Protests are mounting against the cybercrime law because of its provisions including libel in its list of crimes, giving undue authority to the government to exercise censorship, close down websites, and collect data through the internet without passing through due process in court, and increasing the penalties for cybercrime one degree higher than what is provided for in the Revised Penal Code for crimes of similar nature.
By INA ALLECO R. SILVERIO
MANILA — There is a growing clamor against President Benigno Aquino’s newly-approved Republic Act No. 10175 or the Cybercrime Prevention Act of 2012. Various civil rights advocacy groups and political organizations are already demanding that the Supreme Court issues a temporary restraining order against the law’s implementation, which is slated to begin October 1, 2012.
In a recent round table discussion on the issue sponsored by Kabataan Party-list, various stakeholders said the cybercrime law has provisions that essentially imposed internet censorship. It said the new law posed a serious threat not only against internet freedom, but also to essential civil liberties including the freedom of speech and expression.
“The cybercrime law was enacted to ward off hacking, identity theft, data manipulation, and cybersex. But the insertion of provisions regarding online libel has totally changed the landscape,” said Kabataan Partylist Rep. Raymond Palatino.
ACT Teachers Party-list Rep. Antonio Tinio revealed that online libel and other contentious provisions in RA 10175 did not undergo deliberations in either the Lower House or the Senate, and were inserted only during the bicameral conference for the bill.
Tinio explained that the original bills filed in Congress were similar, as all were lifted in toto from the 2001 Budapest Convention on Cybercrime drawn by the Council of Europe.
“The Budapest Convention, however, does not contain any libel provisions. Such portions were added by the bicameral conference,” Tinio said.
Meanwhile, Jose Jesus Disini Jr., a technology law expert, pointed out that Section 19 of RA 10175 also effectively makes the Department of Justice an all-encompassing “Internet superpower.” Disini is also the director of the Internet and society program of the University of the Philippines College of Law.
Section 19 states, “When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.”
Disini explained that under such provision, the DOJ can take down websites that it suspects – upon initial observation – to be violating RA 10175.
“This effectively gives the DOJ total control of the Internet in the Philippines. As only prima facie evidence is needed, the new law has done away with due process. Once the DOJ realizes this new power and uses this provision to take down what it considers as dissident websites – that would be the death of Internet freedom as we know it,” Disini said.
Palatino explained that online censorship under Section 19 is more encompassing than traditional censorship. “If for example, an online article is said to be libellous, DOJ may order the total shutdown of its host domain, effectively censoring not just the article in question, but also other articles in that site – a clear violation of the constitutional right to free speech.”
“And what about posts on Facebook and tweets? If some of those posts are found violating RA 10175, DOJ can theoretically block access not only to the posts in question, but to the whole social networking site,” Palatino said.
Worse than SOPA, PIPA
In the meantime, the Computer Professional Union pointed out that with Section 19, the Cybercrime Prevention Law has become far worse than the “Stop Online Piracy Act” and the “Protect IP Act,” that were pushed in the United States Congress earlier this year but failed to prosper.
CPU explained that Section 19 will have a “chilling impact” to bloggers, online journalists, advocacy groups and normal netizens, as any website can be shut down with accusations of infringement without due process.
A provision in the Cybercrime Prevention Law also effectively raises the punishment for crimes committed with the aid of computer systems.
Section 6 of RA 10175 states, “All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act, provided that the penalty to be imposed shall be one degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.”
The CPU said because the Lower House and the Senate did not hold nationwide public hearings and consultations on the crybercrime law, lawmakers essentially denied Filipinos their right to grant or deny prior and informed consent regarding supposedly legal attempts to dismantle the right to privacy and the right to free expression.
“The absence of meaningful consultations, explains what is wrong with the government’s conception of the internet in particular and information in general,” it said. “The Aquino administrations appears to be interested in getting information about its opponents, but would conveniently cite national security when the people demand full disclosure of government actions and full participation in hammering out measures such as this one.”
Punishment for online journalists and bloggers
Disini explained that a person who commits crimes such as theft and kidnapping with the aid of ICT may get six to to 30 more years in jail than those committing the same crimes without the use of computers and ICT.
“If a criminal uses e-mail to ask for ransom in a kidnapping, it would result to a longer prison sentence than if the criminal sent actual letters,” Disini said. He went on to explain that similarly, committing online libel will result to longer prison sentences.
The penalty for printed libel under the Revised Penal Code is only six months to four years. However, applying the “one degree higher” clause in RA 10175 when the libel is committed online, the penalty is raised to six to 12 years.
“The new law was seemingly drafted with the mindset that crimes committed online is graver than those committed in the real world. This poses a serious threat to online journalists and bloggers. Due to the vague provisions in RA 10175, even commenters and those that retweet libellous materials can also be incriminated,” Palatino said.
Bayan Muna Rep. Teddy Casiño for his part said that imposing the cybercrime law was like slapping libel charges on ordinary conversations.
“Imposing libel on the internet, particularly social media like Twitter and Facebook, is like imposing libel on ordinary conversations. Libel, if it is to be applied to social media at all, should have different parameters; but because the libel provision was inserted, the matter was not completely discussed or analyzed at all,” he said.
Cadiño said millions of people now use social media to express their personal views on a whole range of issues and topics. “Unlike the traditional mass media, which undergoes strict editorial regulation, social media is unregulated precisely to allow ordinary people to participate in the discourse. People even ‘chat’ on the internet now. Applying the old standards of libel will not do and will only serve to stifle freedom in cyberspace,” he stressed.
“We should immediately amend this law because it will create a chilling effect not just on journalists but on ordinary people who use the internet to express their views and opinions. It opens up to infringement of the constitutional right to freedom of expression and free speech.”
Casiño said Malacañang should suspend the implementation of the cybercrime law pending all protests against it.
“Everybody should be vigilant about this law because this feels somewhat like the prohibitions during Martial rule, only more high tech,” he said.
The transgender and gay members of the Progressive Organization of Gays (ProGay) are also wary that the cybercrime law open the floodgates to a new series of extortion and harassment campaigns against gays.
ProGay said the cybercrime law contains vague provisions that can criminalize a wide array of shared electronic activity between consenting lesbian, gay, bisexual and transgender (LGBT) adults, and also invade their personal privacy.
Particularly worrying for ProGay is the definition of cybersex crime, which could fetch six to ten years of jail time or a fine of up to half a million pesos (US$11,950). “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”.
“There are many transgenders who are forced by poverty into baring their bodies before a webcam just to feed their families and send their siblings to school, and they are unwilling victims of trafficking by profiteers. This law can potentially double the victimization of poor trans and gay persons because the terms ‘willful’ and ‘favor and consideration’ are so vague. The law can deem trafficked persons consented to work for pay,” explained Clyde Pumihic, secretary general of ProGay Baguio.
Pumihic added that for almost a century, transgender and gay Filipinos engaged in sex were targeted by police who used the recently abolished Anti-Vagrancy provision of the Revised Penal Code in the streets and bars. “But now, they have this PNP and NBI fielding the Office of Cybercrime agents who will stalk LGBTs by the thousands without even having to prowl on patrol cars, they just have to use a keyboard to down LGBTs. It’s like having the Vagrancy Law on Internet.”
Pumihic also warned that the cybercrime law can also be used by thugs, syndicates, and other private violent groups in entrapping and blackmailing innocent LGBTs who are simply surfing online for dates or fleeting acts of exposure. “Instead of protecting us from the real cybercriminals, this law will turning us into cybercriminals,” he said.
The group said if online sex is criminalized, HIV and STD transmission risks for LGBTs can increase.
“Consenting online sex using just shared images and words in real time are a safer alternative to meeting strangers who may use force to commit unsafe sex or life-threatening violent behavior. This law clearly can contribute to deaths by hate crimes or illnesses if online sex is penalized,” it said.
ProGay leader said the SC should declare the law unconstitutional because of its invasive threats against the private lives of LGBTs. The group also called on Aquino to instead work to pass the Anti-discrimination Law in Congress and provide decent jobs with living wages to save trans and gay persons from the clutches of cyberprostitution.
Nullify contentious provisions
Earlier this week, Disini filed a 31-page petition to nullify five provisions in the cybercrime law. He argued that the cybercrime law violates the people’s rights to freedom of expression, due process, equal protection and privacy of communication. The petition said the new law also violates constitutional sanctions against double jeopardy, undue delegation of legislative authority and right against unreasonable searches and seizure.
“This provision contains undue delegation of legislative authority, infringes upon the judicial power of the judiciary, and violates the petitioners’ constitutionally-protected right to due process and freedom of expression,” he said.
He also cited Section 12 of the law, which allows the National Bureau of Investigation (NBI) and Philippine National Police (PNP) to collect traffic data without intervention of a judge. This, Disini said, is unwarranted authority given to state agents to engage in wholesale surveillance of all cellular data, mobile, Internet and computer communications.
“This violates the public’s constitutionally protected right to be free from unreasonable searches and seizure as well as the right to the privacy of communications,” he said.
The petition also took issue against the warning made by one of the main proponents of the cybercrime law Sen. Vicente Sotto III that criminal charges can be filed against bloggers who ridiculed him for allegedly plagiarising an American blogger’s article and using it in his speech against the Reproductive Health bill.
Kabataan Partylist is also set to file a petition for prohibition against RA 10175 to the Supreme Court in the coming days.
According to James Mark Terry Ridon, president and general counsel of Kabataan Partylist, the youth group is set to challenge RA 10175 in the Supreme Court. “Several provisions in this law are clearly unconstitutional. We need to really challenge this in the high tribunal,” Ridon said.