Cyberauthoritarianism 101

Theodore Te
The cybercrime law fights the future and takes us back into the past, one that is filled with memories of autocrats and tyrants, of intolerance and impunity, of the descent of darkness and the vigils for the dawn

Theodore TeOn September 12, 2012, the President signed into law Republic Act No. 10175, known as the “Cybercrime Prevention Act of 2012”—and, just like that, the proverbial refuse assaulted the unsuspecting ventilation device.

The law has since been picked apart so extensively by netizens that there is very little that can be said that has not yet been said. There are 3 general areas to the law, however, that clearly provide a frame for saying that the law has ushered into an era of “cyber-authoritarianism.”

Much of the vitriol has been directed, deservedly so, at Section 4(c)(4) of the cybercrime law. This provision incorporates, word for word, Article 355 of the Revised Penal Code on Libel by means of writings or similar means into the cybercrime law and, in doing so, makes it a so-called cybercrime. Section 4(c)(4) provides that:

    (4) Libel.  – The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

Bad faith insertion

This provision was a bad faith insertion, with the proposal first having been made at the Senate during the period of interpellation and later inserted at the bicameral conference committee. Because the proposal was first made during the period of amendment, with the original House and Senate bills not containing any definition of cyberlibel, there were certainly no legislative debate on the wisdom, propriety or even logic of including libel under the Revised Penal Code into the cybercrime law.

The lack of debate and the bad faith that went into its insertion shows not only just how badly the provision is crafted but also how dangerous it is in terms of its effects on freedom of expression.

Section 4(c)(4) “defines” libel by invoking a very specific provision of the Revised Penal Code—Article 355 (Libel by means of writings or similar means ). In doing so, it excluded Article 353 (Definition of Libel) and Article 354 (Requirement for publicity) from the definition in Section 4(c)(4); both these provisions are essential to Article 355 because they define the felony of libel and its inherent requirement of publicity.

Because Articles 353 and 354 of the Revised Penal Code are not incorporated into what is now Section 4(c)(4), we have an absurd situation of a crime that is undefined yet punished very severely.

One principle that underpins our penal laws is that of “legality,” i.e., for an act to be considered criminal, it must be defined by a statute to be a crime. First year law students have this latin phrase drilled into them within the first week of law school—nullum crimen nulla poena sine lege, loosely translated as “there is no crime where there is no law defining the act to be a crime.”

Section 4(c)(4) does not define what “libel” is nor does it define what its essential elements are. By failing to incorporate Articles 353 and 354 and incorporating only Article 355 of the Revised Penal Code, the law provides for an undefined crime to be committed. This is clearly in violation of due process and every notion of fundamental fairness.

Fundamental to the notion of due process under Article III, Section 1 of the 1987 Constitution is that one who stands accused of a crime must be informed of what she stands accused of; corollary to this is the understanding that the act that one may be accused of is uniformly and consistently understood to be a crime because there is a statute that provides for a uniform and consistent definition.

Under Section 4(c)(4), a prosecutor, who is tasked with filing a charge, and a judge, who is tasked with finding liability, would have to speculate on the definition of cyberlibel because the law does not define it.

Section 3 of the cybercrime law (Definition of terms) does not provide for a separate definition of libel and unlike all the other cybercrimes in section 4 which are defined separately, libel as a cybercrime is not defined. As formulated, section 4(c)(4) is contrary to the principle of legality and is fatally defective and patently unreasonable.

Motive to stifle

There are two things, however, that make Section 4(c)(4) so dangerous to freedom of expression and free speech, despite its fatal imperfection.

The first is the clear motive to stifle free expression in a media that, until the passage of the cybercrime law, was one of the freest and most democratic. That the proponent of the amendment had threatened to take action against those he perceived to have bullied him in social media must be considered relevant.

The second is the last clause of Section 4(c)(4) which provides that cyberlibel is committed “through a computer system or any other similar means which may be devised in the future.” The inclusion of this last clause, while absurd on its face, poses a great danger to free expression in the rapidly changing technological world.

This clause restricts, through the criminalization of technology, the means and manner by which a netizen may express himself; it forces her to abandon the use of new technology to express herself or run the risk of being sued for an utterance that an offended party may characterize, arbitrarily (because the law does not define libel), as libelous.

Like the Damoclean threat, it matters only that the risk hangs over those who would express themselves freely using technology that is present now and that which would come in the future. By criminalizing libel using present and future technology, Section 4(c)(4) is that risk that hangs over free expression, that chill that would make one think twice before writing, and that doubt that would make one hesitate before pressing “send.” Under these circumstances, the threat that Section 4(c)(4) presents to free expression cannot be doubted.

The “catch-all” provisions and the clear and present danger to online free expression and the right to privacy

There are two “catch-all” provisions in the law — Section 6 and Section 20 — which present a clear and present danger to online free expression.

Section 6 makes all felonies and crimes existing as of September 12, 2012 cybercrimes under Section 4 “if (these are) committed by, through and with the use of information and communications technologies.” It then provides for a penalty that is double the penalty provided for the same felony or crime committed under “conventional”, i.e., non-ICT, means.

What makes Section 6 so dangerous is the uncritical wholesale importation of all existing felonies and crimes into the coverage of the law and the elevation of ICT as a “super” qualifying circumstance that changes the penalty to be imposed. Because Section 6 does not specify what felonies in the Revised Penal Code are included and how they may be committed other than through the use of ICT, one may end up committing online libel by simply  clicking “like” or “share” on facebook or “retweet” on twitter, even if there was no intent to defame or libel.

That it doubles the penalty is simply the last straw.

Martial law measure

Section 20, on the other hand, resurrects a martial law measure that, by its nature, is draconian and repressive—Presidential Decree No. 1829 entitled “Penalizing Obstruction Of Apprehension And Prosecution Of Criminal Offenders.”  Section 20, entitled “Noncompliance,” is an innocuous provision that many have glossed over but is actually a repressive measure that would stifle online freedom of expression as well as privacy. The text reads:

SEC. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities.

The “Chapter IV” referred to in section 20 involves “Enforcement and Implementation” and the “orders” referred to as emanating from “law enforcement authorities” are those under:

(a) Section 12 (requiring service providers to cooperate and assist in the collection or recording of traffic data),
(b) Section 14 (requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data),
(c) Section 15 (requiring any person who has knowledge of the functioning of the computer system and the measures to protect and preserve the computer data to provide information to enable the search, seizure and examination of such data), and
(d) Section 19 (the power given to the Secretary of Justice to restrict or block access to computer data that is found prima facie to be in violation of the provisions of the cybercrime law).

These orders are not court orders, even if they should be — they are orders given by the police or by the Secretary of Justice. All of these orders impact directly on privacy and freedom of action and indirectly on online free expression.  

The reason why Section 20 is so dangerous is because it disallows any defiance of these orders, even if there is no legal obligation to obey them as they are not court orders.  Under section 20, noncompliance with any of these orders shall be “punished as a violation of Presidential Decree No. 1829” with imprisonment ranging from 4 years, 2 months and 1 day to 6 years of prision correccional (maximum period) or a fine of P100,000 or both, for each and every noncompliance.

Looking at the acts punished by Presidential Decree No. 1829, refusal to follow the orders of law enforcement authorities in relation to personal privacy or the freedom to conduct one’s business lawfully is not defined as an act of obstruction.

The acts prohibited and penalized by Presidential Decree No 1829 are:

(a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats;

(b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction;

(d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal’s offices, in Tanodbayan, or in the courts;

(f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases;

(g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender;

(h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases;

(i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court.

By defining the non-compliance under Section 20 as a violation of Presidential Decree No 1829, the cybercrime law criminalizes what was, until September 12, 2012, an innocent act—that of refusing to obey orders from police in violation of personal privacy or the freedom to conduct one’s own affairs or business.

National cybersecurity plan

The hue and cry about cyberlibel has allowed Section 24 of the law to almost slip by unchallenged. Section 24 creates a Cybercrime Investigation and Coordinating Center, an inter-agency body under the administrative supervision of the Office of the President which is tasked with the “formulation and enforcement of the national cybersecurity plan.”

Until Section 24, there is no mention of the “national cybersecurity plan”—not in the title, not in the declaration of policy in section 2, not in the definition of terms in section 3 (other than the definition of “cybersecurity” in section 3[k]). There is no indication of the legislative policy behind it nor the public interests implicated in this plan. There are no standards given in the law itself to guide the CICC in formulating the national cybersecurity plan.

Any comprehensive measure that would impact on the rights of netizens should not be left to an administrative agency to formulate simply because the nature of administrative rule-making does not require the robust, often bruising, debate that accompanies legislative policy-making.  

The delegation by the law to the CICC to formulate the supposed national cybersecurity plan cannot be allowed because such a plan must, necessarily, emanate from the legislative branch, not the executive department.

By leaving the formulation and enforcement of the yet undefined plan to an executive coordinating center, Congress has abdicated its power and unlawfully delegated the same to the CICC.

Fighting the future

Republic Act No 10175 threatens an entire way of thinking, of relating, of doing business and of expressing oneself with its repressive perspective on personal freedoms and regressive view of technology.

Far from complying with the State policy in Article II, Section 24 of the 1987 Constitution that “recognizes the vital role of communication and information” and advancing the use of technology to expand the space for creative, imaginative, and progressive use of information and communications technology (ICT), the law demonizes technology, views cynically the space for democratic expression using social media and establishes an authoritarian regime within the space that was, until the passage of Republic Act No. 10175, the freest and most democratic.

The cybercrime law fights the future and takes us back into the past, one that is filled with memories of autocrats and tyrants, of intolerance and impunity, of the descent of darkness and the vigils for the dawn.

The one consolation we have, in these times when screens go dark in protest of the disappearance of freedom, is that of memory. We remember and never forget that we have done this before and triumphed—and resolve—we will do this again and triumph. – Rappler.com

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