The Office of the Solicitor General vigorously defends the constitutionality of R.A. No. 10175, in its entirety, except only as to Section 19, on restricting or blocking access. With all due respect to the Congress, the OSG submits that Section 19 is constitutionally impermissible, because it permits a form of final restraint on speech without prior judicial determination. As to Section 12, on the real time collection of traffic data, the OSG defends its constitutionality. However, again with all due deference to Congress, the OSG submits that the Congress may, in its wisdom, consider amending the Section to provide for prior judicial authorization.
Preliminary Issues
|
Issue |
Sol Gen’s Argument |
| Whether petitioners have standing to bring the petitions. | “transcendental public importance dispenses with the requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Compelling State and societal interests in the proscription of harmful conduct necessitate a closer judicial scrutiny of locus standi.”
“the following are determinants of whether a matter is of transcendental importance: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and, (3) the lack of the any other party with a more direct and specific interest in the questions being raised. None of the foregoing determinants are established by petitioners.” “Petitioners who invoke the ‘transcendental importance” doctrine have not identified their personal stake in the outcome of the controversy. They fail to particularize how the implementation of specific provisions of RA No. 10175 would result in direct injury to their organization and members.” “Neither locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress, whereas citizen standing must rest on direct and personal interest in the proceeding. None of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law. Generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a |
| Whether the issues raised are ripe for adjudication. | “Penal statutes have general in terrorem effect resulting from its very existence, and if a facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws to deter socially harmful conduct.”
“’on-its-face’ invalidation of penal statutes are not allowed in this jurisdiction” “petitioners merely claim that they are suing in their respective capacities as: citizen, netizen, legislator, internet blogger, internet user, multimedia journalist, media organization, or person maintaining a twitter or facebook account.” “petitioners also fail to establish that there is an imminent threat of an actual filing of a criminal offense against them for violation of the assailed law to warrant its review.” |
Substantive Issues and Arguments
Whether the following sections of Republic Act No. 10175 are unconstitutional for the reasons given:
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|
Provision |
Description |
Petitioner’s Argument |
Sol Gen’s Argument |
| I. | Sec. 4(a)(1) | Makes access to the whole or part of a computer system without right a cybercrime; | Failure to meet strict scrutiny standards (PIFA, et al. Petition) | “The application of strict scrutiny is not called for because Section 4(a)(1) regulates hacking, a socially harmful conduct; it does not regulate, prevent or punish speech.”
“Considering that illegal access is globally recognized as a offense against the confidentiality, integrity and availability of computer data and systems, the Philippines has no reason not to include the same” |
| II. | Sec. 4(a)(3) | Makes the intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document or electronic data message without right including the introduction or transmission of viruses, a cybercrime; | Violation of freedom of expression guarantee (Reyes, et al. Petition) | “Section 4(a)(3) penalizes conduct, not speech.”
Section 4(a)(3) regulates data interference because it is socially harmful conduct. It does not regulate, prevent or punish speech. “The protected legal interest here is the integrity and proper functioning of or use of stored computer data or computer programs.” |
| III. | Sec. 4(a)(6) | Makes the acquisition of a domain name over the internet in bad faith, for profit, to mislead or destroy reputation and deprive others from registering the name a cybercrime; | Violation of equal protection clause (PIFA, et al. Petition) | “The difficulty in tracing the real perpetrators of cybercrimes or persons using aliases cannot be a deterrent to the passage and implementation of the law. The cybercrime law was enacted precisely to allow law enforcement authorities to go after the perpetrators of cybercrime whether they be known or hidden under the veil of pseudonyms. Besides, a person who commits a crime using his actual name is as guilty as a person who commits a crime using an alias.
“Cybersquatting is the oldest and best-known form of nuisance in cyber space. Cybersquatters will generally either offer to sell the name back to the trademark owner for an extortionate price, or make money from internet traffic accidentally landing on their page. The practice is a nuisance for the growing number of companies that do business over the internet and are loath to lose valuable traffic to rogue websites.” “In our jurisdiction, Article 694 of the Civil Code defines a nuisance as ‘any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or morality,’ the remedies of which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings.” |
| IV. | Sec. 4(b)(3) | Makes the intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another without right a cybercrime; | Violation of due process clause (Reyes, et al. Petition)
Violation of right to privacy of communication and correspondence guarantee (Reyes, et al. Petition) Violation of the freedom of the press guarantee (Reyes, et al. Petition) |
“Section 4(b)(3) is intended to protect one’s right to privacy and to protect one’s right to property. The offender’s rights to privacy and protected speech are irrelevant in computer-related offenses.”
“Petitioner Reyes’ fear focus on the words ‘acquisition’ ‘transer’ and ‘possession’ in relation to journalists’ fundamental work of reporting information is unfounded.” “Petitioners Reyes’ fear can be easily soothed when the principle noscitur a sociis is applied. By noscitur a sociis, the correct construction of a word or phrase susceptible of various meanings may be made clear and specific by considering the company of words in which it is found or with which it is associated. “the words ‘intentional acquisition,’ ‘transfer,’ and ‘possession,’ must be associated with the term ‘identity theft’ and must be understood to mean any such acts done with the intention of appropriating another’s identity for acquisitorial use.” |
| V. | Sec. 4(c)(1) | Makes the willful engagement, maintenance, control, or operation, directly or indirectly of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration a cybercrime; | Violation of freedom of expression clause (Guingona, et al. Petition) | “Congress, in enacting Section 4(c)(1), seeks to punish cyber prostitution, white slave trade and pornography for favour and consideration. This includes interactive prostitution and pornography, i.e., by webcam.
“The risks to publishers of publishing ‘nude materials’ in the internet or to film producers of creating ‘artistic works’ is no different or greater than the ‘risks’ presently confronting them under Article 201 of the Revised Penal Code. Since 1932, Article 201 punishes ‘obscene publications and exhibitions and indecent shows.’ To date, Article 201 has not been declared unconstitutional.” |
| VI. | Sec. 4(c)(3) | Makes the transmission of commercial electronic communication with the use of computer systems seeking to advertise, sell or offer for sale products and services a cybercrime; | Violation of due process clause (ALAM, et al. Petition)
Violation of equal protection clause (PIFA, et al. Petition) |
“Unsolicited Commercial Communications or ‘SPAM’ is outlawed because worldwide, SPAM messages waste the storage and network capacities of Internet Service Providers (ISPs), and are simply offensive to the unwilling recipient.”
Flooding the internet with useless and nuisance and bulk emails burden the internet networks and reduce the efficiency of commerce and technology. They also result to tremendous losses in revenue if left unpunished.” “Spam can, in principle, properly be considered a type of trespass-since it is a means by which the spammer uninvitedly use another’s property. Spam can also be considered a nuisance because of its substantial interference with the peaceful enjoyment of a property, which causes considerable amount of damage consisting of clogged disc spaces, network congestion, financial loss and loss of productivity.” “Spamming is at most commercial speech not worthy of constitutional protection. It is intrusive to the privacy of the internet users and unlawful appropriates the storage and network of ISPs without compensation and for profit. The government has an interest in the free, efficient flow of information, commercial technology in the Internet.” |
| VII. | Sec. 4(c)(4) | Makes libel as defined under Art. 355 of the Revised Penal Code when committed through a computer system or any other similar means a cybercrime; | Violation of due process clause (Biraogo Petition; Guingona Petition; Adonis, et al. Petition; Palatino et al. Petition; Reyes, et al. Petition; Sta. Maria et al. Petition; Castillo, et al. Petition; Cruz, et al. Petition; PBA, et al. Petition; NPCP et al. Petition;
Violation of equal protection clause (Guingona Petition; Sta. Maria, et al. Petition; Castillo et al. Petition; NPCP, et al. Petition) Abridgment of freedom of speech, expression and press guarantees (Biraogo Petition; Disini, et al. Petition; Adonis, et al. Petition; |
“Online libel is not a new crime. Online libel is a crime punishable under the Articles 353, in relation to Article 355 of the Revised Penal Code. Section 4(c)(4) just made express an avenue already covered by the term ’similar means’ under Article 355, to keep up with the times. This would immediately negate the oft-used defense that libel committed through the use of the internet is not punishable. That said, the relevant provisions of the Revised Penal Code on libel and jurisprudence on the subject gives ascertainable standards and well-defined parameters which would enable an accuses to determine the nature of his violation.”
“The computer system is just another means of publication” “Libel committed through a computer system can therefore be defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, committed through a computer system or any other similar means which may be devised in the future. “Libel is not constitutionally protected speech.” “even without Section 4(c)(4), a public malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, made with the use of the computer system already constitutes libel. “online libel was already a crime punished under Articles 353 to 362 of the Revised Penal Code, and to date, has never been declared unconstitutional on the ground of abridging the right to free speech, freedom of expression and of the press. “it must be emphasized that cyber libel was not given a higher penalty under Section 4(c)(4). Notably, R.A. No. 10175 did not provide for a distinct penalty for Section 4(c)(4). The ‘one degree higher penalty’ was imposed under Section 6 for all the crimes under the Revised Penal Code and special penal laws committed with the use of ICT.“ |
| Violation of the rule on double jeopardy (NPCP, et al. Petition) | ||||
| Being a bill of attainder (NUJP, et. al. Petition) | ||||
| Being an ex post facto law (PIFA et al. Petition) | “libel committed by using computer system is punishable under Articles 353-362 of the Revised Penal Code. Section 4(c)(4) merely made expressed another venue for the commission of libel. Said addition does not make said provision ex post facto. Libelous statements made through computer systems prior to the enactment of R.A. No. 10175 are already considered punishable under the Revised Penal Code.” | |||
| Violation of the International Covenant on Civil and Political Rights (Adonis, et al. Petition; Reyes, et al. Petition) | “Libel is unprotected speech. It remains to be a crime in many nations.”
“The text of the ICCPR does not mandate the decriminalization of libel. In fact, ICCPR recognizes that the freedom carries with it special duties and responsibilities and may be subject to certain restrictions as are provided by law and as are necessary for the respect of the rights or reputations of others” |
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| VIII. | Sec. 5 | Declares the aiding or abetting in the commission of Cybercrime and the attempt in its commission as a cybercrime offense. | Violation of due process clause (Reyes, et al. Petition; Sta. Maria, et al. Petition; Cruz, et al. Petition; PBA, et al. Petition; NPCP, et al. Petition)
Violation of equal protection clause (NPCP, et al. Petition) Violation of freedom of expression clause (NUJP, et al. Petition) Violation of rule on double jeopardy (NPCP, et al. Petition) Being a bill of attainder (NUJP, et al. Petition) |
“A criminal statute does not become void just because of its reference to general terms, or in this case, of its use of the terms ‘aid’ or ‘abet,’ and ‘attempt.’ There is no constitutional or statutory duty on the part of the lawmakers to define every word in a law, as long as the intent can be gathered from the entire act.”
“The test in determining the ambiguity of a statute is whether the words convey a sufficiently definite warning with respect to the proscribed conduct based on common understanding and practice. The words of a statute are interpreted in their plain and ordinary meaning. There is no need for absolute precision in order to appreciate the words of the statute. A reasonable degree of certainty and flexibility, with clearly delineated limitations, is acceptable.” “a person who is guilty of aiding and abetting is simply considered an accomplice. Section 5, when read together with Section 8, last paragraph of R.A. No. 10175, shows that a person guilty of aiding and abetting is penalized as an accomplice.” The laws on libel and as now contained in Section 4(c)(4) “do not operate as ‘prior restraints’ to speech. These libel acts provide for ‘subsequent punishment.’ Thus, petitioners are free toexercise their right to speak out. If what they express is libelous, then they risk subsequent punishment. |
| IX. | Sec. 6 | Imposes a penalty one degree higher for crimes penalized by the Revised Penal Code and special laws, if committed with the use of information and communication technology. | Violation of due process clause (Guingona, et al. Petition; NUJP, et al. Petition; Cruz, et al. Petition; NPCP, et al. Petition)
Violation of equal protection clause (Guingona, et al. Petition; Adonis, et al. Petition; Sta. Maria, et al. Petition; Cruz, PBA et al. Petition; NPCP, et al. Petition) Violation of freedom of expression clause (NUJP, et al. Petition; Cruz, et al. Petition; NPCP, et al. Petition) Violation of rule on double jeopardy (Disini et al. Petition; Reyes, et al. Petition; Sta. Maria, et al. Petition; NPCP, et al. Petition) Being a bill of attainder (NUJP, et al. Petition) Being incompatible with Art. 19, par. 3 of the International Covenant on Civil and Political Rights on freedom of expression (PIFA, et al. Petition) |
“The presumption is that the language used in a statue, which has a technical or well known legal meaning, is used in that sense by legislation.”
“thus the first sentence of Section 6 is clear, delimited in scope and is valid.” “Double jeopardy is inherently a ‘procedural defense’ or a shield that forbids a defendant from being subjected to the possibility of being penalized twice, or being tried again on the same (or similar) charge following a legitimate acquittal or conviction. It is not a constitutional prohibition against laws that may present possible prosecution for an offense penalized under other laws or statutes. Hence, the mere possibility of prosecution for two separate offenses by itself would not render either law unconstitutional. The Supreme Court “has subscribed to the conclusiveness of an enrolled bill. It has consistently refused to invalidate a law or provision of law, on the ground that the bill from which it originated contained no such provision, and was merely inserted by the Bicameral Conference Committee of both houses. “The guaranty of the equal protection of the laws is not violated by a legislation based on a reasonable classification. The equal protection clause, therefore, does not preclude classification of individuals who may be accorded different treatment under the law as long as the classification is reasonable and not arbitrary.” The classification rests on substantial distinction because of the “scope of reach,” “accessibility,” and effect“ “Thus, due to this nature of the internet, any person with minimal equipment and once online can have the opportunity to create worldwide chaos or intrude into the privacy of others without much obstacle.” The principle purpose of the law is “to maintain minimum standards of decency, morality and civility in human society. The qualifying circumstance of use of ICT was included in Section 6 as means to deter the increasing commission of cyber offenses. “the increase in penalties under Section 6 of R.A. No. 10175 is, therefore justified and consistent with the policy of the law.” The Act is not a bill of attainder, “Section 6 does not seek to punish a status or a group but the action, i.e, using ICT to commit crimes.” “Section 6 does not punish internet users without the benefit of a trial. It merely makes the use of ICT a qualifying circumstance for all crimes and offenses. All elements including the use of ICT, must be established by proof beyond reasonable doubt.” |
| X. | Sec. 7 | Provides that prosecution under this law is without prejudice to any liability for violation of the Revised Penal Code or special laws. | Violation of due process clause (NUJP, et al. Petition; Cruz, et al. Petition)
Violation of equal protection clause (Disini et al. Petition; Sta. Maria, et al. Petition; NUJP, et al. Petition) Violation of freedom of expression clause (NUJP, et al. Petition; Cruz, et al. Petition) Violation of rule on double jeopardy (Disini et al. Petition; Guingona, et al. Petition; Adonis, et al. Petition; Reyes, et al. Petition; Sta. Maria, et al. Petition; NUJP, et al. Petition; PBA, et al. Petition) |
Supreme court said that “when two different laws defines two crimes, prior jeopardy as to one does not bar prosecution of the other although both offenses arise from the same fact, if each crime, involve some important act which is not essential element of the other, the protection against double jeopardy is only for the same offense.” |
| XI. | Penal Provisions | Unconstitutional (Biraogo, et al. Petition) | “it is within the power of the legislature to determine what acts or omissions other than those set out in the Revised Penal Code or other existing statues are to be condemned as separate, individual crimes and what penalties should be attached thereto. This legislative power is not diluted or improperly wielded simply because at some prior time the act or omission was but an element or ingredient of another offense, or might usually have been connected with another crime. | |
| XII. | Sec. 12 | Authorizes law enforcement authorities, by technical means, after finding due cause, to collect or record traffic data in real-time, associated with specified communication transmitted by means of a computer system. | Violation of due process clause (Castillo, et al. Petition)
Violation of freedom of expression clause (Biraogo, et al. Petition; Castillo, et al. Petition) Violation of rule on searches and seizures (Reyes, et al. Petition; Castillo et al. Petition, Cruz, et al. Petition; PBA, et al Petition) Allows warrantless electronic surveillance (NUJP et al. Petition) Violation of right to privacy (Reyes, et al. Petition; NUJP et al. Petition; Castillo et al. Petition, Cruz, et al. Petition; PBA, et al Petition) |
The collection of traffic data will not result in any search or seizure of petitioner’s persons and/or property.
The right to privacy does not extend to traffic data. Traffic data is non-content data that consists of the origin, destination, route, time, and date of the communication. The rationale for the collection of traffic data is analogous to the one used and recognized in a valid warrantless search of a moving vehicle and to that under exigent circumstances… under existing technology, it is quite impossible to describe the place, things and persons to be searched because what is originally posted or made available online or stored in local computer systems may be changed, removed, or passed on to another instantaneously. Real-time collection of traffic data is akin to the collection of information derived from visual surveillance of an open physical space and does not intrude into “private” space. There is no necessity to secure a warrant where there is no invasion of personal space. Because traffic data is non-content information, the Constitution does not require that it may be collected only upon the prior authority of a judicial warrant. No privacy can be expected from information revealed to or made available to a third party. |
| XIII. | Sec. 13 | Preserves data. | Violation of due process clause (Palatino, et al. Petition)
Violation of right to privacy (PIFA, et al. Petition) |
Sec. 13 is directed to a service provider and not to individual users.
Requirement under the first sentence of Sec. 13 is a mere amendment to the franchise of telephone companies. Sec. 13 only calls for the preservation of traffic data and subscriber information… The subscriber’s use and disposition of the preserved data are not being restricted. |
| XIV. | Sec. 14 | Empowers law enforcement authorities, upon securing a search warrant, to issue an order requiring any person or service provider to disclose or submit traffic data within his possession or control. | Undue delegation of judicial powers to PNP and NBI (NUJP et al. Petition) | The order referred to in Sc. 14 is to be issued upon securing a court warrant.
There is no need to conduct the search and seizure themselves, law enforcement agencies will just require or order the date custodian to produce the relevant data. It’s done pursuant to a court issued warrant. The power to issue subpoena is inherent in the power to investigate and may thus be exercised by the law enforcement authorities. Having subpoena powers does not necessarily clothe law enforcement agencies with judicial power. |
| XV. | Sec. 15 | Defines the powers and duties of law enforcement authorities in the implementation of the search and seizure warrant | Undue delegation of judicial powers to PNP (NUJP et al. Petition)
Being an unlawful search and seizure (Palatino, et al. Petition) |
Search and seizure is a plainly law enforcement function.
This Honorable Court already recognized the authority of law enforcement agencies to seize, retain, and destroy computer hardware and software containing pornographic materials in violation of Art 201 of the Revised Penal Code. |
| XVI. | Sec. 17 | Authorizes service providers and law enforcement authorities, upon expiration of the periods under Sec. 13 and 15 to immediately and completely destroy the computer data subject of a preservation and examination. | Violation of due process clause (Reyes, et al. Petition; Palatino, et al. Petition) | Sec 17 merely provides for a process of clearing up – the telcos’ systems to avoid overloading their storage capacity.
The clean up protects individuals from unnecessary delay in the investigation and prosecution of a cybercrime. |
| XVII. | Sec. 19 | Authorizes Department of Justice to issue an order to restrict or block access to computer data found prima facie to be in violation of RA 10175 | Violation of due process clause (Disini, et al. Petition; Guingona, et al. Petition; Sta. Maria, et al. Petition; NUJP, et al. Petition; Castillo, et al. Petition; Cruz, et al. Petition; NPCP, et al. Petition)
Being an unlawful search and seizure (Guingona, et al. Petition; Castillo, et al. Petition; Cruz, et al. Petition; NPCP, et al. Petition) Violation of right to privacy of communication (Sta. Maria, et al. Petition; Castillo, et al. Petition; NPCP, et al. Petition) Violation of freedom of expression clause (Sta. Maria, et al. Petition; Cruz, et al. Petition) Violation of rule on double jeopardy (Sta. Maria, et al. Petition) Undue delegation of legislative authority (Disini, et al. Petition) Being a grant of unbridled power to the Sec. of Justice to act as a “judge, jury and executioner” of all cyber crime related complaints (Disini, et al. Petition; Reyes, et al. Petition) Undue delegation of judicial function (Adonis, et al. Petition; NUJP, et al. Petition) |
Sec. 10 is an impermissible final restraint on the freedoms of speech and expression.
Sec. 19 seeks to restrain access to, circulation and dissemination of computer data prima facie found to be violative of the provisions of RA 10175. It covers not just conduct but broadly and dangerously sweeps speech. DOJ’s findings are unprotected speech and expression. It does not provide for constitutionally mandated procedural safeguards that would justify final restraint. |
| XVIII. | Sec. 20 | Penalizes any person who fails to comply with the order from law enforcement authorities. | Violation of right to privacy of communication and correspondence (Biraogo, et al. Petition)
Violation of freedom of expression clause (Biraogo, et al. Petition) Being a bill of attainder (NUJP, et al. Petition) |
Sec. 20, by its reference to PD No. 1829, clearly sets the definitive elements that will constitute non-compliance.
A person must still be prosecuted for obstruction of justice and thereafter, proven to have knowingly or willfully defied the orders of law enforcement authorities before he will be penalized for non-complaince. |
| XIX. | Sec. 24 | Gives the CICC the power to formulate a national cyber security plan | Undue delegation of legislative power (NUJP, et al. Petition) | Powers of the CICC with respect to enactment of relevant laws, issuances, measures, and policies is merely recommendatory.
A perusal of Sec. 2 of RA 10175 readily reveals that the policy of the State deals with the “interest of law and order,” “public interest,” and “justice and equity” are sufficient standards. |
Source: Supreme Court Website