Cybercrime Prevention Act of 2012: A Cyber 'Martial Law'?

The Philippines has been recognized positively, mostly as the texting, social media and contact center of the world. However, at this modern era of ours, crimes are also taking another step in infiltrating the cyberspace.

According to the Information and Communications Technology (ICT) in the Philippines, we are still without any national policy for safeguarding this digital space from online threats like viruses and malware. Clearly, these issues necessitate a piece of legislation to protect our netizens.

 

September 12 last month, the president signed into law the Republic Act No. 10175, “An Act Defining Cybercrime, Providing for the Prevention, Investigation, Suppression and the Imposition of Penalties therefor and for Other Purposes” or the "Cybercrime Prevention Act of 2012".

At first glance the law is quite promising. It categorizes cybercrimes into three: 1) offenses against the confidentiality, integrity and availability of computer data and systems; 2) computer-related; or 3) content-related offenses. Illegal access to computer systems (such as hacking), illegal interception of data, data or system interference, as well as misuse or computer systems or data belong in the first category. In the same group is "cyber-squatting", which involves the acquisition of a domain name "in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same." In case of businesses, these may include the use of a domain name "similar, identical, or confusingly similar" to registered trademarks.

Businesses are not the only targets of "cyber-squatters", as the law also covers the use of personal names "identical or in any way similar with the name of a person other than the registrant." Computer-related offenses, on the other hand, include the input, alteration or deletion of any computer data with the intent of forgery, fraud or identity theft. ‘Cybersex’, defined under the law as the willful engagement in online sexual activities, is included in content-related offenses; child pornography is also included. The anti-cybercrime act notes that punishment to child pornography committed through a computer system will be one degree higher than the sanctions in the Anti-Child Pornography Act.

Also named a content-related offense is the sending of unsolicited communication which advertise or sell products or services. Under this new law, firms may only send electronic messages if recipients who grant prior consent or to existing subscribers or customers for service announcements. As an enforcing arm, an inter-agency will be formed, "Cybercrime Investigation Coordinating Center" (CICC) to carry out the provisions of the new law.

But as I was poring over the provisions of the new law, I believe some provisions seemed legally unsound. I find the words of the late US President and thinker Thomas Jefferson relevant: “It behooves every man who values the liberty of conscience for himself, to resist invasions of it in the case of others”.

The laws seem to restrict the fundamental rights to free speech and the freedom of the press with respect to online content in the same way a totalitarian state like China, would do so. This made a lot of netizens feel unease with these newly-imposed restrictions. I find the following erratic:

Section 4 (c) [4] of the law criminalizes libel, not only on the Internet, but also on “any other similar means which may be devised in the future”. Section 6 raises by one degree higher the penalties provided for by the Revised Penal Code for all crimes committed through and with the use of information and communications. Section 7 provides that apart from prosecution under the assailed law, any person charged [with] violation of the said law the offender can still be prosecuted for violations of the Revised Penal Code and other special laws. Section 12 authorizes law enforcement authorities to “collect or record by technical or electronic means” communications transmitted through a computer system sans warrant. Section 19 authorizes the Department of Justice to block access to computer data when such data “is prima facie found to be in violation of the provisions of this Act.”

I agree to most of the punishable cybercrimes except for one: LIBEL. I believe the new law against cybercrimes must focus on scammers, identity thieves, hackers, online porno users or cybersex syndicates and those enumerated by the law – to focus on libel is not necessary.

Criminal Law basics tell us of ‘double jeopardy – a second prosecution for same crime. The R.A. No. 10175 contravenes this legal right by prosecuting for violation of the Cybercrime Act and the Revised Penal Code. A violation of the Cybercrime Prevention Act will impose a penalty higher than that of the Revised Penal Code but it does not preclude the prosecution for the same offense for violation of the Penal Code.

While Deputy Presidential Spokesperson Abigail Valte says that it is “up to the lawyers to define what online libel is”. It still isn’t a laughing matter where when we criticize, whether constructive or not, whether true or false, any party can deem it "malicious" and we can be sued and jailed 6 to 12 years without bail!

In the words of Senator TG Guingona, "Transplanting the RPC definition of libel without specifying who is liable exposes the owner of online newspapers, blogs, sites to liability. This is problematic because in the case of online communities, people are encouraged to actually participate (like in making comments, re-tweet, reposts on Facebook)".

We should also look at this provision:

Section 12. Real-time Collection of Traffic Data. - Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real time associated with specified communications transmitted by means of a computer system.

According to UP Law IT expert JJ Disini, the following provision violates our right to privacy on the how the authorities can gather data on who one calls, time of call, and the websites visited by the person stalked. "Here, it's like having surveillance without court order".

“No limits are imposed upon either the PNP or the NBI since they can lawfully collect traffic data at all times without interruption. It is conceivable that the PNP and the NBI can at all times possess all traffic data on all internet, mobile, fixed line and related communications”, Atty. Disini adds in an ABS-CBN New interview.

Strangely, ‘cyberbullying’ is not included in the new law but according to Jerry Liao, a business technology analyst,it can be treated also as libel. If one posts a libelous status in Twitter or Facebook, it can be used as admissible evidence to the court. While it is right to have those who abuse their right to free expression answerable for injury which their libelous statements have inflicted to innocent people, the provisions of the law is just unbearable.

So with all the fuss about the Cybercrime law, what does it hold in store for us?

A lot. This sure gravely affect 40 million Filipinos who have access to the Internet and its 93.9% Facebook users (eighth largest in the world with 29 million users according to Socialbakers). Tweets and retweets of the tenth largest Twitter nation in the world (with over 9.5 million users) are also covered by R.A. 10175. This month, people can already be penalized in Facebook and Twitter because of this new law.

Blogger and Representative Raymond Palatino of the Kabataan Party-list hit it right in a statement: “There are several provisions in the new Cybercrime Law that posts threats to free speech, expression, and the right to privacy of Internet users. It's equivalent to imposing Martial Law online".

 

In wrapping up, this era’s new technologies give us new opportunities to connect with a lot of people not only in this country but all over the world. With this wonderful privilege, we should also be responsible on our statuses and comments.

But this new law is just too harsh and legally unsound that as of this writing, the petitioners are asking the court to issue a temporary restraining order on the implementation of the law due to the supposed vagueness of its provision on online libel. Protests now flood to urge the high court to stop the Department of Justice, Department of the Interior and Local Government, Commission on Information and Communications Technology (CICT), Philippine National Police and the National Bureau of Investigation from implementing the Cybercrime law. Filipino netizens in the social media, especially on Facebook, are currently protesting this “Black Tuesday” by having dark, sooty, and black profile pictures. Clearly, kinks have to be ironed out first before the law should have been implemented in the first place

In studying law, I realized that libel as a criminal offense has been used by past administrations as well as local officials today to harass and intimidate journalists. Too bad that even the Philippine alternative media is also under attack by same old tactics.

 

Political commentaries and blogs like PoliTikalon is apparently vulnerable to the harsh restrictions of the new piece of legislation. This made me think that while we should have been the bastion of democracy in this part of the globe, it seemed that this law shields the “powers that be” from being exposed and challenged by the majority. Could this be a re-emergence of a strong veil of impunity we have seen 40 years ago?

Photo Credit:
Protesting Kid on Funny.com
I Am a Blogger and I Oppose the Cybercrime Act made by me but the skull image is an original masterpiece of Damien Hierst entitled, "For the Love of God" (2007).