Law Office of Tim Powers
By Atty. Edsel Tupaz
Posted at 10/01/2012 10:15 PM | Updated as of 10/01/2012 10:23 PM
There seems to be an internet firestorm going on about the recent enactment
of the Cybercrime Prevention Law, the short title of Republic Act 10175.
A reading of the substance of the text points to espionage of e-databases
and e-resources. It does attempt to flag down a number of criminal offenses
as "content-related speech," such as cybersex, child pornography,
and email spamming of regulated commercial products (e.g., Viagra).
There is a whole debate about creating distinctions between "content-related
speech" and "content-neutral" speech in constitutional
law under the First Amendment and the Philippine Bill of Rights.
In short, content-based laws and regulation (e.g., laws punishing religious
hate speech) come under higher pressure and higher scrutiny for it to
pass constitutional muster under any court of law.
But in either case, there is no question that the Cybercrime Prevention
Law will reduce the sum total of internet speech and opinion among internet
users great and small in the Philippines.
I can't list here the breadth and extent of its potential coverage,
but I can say that everything from home-grown blogs to tweets on Twitter
to the website of a country's central bank can be put to prosecutorial scrutiny.
What I intend to do, is to show why the provisions of the cybercrime law,
as they now stand, ought to be tempered down, for the reason that a facial
reading of the law will lead one to conclude that it does not incorporate
the multi-tiered proportionality analysis in free speech doctrine. In
plain English, it is unconstitutional in substance, if not in its entirety.
Many penal laws can be framed in absolutist language, and the poor defense
lawyer is usually left to scavenge pre-World War libel cases in encyclopedic
sources like AmJur or Corpus Juris Secundum just to come up with a list
of possible defenses against a one-page Information (which lists criminal
charges likewise framed in absolutist language).
This Information and its various counts will be sent by the city prosecutor
to you, if you are the accused, by registered mail through the Philippine
postal service, in onion skin paper, with paper density of around 5-6 lbs.
Few things can be more tyrannical in an advanced internet society such
as ours. (I can't help but say that sites like Multiply and MySpace
would probably have tanked long ago had it not been for a strong Filipino
user base; these sites tend to be treated by users as complementary and
not substitute goods to Mark Zuckerberg's genius that is Facebook.)
At the top of the internet firestorm debate of the Cybercrime Prevention
Law is an apparent rider on libel, or what I could call, e-Libel. This
appears to be under the heading "content related offenses,"
and, perhaps rightly tagged as such.
The cybercrime law somewhat perfunctorily defines e-Libel as "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." (Do
note that our Revised Penal Code took effect on – and I quote its
first article – "the first day of January, nineteen hundred
Referring to the Penal Code's Article 355, the cybercrime law incorporates
the old definition of libel: "Libel means by writings or similar
means. — A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic
exhibition, or any similar means, shall be punished by prision correccional
(that is, 6 months and 1 day, to 6 years) in its minimum and medium periods
or a fine ranging from 200 to 6,000 pesos, or both, in addition to the
civil action which may be brought by the offended party."
How do you think our ordinary courts of law, from the municipal trial courts
in provinces to the regional trial courts in cities, will proceed to apply
the provisions of e-Libel to, say, a Twitter follower of a Senator, and
who happens to be a well-paid Troll? (Trolls, in social media vernacular,
are rent-to-rant people who do nothing but curse and deface their intended
political target, regardless of the substantial merits or demerits of
Troll or not, it can be argued that a mere facial analysis of the provisions
corresponding to e-Libel will show that those provisions are unconstitutional,
because routine trial court decisionmaking may not readily have the know-how
to deploy the sundry proportionality tests that go into any libel case,
what more for e-Libel. Going by our social demography, a Mac user can
be hailed to court before a judge who can barely send SMS.
All libel charges implicate a proportionality analysis – a "balancing
act" – weighing at least three zones of interest, namely, a
bundle of societal interests, the interests of the aggrieved person (who
felt insulted by the Tweet), and the interests of the accused, before
conviction could proceed. Consider the following proportionality principles:
- Should the malicious imputation subject of the e-Libel case be brought
under content-based restriction or a content-neutral restriction? Upon
hurdling this threshold question only then can the judge proceed to apply
lower or higher standards of scrutiny, such as the clear-and-present danger
test (for content-based speech) or the bundle of tests pertaining to time,
manner, and place regulation (for content-neutral cases).
- Should the judge consider the communicative impact of the speaker's
message, or should he stay within the four corners of, say, the 140 characters
of a Tweet message? Assessing communicative impact is a debate in and
of itself in libel jurisprudence because it requires the judge to go outside
his (very limited) personal understanding of norms outside the courtroom
records and dive into prevailing social practices. For instance, a judge
ought to consider whether the one insulted by the Tweet has only 5 followers,
as opposed to, say, 5 million followers.
- On the communicative impact, should the judge consider how other people
reacted to what the speaker said? Or is there such a thing as an intrinsically
- Does the malicious imputation carry any significant social benefit to
public dialogue which would outweigh the harm done to the aggrieved party?
- Can a plea that the malicious imputation could have been carried out
in another venue beyond the internet, be a valid reposite against the defense?
- On methodological substance, what test should the judge deploy? Should
she use the "clear-and-present-danger test" (in times of social
peace) or the "dangerous tendency rule" (in times of social
unrest, usually deployed in seditious libel) ? (Are these valid tests
for libel under today's circumstances?)
- Was the malicious imputation uttered in a public forum, a semi-public
forum, or a private forum? (Do these legal fictions and legal categories
even apply to ephemeral and electronic media?)
If we cannot expect the ordinary layperson to readily come to terms with
these tests, then what can we expect of the trial court judge? While a
law clerk, fresh out of law school, may brandish an iPad and is trained
in Lexis Nexis, the buck stops at the boss wearing the gown.
Not only will there be a dissonance in constitutional method and constitutional
analysis, legislative policy ought to be mindful that Philippine trial
courts are legal factories which issue hundreds, if not thousands of judgments
in any given day. Legislators ought to consider this demography, which
will likely stay the same in the medium term.
On its face, the cybercrime law is unconstitutional, because it does not
incorporate any defenses to the charge of e-Libel as part of the law,
thus effectively passing a prohibitive burden to the defense attorney,
if not the poor judge who works under an archaic analogue system, to make
the proportionality analysis himself.
Thus the heightened burden created by the cybercrime law can effectively
reverse the presumption of innocence to a presumption of guilt. The dangers
which the Cybercrime Prevention Law pose to free speech is readily apparent,
and our legislators ought to have figured into the text the various nuances
and tiers, tagged under a broader corpus of free speech "proportionality
analysis", as easy textual references to possible defenses, no doubt
complex as they already are.
The codification of these tests should inform not just e-Libel, but pretty
much all other provisions of the cybercrime law. It is one thing to name
the criminal activity which the State ought to punish, and quite another
to operationalize the law-in-the-books in the entire justice system. If
on its face a statute fails to consider the-law-in-action, a constitutional
question will surely be raised.
*Edsel Tupaz is a public interest lawyer and a lecturer of international
and comparative law. He has been interviewed by The Economist and featured
in Al Jazeera (UK), Harvard Law Bulletin, Toronto Star (Canada), and The
Diplomat (Asia-Pacific). He is a regular contributor of The Huffington
Post (NY) and is an inaugural columnist of JURIST, the US's leading
legal news and research service. He is a graduate of Harvard Law School
and Ateneo Law School and owner of Tupaz and Associates | Public Interest Law.
Article can be found at: http://www.abs-cbnnews.com/blogs/insights/10/01/12/can-cybercrime-law-pass-constitutional-muster
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*Tim Powers is an attorney licensed to practice law by the Supreme Court
of Texas. Nothing in this article is intended to be legal advice. For
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