PHNO-HL: MEDIA ORGS, JOURNALISTS, MORE, FILED 9th PETITION VS CYBERCRIME LAW

MEDIA ORGS, JOURNALISTS, MORE, FILED 9th PETITION VS
CYBERCRIME LAW


[CARTOON COURTESY OF THE MANILA STANDARD]
MANILA, OCTOBER 8, 2012 (CMFR) TWENTY MEDIA organizations and
more than 250 individuals, comprised mostly of journalists and media
practitioners, filed the ninth petition with the Supreme Court (SC) against the
Cybercrime Prevention Act, assailing some of its provisions as unconstitutional.

The petitioners asked the SC to rule on the Cybercrime Prevention Act or
Republic Act (RA) No. 10175, a law which the petitioners say establishes a
regime of 'cyber authoritarianism' and " undermines all the fundamental
guarantees of freedoms and liberties that many have given their lives and many
still give their lives work to vindicate, restore and defend."
"It is a law that unduly restricts the rights and freedoms of netizens and
impacts adversely on an entire generation's way of living, studying,
understanding and relating," the petitioners stated.
The ninth petition is a petition for Certiorari, Prohibition and Injunction
filed with the SC and called for an Immediate Restraining Order (IRO) "to annul
and/or restrain the implementation of specific portions of Republic Act No.
10175 for being unconstitutional." The specific provisions are the following:

a. Sec. 4(c)(4) (Libel);
b. Sec. 5(a) (Aiding or Abetting in the Commission of Cybercrime);
c. Sec. 6 (inclusion of all felonies and crimes within coverage of the law);

d. Sec. 7 (Liability under Other Laws);
e. Sec. 12 (Real-Time Collection of Traffic Data);
f. Secs. 14 (Disclosure of Computer Data), 15 (Search, Seizure and
Examination of Computer Data), 19 (Restricting or Blocking Access to Computer
Data), and 20 (Non-Compliance), where these provisions unlawfully delegate to
police officers the authority to issue orders properly within the scope and
sphere of judicial powers and where non-compliance is penalized as a crime;
g. Sec. 24 (Cybercrime Investigation and Coordinating Center) and 26(a)
(Powers and Functions), where both sections 24 and 26(a) give the Cybercrime
Investigation and Coordinating Center the power to formulate a national
cybersecurity plan, which should properly fall within the power of Congress and
not an administrative agency.
The petitioners hope the SC issue an Immediate Restraining Order ordering the
DBM secretary not to release the P50-million budget intended for the act until
the High Court orders otherwise.
The Free Legal Assistance Group (FLAG) of attorneys Jose Manuel I. Diokno,
Pablito V. Sanidad, Ricardo A. Sunga III, and Theodore O. Te served as counsel
for all petitioners.
The petitioners include media groups the Center for Media Freedom &
Responsibility, National Union of Journalists of the Philippines, and the
Philippine Press Institute. Other organizations who joined the e-petition are
the Philippine Center for Investigative Journalism, Center for Community
Journalism and Development, Philippine Center for Photojournalism, Cebu
Citizens-Press Council, Bulatlat, MindaNews, PinoyWeekly, among others.
Petitioners who signed hard copy of the ninth petition are Melinda Quintos de
Jesus of the Center for Media Freedom and Responsibility, Rowena Paraan of the
National Union of Journalists of the Philippines, Joseph Alwyn Alburo of GMA
Network Inc. and National Union of Journalists of the Philippines, and Ariel
Sebellino of the Philippine Press Institute. They are joined by more than 250
e-petitioners, comprised mostly of journalists and media practitioners.
"By punishing libel as a cybercrime simply because it is 'committed through a
computer system', the clear intent of section 4(c)(4) is to single out netizens
in their chosen medium of expression. It is clearly a prior restraint that
infringes on the freedom of expression guaranteed under Article III, section 4
of the 1987 Constitution," signatories to the the ninth petition stated.
"Freedom of expression has long enjoyed the distinction of being a preferred
right and thus, 'a weighty presumption of invalidity vitiates measures of prior
restraint upon the exercise of such freedoms,'" they added, citing the case of
Ayer Productions v. Hon. Capulong and Juan Ponce Enrile (G.R. No. 82380, April
29, 1988)
"Read together with section 4(c)(4), section 5(a) clearly constitutes a prior
restraint on free expression. In the first place, section 5(a) fails to define
exactly what acts are punished within the scope of the words 'abets or aids'
and, in the distinct context of social media and online journalism, operates as
a chilling factor that undermines, restricts and abridges freedom of
expression," the petitioners also stated.
The group also questioned the the criminalization of the yet-undefined acts
that fall under 'abets or aids' under section 5(a). This will cause "any person
using a computer and the internet to consider if the mere act of 'forwarding',
'sharing', 'liking', 're-tweeting' would constitute an act that 'abets or aids'
the content-related offense of cyber libel under section 4(c)(4)," they stated.

The wholesale importation of all felonies and crimes as cybercrimes in
section 6 of the Cybercrime Prevention Act is unjustified, according to the
ninth petition. "There is, however, no rational basis for concluding that the
'use of information and communications technologies' in relation to all felonies
and crimes would constitute a circumstance so perverse as to convert an existing
felony or a crime into a separate offense altogether. The absence of any
rational basis for section 6, especially when read in relation to section 2,
renders it an act of prior restraint especially in relation to the 'use of
information and communications technologies' and clearly in violation of freedom
of expression."
The Act also gives the justice secretary the "power to restrict or block
access to computer data simply on the basis of a prima facie finding that the
computer data is in violation of the Cybercrime Law" without a judicial
determination or even a formal charge. "Moreover, because the law provides for
no standards for the exercise of this power, any order may be unlimited in
scope, duration and character and would clearly infringe on the right to free
expression."
The list of the 20 media organizations which joined the ninth petition can be
found here:
http://www.nujp.org/wp-content/uploads/2012/10/Organizations.pdf.

The list of 253 individual petitioners can be found here:
http://www.nujp.org/wp-content/uploads/2012/10/Individuals.pdf
THE CFMR LOGO

Criminal libel is one of the most abused means to suppress free expression
and press freedom in the Philippines.
The fear of possible imprisonment and the imposition of hefty fines has on
many occasions silenced press criticism of government officials and even the
reporting of matters of public interest. Journalists and media advocacy groups
like the Center for Media Freedom and Responsibility (CMFR) and the National
Union of Journalists of the Philippines (NUJP) have called for the
decriminalization of libel for decades.
They have asked Congress to amend the provisions on libel of the 82-year-old
Revised Penal Code. By far the most significant development in the Philippine
campaign to decriminalize libel is the United Nations Human Rights Committee's
(UNHRC) October 2011 declaration that the criminal sanction for libel in the
Philippines is "excessive" and in violation of the International Covenant on
Civil and Political Rights (ICCPR) in which the Philippines is a signatory.
Despite the UNHRC declaration that it is incompatible with human rights law,
libel suits are still being filed against journalists, in many cases to limit
criticism of public officials and other powerful individuals.

Worst assault on free expression since 1972 By
Luis V. Teodoro | Posted on 01-10-2012



THE CYBERCRIME Prevention Act of 2012 is the worst assault on
free expression since Ferdinand Marcos declared martial law 40 years ago if only
for its potential to affect the 26 to 30 million Filipinos, including
journalists, who regularly access the Internet to upload information through
personal blogs or news sites, who comment on public issues in chat rooms or
social media, or even those who communicate via email.
President Benigno Aquino III signed RA 10175 on the 12th of September,
ironically—or perhaps appropriately—martial law month, unleashing a firestorm of
protest which has so far taken not only the form of challenges to its
constitutionality before the Supreme Court, but also the hacking of government
websites. Journalists' and media advocacy groups are also preparing an online
petition for the Supreme Court to declare the entire act unconstitutional, even
as spontaneous calls for marches and demonstrations have gone viral over
cyberspace.
The incorporation of the 82-year old libel law into the Act's roster of
cybercrimes is only one of its egregious flaws. The Act also raises by one
degree the penalty for all the crimes it lists—some of which, like libel and
child pornography, are already covered by the law. Among other consequences, it
strengthens even further the use for harassment of libel as a criminal offense.
From penalties ranging from six months' to four years' imprisonment, those found
guilty of libel would be imprisoned from six to 12 years under the provisions of
the Act.
Prior to the filing of a court case for online libel, however, the Department
of Justice can declare that there is prima facie evidence of libel in any online
information, comment, or video, and can forthwith bar access to the site—whether
a Facebook, twitter, or email account, or a blog or website—or cause the removal
of the offending material. This provision in effect gives the DOJ the power of
judge, jury and executioner. The Act is practically a bill of
attainder—expressly prohibited by the Constitution—that punishes without trial.
This power, however, does not prevent the DOJ from filing charges in court for
the same offense, thus exposing the supposed offender to double jeopardy, or
being twice held liable for the same offense.
Some lawyers also argue that those who upload material before the effectivity
of the law on Oct. 3 could also be liable to libel charges if the material is
still online on that date, thus making the Act also an ex-post facto law, or a
law that retroactively penalizes an act that was not illegal at the time it was
passed.
Add to these Section 12 of the Act which empowers the Philippine National
Police and the National Bureau of Investigation to collect online traffic data
in real time with the help of Internet service providers, thus subjecting
individuals who are online to police surveillance without the benefit of a court
order.
When asked during a Malacanang press conference why such an obvious attack on
free expression as RA 10175 was passed during this administration, Presidential
Spokesperson Edwin Lacierda shifted the blame to Congress, ignoring the fact
that President Aquino was a party to it by affixing his signature to the bill.
Lacierda changed his tune in subsequent days, arguing that freedom demands
responsibility. Deputy spokesperson Abigail Valte later joined Lacierda in
declaring that it was the journalists' and Netizens' fault, because they were
not militant enough to question the bill and object to its provisions while it
was still pending in Congress.
And yet not only were journalists', media advocacy and Netizens' groups not
consulted or even informed when the bill was being discussed, the Act's
inclusion of libel among cybercrimes—and raising the penalty for it—was also the
result of a veritable conspiracy during the bicameral conference, despite
questions raised earlier by, among others, Kabataan party list congressman
Raymond Palatino.
As for Lacierda's pious arguments in favor of responsibility, that has always
been the primary plank of the self-regulatory regime journalists and media
advocacy groups including the Center for Media Freedom and Responsibility have
supported, rather than the use of State sanctions to compel ethical behavior
among journalists and media practitioners. Finally, Mr. Aquino cannot escape
responsibility for the Act, which, rather than veto, he after all signed into
law.
The Act was signed at the same time that various political groups including
the Liberal Party mishmash of so -called political parties and dynastic
denizens—the wives, children, nieces, nephews, uncles, aunts, parents, etc. of
people already in Congress and Malacanang– were announcing their rosters of
candidates for the Senatorial elections in 2013.
The entire journalism and media community, as well as all 30 million
Netizens, must demand from these creatures a clear declaration on which side of
free expression they're on—whether they're for it as an indispensable imperative
in a country that dares call itself a democracy, or whether, like the sponsors
and signatories of the Act, they are at heart no less authoritarian than the
conspiracy that from 1972 onwards helped establish and made dictatorship endure
for 14 years.
Both the failure to make a clear statement on their position re the
Cybercrime Prevention Act of 2012 and/or a declaration for it should be cause
enough for media practitioners, whether in print and broadcasting, or online, to
campaign through the media whether old or new against these individuals as well
as all those sponsors of RA 10175 who're still running for office. Free
expression is as vital as air and water in the realization of authentic
democracy.
Unlike party affiliations, or the conflict between the elite victims of
martial law and their victimizers, free expression is non-negotiable. A campaign
to hold accountable those who're savaging it, or who're likely to further savage
it, might even imbue the coming elections with some meaning.

Luis Teodoro
Luis V. Teodoro is a former dean of the University of the Philippines College
of Mass Communication, where he teaches journalism.
He is the deputy director of the Center for Media Freedom and Responsibility.

He writes a weekly column for the BusinessWorld.


Chief News Editor: Sol Jose Vanzi
© Copyright, 2012 by PHILIPPINE HEADLINE NEWS ONLINE
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rights reserved




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