New #BlackTuesday protests set vs cybercrime law

Posted at 10/08/12 7:30 PM

MANILA, Philippines - Internet users and free speech advocates will take hold another round of "#BlackTuesday" protests against the Cybercrime Prevention Act of 2012.

The protesters will replace again their profile photos on the Internet with a solid black image.

The protests led by the Philippine Internet Freedom Alliance (PIFA) will coincide with the Supreme Court's deliberation of the 15 petitions filed against the cybercrime law.

The National Union of Journalists of Journalists of the Philippines (NUJP), the Center for Media Freedom and Responsibility (CMFR) and the Philippine Press Institute (PPI), which filed one of the petitions questioning the cybercrime law, will join the rally as well as the joint press conference with the other petitioners.

The petition filed by the media groups and more than 250 individuals, comprised mostly of journalists and media practitioners, urged the SC to issue an immediate restraining order “to annul and/or restrain the implementation of specific portions of Republic Act No. 10175 for being unconstitutional."

The assailed cybercrime law provisions are the following:

a. Sec. 4(c)(4) (Libel);

b. Sec. 5(a) (Aiding or Abetting in the Commission of Cybercrime);

c. Sec. 6 (inclusion of all felonies and crimes within coverage of the law);

d. Sec. 7 (Liability under Other Laws);

e. Sec. 12 (Real-Time Collection of Traffic Data);

f. Secs. 14 (Disclosure of Computer Data), 15 (Search, Seizure and Examination of Computer Data), 19 (Restricting or Blocking Access to Computer Data), and 20 (Non-Compliance), where these provisions unlawfully delegate to police officers the authority to issue orders properly within the scope and sphere of judicial powers and where non-compliance is penalized as a crime;

g. Sec. 24 (Cybercrime Investigation and Coordinating Center) and 26(a) (Powers and Functions), where both sections 24 and 26(a) give the Cybercrime Investigation and Coordinating Center the power to formulate a national cybersecurity plan, which should properly fall within the power of Congress and not an administrative agency.

The Free Legal Assistance Group (FLAG) of attorneys Jose Manuel I. Diokno, Pablito V. Sanidad, Ricardo A. Sunga III, and Theodore O. Te serve as counsel for the petitioners.

“By punishing libel as a cybercrime simply because it is ‘committed through a computer system’, the clear intent of section 4(c)(4) is to single out netizens in their chosen medium of expression. It is clearly a prior restraint that infringes on the freedom of expression guaranteed under Article III, section 4 of the 1987 Constitution,” signatories to the the 9th petition said.

"Freedom of expression has long enjoyed the distinction of being a preferred right and thus, ‘a weighty presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms,’” they added, citing the case of Ayer Productions v. Hon. Capulong and Juan Ponce Enrile (G.R. No. 82380, April 29, 1988)

“Read together with section 4(c)(4), section 5(a) clearly constitutes a prior restraint on free expression. In the first place, section 5(a) fails to define exactly what acts are punished within the scope of the words ‘abets or aids’ and, in the distinct context of social media and online journalism, operates as a chilling factor that undermines, restricts and abridges freedom of expression,” the petitioners also stated.

The group also questioned the the criminalization of the yet-undefined acts that fall under "abets or aids" under section 5(a). This will cause “any person using a computer and the internet to consider if the mere act of ‘forwarding’, ‘sharing’, ‘liking’, ‘re-tweeting’ would constitute an act that ‘abets or aids’ the content-related offense of cyber libel under section 4(c)(4),” they said.

The wholesale importation of all felonies and crimes as cybercrimes in section 6 of the Cybercrime Prevention Act is unjustified, according to the ninth petition. “There is, however, no rational basis for concluding that the ‘use of information and communications technologies’ in relation to all felonies and crimes would constitute a circumstance so perverse as to convert an existing felony or a crime into a separate offense altogether. The absence of any rational basis for section 6, especially when read in relation to section 2, renders it an act of prior restraint especially in relation to the ‘use of information and communications technologies’ and clearly in violation of freedom of expression.”

The cybercrime law also gives the justice secretary the “power to restrict or block access to computer data simply on the basis of a prima facie finding that the computer data is in violation of the Cybercrime Law” without a judicial determination or even a formal charge, the petitioners said.

“Moreover, because the law provides for no standards for the exercise of this power, any order may be unlimited in scope, duration and character and would clearly infringe on the right to free expression,” they added.