Cyber Crime Law: Bad News or Good News?

 

            R.A.10175 otherwise known as the “Cybercrime Prevention Act of 2012” is both a good news and a bad news for us. The good news is that this act introduces penalties to acts in violation of certain rights which were otherwise not sanctioned by fines or penalties. The bad news, however, is that most of us, if not all, cannot fully understand how this act would affect the cyberworld – and eventually our transactions and activities in the internet. Is regulation of the cyberspace for good? Or is it not? Is the “Libel Provision” proper? Or is it merely politicized? The only way to know and understand the meaning of this law is no less than seeing such law in the legal perspective and not in anything else.

 

            The Cybercrime Prevention Act ought to penalize crimes in the cyberspace which were otherwise outside the realm of our penal and special laws. Most of the cybercrime offenses enumerated under section 4 of this law are acts which are deemed as crimes in the international concept, but are not covered by penal sanctions under our jurisdiction prior to the enactment of this law. This implies that while foreign states discourage said acts by imposing penal sanctions, our government likewise do not encourage the commission of said acts but without however putting a teeth to these words. The advent of this law is a leap of security and protection for what was then an unconquered space. The growth of technology encourages more and more transactions to be done in the cyberworld. What was then a transaction only possible in the real world can now be conveniently performed with just a click of a button. The apparent growth of social media and communication in the internet, just like in the real world, is prone to abuse and misuse. This is where the good news, courtesy of this law, comes in. Imagine having your school ID stolen and the security guard refuses to let you enter the school building because of his long time moto: “no ID, no entry”; like when someone steal or change your password in your personal email and there’s no way you could access your own mail again. How about being annoyed by irrelevant, deceiving and unsolicited commercials waiting that you’d eventually press the button and buy something from them, or clicking a link which will eventually hack or virus your computer. Would it be tolerable for you to take these matters sitting down with the hope that a lightning would eventually strike unto the culprit, or would you take action and implore the aid of our laws? If you’d choose the latter, then this cybercrime prevention law is good news for you but if you’re the culprit who enjoys spreading injustice in the cyberspace, then it’s not unusual if you’ll hack government sites and ask that the law be trashed in its entirety.

 

            Yet, if this law is good news for us, why was it bombarded by protests and criticisms after its enactment? The law, among others, is seen as a curtailment of the freedom we long enjoyed and got accustomed with when dealing with the cyberspace. But aren’t these fears of conquer and curtailment merely a product of speculation? Take for instance the process before a search or seizure could be validly conducted under this law. Similar process or condition to that of any other crimes is required and observed. Under section 12 of R.A. 10175, (last paragraph thereof) a judge, like any other crime, must determine personally whether there is a probable cause before a warrant to search or seize a computer or devise may be taken effect. Nothing in this process could excite our mind to think of any conspiracy or whatever there is we see on T.V. because of three things. First, our government just can’t afford a computer like that in the movie “Eagle Eye” who could be very capable of monitoring every piece of activity we have. Second, it still abides with the rule of law through proper determination and supervision by our courts in the proper conduct of search, seizures and arrests. Third, the purpose of the law is to regulate the cyberspace and not for take over. Aren’t those hackers and identity thieves in the internet more troublesome than this law is? Cybercriminals have nothing to loose and no where to divulge because they either fear no sanction or are confident enough that there tracks are no where to be followed due to absence of a body regulating and overseeing the same.

 

In the past few years, we’ve seen several reports on cybersex dens and rampant child pornographies in the country. Yet again, we still see or hear reports of continuous operations of police officers against cybersex dens who are mostly financed or manned by foreign nationals. The full efforts of our PNP against these illegal establishments are deemed inutile due to the fact that no adequate law punishes this crime. Criminals manning these dens may easily re-establish and re-locate its facilities because the fangs of the law were not strong enough to completely terminate their operation. A proof to this effect is apparent on papers where, despite continuous police operations, more and more cybersex dens were apprehended and discovered even up to date. Moreover, the people behind these dens call more reason for alarm. Majority of these people manning these dens are foreign nationals. A reasonable man could easily be asking the question as to why would a foreign national choose to invest such business in the country as compared to the rest of the countries. Hmmmmmnnn(brief moment of silence), a simple rule on tourism dictate that if the country and the people are business friendly, investors are more likely to come for business. This could then be the reason why foreign nationals love to put up their sex dens in our country because this country is healthy for their business in two ways. First, there is no fear for sanction because our cyberspace is the epitome of freedom. Second, they can easily exploit our poor people who are in dire need of money. We could then recall that, before the cyberspace had been exploited by this type of business, there was first the sex den. This type of business was likewise manned by some foreign nationals and a few influential locals, but due to business reverses resulting from raids, tongpats and bail bonds, some chooses to re-invent and hence come cybersex dens. What an innovation and what a discovery there is from clever and business minds. In this case, if criminals can reinovate their illegal business, why can’t the law do the same? White Slave Trade under Article 341 of the Revised Penal Code which, among others, punishes the maintenance of sex dens falls short to include maintenance of cybersex dens within its punishable acts. R.A. 10175 therefore is relevant in this matter as it expressly punishes what the Revised Penal Code failed to punish. Good news once again not specifically for your private interest, but for the general public. Bear in mind that child pornography is one of the outcome of cybersex dens. Children are more likely to land on cyber dens than they are on beerhouses as white slaves. The convenience of not being known to customers where the den is situated repels the danger of having a minor sex worker who, in the eyes of the law, is so favored and protected. This very nature of a cyber den gave the basis why a higher penalty is imposed on child pornography under R.A. 10175 as compared to R.A. 9775 or the Anti-Child Pornography Act of 2009.

The abovementioned crimes such as child pornography, cybersex, computer hacking, computer-related indentity theft, or unsolicited commercial communications are easily identified as crimes either because other jurisdiction treat them as such, or that our conscience dictates that these are wrongful acts. However, there is a provision of this law that would mostly raise eyebrows and which stand between the thin lines of what is right and what is wrong. This is the provision which, in the eyes of the netizens, is most likely susceptible for abuse and curtailment our constitutional right to free speech. In particular, the inclusion of libel as a punishable actunder the law brought about numerous objections and speculations as to how said provision reached the corners of R.A. 10175. Every person seems to have his own view as to how libel, which is a felony, reached the territories of special laws. The president, senators, lawyers, media, bloggers or even common users of facebook and twitters have their own view on this matter. But these views may be summarized in two aspects – the Political and Legal aspect.

 

First aspect of how people rationalize libel under RA 10175 is by looking at the political antecedents before this Cybercrime Prevention Act was even considered as a law. We recall that the Cybercrime Bill quickly became a law faster than RH Bill and any other bill in the congress that time. The nearest political antecedent linked in the quick passage of the law was, if I recall it right, the issue of plagiarism against a senator. There seemed to be a magnetic attraction between this senator and the bill that people ought to blame Mr. Senator why libel was inserted in the final draft of the bill – even the author of the bill could not explain how libel got into his bill. People seem to be convinced that the bill was passed in aid of a bullied senator – but did this kind of thing already occur then? P.D. 1866 or our law against Illegal possession of Firearms and Explosives possess a deep secret as revealed by a law professor and a retired judge. The professor judge relayed that under P.D. 1866, if a person is apprehended in possession of an illegal or unlicensed firearm, he is liable under the law and will suffer the penalty as prescribed therein. But if said person was apprehended in possession of said illegal or unlicensed firearm while committing a crime (say, alarms and scandal under Article 155 of the Revised Penal Code) the crime of illegal possession is absorbed by the crime of alarms and scandal, and the penalty prescribed by the latter crime shall be the only penalty imposed irrespective of the penalty under P.D. 1866. Problem then, the professor added, is that the penalty imposed under alarms and scandal is lower than that imposed in P.D. 1866. Now then, a malefactor can easily evade a higher penalty in case of violation of P.D. 1866 by merely firing his gun to commit alarms and scandal. How could our legislators have missed this point? Speculations then arouse that P.D. 1866 was passed in aid of a bad boy actor who was apprehended for illegal possession of firearms. Whether this was true or not is unconfirmed, but the point being, how could the same speculation arise ones again; where a law is sponsored and passed by the congress for a special benefit to certain individuals. Whether intentional or accidental, one point is clear – enactment of law is a political act. It depends solely on the initiative of our legislatures, lobbyists and political demand. People may ask: “isn’t it that the people are the sovereign of a State?” How could these types of laws then withstand against public clamor? Despite constant battle against the libel provision inside and outside court houses, netizens and law makers still fail to meet to an agreement as to this point. But what is really the source of the public clamor to remove libel from the law, if not declaring the law unconstitutional in its entirety? Is it the fact that the credibility of the law was tainted and doubted because of the political antecedents prior to its enactment? Or is it the fact that adding libel to the equation creates an apparent treat to our exercise of freedom of speech?

 

Libel under R.A. 10175 is a different breed to that of libel under Article 353 of the Revised Penal Code. The former imposes a penalty, one degree higher than that imposed under Article 353. What was then punishable by imprisonment from six (6) months and one (1) day to four (4) years and two (2) months, is now raised to one degree higher or up to twelve years (12) of imprisonment. The deterrence of the law seem to be very efficient to the point that during its enactment, a lot of people feared posting comments and consciously add disclaimers to their posts for fear of imprisonment. Furthermore, Section 5(a) of the law also punishes those who aid or abet in the commission of libel. Hence, a person who likes, tweet, comment, re-post or share a libelous article is liable under this law. On a brief thought, if a netizen, when posting, sharing, liking, commenting or tweeting is always in danger of violating the law, isn’t this a constructive deprivation of our right to speech? Does this mean that I am now restricted to criticize public officials in the cyberspace where it is convenient to air sentiments and people have easy access to it?  The author of the law, Senator Edgardo J. Angara himself, posits part of the answer to the question. In his article in Manila Bulletin[1], Sen. Angara opined: “The provision met stiff opposition, which I believe stems from misunderstanding. Every day, in newspapers and television, journalists speak their minds, even against particular people, practices, or establishments. They have not been jailed for doing so; the right to express our opinions is enshrined in the Philippine Constitution. Neither will they be jailed for doing likewise on the Internet.” he further added by saying: “The law does not in any way stifle the right to freedom of expression. Rather, it protects citizens and expands the scope of that right. Both the Constitution and common sense tell us that the protection of free speech and free press does not extend to malicious falsehood against one’s person or reputation.” In other words, why fear for the sanctions when you will not commit any violation. Those who fear punishments from the law are only criminals because there actions are not warranted by the Constitution; but those who do no wrong can always take shield from our laws. This is where the bad news is; we raised our voices first before we could ever take time understanding the situation. The bad news is not the fact that libel was inserted as a penal provision of R.A. 10175, but it’s our misunderstanding of the reasons and implications of such provision. Our view on the law then cannot be complete without looking at its legal aspect, for a law is to be understood in the legal aspect, as it is supposed to be, and nothing else.

Since R.A. 10175 made reference of libel in relation to the provision under the Revised Penal Code, the former libel is to be understood in the concept of a felony under Article 353 of the Revised Penal Code. Under Article 353, libel has the following elements: (1) There must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or, circumstance; (2) The imputation must be made publicly; (3) It must be malicious; (4) The imputation must tend to cause the dishonor, discredit or contempt of the person defamed. Among the elements abovementioned, malice (under the 3rd element) is the hardest to prove because in the case of People vs. Andrada[2], the malice or ill-will must be proved by clear and convincing evidence. There must be a proof of actual malice before a statement is considered libelous or that such statement must show injury or damage against the victim. Having said this, one does not have to be a law student in order to understand a malicious or injurious commentary. The implication brought about by the provision on libel is not a threat to freedom of speech or the press because, as opined by Sen. Angara, libelous words are not covered by free speech or the press. The Constitution did not in any way intended to enshrine in the bill of rights the freedom of the press so that men can tell untruthful stories against someone else, nor does free speech warrant total freedom of all words we utter. Our Philippine Bill of Rights under Article III of the 1987 Constitution, particularly the freedom of expression is borrowed from the Constitution of the United States of America. In the debate of the Madison’s version of speech and press clause, Madison revealed the intent of the clause which is: “To punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.”[3] Hence, if libel as a felony was accepted as a just and proper law by the people, why can’t we accept it to cover the cyberspace? Due to fast development of our technology, every single person (with proper qualification or none) becomes a critic in his own title. Worst, opinions, nowadays, whether correct or not, are much more futile when shown in the Internet. Imagine the vast users in the cyberspace and how one could easily convey information? It’s basically talking to the whole world with just your fingertips. Can we understand the standard of care required from us every time we seat behind that screen or write a comment, post or like the same? This were ones the very reason for the enactment of libel as a felony. Now that it re-innovates itself, is there a cause for alarm? Should we panic and be mad because there’s a special law prescribing a higher penalty on this crime that what it used to be? Imagine how hard it is to track down a comment down from its source when all you can see are nicknames of real users of mails, blogs or accounts. If libel is brought back to its original penalty for those committed in the cyberspace, will it deter people to stop committing this crime? We must understand that it is mostly the unknown which begets fear. Given proper time to understand this law, would our view to this provision and ultimately this law change? Why not wait for the implementing law, or better yet, participate in the drafting of the implementing rules so that our sentiments and doubts may be aired and clarified. The purpose of forming a State is to afford protection for its people by regulating the dealing between one another. If we therefore hate that the State is doing its job, or that we hate being regulated, why not dissolve this State and let’s govern ourselves independently. The only impact that this law have on us is that it sets boundaries and standards of our conduct in the cyberspace; the rest is on us to take. Ultimately, we are still free to do as we please, only that we are just reminded of how a civilized man (as expected from a subject of a State) should conduct one’s self.       

 

 

 

 

 

 

 

 

 

 

 


[1] Page 11 of Views – Features Section, Published on Sunday, October 7, 2012 

[2] C.A., 37 O.G. 1783 as cited in Criminal Law: Book II of Luis B. Reyes, 17th Edition 

[3] W. BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND 151-52 (http://www.chanrobles.com/usa/us_supremecourt/constitution/amendment-01/20-freedom-of-expression.php) last access; December, 8, 2012

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2 Responses to Cyber Crime Law: Bad News or Good News?

  1. Pingback: Students’ Take: RA 10173, SB 3327 viz RA 10175 | Berne Guerrero

  2. Pingback: Abucejo, Vincent Tito « AUSL Tech & Law

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