

6) But Sec 12 states that traffic data to be collected by law enforcement agencies will not include content or disclose identifies. Isn’t this enough safeguard?

No. The Court disagrees. If at all, “such restraint is but an illusion,” the Court says. In reality, “nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or receiver and what the data contains. This will unnecessarily expose citizenry to leaked information, or worse, to extortion from certain bad elements in these agencies.”

7) Does this mean all the data in my computer is safe from government prying?

No. Sec 14 of the Cybercrime Law is upheld by the SC. Sec 14 refers to disclosure of computer data with the issuance of a search warrant by the court. “The prescribed procedure for disclosure would not constitute an unlawful search and seizure nor would it violate the privacy of communication and correspondence. Disclosure can be made only after judicial intervention,” the SC stresses. – Rappler.com


Do you have any questions regarding provisions in the cybercrime law? Do you wish to clarify parts of the Supreme Court’s ruling on the law? Tweet your questions using the hashtag #cyberlaw to @rapplerdotcom, or email them to research@rappler.com. Or simply list them in the Comments section below.

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