Double Talk on Citizen’s Rights: Abridging Freedom of Expression, Reneging on Freedom of Information

This is a report by the Institute for Freedom of Information (iFOI), a project of the Action for Economic Reforms and the Philippine Center for Investigative Journalism, on how the Cybercrime Prevention Act of 2012 impacts on the extended campaign for the Philippines to pass the Freedom of Information Act.

The report titled ‘Double Talk on Citizen’s Rights: Abridging Freedom of Expression, Reneging on Freedom of Information,” is co-authored by the PCIJ and AER’s Atty. Nepomuceno Malaluan.

By Nepomuceno Malaluan and Malou Mangahas

Institute for Freedom of Information[1]

8 October 2012

FREEDOM of expression (FOE) and freedom of information (FOI) are closely intertwined, fundamental rights of the people, not just in the Philippines but also in all democracies of the world. Like two peas in a pod, these rights are spelled out in the same breath in international human rights laws, which the Philippines has signed on to and ratified.

Article 19 of the Universal Declaration of Human Rights states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Article 19 (2) of the International Covenant on Civil and Political Rights affirms: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

In the Philippines, the same twin rights are expressly and distinctly guaranteed under the Bill of Rights of the Constitution, among other protections against abuse of the pervasive powers that have been entrusted to government. It is never a waste of words to quote them:

Article III, Section 4: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

Article III, Section 7: “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”

 

Cybercrime Law: Flawed provisions

However, on 12 September 2012, President Benigno Simeon C. Aquino III signed into law Republic Act No. 10175, or the Cybercrime Prevention Act of 2012.

By its subject, the law was crafted to address criminal acts committed through the expedient of cyberspace (i.e., fraud, child pornography, and theft of proprietary information). However, the law also contains several provisions that diminish and restrict freedom of expression over cyberspace, prompting vigorous protest from citizens, netizens, and journalists, and no less than 11 constitutional challenges before the Supreme Court.

The problem started during the law’s period of interpellation/amendments in the Senate, with the insertion of the provision on libel of the Revised Penal Code (RPC).

The provision, which appears as Section 4c, paragraph 4 (Cybercrime Offenses: Content-Related Offenses) reads: “Libel. – The unlawful or prohibited acts of libel as defined in Article 355 of the RPC, as amended, committed through a computer system or any other similar means which may be devised in the future.”

 

Article 355 of the RPC refers to committing libel “by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.”

 

By itself, the provision may have been inserted apparently to answer, through the legislative route, the hanging question of whether the requirement for publicity in libel can be committed online.

In truth, the Supreme Court has had no opportunity as yet to rule squarely on the issue. While a case (Bonifacio et al. vs RTC, GR No. 184800, May 5, 2010) filed by the Yuchengco family against planholders of the Pacific Plans, Inc. for libel allegedly committed through articles published on the respondents’ website reached the Supreme Court, the decision was confined to the issue of venue for the criminal action in the lower court.

But taken together with other provisions, the Cybercrime Law did much more than to expressly declare that libel may be committed online.

First, Section 6, in effect, provides that libel committed online shall be imposed a penalty one degree higher than other forms of libel. As RPC libel is punishable by prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months), online libel will be punishable by prision correccional maximum to prision mayor minimum (4 years two months and one day to 8 years).

Second, Section 19 grants the Department of Justice (DOJ) the power to restrict or block access to computer data that it finds prima facie to be in violation of the provisions of the Cybercrime Law. Thus, when the DOJ finds prima facie evidence that online libel has been committed, it shall issue an order to restrict or block access to the allegedly libelous material, and to take down the website where such material was posted.

These sections are among the provisions that are now being challenged by various parties before the Supreme Court as unconstitutional.

In his petition before the tribunal, Senator Teofisto Guingona III asserts that Section 6 violates the equal protection clause of the Constitution. He argues that “it (Cybercrime Law) unduly discriminates (against) persons of the same class, as it penalizes the act of publishing libelous materials through Internet more heavily than those which are committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.”

Additionally, the petitions filed separately by Melencio Sta Maria et al. and the National Union of Journalists of the Philippines (NUJP) et al. assert that Section 19 constitutes unreasonable seizure as it dispenses with the requirement for a judicial warrant.

NUJP et al. argues that “(T)he power to ‘restrict or block access to computer data’ amounts to a seizure of property which is reserved to a judge under Article III, Section 2; notably, it is also a power that can only be exercised after the issuance of a warrant.”

Beyond these constitutional infirmities, these provisions of the Cybercrime Law, ultimately and clearly, work to infringe freedom of expression in cyberspace.

Section 19, empowers the Executive department through the DOJ to restrain online expression through its “restrict and block” powers. Not only is it able to do so without need of judicial intervention; it should also be noted that the threshold for prosecuting libel is low, given Section 354 of the RPC, which provides in part that “(E)very defamatory imputation is presumed to be malicious.”

Thus, finding prima facie basis to exercise the “restrict and block” powers becomes doubly easy. This will work to restrain the continued publicity of many ideas, opinions, and comments alleged to be libelous and prosecutable given the presumption of malice, even if these will later on be judicially determined as not constituting libel, that is, they are in the end protected speech/expression.

Also, imposing a much higher minimum penalty for libel committed online (4 years two months and one day versus 6 months for libel by other means) will have a notable chilling effect on Internet users, which as of the latest reliable count comes up to 33.6 million Filipinos, including 27.2 million Facebook users.

The long and short of it: The Cybercrime Law spooks over 1 in every 3 Filipinos with threat of cruel punishment, even as they seek only to exercise their inalienable freedoms under the Constitution.

The Cybercrime Law becomes particularly onerous in a society where cyberspace has become an accessible tool and the preferred platform of citizens to comment, criticize, and engage in the public discourses on matters of public interest, particularly governmental issues.

The Cybercrime law poses clear and present danger of significant curtailment of freedom of expression, the specter of a very high penalty should one be convicted of online libel. Section 6 works to discourage even ideas, comments and opinion that do not and may not constitute libel at all — again protected speech and expression.

The Cybercrime Law posits fear and punishment as the antidote to the citizens’ exercise of freedom of expression, which the Constitution and jurisprudence guarantee should not be abridged, no matter rambunctious, profane, bold, impious, impudent, rude, or cheeky.

FOI Law: No push from P-Noy

But more than just a bad law, RA 10175 betrays official sarcasm and indifference to two popular and long-overdue advocacies of human rights groups and citizens – to decriminalize libel and to pass the Freedom of Information (FOI) Act.

By all indications, the 15th Congress and the Executive under President Aquino have chosen to ignore these advocacies even as they had favored the Cybercrime Law with quicker action and firmer resolve.

The proposal to decriminalize libel has been submitted by the United Nations’ Human Rights Committee (HRC) in line with Article 19 of the International Covenant on Civil and Political Rights, which the Philippines ratified on 23 October 1986.

In General Comment No. 34 adopted at its 102nd session (Geneva, 11-29 July 2011), the UNHRC called on states parties to “consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.”

The same HRC General Comment states:

To give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information. States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation. The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant. Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information. Authorities should provide reasons for any refusal to provide access to information. Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requests.

These standards are exactly what the proposed Freedom of Information Act seeks to institutionalize by legislation. But it remains languishing particularly at the House Committee on Public Information, whose chairman has pointed to FOI not being among the President’s priority as a key reason for his refusal to move on the measure.

To make matters worse, not only did Congress and the Executive take the contrary route on libel, they have also continued to withhold the passage of the FOI Act, a 14-year advocacy of various sectors that actually antedate the filing of the first cybercrime bills by at least six years.

People’s just demands

The unconstitutional provisions of the Cybercrime Law cannot be cured by any measure of the most carefully crafted implementing rules and regulations.

Thus far, only the major provisions infringing on freedom of expression have elicited protest. But many other provisions of the law have been questioned, too, for violating the right to privacy and the proscription against double jeopardy. In addition, the law imposes the same draconian penalties for various types of minor and major cybercrimes. For instance, it declares all forms of computer hacking, regardless of extent of damage or perversity of criminal intent, punishable by prision mayor (imprisonment of 6 years and 1 day to 12 years).

The effective remedy is for Congress to repeal the Cybercrime Law, or for the Supreme Court to strike it down as unconstitutional. Congress can then enact a new cybercrime law, or one that would clearly define cybercrimes, impose proportional penalties, and cut no corners with the Bill of Rights.

For this to happen, the committee process in Congress should also involve all stakeholders, and not just the usual national security hawks, BPO investors, or political crybabies, such as what had happened on the way to the morphing of the Cybercrime Law at bar.

In the meantime, the Supreme Court would do well to immediately grant the common prayer of the 11 petitioners against the law for a temporary restraining order.

Finally, Congress and President Aquino should, as quickly as they moved on the Cybercrime Law, now make good on their promise, and fulfill their duty under the Constitution, to pass the Freedom of Information Act.

All it takes is sincerity and political will to make that happen. And in the nick of time, the FOI Act may still see the light of day in the 15th Congress, even as the Cybercrime Law is eventually returned to the drawing boards.

That would be the best result for all: Pass the FOI Law now to guarantee the bounds of our inalienable rights and freedoms. Discuss with all stakeholders the clear, reasonable, lawful grounds and limits of a new Cybercrime Law. – Institute for Freedom of Information, 8 October 2012


[1] The Institute for Freedom of Information is a joint program of the Action for Economic Reforms and the Philippine Center for Investigative Journalism.

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