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A new cybercrime law in the Philippines poses serious risks to freedom of expression and must be reviewed, Amnesty International

said.

Under the new law, known as the Cybercrime Prevention Act of 2012 (Republic Act No. 101750), a person could be sentenced to 12 years imprisonment for posting online comments judged to be libellous.

The cybercrime law rolls back protections for free speech in the Philippines. Under this law, a peaceful posting on the Internet could result in a prison sentence, said Isabelle Arradon, deputy Asia director at Amnesty International.

The law, which came into effect on Wednesday, broadly extends criminal libel (defined in the Philippines as the public and malicious imputation of a discreditable act that tends to discredit or dishonour another person and which currently exists under the Revised Penal Code) to apply to acts committed through a computer system or any other similar means which may be devised in the future.

It also increases the criminal penalties for libel in computer-related cases.

In January 2011, the UN Human Rights Committee found the Philippiness criminalization of libel to be incompatible with the freedom of expression clause in the International Covenant on Civil and Political Rights.

The Human Rights Committee said that, in the case of Alexander Adonis, a journalist who was imprisoned for libel for two years in 2007, the Philippines was obligated to take steps to prevent similar violations occurring in the future, including by reviewing the relevant libel legislation.

Instead of bringing its libel legislation in line with its UN treaty obligations, the Philippines has set the stage for further human rights violations by embedding criminal libel in the cybercrime law, said Arradon.

The law gives the Department of Justice the power to close down websites and monitor online activities without a warrant. This violates due process guarantees and will have a chilling effect on freedom of expression.

To date, at least five petitions have been filed asking the Philippine Supreme Court to review the constitutionality of the new law.

The Philippine constitution establishes that no law shall be passed abridging the freedom of speech.

The recently-signed Cybercrime Law may be unconstitutional since it adopted the libel provision of the Revised Penal Code (RPC) which may no longer be in conformance with Supreme Court decisions and international law when the Philippine government signed and ratified the International Covenant on Civil and Political Rights (ICCPR), Supreme Court Associate Justice Antonio Carpio said Tuesday. In his interpellation of Law Professor Harry Roque during the oral argument against Republic Act 10175 or the Cybercrime Prevention Act of 2012, Carpio observed that when the Philippines signed and ratified the International Covenant on Civil and Political Rights (ICCPR), it repealed prior laws inconsistent with it. Article 19 of the ICCPR guarantees the right to freedom of expression. The right to free speech can be restricted for respect of the rights or reputations of others; and for the protection of national security, public order, or public health and morals. As a signatory to the treaty, the Philippine laws must be consistent with international law provisions. "We have recognized the jurisdiction and the competence of the Human Rights Committee to receive communications on behalf of our nationals alleging that the Philippine government is in breach of its state obligation under the ICCPR, Roque said.

Theres a possibility that its inconsistent with Article 354 of the Revised Penal Code, Carpio said, referring to the ICCPR. Article 354 of the RPC presumes malice to every libelous statement except in private communications and speeches delivered by public officers in the exercise of their functions.

The ICCPR provision was put to a test when Alex Adonis, a Davao-based broadcast journalist, filed a complaint before the United Nations Human Rights Commission (UNHRC) questioning the criminal nature of libel in the country. The UNHRC sided with Adonis and ruled that criminal libel is incompatible with freedom of expression. In the case of Adonis, the Human Rights Committee said that they violated Article 19 because the penalty was imprisonment, Carpio said. Carpio also took note of a US Supreme Court decision on freedom of expression that the Philippines adopted in subsequent Supreme Court decisions. "Is Article 354 still constitutional under the jurisprudence of this court since the time we adopted New York Times v. Sullivan?" Carpio asked. "That section of the RPC is also unconstitutional now since the time we adopted freedom of expression," Roque replied. The Cybercrime law adopted the RPC provisions in punishing libelous statements made through a computer system. Lets assume now that Article 354 is unconstitutional. What is the effect of that with respect to the cybercrime law because cybercrime law adopts the definition of libel under the Revised Penal code? That would mean [the provision on libel is ] unconstitutional, your honor, Roque said. Five lawyers took turns in arguing against the Cybercrime Prevention Law. Roque argued the provision which punishes libel when committed using a computer system. Roque was also assigned to discuss the cybersex provision in the law.

Bayan Muna Representative Neri Colmenares presented the case against the provision which punishes by one degree higher crimes covered by the Revised Penal Code or special laws if committed using information and communications technologies. Rodel Cruz, a senior partner to CVC Villaraza Cruz Marcelo and Angangco, questioned the power given to the Department of Justice to restrict or block access to computer data that violates the AntiCybercrime Law. Lawyer Jose Jesus Disini argued against allowing law enforcement authorites to collect traffic data in real time. Julius Matibag of the National Union of Peoples Lawyers contended the provision which punishes internet users for conspiring in a cybercrime offense. Senator Teofisto Guingona described the Cybercrime Prevention Law as a cyberdracula that must be put to sleep.

Solicitor General Francis Jardeleza will lead the government in presenting the case for the Cybercrime Prevention Law on January 22.

Now that the massive public outcry against Republic Act 10175, otherwise known as the Cybercrime Law, has died down a bit--by virtue of a TRO (temporary restraining order) issued by the Supreme Court--I'd like to make a few comments on the controversial legislation which I've followed over the course of its decade-long journey. Let me state at the outset that I'm in favor of the Cybercrime Law, but not in its current form. I think this is the same position taken by most local ICT stakeholders. I like what Genny Marcial, external relations director of the Business Processing Association of the Philippines (BPAP), told me on the same day the high tribunal issued the 120-day TRO. Marcial said despite the fact that BPAP led the lobbying for the passage of the law, the trade group was nonetheless pleased that the measure was suspended pending the final determination of its constitutionality. Like the rest of the industry, she said BPAP was also quite surprised that the version approved by Congress was not the same law which they had supported during the early stages of its drafting. PH-CERT, the organization of Internet security professionals in the country, also put out a press statement that basically said the same thing. It was a different version of Cybercrime Law, they said. Both groups said the provision on Internet libel shouldn't have been included in the final version of the law. If I remember it right, online libel was not at all mentioned when the proposed legislation was first broached about 10 years ago. It only cropped up in the House of Representatives when the chamber approved this year its version of the bill containing the contentious provision, as I still recall Kabataan Party-list representative Raymond Palatino raising a howl about this. Thus, contrary to most news and blog accounts, it was not the bicameral conference which inserted the provision in the reconciled version of the bill. What the panel did was to increase the penalty for online libel a degree higher compared to traditional libel. The bicam adopted this on the urgings of Sen. Edgardo Angara, who argued that a heavier punishment should be meted out on Internet libel because of its global nature. What's also interesting in this controversy is that the ICTO (Information and Communications Technology Office), despite being the government's main ICT agency, has questions, too, on the law. I've spoken to ICTO executive director, Louis Casambre, and deputy executive director, Monchito Ibrahim, who both told me that they were also wondering about the designation of the ICTO as the lead agency in the Cybercrime Investigation and Coordinating Center (CICC), as provided in the law. The officials pointed out that the ICTO is a policy-making body concerned about only cybersecurity and not on cybercrime, which is basically investigative and enforcement work. Therefore, ICTO has no place in the CICC as it practically involves police duties.

Casambre and Ibrahim said the original agency proposed in the early draft of the bill was the National Cybersecurity Coordinating Council (NCCC). It was, however, strangely changed into the CICC during the bicam meeting. No doubt, we need a law on cybercrime to address the new breed of crimes spawned by the Internet such as online pornography and cyber prostitution. I remember about a decade ago when the National Bureau of Investigation (NBI) had to let go of the infamous hacker responsible for the deadly "I love you" virus. In the years that I followed, I also witnessed how Palmer Mallari, lead agent of the NBI's AntiComputer Crimes Division, became frustrated in the numerous cybercrime forums because of the lack of an enabling law against cybercrime. Let me say it again--we need law and order in cyberspace. However, it must not be used to stifle freedom of expression and to harass people. We should, and must, always fight any attempt of the State to abuse its immense powers against hapless citizens.