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Can the Cybercrime Law pass Constitutional muster?

Tim Powers

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 and thirty-two.")

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 any issue.)

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 harmful speech?

- 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.

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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 legal advice about any specific legal question you should directly consult an attorney.