Why RA 10175 Should Be Abrogated

There has been a lot of brouhaha regarding the introduction of RA 10175 or the Cybercrime Prevention Act of 2012. Indeed, the law was crafted so fast, I doubt if there was even any meaningful consultation with various groups such as the internet community, human rights groups, netizens through various social media sites, NGO's and the like. It is no surprising therefore that even before it became effective last October 3, 2012, the online community in the Philippines was aghast with its patently obvious censoring implications. No less than seven petitions were filed in the Philippine Supreme Court to have the law declared unconstitutional or suspended. Within a few days after it became effective, the Supreme Court issued a 160-day restraining order suspending its implementation. Presumably, according to various media pundits, to give time to the usually rubber stamp congress to make the "necessary" changes.

Sa aking opinyon, ang batas na ito ay hindi lamang dapat ma-suspendi, ito ay dapat itakwil dahil ang mga probisyon nito ay hindi lamang labag sa mga itinatakdang karapatang nakalaan sa Saligang-batas ng 1987, kundi maaaring gamitin bilang isang instrumento para mapatahimik ang malayang talastasan ng mga ideya at opinyon. Puno ng mga butas ang batas na ito na walang dudang magbibigay ng pagkakataon para sa mga makapangyarihang tao sa Pilipinas para masiguro na ang mga magpapahayag ng mga opinyong hindi sang-ayon sa kanilang mga posisyon ay kanilang masasakal. Ito ay hindi lamang labag sa mga karapatang nakatalaga sa Bill of Rights ng saligang-batas ng 1987.

There are many objectionable provisions of RA 10175 and I will deal extensively with only some of them which, as a regular internet user, could affect the free and unfettered flow of information through the internet. The free flow of information is critical in a functioning democracy as it serves as a check and balance against the abuse and misuse of public power and ensures that the reigns of government do not become the absolute domain of our political dynasties - a sorry feature of Philippine democracy.

Let me begin.

Section 4 (3) (c) (1) "Cybersex - 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."

OBJECTION: In statutory construction, there is a principle called verba legis. This principle essentially means the "plain-meaning rule." That is, the words in a statute should be interpreted in its simplest possible meaning. When there is no ambiguity, the provision of law should be taken to mean what it says it means.

Using the verba legis principle, it is clear from the provisions of Sec. 4 (3)(c)(1) that if I willfully make a sex video alone or with someone, I am technically criminally liable under said provision. The last phrase in said provision somewhat qualifies the offense as that which is "for favor or consideration." The phrase "for favor or consideration" is open for interpretation, does that only refer to sexual videos done for money? What is the nits and bounds of the terms "favor or consideration"?

Indeed, in the milieu in which we are now, the increased technicalization and computerization of almost all facets and aspects of contemporary life suggests that favors or considerations go beyond the mere exhange of money. It could include recognition, which in the internet world, at the right circumstances, can eventually become monetized. Example, if a blogger attaches a sexually explicit video of himself on his blog, there is almost always a high likelihood that traffic to such blog will increase, the resulting increase in traffic, if sustained over a period of weeks and months, will attract attention, some of which will be from advertisers, who will most likely offer to pay considerable amounts of money to advertise in such blog. Although there might be no initial intent to gain favor or consideration, the subsequent ad offers might be too good to pass. And so if such blogger then accepts such offers, under the provisions of aforesaid law, he will now be subject to the definition outlined in Sec. 4 (3)(c)(1). This is plainly the state interfering in the personal and private activity of an individual. This seemingly innocuous event can open windows to the religious right (of which there are many in the Philippines - think the Catholic Church, chameleonic politicos) to also call for the regulation of internet activity to control so-called "immoral" pictures, videos, stories and the like.

Kung makikita natin, sa isang probisyon pa lamang ay delikado na ang lagay ng kalayaang magpahayag ng sariling mga saloobin at opinyon ang sambayanang Filipino. Ang probisyong ito pa lang ay sapat na para sakalin ng mga makapangyarihan, mapera, at maimpluwensiya ang kalayaang maglimbag. Sa probisyong ito, mayuyurakan ang malayang pagdaloy ng impormasyon, ideya at katotohanan, higit sa lahat, mahihigpitan din ang sagradong karapatang maibahagi at maipahayag ang sarili.

Section 5 (a) "Aiding or abetting in the Commission of Cybercrime - Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable."

OBJECTION: This provision is a death knell to the social media experience. With the extensive popularity of Facebook in the Philippines, many Filipinos could technically become criminals. How will this affect free expression in the social media world?

First and foremost, if someone "LIKES" something on Facebook, he could potentially be an accessory to the crime simply because, as Sec. 5 (a) stipulates, he is already "willfully abetting or aiding in the commission of the crime." HOW? Because as everyone who uses Facebook knows, when someone clicks a "Like" button on Facebook, such activity is immediately reflected in the "Newsfeed" portion located on the upper right corner of the Facebook page of ALL friends of the one making the click (of course, depending on how the privacy settings of the users' account is set-up, the number of persons who will be privy to such information will vary), if that friend in turn clicks the "Like" button on said posting, it will appear on such friends' friends "Newsfeed" and so on and so forth. In short, you will spread the information. Isn't that abetting or aiding already? And if it is, then all those who clicked on the post will be held liable as by definition, they have already abetted and aided in the commission of the crime by spreading such information.

Sa madaling salita, hindi totoo ang palabas ng ilang mga abogado at tagapagtanggol ng RA 10175 na ang mga may-akda lamang ng mga "libelous comments" ang posibleng mapanagot. Iginigiit din ng mga nasabing tao na ang simpleng pag-like ng isang komento sa Facebook ay hindi "libelous" basta hindi sila ang nagsulat nito.

Makikita natin sa ayos ng mga salita sa Sec. 5 (a) na hindi ito totoo. Sa katunayan, simple, klaro at walang kadudaduda ang mga salita sa nasabing probisyon, ang sinumang tumulong sa paggawa ng Cybercrime ay mananagot. Kung mag-like ka sa isang post sa Facebook, alam nating ito ay umaabot sa mas marami pang tao, at dahil ito ay umaabot sa mas maraming tao, mas marami ang makakaalam sa nasabing post, at kapag nag-like naman ang mga taong ito, mas dadami pa ang makakaalam nito dahil makikita ito sa mga "Newsfeed" ng kanilang mga kaibigan sa Facebook. Hindi ba abetting and aiding na ito?

Section 5 (b) "Attempt in the Commission of Cybercrime - Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable."

OBJECTION: RA 10175 curiously does not really define what the scope of the word "attempt." Since under the provisions of RA 10175 Sec. 6 and 7 clearly indicates that aforesaid statute uses the RPC as a supplemental law, it is reasonable to assume, under the principle of in pari materia, that the two laws should be construed to support each other. Hence, the definition of "attempt" in RA 10175 must be the same as those defined under Art. 6 of the Revised Penal Code of the Philippines, in which an attempted felony is one in which: (1) The offender commences the commission of the felony directly by overt acts; (2) The offender does not perform all the acts of execution which should produce the felony; and (3) The non-performance of all acts of execution was due to a cause or accident other than the offender's own spontaneous desistance.

The conundrum therefore arises, using the example explained in Sec. 4, if there is such a thing as "attempted" in the realm of social media. Again, the example in the preceding section will be used, if one clicks "Like" on Facebook, as stated previously, such information is displayed in real-time on the "Newsfeed" of the account holders list of friends, the number of which will depend on the privacy settings, of those who are currently on-line. If however, one decides to "Unlike" said post, will it still be considered attempted? In such a scenario, those who are on-line when the "Like" button was clicked will have then seen such activity. However, those who are not online when such click was done will not be able to see them. In other words therefore, as defined in the provisions of Art. 6 of the RPC, is there really an "attempt" as contemplated by said provision when it comes to the social media experience? Indeed, when one clicks "Like" on Facebook, all acts of execution are already committed, even if you subsequently "Unlike" it later on, since those who are on-line when the "Like" button was clicked will have potentially seen it. Only those who were not on-line when said click was made will not be able to see such activity.

There is therefore a need to further scrutinize if there is really such a thing as "attempt," at least in the social media experience. Indeed, in the world of the internet, once something is posted on the web, it stays on the web forever, and so therefore how can an "attempt" be truly an attempt when applied to the social media experience.

Section 6. "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 (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be."

Section 7. "Liability under Other Laws. – A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws."

OBJECTION: RA 10175 as manifested by Sec. 6 is clearly interlinked with the RPC. This is even more clear by the provisions of Sec. 7 of RA 10175. Sec. 7 of RA 10175 is very disturbing in the sense that in one line, it actually allows DOUBLE JEOPARDY to be committed. This is a clear violation of the provisions of Art. 3, Sec. 21of the 1987 Constitution which states: "No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal  under either shall constitute a bar to another prosecution for the same act."

It is however clear from Sec. 7 of RA 10175, that a person who may be charged for libel who uses both print and the internet can be LEGALLY, however unconstitutionally, be prosecuted for the same offense, to wit:  "...prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws."

Makikita natin na ang RA 10175 ay salat sa mga mahahalagang bagay na dapat pagtuunan ng pansin. Makikita na ang batas na ito ay hindi masyadong napag-aralan, napag-isipan at napag-usapan. Maraming mga kwestionableng probisyong naitala na mayroong malalim na implikasyon sa mga mahahalagang karapatang pantao ng bawat Filipino.

RA 10175 should not just be amended, as there are still many provisions which should be radically changed that the law itself becomes skelotonized as to render it essentially useless, it should be rejected, declared unconstitutional by the Supreme Court as it violates Art. 3, Sec. 4 of the Bill of Rights of the 1987 Constitution which states: "No law shall be passed abridging the freedom of speech, of expression, or of the press..." and trashed to the dustbins of history as where it so rightfully belongs. It has no place in modern society, much less in a milieu that is increasingly information dependent, technically complex and socially more expressive of their rights.