SC issues 120-day TRO on cyber law
- Edu Punay (The Philippine Star) - October 10, 2012 - 12:00am

MANILA, Philippines - The Supreme Court (SC) yesterday stopped the implementation of Republic Act 10175 or the Cybercrime Prevention Act, favoring the slew of petitions from critics questioning the legality of the law that they argued was in violation of civil liberties.

The SC issued a temporary restraining order (TRO), directing the Department of Justice (DOJ) to suspend the implementation of RA 10175 for 120 days, or four months, until further orders from the high court.

The SC also scheduled oral arguments on the case on Jan. 15 as sought by some petitioners. The respondents, led by Executive Secretary Paquito Ochoa Jr. and the DOJ, among other government agencies, were ordered to answer the petitions within 10 days from receipt of notice.

All 14 magistrates led by Chief Justice Ma. Lourdes Sereno voted in favor of the TRO.

The TRO does not necessarily mean the questioned provisions of RA 10175 are unconstitutional. The SC’s resolution of the legal issues will be expressed in the decision it will hand down after weighing the arguments of both sides.

The TRO was issued due to the urgency of the need to avoid irreparable violation of basic rights enumerated in the petitions, according to a member of the court.

This is one of the rare occasions that the SC issued a halt order with a shelf life. Usually, TRO issuances are effective indefinitely or until a decision on the case is reached.

A total of 15 petitions were filed before the SC, all questioning the validity of RA 10175, signed into law by President Aquino on Sept. 12, which they argued is a violation of the fundamental rights of free speech and the press.

The petitioners included lawyers, bloggers, lawmakers, journalists and the academe.

Among the respondents were government agencies like the DOJ, the Department of the Interior and Local Government, Department of Budget and Management, National Bureau of Investigation, Philippine National Police, and Information and Communications Technology Office-Department of Science and Technology (DOST).

Malacañang said it would abide by and respect the court order.

“The (Aquino) administration will always respect the legal processes that are issued by the court” but would like to take a look at the specifics of the TRO first, deputy presidential spokesperson Abigail Valte said.

“I have received information also, initial information that the TRO is directed to some particular provisions. We’d also like to take a look at that first,” Valte said.

Asked whether the TRO would show that the measure should have been studied more carefully by Malacañang before it was signed into law by the President, Valte said, “Again, it would be enlightening to look at the text of the document containing the TRO and what particular provisions were issued TRO by the Supreme Court.”

“And, again, a TRO is a provisional remedy. It is not in any way construed as a judgment on the merits,” Valte said.

Justice Secretary Leila de Lima, for her part, said they would abide by the high court’s TRO.

“The DOJ operates under the framework of the rule of law. The SC TRO is an exercise of the power of judicial review. We respect and will abide by it,” De Lima said.

“We will present the arguments outlined in the historic Forum on Cybercrime (held) earlier (and) formally (present these) before the high court in due time,” she added. 

‘Strong message’

The TRO was issued just as several lawmakers who had signed the law already took initiatives to amend its questioned provisions, particularly those covering online libel and the DOJ’s takedown power.

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.

Sen. Teofisto Guingona III said the unanimous decision by the SC to issue the TRO on the implementation of the Cybercrime Prevention Act sends a strong message that the dangers and fears of the people regarding the law are real and must be addressed.

Guingona, the lone dissenter in the Cybercrime Prevention bill that was approved by the Senate and a petitioner against the law before the SC, said the issuance of the TRO is “the first victory in our battle to defend our freedom and right of expression.”

“With this TRO, the tyrannical powers granted by the law are effectively clipped,” he said.

Sen. Edgardo Angara, the principal author and sponsor of the law, urged his colleagues in Congress to hold in abeyance any move to amend or repeal the law until the SC issues its final ruling on the petitions.

Angara expressed confidence that the constitutionality of the law will be upheld and that if ever the SC issues any adverse ruling, it would affect only some of the provisions of the law.

“I think ultimately the Supreme Court would uphold the law. They may strike down some provisions that they think are unnecessary,” Angara said.

Angara pointed to the two provisions of the law that was put under question, namely the higher penalty imposed for libel compared to what was provided under the Revised Penal Code for the same offense, and the power of the DOJ to clamp down or block access to websites suspected of violating the law.

“I think we are just focusing on a few provisions which they think are harmful to them but overall, I think the purpose of the law even expands their right to use online communication,” Angara said.

Speaker Feliciano Belmonte Jr. said the SC must quickly resolve the petitions against the Cybercrime Prevention Act.

He said the law as a whole remains constitutional and necessary to address the growing incidence of crimes committed through cyberspace.

“I just hope the Supreme Court resolves the cases quickly,” Belmonte said.

“This is a very important law. It contains provisions to address many loopholes in the system that criminals take advantage of. The law also contains the framework of regulations,” he said.

He said the contested provisions, including the one on libel, is “just one aspect” of the law.

“Well, at least the issue is now out of the media and now into the courts,” Belmonte said. 

First cybercrime case

Even before the TRO was issued by the SC yesterday, the DOJ held a multi-sectoral forum to address concerns from critics against the law.

In the same forum, Justice Assistant Secretary Geronimo Sy, head of DOJ’s new cybercrime office, announced a case was filed on the day RA 10175 took effect last Oct. 3.

Sy said the case was filed by a 17-year-old girl who wanted the government to take down a video circulating on the Internet for two years now which shows her having sex with a guy she used to date.

Sy said the complaint, which was received by the office of De Lima through e-mail, has been “verified” and will be the “test case” of the new law.

Sy though admitted his office has yet to act on the complaint, including the request of the websites involved to remove the sex video, since the new law has no implementing rules and regulations yet.

“What we can do now is not to watch it… Online crime reporting is a challenge (because) the nature of cybercrime is permanence of data,” he lamented.

In the same forum attended by critics of the new law and concerned sectors, Sy defended RA 10175 by arguing the questioned provisions are not unique to the law.

He cited, for instance, the provision imposing higher penalty for libel in cyberspace as compared to libel in regular media and also another provision allowing the prosecution of cybercriminals separately for RA 10175 and the Revised Penal Code.

“As early as 2000, there have been special penal laws that amended some provisions in the Revised Penal Code,” he said.

He also compared the new law with RA 8484 (Access Devices Regulation Act), where criminals are “made liable for separate crimes committed in separate worlds.”

He said critics of the law made an “incorrect appreciation” of its provision on libel when they claimed punishment for online libel is up to 12 years’ imprisonment.

“That is an incorrect appreciation of the law. Presently, it is six months to four years. The correct reading is four years to eight years. You may or may not agree with the penalty but I just want to correct an objective fact in the petitions. The fine is P600 to P6,000,” he said.

Sy said the new anti-cybercrime law does not give the DOJ the “takedown” power or the authority to arbitrarily shut down websites.

“We will never touch content data without a court order. The DOJ can only restrict or block websites presenting clear and present danger, like showing patently illegal acts such as rape, how to make IEDs (improvised explosive devices), creating panic or fear and websites on mass suicides,” he said.

Sy clarified they were only proposing to limit the restriction to just three days.

He said they would come up with a public guide on the new law as well as a joint manual for its enforcement to be used by law enforcers and fiscals.

He also dispelled fears that mere “liking” or sharing status or re-tweeting could make Facebook and Twitter users liable under the new law.

“As a matter of priority, let me say it on my lawyer’s oath, blogging, individual comments, tweeting, boyfriend-girlfriend discussions – those are not the priorities of the DOJ. It is very difficult to catch fugitives from justice, what more individual tweets and individual likes. Let’s manage our expectations. Let the law work,” he said, adding that they intend to focus on running after online syndicates and high criminals.

But despite these assurances from the DOJ, critics kept their reservations on the new law.

One of the petitioners in the SC, lawyer Jose Jesus Disini Jr. attended the forum and said he still found the law to be vague. He believes it would be difficult for the DOJ to clarify the provisions in the law.

For instance, he asked: “What is the limitations of cybersex? How do you look at this and make it clearer in the IRR? Congress could have been more specific as to who engages (in cybersex) and who is penalized?”

Lawyer Rodolfo Salalima, legal counsel of Globe Telecom, agreed with this argument. He said relying on the IRR may restrict the intent of the law and could be tantamount to usurping the power of the legislative branch.

Human Rights Commissioner Coco Quisumbing, for her part, questioned why their commission was not consulted before the law was passed.

“For legislation of laws involving issues on human rights, we should have been consulted or at least informed because we were really surprised when we already learned of this law after it was already passed by Congress,” she said.

Brad Adams, Asia director for New York-based rights monitor Human Rights Watch, urged the SC to do more.

“The court should now go further by striking down this seriously flawed law,” Adams said in a statement.

Kabataan party-list Rep. Raymond Palatino said the issuance of the TRO against the Cybercrime Prevention Act “is an opportunity for the Palace to retract its hardline position on the issue.”

“We now have tangible proof that several of the law’s provisions are unconstitutional and post threats to our countrymen’s civil liberties,” Palatino said.

Other groups critical of the new law opted not to participate in the DOJ forum and instead held their protest actions in front of the SC building in Manila as the justices deliberated on the petitions against RA 10175.

Social media has been alight with protests, while hackers have attacked government websites while petitions have been filed with the SC calling for the repeal of the law.

Led by the Philippine Internet Freedom Alliance, they demonstrated their protest by painting anti-cybercrime law images on Padre Faura Street – an act police considered as vandalism.

A social networking group, headed by Marlene Aguilar and her Facebook friends, also came to join the demonstration. Their manner of protest, however, was a bit bolder – simultaneously putting up the dirty finger to express their dismay at the assailed law.

Upon learning of the SC order, the groups immediately cheered and left the area. – With Aurea Calica, Marvin Sy, Paolo Romero, Pia Lee-Brago, Sandy Araneta, AP

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