TRO on cyberlaw big victory for freedom of expression, says Guingona
By Norman Bordadora, Christine O. Avendaño
Philippine Daily Inquirer
12:20 am | Wednesday, October 10th, 2012
“The first victory of the people and of freedom of expression.”
That was how Sen. Teofisto Guingona III described the Supreme Court’s issuance Tuesday of a temporary restraining order (TRO) suspending implementation of the Cybercrime Prevention Act for 120 days while the high tribunal decides whether the law violates civil liberties.
The court in a unanimous resolution directed respondents led by President Benigno Aquino and top administration officials to comment within 10 days on 15 petitions filed by Guingona and journalists’ groups, bloggers and netizens seeking to scrap a harsh penalty for online libel of up to 12 years in prison.
In its en banc meeting, the high tribunal set oral arguments on Jan. 15 on the case, according to the minute resolution. It said that the order was effective immediately. It said that for 120 days, the administration should refrain from enforcing the law.
The announcement of the TRO was met with jubilation by some 500 protesters massed in front of the court. Wearing black and bearing placards, the protesters called for the impeachment of Mr. Aquino for signing the cybercrime law, which took effect on Oct. 3, and chanted “no to cyber martial law.”
“The administration will always respect the legal processes that are issued by the court,” Palace deputy spokesperson Abigail Valte told reporters.
She called the court action a “provisional remedy” amid intense opposition to the law. She said this should not be construed as “judgment on the merits.”
Senate’s lone dissenter
“A TRO against the Cybercrime Prevention Act of 2012 is the first victory of the people and of freedom of expression,” said Guingona, the lone dissenter in the Senate to the measure.
“For a court to issue a TRO unanimously is a strong message of its belief that the dangers and fears of the people are real and must be addressed,” he said.
The respondents included Justice Secretary Leila de Lima, Interior and Local Government Secretary Manuel Roxas, Executive Secretary Paquito Ochoa Jr., and Philippine National Police Director General Nicanor Bartolome.
The issuance of the TRO came as the Department of Justice (DOJ) was preparing to draft the implementing rules and regulations (IRR) of the law slammed by many sectors for including libel as a cybercrime, among others.
Saying the DOJ operated “under the framework of the rule of law,” De Lima said she would abide by the high court order which, she noted, arose from “an exercise of the power of judicial review.’’
“We respect and we will abide by it,” De Lima, who was in Zamboanga City, said in a text message.
De Lima said that “in due time,” the DOJ would present formally before the high court the arguments outlined in the “historic” forum on the cyberlaw, which was conducted on Tuesday at the Land Bank of the Philippines building in Manila.
“Our advocacy for a safe cyberspace and interdiction of organized crime will continue,’’ De Lima said.
Word on the high court’s issuance of a TRO came as the DOJ, along with the Department of Science and Technology, ended its one-day forum aimed at clarifying misconceptions on the controversial law.
The forum was called so that stakeholders could provide inputs on the “collaborative’’ IRR to be drafted with the DOJ and other concerned government agencies.
Assistant Justice Secretary Geronimo Sy has said some of the provisions that petitioners said were unconstitutional were “the least of our worries.’’
He said that it was not true that the jail time for those found guilty of online libel would be up to 12 years, adding that the maximum jail term was eight years.
Sy also said that contrary to claims by some groups, the provision that would restrict or block websites was “not a takedown” website policy.
He said that applying this section was not easy considering there were certain conditions needed such as “clear and present danger” to necessitate the restriction or blocking of websites.
He also explained the tedious process involved in seeking this restriction.
Congress will wait
Senate President Juan Ponce Enrile said that with the TRO, bills introduced to amend the cybercrime law would have to wait until the court decided on its constitutionality.
“[The TRO] does not stop us from amending the law if there is a necessity but in my case, I suggest that we wait for the Supreme Court to make a decision so that we will know what are the defects that they want us to correct. We are not infallible people,” Enrile told reporters.
Sen. Edgardo Angara, one of the authors of the law, shared Enrile’s position. “Let’s take a pause out of respect for the Supreme Court, after all the Supreme Court is the final arbiter of any legal question.”
Sen. Miriam Defensor-Santiago, who earlier said she expected the Supreme Court to strike down as unconstitutional the cyberlaw, welcomed the court move. “This would be a landmark decision. It will concern the right to free speech in the digital age,” Santiago said.
Kabataan Rep. Raymond Palatino said that Congress should take the 120-day respite as its “cue” to expedite the approval of repealing or proposing ammendatory bills to the cybercrime law.
May not be needed
“There is material time to amend the law. What is needed is the support of the Congress leadership,” Palatino said.
“It’s possible if certified by the President as urgent, or if the House leadership considers it a priority measure,” said ACT Teachers Rep. Antonio Tinio.
Quezon Rep. Lorenzo “Erin” Tañada III said that the proposed changes in Congress might not be necessary. “There is a possibility that those particular sections that are being questioned may be declared unconstitutional by the Supreme Court. Hence, amendments may not be necessary,” Tañada said. With reports from TJ Burgonio and Gil C. Cabacungan
A 17-year-old girl may not get the help for now from authorities in her attempt to stop a 2-year-old sex video involving her that has gone viral on the Internet.
Assistant Justice Secretary Geronimo Sy on Tuesday said the girl, who was not identified, was the first complainant under the Cybercrime Prevention Act of 2012.
Sy mentioned the case during a forum on the controversial law held at the Landbank building in Manila.
And while he conceded the government for now could not do as much for her given that the law has yet to issue its implementing rules and regulations, efforts to help her case effectively was put on hold when the Supreme Court on Tuesday issued a temporary restraining order (TRO) on the law’s implementation.
Sy said that the “least” the Department of Justice (DOJ) could do now was to provide “restorative justice” to the girl, such as giving her counseling and a change of residence.
Speaking to reporters, Sy said the girl sent an e-mail on her plea to Justice Secretary Leila de Lima on Oct.2. He said the department verified the e-mail and found it to be a “valid complaint.” He said the girl was 15 years old in the sex video.
“The least we can do for her is not to watch the video,” Sy also said.
Under the new law, the government can request the websites that hosted the sex video “to have due respect with the rights of the child.”
“She is a child after all,” he said.
Sy said that it was the Internet service providers and the telecommunication sector that could stop the showing of the video.
“The nature of cybercrime is, there is permanence in how data is being managed online, so it has limited what we can do,” he said.
Case vs ‘hacktivists’
But Sy also disclosed that there was a case filed against the offender in this case. He conceded that the complaint was a “test case” for the government under the new cyberlaw.
The National Bureau of Investigation on Tuesday also said the Supreme Court order would hamper efforts against attackers of at least 15 government websites.
Special investigator Joey Narciso of the NBI Computer Crimes Unit said that the suspended law had given the agency more powers to go against hackers.
“Because of the TRO, the privileges were lost and we have to go back to the traditional way of investigating cases,” Narciso said.
“We admit we are helpless without the Cybercrime Prevention Act,” he said. “The NBI has the talent but we are limited by provisions of the law and technology.”
MANILA, Philippines - The 120-day temporary restraining order (TRO) issued by the Supreme Court (SC) on the implementation of the Cybercrime Prevention Act of 2012 is an opportunity for Congress to change the law that has drawn much criticism, Malacañang said yesterday.
“I think those 120 days (is an) opportunity for the legislature to discuss and finalize whatever amendments that they have already voiced out in public,” presidential spokesman Edwin Lacierda said.
“The Senate has already – or some senators have already – mentioned that they intend to push for some amendments. Likewise in the House. So this would be perhaps a good time and also an opportunity for the legislature itself to amend the law,” he said.
Lacierda described the 120-day period specified in the TRO as a “signal” from the SC for Congress to amend the controversial law.
At the Senate, two lawmakers have already initiated moves to have the law amended.
Senators Alan Cayetano and Loren Legarda filed proposals seeking to repeal some of the controversial provisions of Republic Act 10175.
Cayetano also filed a bill to decriminalize libel and defamation under the Revised Penal Code.
“There is a need to repeal the criminal defamation laws in the country since the present laws create a chilling effect on the community. We need to balance the need to promote the right of freedom of expression and the government’s duty to hold accountable those who abuse it,” he said.
Cayetano considers the move to amend the anti-cybercrime law as a catalyst for the decriminalization of libel in the country.
He added legislators should pass laws that further promote the positive use of technology, not curtail people’s freedom of expression and creativity.
Legarda cited the need to strike a balance between the government’s role to protect its citizenry and uphold freedom of expression.
“The vulnerability of cyberspace to pollutants such as pornography, cybersex, fraudulent practices and promotion of human trafficking (was) precisely the reason for the passage of the Cybercrime Prevention Act of 2012,” Legarda said.
“However, adopting such policy to prevent pollutants from spoiling the minds of our people must not be done at the expense of our valued right to free speech,” she said.
A ranking official of the Catholic Bishops’ Conference of the Philippines (CBCP), however, said the 120 days under the TRO would give the SC the opportunity to discern the law.
The TRO would “give time for the SC to weigh the pros and cons regarding the law and to calm down emotions and to let us be guided by reasons,” CBCP-Episcopal Commission on Bioethics chairman Bulacan Bishop Jose Oliveros said.
Oliveros though cited the need for the law to regulate the use of cyberspace.
He said several countries have already formulated their own cyber law. But he said the cyber law should ensure that a person’s right of expression must be safeguarded.
“The public should also continue to uphold the truth and the right to privacy of an individual,” Oliveros said.
In the meantime, the petitioners against RA 10175 in the SC issued a statement appealing to Congress to expedite the passage of bills that would repeal several contentious provisions in RA 10175.
They also criticized the Senate’s declaration that amendatory bills on RA 10175 will have to take a backseat.
“Why should we wait for the Supreme Court’s final decision before we act? Legislators committed a mistake in passing RA 10175, and the TRO issued by the Supreme Court is a cue for Congress to amend the law,” Kabataan party-list Rep. Raymond Palatino said.
“Before the high court released the TRO, senators and congressmen alike were very active in calling for amendments and repeals. But why is the Senate now dilly-dallying on amendatory bills? It just goes to show that senators are not really sincere in repealing the law,” said Terry Ridon, Kabataan party-list national president and general counsel.
“The TRO just delays the implementation of the law. The TRO is a cue for the Congress leadership to expedite the processing of repeal bills now filed in both chambers of Congress,” Palatino added.
“The TRO released by the high tribunal is effective for 120 days, enough time for Congress to repeal RA 10175,” he said.
There are other ways
In a press briefing yesterday, Lacierda said he did not discuss the TRO with President Aquino and that the executive department would respect the SC order.
The fact that the SC has issued a TRO showed that the country is operating normally and “that there is no such thing as e-martial law, even prior to the issuance of the TRO,”he said.
“Because this is the first time we have or a very rare time when the Supreme Court has issued a TRO which is definite in date, in scope. So they issued that TRO for 120 days. Normally, when the Supreme Court issues a TRO, it is indefinite. So perhaps this is a signal to the legislature to finalize whatever amendments,” he said.
Other laws, meanwhile, could be used to prosecute Internet-related crimes not covered by the Cybercrime Prevention Act, he said.
“The TRO is for the whole cybercrime law so you cannot cut and paste or decide which provisions of the TRO will apply. It’s a TRO on the entire law itself, so we cannot implement TRO as a law itself. But with respect to cybercrimes, for instance, pornography, maybe the other laws can... I would leave it to the DOJ (Department of Justice) if they can apply other laws in the meantime,” Lacierda said.
“For instance, hacking is a crime punishable under the E-Commerce Law. Some laws may be able to address those cybercrimes for now but, as to what extent, we will leave it with the DOJ. But insofar as the controversial provisions are concerned, the TRO has been issued and therefore it will be respected,” he said.
Asked if the TRO was a setback to the government’s fight against Internet-related crimes, Lacierda said there would be effects obviously, but there were different applicable laws.
At this point, Lacierda said the Presidential Legislative Liaison Office (PLLO) would cooperate with Congress to provide inputs on the amendments to the cybercrime law.
“From the very start, even the President had said... the President is open to lower the penalties for cyber libel, isn’t it? So we are open. This is a legislative act and no law is cast in stone so, it’s always subject to amendments,” he said.
Lacierda said Congress could work on the amendments while the case was ongoing in the SC.
“There are two tracks... and both are independent of each other. There’s a case in the Supreme Court which can proceed on its own. The Supreme Court chose not to proceed for 120 days, allow the discussions to happen after the 120 days. The legislature, on the other hand, has the power to make laws and to amend the laws... Perhaps, the legislature can move forward and do the amendments since there have been already some voices that already made known the intentions to amend the cyber crime law. We welcome both tracks,” he said.
Asked if there would be a need to augment the legal team of Malacañang to address cases, Lacierda said they have a good legal team and there was only a difference on emphasis of the various provisions of the contentious law.
“We recognize the importance of addressing those cybercrimes and that’s why that was emphasized,” Lacierda said.
While the government was “stymied” in pursuing cyber criminals, Lacierda said the TRO against the law was only “a temporary setback.”
He said amendments would be done on the law so that “what made it controversial will be cured.”
He said finer crafting of the law could be done.
“But as soon as amendments are done or as soon as the Supreme Court rules in whatever manner, at least we will have a clearer view of how we address cyber crimes,”he said. – With Christina Mendez, Evelyn Macairan, Sandy Araneta
MANILA, Philippines - The quest for justice of a 17-year-old girl who filed the first complaint under Republic Act 10175 or the Cybercrime Prevention Act will not be hampered by the restraining order issued by the Supreme Court (SC) on the controversial law.
The probe – seen as a test case for the anti-cybercrime law – will continue despite the 120-day temporary restraining order (TRO) issued by the SC on the Department of Justice (DOJ) on the implementation of RA 10175, Justice Secretary Leila de Lima said yesterday.
De Lima has tapped the National Bureau of Investigation (NBI) to look into the complaint of the girl.
The victim filed the complaint on the day RA 10175 took effect last Oct. 3. She sent the complaint through an e-mail to De Lima, urging the government to take down a video circulating on the Internet for two years now showing her having sex with a guy she used to date.
While they are barred from implementing RA 10175, De Lima said the NBI may still request the websites involved to remove the sex video and run after those who uploaded it under another applicable law.
“The NBI may act on this case perhaps under anti-photo and video voyeurism act or RA 9995. The victim is a minor, so can you imagine the anguish, anxiety and humiliation she went through because of that? We need to preserve human dignity,” De Lima said.
RA 9995 imposes a penalty of three to seven years of imprisonment and fine of P100,000 to P500,000 on those who will be found guilty of voyeurism.
De Lima said the DOJ and NBI could not enforce RA 10175 on this case for the meantime because of the 120-day TRO issued by the high court last Tuesday.
De Lima abided by the TRO and suspended the crafting of the new law’s implementing rules and regulations (IRR) as well as the initial operations of the DOJ’s new cybercrime office headed by Assistant Secretary Geronimo Sy.
De Lima, however, said they would continue their mass information campaign to raise public awareness on the new law and continue to address concerns.
“Normally TRO would encompass the implementation of the entire law. The IRR is put on hold but the advocacy is not covered so it will proceed. We will still undertake awareness raising campaign to educate the people on the salient features of the law and to explain to them that there is nothing to worry in the implementation of the law,” she said.
De Lima also clarified the DOJ would continue to accept complaints falling under the anti-cybercrime law but only for evaluation purposes in the meantime.
“If the complainant insists that we act, we will ask them to excuse us and explain to them that the cybercrime law is not in effect. But we will evaluate the complaints and see if other laws may be applied,” she said.
De Lima said they would start preparing their answer to the consolidated petitions against RA 10175.
The SC had ordered the respondents, including De Lima and other government agencies, to answer the petitions within 10 days from receipt of notice.
The high court, in a unanimous vote of 14 justices during their full-court session the other day, issued the TRO stopping the implementation of RA 10175 and set oral argument on the case on Jan. 15 next year.
The TRO did not declare, however, if the questioned provisions of RA 10175 are unconstitutional.
The court has to decide this within 120 days of the TRO after weighing the arguments of both sides.
RA 10175 aims to combat Internet crimes such as hacking, identity theft, spamming, cybersex and online child pornography.
Journalists and rights groups oppose the law because it also makes online libel a crime, with double the normal penalty, and because it blocks access to websites deemed to violate the law.
They fear such provisions will be used by politicians to silence critics, and say the law also violates freedom of expression and due process.
Most of the furor came from the online community, particularly bloggers and users of popular social networking sites Facebook and Twitter, who felt the questionable provisions of the law were inserted without any consultation with the public.
The TRO was issued just as several lawmakers who had signed the law already took initiatives to amend its questioned provisions. – With Marvin Sy
It was inevitable. That the most controversial new legal concept of the day, electronic libel, would collide with arguably the most consequential economic debate of our time, the future of mining in the Philippines, makes the so-called “Cyber-Perling” case even more fraught with meaning. But it was really only a matter of time before the nature of the nightmare spawned by the Cybercrime Prevention Act became visible to the ordinary eye.
We wish to be clear: All the parties behind the case filed against antimining activist Esperlita “Perling” Garcia of Gonzaga, Cagayan, have described the suit as mere libel—including Gonzaga Mayor Carlito Pentecostes Jr., who filed the complaint, and the National Bureau of Investigation, which arrested Garcia a week ago today. For some reason, even President Aquino’s spokesperson Edwin Lacierda got into the act, clarifying the status of the case; perhaps because he was goaded by Anakbayan critics into explaining the administration’s policy on electronic libel, however, his statement could be read by some as implied support for an old-fashioned libel suit against Garcia.
Garcia, the president of the Gonzaga Alliance for Environmental Protection and Preservation, a leading source of opposition to small-scale magnetite sand mining in the province, herself described the case as part of a campaign of harassment directed at her.
But here’s the rub: Because the subject of the libel suit is a Facebook post she wrote in April last year, Garcia’s plight has attracted the attention not only of fellow environmental activists but also, and much more loudly, of critics of the new cybercrime law. The law, signed last month by President Aquino, extended the scope of the decades-old provisions on libel in the Revised Penal Code to online activity and raised the penalties by one degree; in a unanimous vote, the Supreme Court ruled to suspend the law for 120 days—a move widely seen as giving Congress the leeway it needed to remedy the law’s obvious deficiencies without the embarrassment of an adverse ruling.
Hence the birth of Cyber-Perling, both the name of the Facebook page put up by Garcia’s supporters and also the news shorthand for Garcia herself. Hence the cries of alarm in the opinion pages, about “warning shots” and “swords of Damocles.” Hence the very real fear in online forums that Garcia is being made an example, a test case to probe the limits of popular outrage.
Memories of the misfortune that afflicted 16 contractual nurses working for the Taguig-Pateros District Hospital are still fresh; after “liking” a volunteer-doctor’s Facebook post that criticized the hospital last August, they were summarily fired. Garcia’s case is the awful next step; she faces a criminal penalty, the possibility of imprisonment. (In fact, she already spent one day in jail, because she was able to post bail only the day after her arrest.)
The convoluted reasoning of a senator who voted for the cybercrime law shows us the extent to which mischief can turn black-letter law into a living nightmare. Sen. Panfilo Lacson predicted that the Garcia case would end up in the Supreme Court, because he said the prosecutors could not have used the cybercrime law retroactively. “When the Revised Penal Code was passed, unless there was an amendatory law that had amended certain provisions of the RPC . . . If none, the RPC has been there for some time and there was no Internet at that time.”
If a two-term senator does not know for a fact that the Code’s libel provisions were amended once to include broadcast but have not been amended again to include the Internet, what about us mere mortals? The ordinary citizen is at the mercy of any official who can speak legalese.
Certainly the Garcia case could be ultimately decided by the Supreme Court, but the chances are also high that it may not make it all the way to the tribunal. The Regional Trial Court hearing it may throw it out because the complainant is a public official who has a heavy burden to prove malice, or because the judge does not see the Code’s libel provisions as extending to the Internet.
But the damage has been, is being, done. Garcia faces a year or two of legal uncertainty, mounting legal costs, distractions from her advocacy. Pentecostes said all he wanted to do was teach her a lesson, in responsibility, but in fact it is an object lesson in plain harassment. The powers that be can reach us anywhere, even on Facebook.
^^^ And again I have to ask: was the Facebook post in fact actually libelous? If not then this truly is nothing more than harassment. Because if it was, then regardless of medium, Cyber Perling should be prosecuted to the fullest extent of the law, should she not?
As an IT/cybersecurity practitioner for 16 years, I had foreseen the possible catastrophic impact should malicious hackers launch an attack against our critical cyberinfrastructure. So if you ask me whether we need a cybercrime law or not, my answer is “yes,” definitely. In fact we needed it 10 years ago. However, I agree with the view that libel by ICT shouldn’t be considered a crime.
I believe that the Cybercrime Prevention Act of 2012 (Republic Act No. 10175) was passed with some provisions that deviate from its original objective—that is, to prosecute cybercriminals. A definitive answer as to what constitutes a cybercrime is very crucial in the implementation of the law. From a “cyberperspective,” cybercrimes include (but are not limited to) the following: identity theft, compromised confidentiality and integrity of information, distribution of worms and Trojans, disruption of online services (DOS/DDOS), systems intrusions, unauthorized modification of data and other online information, information theft, and installation and distribution of unlicensed software.
As we all know, the libel provision in RA 10175 prompted some of our cybercitizens or netizens to attack government-owned websites, an act which is in itself a crime under the new law. Unfortunately, their overreaction to the law’s libel provision has taken away the spotlight from the real reason we need a cybercrime law. The “hackattacks” should have shown to all and sundry how vulnerable our systems are and how easy it is to disrupt online services.
Beyond libel, what we should worry about and focus on more is the risk of cyberwar, which is a bigger threat. In a cyberwar, the main actors would no longer be mere “hacktivists” but cyberterrorists and state-sponsored hackers whose objective would be not just to deface websites and steal Facebook accounts, but to disrupt and compromise economic security.
By definition, one of the pillars of national security is economic security. In cyberwar, the enemy can successfully take down the economy of a nation or state by merely pressing the “Enter” key. A cyberterrorist can cause havoc without necessarily blowing anything or himself up. A cyberspy can steal and gather vital information about a target country without being physically present there. In this modern and technology-driven world, the war has shifted from guns and bombs to bits and bytes. A cyberwar can be won without firing a single bullet.
Others claim that it is easy and possible to trace the real source of an attack and identify the real perpetrator, I disagree. Having been exposed to the defensive and offensive areas of cybersecurity, I can categorically say it is very difficult and almost impossible to trace the real source of an attack, much more identify the real identity of the perpetrators. Using various hacking tools, hackers may launch cyberattacks while sitting in an Internet café or coffee shop in Manila, Philippines, yet make it appear like the attack is coming from other cities or countries. I believe this is exactly the reason why the hackers responsible for the cyberattacks were so defiantly aggressive—they are certain that they cannot be traced or they know government is not equipped enough to trace and identify them. Make no mistake, cyberspace is a borderless world and the Internet provides a perfect cover and refuge to everyone, and these hackers have almost perfected the skills of anonymity.
Angel Redoble, a certified ethical hacker and computer hacking forensic investigator with a master’s degree in Information Security Management from UPSAM-ASIMILEC in Madrid, Spain, is president and CEO of ARMCI Solutions and Consultancy.
SAN FRANCISCO – A lawsuit filed here seeks to stop Instagram from changing its terms of service, saying the Facebook-owned smartphone photo-sharing service is breaching its contract with users.
The lawsuit filed Friday by Southern California-based law firm of Finkelstein and Krinsk claimed class action status and called on the federal court to bar Instagram from changing its rules.
“Instagram is taking its customers property rights while insulating itself from all liability,” the law firm said in the suit, which also demanded that the service pay its legal fees.
“In short, Instagram declares that ‘possession is nine-tenths of the law and if you don’t like it, you can’t stop us,’” the complaint said.
Instagram last week tried to calm a user rebellion by apparently backing off the changes, due to come into effect from January.
“I want to be really clear: Instagram has no intention of selling your photos, and we never did. We don’t own your photos, you do,” Instagram co-founder and chief Kevin Systrom said in a blog post.
But the class action lawsuit, filed in a district court in San Francisco, alleges that customers canceling with Instagram will still forfeit their rights to any photos that they had previously shared on the service.
“The purported concessions by Instagram in its press release and final version of the new terms were nothing more than a public relations campaign to address public discontent,” the complaint said.
Tens of thousands of Instagram users in the state of California are eligible to join the class action lawsuit.
There was no immediate public statement from either Instagram or Facebook.