WHAT’S THE FUSS? THE CYBERCRIME PREVENTION ACT IS NOT UNCONSTITUTIONAL

 

 

It has been almost a month since the president signed RA 10175 (Cyber crime Prevention Act of 2012) into law and despite the sweet temptation to join in the fun and react to all the brouhaha about the alleged unconstitutionality and despotic nature of the law in facebook, i have held all opinions on the matter until I have fully read the whole law – partly in fear that it may fall within the all-encompassing criminal provisions of the law, which most of the facebook posts seem to suggest. Now that all my baseless fears of this controversial law have been erased, here is my conclusion:

 

THE LAW IS NOT AT ALL OPPRESSIVE. Neither does it create any new crime. The only ‘fault’ of the law, if we are to call it that, is that it increases the penalties already prescribed by existing penal statutes. Of course, we are all aware that the determination of the degree of imposable penalties lies well within the power and authority of the legislature, and is therefore unquestionable unless unduly oppressive. I think everyone would agree that in RA 10175, the penalties are not in any way ‘inhuman,’ for lack of a better term, so it is not the heart of the issue. Heck, from this vantage point, i  don’t see any constitutional issue at all. Or i might just need to get myself a pair of glasses. To explain my stand on this, let me react to some of the main issues raised by some netizens:

 

1. LIBEL DOES NOT BECOME MALUM PROHIBITUM

 

 

Article 4(c)(4) which provides for libel does not make the crime easier to commit. In fact, it refers to the provision of the Revised Penal Code which defines Libel. and Article 353 of the RPC defines Libel as a “public and MALICIOUS imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.” The law is very clear on the element of Malice in libel cases. Hence, even if it is covered by a special law, intent is still an element of Libel under RA 10175. The fact that the penalty is increased doesn’t seem to me to be something that we, law-abiding citizens, should be unhappy about.

 

2. AIRING FAIR OPINIONS AGAINST THE GOVERNMENT IS NOT LIBEL

 

 

Unlike what many would want us to believe, mere posting of grievances or complaints against the government or against public officials does not constitute libel. In the case of Borjal vs. Court of Appeals [G.R. No. 126466, January 14, 1999], the Supreme Court said:

“To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.  The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable.  In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition.  If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.”

 

3. LIKING THE STATUS OF OTHER PERSONS WILL NEVER CONSTITUTE ‘ABETTING THE COMMISSION OF LIBEL’

 

The idea that liking a status will constitute abetting libel is the most absurd by far, but it may be worth  a sentence or two. Merriam-Webster provides that to ‘abet’ is “to assist or support in the achievement of a purpose” or to “actively encourage a plan or activity.” In the act of liking or reposting the status or post of another, provided that you identify him or her for her as the author, I cannot see anything which will constitute an act of abetting since one cannot support the commission of something which has already been done.

 

 

3. BLOCKING OF ACCESS TO COMPUTER DATA IS NOT OPPRESSIVE BECAUSE IT HAS LIMITS

 

 Section 19 of RA 10175 does not constitute an absolute and whim-driven sword which the DOJ can wield upon its delight. The provision clearly provides that the restriction or blocking of access to cyber data may only be done upon finding of prima facie evidence of the commission of a crime. “Prima facie” has been defined by the Supreme Court in the case of Wa-acon vs. People [G.R. No. 164575, December 6, 2006] in this way:

Prima facie evidence is defined as:

Evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient. Evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue it supports, but which may be contradicted by other evidence.

The DOJ may therefore block access only when there is prima facie evidence, not even probable cause which is a lower standard, that a crime was committed. It is to be noted that under the law, the authorities have the power to confiscate any object which may constitute evidence of a crime. The seizure may be done through a search warrant or incidental to a lawful arrest. In the case of PDEA vs. Brodett [G.R. No. 196390, September 28, 2011], the Supreme Court held:

According to the Rules of Court, personal property may be seized in connection with a criminal offense either by authority of a search warrant or as the product of a search incidental to a lawful arrest. If the search is by virtue of a search warrant, the personal property that may be seized may be that which is the subject of the offense; or that which has been stolen or embezzled and other proceeds, or fruits of the offense; orthat which has been used or intended to be used as the means of committing an offense. If the search is an incident of a lawful arrest, seizure may be made of dangerous weapons or anything that may have been used or may constitute proof in the commission of an offense.Should there be no ensuing criminal prosecution in which the personal property seized is used as evidence, its return to the person from whom it was taken, or to the person who is entitled to its possession is but a matter of course, except if it is contraband or illegal per se. A proper court may order the return of property held solely as evidence should the Government be unreasonably delayed in bringing a criminal prosecution. The order for the disposition of such property can be made only when the case is finally terminated.

 Even without Section 19 therefore, the state is still authorized to seize evidence and may justify the restriction of access to such evidence which is in plain view of the whole cyber world. Section 19 merely creates a clear and unequivocal pronouncement of this power and vests the same upon the DOJ.

 

4. THE DEFINITION OF CYBERSEX IS NOT TOO NARROW

 

Secion 4(c)(1) defines cybersex as “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.” I do not see anything wrong with this definition. It only prohibits those acts of exhibiting sexual organs and sexual activity which are done for favor or consideration. Surely, the Supreme Court, despite its infamy for whimsical judgments, will not go to the extent of interpreting the terms “for favor or consideration” to include acts done by two consenting persons who have no pre-existing economic agreements in relation to such act, whatsoever. And if the Supreme Court, by any stroke of chance, steps on the line, then what makes this different from any other law which the Supreme Court may try to misinterpret? At the end of the day, we still have to maintain some sense of trust on our government no matter how difficult it may be. Otherwise, we might as well choose mob rule over democracy.

 

I don’t see so much of a wrong in RA 10175, since it merely tries to enforce responsibility upon all users of the cyberspace, but i respect those who question  the wisdom of the law for whatever viable reason. We may disagree on a lot of issues, and that is the essence of a free system of government, but we will certainly have to admit that many of our laws violate our constitution, and a lot more violate wisdom. The former, we have all the right to bring to court, while the latter, under which the ‘Cybercrime Prevention Act of 2012’ might arguably fall, we will unfortunately have to deal with until the congress itself realizes and reverses its own mistakes in judgment, if it ever will. Until then -and by then i mean probably never- we still have the 2013 elections to pick new, hopefully better representatives.

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