EDITORIAL: The constitutionality of the cyber law

Manila (Philippine Daily Inquirer/ANN) - The oral arguments on the constitutionality of the Philippines' controversial Cybercrime Prevention Act at the Supreme Court on Tuesday gave free speech and Internet freedom advocates a boost.

But whether some justices were merely playing devil's advocate or testing the limits of the petitioners' positions, lines of reasoning were also used at the four-hour hearing that should give the public pause.

Those who share the view that Republic Act No. 10175 should be declared unconstitutional-and antidemocratic at its core-cannot afford to be complacent.

The so-called double jeopardy aspect of the law came under the most withering scrutiny. Section 7 allows a person accused of libel to be prosecuted both under the Revised Penal Code (RPC) and the new law.

But unlike the crime of issuing bouncing checks, which can be prosecuted under both the RPC and Batas Pambansa No. 22, Associate Justice Teresita Leonardo de Castro pointed out that no extra element distinguished Section 7 from the RPC's libel provisions.

"But in this case, there is no additional element to distinguish crime under this law and what is included in the RPC. What is mentioned in Section 7 is not an element of the crime. What Section 6 penalises is the same as that in the RPC," De Castro said.

Associate Justice Diosdado Peralta was even more categorical. "By increasing the penalty by one degree, you are already providing for a different kind of libel but no new element was introduced," he said, as quoted in the story filed by Inquirer.net reporter Tetch Torres. "Section 7 is clearly infirm. There is something wrong with this."

To be sure, two justices do not make a majority, but it is difficult to imagine an argument the solicitor general will make next week, when the Court resumes oral arguments, that can convincingly overcome this clear infirmity.

Last September, we characterised the new law's extension of existing RPC provisions on libel to "cyberspace" as unthinking. The act, we wrote, "takes the dangerously outmoded provisions on libel in the Revised Penal Code-and dumps them online." The lack of a distinguishing element is more proof of that shoddy process.

On the very issue of online libel, however, two appointees of President Benigno Aquino raised hypothetical questions and offered tentative arguments that we found disquieting.

Chief Justice Maria Lourdes Sereno asserted that "There is absolutely nothing that you can delete in cyberspace"-a familiar assertion, to be sure, but in fact a somewhat inaccurate one, depending on how one defines that now-quaint term cyberspace.

The popularity of new apps like Snapchat is premised precisely on their ephemerality; shared images are designed to disappear after a few moments. Not everything will be lost, of course; some users will decide to save some images. And it isn't true, at least it isn't true just yet, that everything uploaded online can be found through search engines, such as Google.

Sereno's point, of course, is that a libelous statement online acquires new dimensions. True enough, but absolutist statements about a rapidly changing, indeed revolutionary phenomenon like the Internet are not helpful. The notion that "absolutely nothing" can be deleted online can only encourage extreme or maximalist reasoning.

The newest member of the Court, Associate Justice Marvic Leonen, wondered aloud about the multiplier effect of social media. "Can you imagine the power of somebody with about 700,000 Twitter followers attacking a single person who may not even have a Twitter account? Is it not the obligation of the State to protect ordinary citizens from this?"

Yes, but if Leonen is suggesting that "cyberbullying" is the primary or even only consideration, then he is offering a false choice. It is the obligation of the State both to offer protection to ordinary citizens and to protect the freedom of expression of every citizen. The State must guarantee not only that the power of a Twitter celebrity can be checked, but also and especially that the right to express one's self, whether on Twitter or anywhere else, is protected and encouraged.

If he is hoping that the Cybercrime Prevention Act will provide the necessary balance, he will be disappointed.

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