Legislative overreach: The Philippine fight over internet freedom

Posted at 10/03/2012 5:00 AM | Updated as of 10/03/2012 5:04 AM

“With freedom comes responsibility.” This was the rationale proffered by Philippine president Benigno Aquino’s office following his September 12 authorization of the Cybercrime Prevention Act of 2012.

The new law, which took effect at midnight on October 3, establishes a legal framework to identify, investigate, and punish crimes committed through online and computer platforms.

The act attempts to grapple with a range of increasingly widespread cybercrime issues in the Philippines, such hacking, identity theft, online piracy, and child pornography.

As criminals adapt to exploit Internet-based opportunities, all countries are struggling to adapt their legal codes to combat such activity. The Philippines has struggled to cope with hacking and fraud, exemplified by the break-up of several large identity theft and piracy rings this year operating in the country.

Unfortunately, the Cybercrime Prevention Act is an axe where a scalpel is needed. Opponents rightly insist that it infringes upon constitutionally-protected freedom of expression, and reverses the country’s movement toward furthering freedom of the press.

The law’s greatest overreach is in its criminalization of online libel, which was tacked onto the bill as a late amendment by Senator Vicente Sotto III. The law not only criminalizes online libel with punishments of between six and 12 years – far harsher than the minimum six months for print libel – but also makes offenders liable for conviction twice if an article is published both online and in print.

Even more egregious, according to Senator Teofisto Guingona, the lone legislator to vote against the law, is that it deems any sharing of libelous content to be libelous in and of itself, meaning that even liking an article on Facebook or re-tweeting it on Twitter opens unwitting users to prosecution.

The new online libel restrictions are only the worst of many troubling aspects of the Cybercrime Act. It also classifies pornography, cybersex, and file-sharing as cybercrimes, and authorizes the Department of Justice to monitor and shut down websites without a court-ordered warrant.

Media organizations in the Philippines argue that with its heavy-handed censorship, the law will deny journalists their last safe haven in a country that has witnessed the death of 127 journalists since 1986. Senator Guingona, meanwhile, contends that it will usher the Philippines into the “digital dark ages.”

Outrage from Philippine netizens and journalists attracted the attention of the domestic and international hackers the law aims to counter. Attacks have brought down dozens of Philippine government and private websites in the last week.

The infamous hacking group Anonymous took up the cause, calling on supporters to attack government sites on “Bloody Monday”, October 1, and black-out their websites and social networking profiles in protest on “Black Tuesday”, October 2, ahead of the law’s taking effect. Most disturbing is the widespread support such tactics have garnered from Philippine users online – a sign of the immense frustration with the government’s perceived deafness to citizen concerns.

Several cases challenging provisions of the law have been brought before the Supreme Court, spearheaded by journalists, lawyers, politicians, and netizens. Critics recognize the need to prevent hacking, but maintain this can be achieved without violating the right to free speech.

The Aquino administration has so far defended the law, but several legislators are hurrying to temper their support. The overall picture that has emerged is of a bill amended and passed by a legislature aware of the need to defend against cybercrimes, but unversed in the technologies it sought to regulate, and blindsided by the repercussions it never anticipated.

Whether the Supreme Court will strike down all or parts of the act is unclear. But if it does not, citizen anger is unlikely to abate. Some observers have called on the executive branch to lay out explicit guidelines for the bill’s implementation. This is understandable given the perception that the executive is the most efficient and effective branch of Philippine government.

Half measures will not, however, assuage concerns given the bill’s vagueness and scope. If the Supreme Court upholds the Cybercrime Act, it will be up to the legislature to amend the law. Either that, or explain to the citizenry why the country needs Internet restrictions more at home in non-democratic Vietnam or China.

Gregory Poling is a Research Associate with the Center for Strategic and International Studies (CSIS) Southeast Asia Chair. Liam Hanlon is a researcher with the CSIS Southeast Asia Chair. This article first appeared on the CogitASIA blog for the Asia programs at the CSIS in Washington D.C. It is republished with the authors' permission.