The Right to Create Online Identity: Analysis of the Catch-all

Provision under Cybercrime Law in relation to the Use of

Online Anonymity and Pseudonymity and its Legal Implications
Chapter I - Introduction
a. Background of the Study
On September 12, 2012, 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
commonly known as the Cybercrime Prevention Act of 2012
(Cybercrime Law) has been approved, after more than two years of
deliberation.1 Its primary author was the then senator Edgardo
Angara.2 Originally, there were 15 acts punishable under Cybercrime
law: Illegal Access, Illegal Interception, Data Interference, System
Interference, Misuse of devises, Cyber-squatting, Computer-related
Forgery, Computer-related Fraud, Computer-related Identity Theft,
Cybersex, Child Pornography, Unsolicited Commercial Communications,
Online Libel, Aiding or Abetting in the commission of cybercrime,
Attempt in commission of cybercrime, and all acts punishable under
the Revised Penal Code as well as Special Penal Laws.3
This legislation, however, had a fair share of criticisms and
protests among the Filipinos.4 People are claiming that the Cybercrime
Law might infringe upon their rights, including the freedom of speech
and right to privacy, among others.5
In fact, on October 9, 2012, the highest court of the land issued a
temporary restraining order against the implementation of the said
legislation.6 This was further extended indefinitely on February 5,
1 An Act Defining Cybercrime, Providing For The Prevention, Investigation,
Suppression And The Imposition Of Penalties Therefor And For Other Purposes [THE
CYBERCRIME PREVENTION ACT OF 2012], Republic Act No. 10175 (2012).
2Rappler,Authorofcybercrimelawtofilebillamendingit,availableat
http://www.rappler.com/nation/13545authorofcybcerimelawtofilebillamendingit(LastaccessedJuly
1,2015).
3 See THE CYBERCRIME PREVENTION ACT OF 2012.
4 Simone Orendain, Cybercrime Law in Philippines Draws Protests, available at
http://www.voanews.com/content/cybercrime_law_in_philippines_draws_protests/151
9423.html (Last accessed August 1, 2015).
5TJD,YourSay:OnlinereactionstotheAntiCybercrimeLaw,availableat
http://www.gmanetwork.com/news/story/275059/opinion/feedback/yoursayonlinereactionstotheanti
cybercrimelaw(LastaccessedJuly1,2015).
6DisiniJr.v.SecretaryofJustice,716SCRA237,299(2014).

2013.7 These orders were given by the Supreme Court after receiving
15 petitions assailing the validity of the said legislation.8
These violent reactions toward the Cybercrime Law were summarized
in the case of Disini, et al. v. Secretary of Justice, where the
constitutionality of the 21 provisions in the Cybercrime Law was
assailed.9 The following are the specific provisions that were
questioned:
1.
2.
3.
4.
5.
6.
7.
8.
9.

Section 4(a)(1) on Illegal Access;

Section 4(a)(3) on Data Interference;
Section 4(a)(6) on Cyber-squatting;
Section 4(b)(3) on Identity Theft;
Section 4(c)(1) on Cybersex;
Section 4(c)(2) on Child Pornography;
Section 4(c)(3) on Unsolicited Commercial Communications;
Section 4(c)(4) on Libel;
Section 5 on Aiding or Abetting and Attempt in the
Commission of Cybercrimes;
10.
Section 6 on the Penalty of One Degree Higher;
11.
Section 7 on the Prosecution under both the Revised Penal
Code and R.A. 10175;
12.
Section 8 on Penalties;
13.
Section 12 on Real-Time Collection of Traffic Data;
14.
Section 13 on Preservation of Computer Data;
15.
Section 14 on Disclosure of Computer Data;
16.
Section 15 on Search, Seizure and Examination of
Computer Data;
17.
Section 17 on Destruction of Computer Data;
18.
Section 19 on Restricting or Blocking Access to Computer
Data;
19.
Section 20 on Obstruction of Justice;
20.
Section 24 on Cybercrime Investigation and Coordinating
Center (CICC); and
21.
Section 26(a) on CICCs Powers and Functions. 10 (Emphasis
supplied)
Out of these 21 contested provisions, the Supreme Court only
declared three provisions as absolutely unconstitutional: the provisions
on Unsolicited Commercial Communications, Real-Time Collection of

7Id.
8 Id at 296-297.
9Idat299300.
10Id.
2

Traffic Data, and Restricting or Blocking Access to Computer Data. 11

The provision on online libel was declared constitutional with respect to
the original author of the post, but void as to those who receive and
react to it.12 The provision on aiding or abetting and attempt in the
commission of cybercrimes were declared constitutional only in
relation to Illegal Access, Illegal Interception, Data Interference, System
Interference, Misuse of Devices, Cyber-squatting, Computer-related
Forgery, Computer-related Fraud, Computer-related Identity Theft,
Cybersex, but void as to Child Pornography, Unsolicited Commercial
Communications and Online Libel.13 The rest of the contested
provisions were upheld as constitutional and valid.14
It is good to note, for later reference, that the petitioners only
questioned the constitutionality of section 6, or the catch-all provision,
as to the imposition of a higher degree of penalty. 15 In effect, the
contention of the petitioners was the use of ICT as an aggravating
circumstance is not justified by the legislators.16 The Supreme Court
did not subscribe to this contention, as previously discussed.17
Although highly contested, the legislative intent in crafting the
Cybercrime Law is to promote peace and order, through prevention of
computer-related offenses.18 Under the section 2 of the Cybercrime
Law,
Declaration of Policy. The State recognizes the vital role of
information and communications industries... The State also recognizes
the importance of providing an environment conducive to the
development, acceleration, and rational application and
exploitation of information and communications technology (ICT) to
attain free, easy, and intelligible access to exchange and/or delivery of
information; and the need to protect and safeguard the integrity
of computer and communications systems, networks, and
databases, and the confidentiality, integrity, and availability of
information and data stored therein, from all forms of misuse, abuse,
and illegal access by making punishable under the law such conduct or
conducts. In this light, the State shall adopt sufficient powers to
effectively prevent and combat such offenses19 (Emphasis supplied)

11 Id at 354.
12 Id at 356.
13 Id.
14 Id at 354-356.
15 Idat312.
16 Id.
17 Id.
18SeeTHECYBERCRIMEPREVENTIONACTOF2012,2.
19Id.
3

However, although the legislative intent was good, the means of

concretizing such intent is a different matter all together. As said in its
declaration of policy, the government, through the legislative, should
provide sufficient means, not excessive.20 When the means to
concretize such good intention already violates the fundamental rights
of people, then such means should be revisited and stopped
accordingly.
An example of this is the added catch-all provision of the Cybercrime
Law. It states that,
Section 6. All crimes defined and penalized by the Revised Penal Code
(RPC), as amended, and special laws, if committed by, through and with
the use of information and communications technologies shall be
covered by the relevant provisions of this Act; Provided, That the penalty
to be imposed shall be one (1) degree higher than that provided for by
the Revised Penal Code, as amended, and special laws, as the case may
be.21

This catch-all provision impliedly ruled that the scope of the RPC and
special penal laws includes the acts done in the cyber world. 22 During
the deliberation of the Cybercrime Law, Representative Tinga said that
the reason why some crimes were not specifically enumerated in the
law is that there is an assumption that the acts committed that would
make it illegal in the real world also be illegal in the cyber world.23
However, this assumption does not seem to be very accurate. Cyber
world includes virtual world, and in virtual worlds, one may create an
online avatar to represent himself/herself.24 Therefore, the question
now is, would an act punishable under the RPC or special penal laws
still be a crime if it does not have real-world effect? The catch-all
provision of the Cybercrime Law seems to suggest so. This presents an
alarming problem, for the legislators have failed to recognize that
cyber world is a sui generis, thus, needs specific laws.25
It is also worth mentioning that this catch-all provision seems to be too
vague. It is not clear as to what extent does the usage of computerrelated technologies is needed in order for a certain crime to be
20 Id.
21SeeTHECYBERCRIMEPREVENTIONACTOF2012,6.
22Id.
23DisiniJr.,716SCRAat389392.
24 Mark W. Bell, Towards a Definition of Virtual Worlds, available at
https://journals.tdl.org/jvwr/index.php/jvwr/article/view/283/237 (Last accessed
August 2, 2015).
25 GARY E. MARCHANT, BRADEN R. ALLENBY & JOSEPH R. HERKERT, THE GROWING GAP BETWEEN
EMERGING TECHNOLOGIES AND LEGAL-ETHICAL OVERSIGHT 86 (2011).

aggravated. Is falsification of e-documents a crime penalized by a

degree higher under the Cybercrime Law? It would seem that the
answer is yes, for it was falsification of a document through the use of
information and communications technologies. How about the use of
an electronic mail or social media applications in contacting the usual
buyers in selling illegal drugs? Technically, it is an act committed with
the use of communication technologies, so yes. Absurd as it may
seem, these acts would fall into the realm of cybercrime and thus, be
penalized by a degree higher, as the use of information and
communications technologies aggravated such crimes.26
What is even more absurd is the fact that with the implication brought
by this catch-all provision, it seems that it accords punishment to a
practice which is already common in the cyber worldthe use of online
anonymity or even of aliases different from ones true name. This is
brought about by certain provisions in the Revised Penal Code and
Anti-Alias Law, which seek to penalize the use of fictitious name,
aliases, and even anonymity.
The legislature has failed to recognize that the legal implication
of the catch-all provision is far too broad and might not be legally nor
practically sound. This is, however, not surprising, for the congress did
not go through each provision of the Revised Penal Code, as well as the
existing Special Penal Laws, to check on their applicability to the cyber
world.27 They simply included the catch-all provision, to make things
easier for them.28
This was reflected during the deliberations of Cybercrime Law. 29 In fact,
Senator Angara has recognized that there was a need to review again
the Revised Penal Code and see what ought to be punished, if
committed through the computer.30 However, this idea did not push
through, and instead, the deliberations committee focused on the
problem of reviewing the penalty and in the end decided that a penalty
one degree higher should be given to the offender, without again
touching on the issue of which acts in the Revised Penal Code (and
probably in the Special Penal Laws) are sought to be punished under
Cybercrime Law.31

26 Disini Jr. v. Secretary of Justice, 723 SCRA 109, 128 (2014).

27Supra note 23 at 389-392.
28 Id.
29 Id.
30Id.
31Id.
5

With our current laws stating that the concealment of a name, use of
pseudonyms and anonymous publication, and the same, being made
applicable even in the cyber world, there is an apparent violation of
peoples right to privacy and security, as guaranteed by the 1987
Philippine Constitution.32
Recently, a report by the United Nations (UN) special rapporteur on
freedom of expression presented the concept of right to online
anonymity to the UN Human Rights Council. 33 This was supported by a
lot of international human rights group. 34 It is not surprising that these
kinds of concepts emerge, as the international community begins to
recognize the complexity, purpose, and sui generis character of the
cyber world, and thus begins to adopt measures in addressing issues
therein.35 Some of the countries, which have already begun recognizing
the right to online anonymity, include Canada, Chile, Argentina and the
European Union members.36
b. Statement of the Problem
Given the aforesaid facts and situation, there is a call for the
State to uphold the peoples rights to privacy and security. While peace
and order should be prioritized, the means of implementing peace and
order should never jeopardize the fundamental rights granted to
Filipinos by no less than the 1987 Constitution. This study will discuss
and address the act of balancing the States power to regulate peoples
cyber world activities vis--vis the constitutional guarantee of privacy
and security.
More specifically, this thesis will answer the question of whether
the catch-all provision under the Cybercrime Prevention Act of 2012, in
positively implying that the scope of the crimes punishable under the
Revised Penal Code and Special Penal Laws cover not only acts done in
the real world, but even in the cyber world, infringes upon the right of
the people to privacy and security. This is in light of the applicability of
certain Revised Penal Code and Special Penal Laws provisions against
the peoples right to use anonymity and aliases in the cyber world.
32PHIL.CONST.1987art.III3.
33UN:OnlineAnonymity,EncryptionProtectRights,availableat
http://www.hrw.org/news/2015/06/17/unonlineanonymityencryptionprotectrights(LastaccessedJuly
26,2015).
34Id.
35S.R.Subramanian,PreventionandRegulationofCyberCrimesintheAgeofTerrorism:TheLegal
andPolicyModelfromIndia,availableathttp://www.irmainternational.org/viewtitle/43781/(page207)
(LastaccessedJuly2,2015).
36 UN, Supranote33.

c. Definition of Terms
1. Alias a name or names used by a person or intended to be
used by him publicly and habitually, usually in business
transactions, in addition to the real name by which he was
registered at birth or baptized the first time, or to the substitute
name authorized by a competent authority; a mans name is
simply the sound or sounds by which he is commonly designated
by his fellows and by which they distinguish him, but sometimes
a man is known by several different names and these are known
as aliases. 37
2. Anonymity the quality or state of being unknown. 38 It may be
done through simply leaving no information about the author of a
work, or by using a username.
3. Catch-all provision a provision which is all-encompassing. This
is usually put at the end of a more specific law, and is used to
cover all the other cases, which the lawmakers may have
missed.
4. Computer a programmable electronic device designed to
accept data, perform prescribed mathematical and logical
operations at high speed, and display the results of these
operations. Mainframes, desktop and laptop computers, tablets,
and smartphones are some of the different types of
computers.39
5. Cybercrime the punishable acts committed in the cyber world,
as defined in the R.A.10175, also known as The Cybercrime
Prevention Act of 2012.40
6. Cyber world the world of Internet; one which is intangible and
accessed through the use of a computer device.
7. Internet an electronic communications network that connects
computer networks and organizational computer facilities around
the world.41
8. Name A name, when applied to a particular person, is a word
or words used to distinguish, that is, identify that person.42
37Ursuav.CA,256SCRA147,155156(1996).
38MerriamWebsterDictionary,Anonymityavailableatwww.merriam
webster.com/dictionary/anonymity(LastaccessedJuly3,2014).
39MerriamWebsterDictionary,Computer,availableathttp://dictionary.reference.com/browse/computer
(LastaccessedJuly28,2015).
40 See THE CYBERCRIME PREVENTION ACT OF 2012.
41 MerriamWebsterDictionary, Internet, available at http://www.merriamwebster.com/dictionary/internet (Last accessed July 29, 2015).
42Inre:JesusNgYaoSiongv.Republic,16SCRA483,484(citingU.S.vs.ToLeePiu,35Phil.4)
(1966).

9. Pseudonymity a form of anonymity where one uses an alias or

pseudonym in order not to reveal ones identity publicly.
10.
Social Media forms of electronic communication (as Web
sites for social networking and micro blogging) through which
users create online communities to share information, ideas,
personal messages, and other content (as videos).43`
11.
Username is a fictitious name used in the attempt to hide
ones identity or remain anonymous. It is also used in creating a
different online persona.
d. Objectives of the Study
This thesis seeks to assail the validity of the catch-all provision of the
Cybercrime Prevention Act of 2012, as regard expanding the scope of
the penal laws into the cyber world, in relation to the Revised Penal
Code and Special Penal Law provisions against the use of aliases or
anonymity through the following:
1. Discussion of the Cybercrime Prevention Act of 2012, specifically
on the catch-all provision provided in section 6;
2. Discussion of the specific provisions under RPC and special laws
that touches upon the right on an individual to anonymity or
establishment of online identity;
3. Discussion of the constitutional guarantee to privacy and
security;
4. Discussion on the difference of effects of actions in the real world
vs cyber world;
5. Discussion on the abuse of discretion by the Legislature in
crafting a special law which infringes upon the rights to privacy
and security;
6. Discussion on the establishment of peoples right to online
identity;
7. Discussion on the measures adopted by the international
community to uphold the peoples right to online identity;
8. Proposal to revisit the catch-all provision of the Cybercrime
Prevention Act of 2012 for violation of certain fundamental rights
when put in application.
e. Significance of the Study

43MerriamWebsterDictionary,SocialMedia,availableathttp://www.merriam
webster.com/dictionary/social%20media(LastaccessedJuly28,2015).

As of 2013, it has been reported that there are over 33 million

active Internet users in the Philippines.44 During that time it has been
reported that the total population of the Philippines is at 97.7 million. 45
More recent study showed that in just two years, the number of active
Internet users reached up to 44.2 million while the population rose
slightly at 101.1 million.46
Therefore, in creating a catch-all provision, which if applied, will result
in great injustice, as there is vagueness as to how certain provisions of
RPC and Special penal laws should apply to cyber world, as well as the
question of whether they are indeed applicable in the first place.
The implication of the catch-all provision is that those penal laws
punishing people for using anonymity, a long accepted principle in the
Internet, would likewise be applied in the cyber world, and therefore
people shall be prosecuted by the use of such. This violates the
peoples right to privacy as well as freedom of expression.
With the possibility of infringing upon the constitutional
guarantee of privacy and security of these 33 million Filipinos, such
now creates an alarming situation where the government, more
specifically the legislature, might have exceeded their authority in its
creation of laws. This has to be carefully reviewed by the judiciary as it
poses an actual threat to the Filipinos, for creation of online identity or
anonymity might mean unknowingly facing the possibility of sustaining
criminal charges.
f. Scope and Limitations
This study will cover the problematic application of the catch-all
provision of cybercrimes as to those laws penalizing the creation of a
different online identity as well as the use of online anonymity. It will
not be exhausting all the penal statutes, which have absurd application
in the cyber world.
This thesis aims to cover all laws as well as jurisprudence which
are in conflict with the peoples right to privacy and freedom of
44NicoleBaldivia,TheStateofPhilippineInternetUsage2013(Infographic),availableat
http://www.forward.ph/blog/thestateofphilippineinternetusage2013infographic/(LastaccessedJuly2,
2015).
45PhilippinesPopulation2013,availableathttp://www.worldpopulationstatistics.com/philippines
population2013/(LastaccessedJuly2,2015).
46HenriJoshuaIgna,Internet,socialmediaandmobileuseofFilipinosin2015,availableat
https://telehealth.ph/2015/03/26/internetsocialmediaandmobileuseoffilipinosin2015/(Lastaccessed
July8,2015).

expression insofar as they are related to the right to online anonymity

and/or establishing online identity.
This study will be limited to the social media, online gaming,
online selling and online publications aspect of the cyber world, as
these segments are the most common ones. Other segments of the
cyber world might need a different approach, as they might have
different structures and set-ups.
g. Methodology
This study aims to address the aforementioned issues through
the following:
1. Study of the Philippine Constitution and Cybercrime Prevention
Act of 2012.
2. Study of the related provisions in the Revised Penal Code and
special penal laws and the intent in the creation thereof
3. Review the United Nation report on the establishment of Right to
Online Anonymity, as well as the treaties entered into by the
Philippines in relation to freedom of expression and right to
privacy.
4. Study international

laws

and

jurisprudence

in

relation

to

establishment of right to create online identity/ online anonymity

5. Conduct interviews with lawyers, advocates and critics of the
Cybercrime Law, and advocates of free expression and privacy.

h. Organization of the Thesis

This thesis is divided into 8 chapters.
1. Chapter One provides for the background of the relevant laws
and issues regarding the possibility of problematic application of
the catch-all provision of the cybercrime, more specifically as
regards the right of the people to establish online identity,
anchored in the constitutional guarantee of freedom of
10

2.
3.
4.
5.
6.
7.
8.

expression and privacy, including its significance, as well as the

objectives, scope and limitations, and methodology of this study.
Chapter Two analyzes the similarities and differences of the real
and cyber world and why it is significant in deciding how to
properly regulate the acts done in each world.
Chapter Three discusses the States declaration of Policy as
regards rights to privacy and freedom of expression vis--vis the
public policy on transparency and accountability.
Chapter Four examines the present use of fictitious name,
aliases, and usernames in Philippine jurisdiction in relation to the
present laws regulating them.
Chapter Five discusses how the people today use aliases,
usernames, and anonymity in the cyber world.
Chapter Six presents the different international views, legislation,
and policies as regards the creation of online anonymity or a
different online identity.
Chapter Seven provides for the analysis of the whole study.
Chapter Eight lays down the conclusion and gives a
recommendation as to how to address the aforementioned legal
issue.

11

Chapter II - The Real World versus the Cyber World

Cyber world is an intangible, online universe, which is used to
facilitate interaction, either for business or personal use. 47 It is reached
through connecting to the Internet, using a high-technology tangible
medium, such as laptops, cellular phones, and other gadgets, which
serve similar purpose. On the other hand, real world is the world
human beings experience as it is, without the need of any technology
or medium.
The cyber world has presented a lot of ways to facilitate
communication and interaction. One of the most common class of
online activity which facilitates interaction is social media. The more
common sites of social media include Facebook, Twitter, Instagram,
Skype, Viber, Pinterest, Google+ and Kakao Talk.48
All though these sites provide for an avenue for alternative interaction,
communication through social media has always been regarded as an
impersonal and informal approach.49 This is because interactions
through these sites are done through a medium, an indirect one.
Instead of facing the person one is talking to, he/she faces a computer,
and the radiowaves are the ones travelling in the atmosphere to
convey ones message to the other party. This makes it convenient for
all the parties, especially in this age where travelling is very common;
everyone seems to be on the go; everything seems to be fast-paced.
Another form of online activity, which induces interaction, is in the field
of online selling sites, such as OLX, AyosDito, Tripda, and even
Facebook groups and Instagram. These websites facilitate selling of
goods and/or services. In the course of their business, the buyer and
seller assume certain degree of risk, since it has been established that
these forms of transaction are more impersonal than simply selling
directly and personally. However, even though it seems quite risky, a
lot of online sellers who have adopted these means have been
successful in their own trade.50
47WhatisCyberWorld,availableathttp://www.osixs.org/v2_meun_cyberworld.aspx(Lastaccessed
July8,2015).
48FleireCastro,SocialMediaStatsofthePhilippines2015,availableat
http://fleirecastro.com/productivity/socialmediastatsphilippines2015wearesocialsg/(LastaccessedJuly
8,2015).
49GemmaCarter,SocialMedia:PersonalorImpersonal,availableathttp://www.concrete
online.co.uk/socialmediapersonalimpersonal/(LastaccessedJuly8,2015).
50 Graham Ruddick and Rachel Cooper, Debenhams says internet sales more
profitable than store sales for the first time, available at
http://www.telegraph.co.uk/finance/newsbysector/retailandconsumer/10002449/Debe
nhams-says-internet-sales-more-profitable-than-store-sales-for-the-first-time.html
(Last accessed July 30, 2015).

12

Further, there exist online games, which enables players to create an

online fictional character to represent themselves. Players use these
avatars to play the game. Such games are further classified into
different types, such as the massively multimedia online role-playing
game or more commonly known as MMORPG and multiplayer online
battle arena. Examples of these games are Ragnarok Online, Defense
of the Ancient (DoTA) and League of Legends.
In all these online sites, it is common that people do not fully
disclose their real name or personal circumstances. This has been the
accepted practice ever since. This shields people from public intrusion,
and even possible stalking. Most people do this for security and privacy
reasons.
The Cyber World as an Artificial World
Cyber world is created as a fruit of an intangible material: an
idea. The two are separate and distinct realms. Eric Schmidt, the
Google Executive Chairman, believes that the happenings in one
world doesnt [sic] always reflect what happens in the other. 51 This
fact is easily observable in social media.
People choose what they want to show to the world. Either one goes all
out, telling the world what he/she does every minute (which is a very
common practice in Twitter), or one chooses to show only those he/she
thinks will interest other people. On the one hand, a person may
choose to upload only perfect shot photos and on the other hand a
person may choose to upload photos, which are a little bit closer to
reality.
The bottom line is people can and may choose to build their own
online images through the things that they post online. These posts
may not be even close to reality, but somehow, this is a socially
accepted norm. It is expected anyway that everyone take extra caution
in things that they see online.
Another perfect example of explaining how cyber world works is
by looking at massively multimedia online role playing game
(MMORPG). In this set-up, which is more commonly known as virtual
world, everyone creates an artificial character to represent ones self.
Based on the authors own experience as a player of MMORPG, the
51BenParr,TheRealWorldvs.TheCyberWorld,availableathttp://benparr.com/2011/12/realworld
cyberworld/(LastaccessedJuly28,2015).

13

personality of the online avatar of a certain person may vary with the
personality of the same person in real life. A lot of players, in fact, are
very opinionated in game, while on the other hand, very reserved in
real life.
Cyber world as Sui Generis
Cyber world is a class of its own. It is a special place where
people are more free and people are more equal. The poor is entitled
to create his own social media and gaming accounts in as much as the
rich is. In fact, some people conceal their personal status online
because for them, the cyber world is not realit is a make-believe
world.
With this, there is a need to give the cyber world a different
treatment. Actions in the cyber world are not commensurate in action
in real life, as much as these actions are, at times, only illusory and
provide no effect in the real world. Since the cyber world is a sui
generis, it requires special legal attention, especially now that the
cyber world population is growing fast.52

52 MARCHANT, supra note 25, at 86.

14

Chapter III Declaration of Policy of the State regarding Right

To Privacy and Freedom of Speech Versus Its Policy on
Promoting Honesty and Transparency
Right to Privacy and Freedom of Expression
Under the 1987 Philippine Constitution, the Bill of Rights grants the
people the right to privacy. It says,
Section
3.
(1)
The
privacy
of
communication
and
correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise as prescribed
by law.53 (Emphasis supplied)

Therefore, unless there is a compelling reason to do so, the right of the

people to privacy should always be upheld. This includes privacy of
communication and correspondence everywhere, whether personal or
otherwise.
In the case of
STC v Vivares, the court held that the right to privacy
of people on the Internet, specifically on online social networks, is
founded on the manifestation of the intention on the parties to keep
them private. 54 Although it sorts of begs the question, somehow, the
idea that is being conveyed here by the court is that right to privacy
should be upheld, for as long as the person exercises measures to
manifest his/her intention that he/she wants some privacy.
Under the same Constitution, the peoples freedom of expression is
likewise protected. It says,
Section 4. No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people peaceable
to assemble and petition the government for redress of grievances. 55
(Emphasis supplied)

This constitutional guarantee is founded on the principle that

Philippines is, first and foremost, a democratic country.
In the separate opinion of Chief Justice Sereno, she said that freedom
of speech is the nucleus of other rights. 56 It is a fundamental right in a
free country; that is why it is the first one to be limited under a
repressive regime.57 Likewise, she claimed that the freedom of
53PHIL.CONST.1987art.III3(1).
54Vivaresetal.v.St.TheresasCollege,GRNo.202666(2014).
55PHIL.CONST.1987art.III4.
56DisiniJr.v.SecretaryofJustice,723SCRA109,134(2014).
57Id.
15

expression is one of the most important right among the rights

enumerated under the Bill of Rights.58 Therefore, anywhere, in any
medium, and in any form, speech and/or expression should not be
suppressed, especially if there is no real harm done to anyone by such
speech and/or expression.
One way of exercising the right to privacy and freedom of expression is
through anonymity in certain instances. This concept, although it has
its own fair share of criticisms, is in fact not absolutely rejected in the
Philippines. There are legal activities that can or even required to be
done under anonymity.
An example would be during elections. Voters vote anonymously,
and the fingerprint and the persons identification is only for the
purpose of ensuring that no one gets to vote twice, and not for a
certain ballot to be identified with the voter himself/herself. This is
done to make sure that the voter can fully express his will, without any
interference or fear of suffering any consequence as a result of his
exercise of right to suffrage.59 Other avenues where our laws
specifically allow anonymity are in political speeches, artistic
expressions, and journalism.60
States Policy on Morality, Honesty and Transparency
Although there is yet no exact scope of what encompasses
morality, based on the present definition of moral turpitude, one may
more or less grasp what is moral in our jurisdiction. In the case of
International Rice Research Institute vs National Labor Relations, citing
a precedent case, moral turpitude has been discussed as follows:
Moral turpitude has been defined in Can v. Galing citing In Re Basa
and Tak Ng v. Republic as everything which is done contrary to
justice, modesty, or good morals; an act of baseness, vileness or
depravity in the private and social duties which a man owes his
fellowmen, or to society in general, contrary to justice, honesty,
modesty or good morals.61 (Emphasis supplied)

58Id.
59 International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 25., 999
U.N.T.S. 171 [hereinafter ICCPR].
60ARTICLE19,RighttoOnlineAnonymity,availableat
https://www.article19.org/data/files/medialibrary/38006/Anonymity_and_encryption_report_A5_final
web.pdf(LastaccessedJuly30,2015).
61InternationalRiceResearchInstitutev.NLRC,221SCRA760,767(1993).

16

Therefore, one may conclude that the term morality, which the State
promotes, necessarily includes the value of honesty.62
Likewise, one may see that the State puts a high regard to honesty, as
seen in the Civil Code, where it says,
Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due
and observe honesty and good faith.63 (Emphasis supplied)

Dishonesty may be exhibited in two forms: dishonesty in the

commission of an act and dishonesty by omission, or more commonly
known as non-disclosure or selective disclosure. Our present laws
condemn a lot of forms of dishonesty, such as penalizing falsification of
documents, false testimony and estafa, among others.64
However, the honesty that the State requires is not absolute
honesty. It does not necessarily mean one has to fully disclose
everything. In fact, the Constitution itself permits certain nondisclosure, in certain scenarios, for example, in case of when honesty
would mean incriminating ones self.65
Likewise, honesty does not necessarily mean full disclosure. It is
not right to say that the principle of honesty is the opposite of the
principle of privacy; one can be honest and private at the same time.
Privacy is more closely related with the word confidentiality, i.e. not
everything is meant to be shared to the public.66
Therefore, the general rule is that people should exercise
honesty and transparency, unless there is a constitutional right that
might be infringe upon in the exercise thereof. An example would be,
as mentioned earlier, in case of the accused being put on the witness
stand. One may not force the accused to testify against himself, as
there is a constitutional guarantee against self-incrimination. In this
case, the right to privacy, when done in good faith (and/or in exercise
of ones right), should prevail over the States policy on honesty.
62Id.
63AnActtoOrdainandInstitutetheCivilCodeofthePhilippines[CIVILCODE],RepublicActNo.386,
art.19(1950).
64AnActRevisingThePenalCodeAndOtherPenalLaws[REVISEDPENALCODE]ActNo.3815
(1930).
65PHIL.CONST.1987art.III17.
66JamesE.DeFrancoandDarrellJ.Flesner,Privacyvs.HonestyTheNecessityofFullDisclosureof
MedicalRecords,availableat
http://c.ymcdn.com/sites/www.iadtc.org/resource/resmgr/imported/PublicationPDFs/21.2.45.pdf(Last
accessedJuly27,2015).

17

18

Chapter IV - The Use of Fictitious Name, Aliases, Usernames

and Creation of Fictitious Identity in Philippine Jurisdiction
Under the Philippine Jurisdiction, using a fictitious name or name
other than the name registered in the civil registrar, upon birth or by
subsequent registration, is frowned upon. In fact, there are a number
of laws, which address such matter. There are certain provisions in the
Revised Penal Code and Special Penal Laws prohibit using fictitious
names and/or anonymity.
The Nature of Crimes as Defined in the Revised Penal Code
The nature of the crimes as defined in the Revised Penal Code
(RPC) is mala in se.67 This means that malicious intent is a necessary
and essential element in the commission of the crime. 68 It has been an
established doctrine that although intent is almost impossible to be
determined because it is an activity of the brain, such intent can be
manifested through ones act.69 That means, should the elements of
the crime be present at a given act, the presumption is that the
offender did so with a criminal mind.70
A fundamental provision, which supports this doctrine, is found in
Article 3 of the same Act, which says, Ignorance of the law excuses no
one from compliance therewith.71 Therefore, one may not claim that
he/she acted in good faith in doing the act since he/she did not know
that it is a crime punishable under the RPC.
Under the RPC, there are two punishable acts which relate to the use of
a fictitious name: Article 178 on the prohibition on the use of a
fictitious name or concealment of name or personal circumstance as
well as Article 154 on prohibition of publication of books, pamphlets,
periodicals and leaflets which do not bear the real printers name.
On Article 178 of the Revised Penal Code

67 Luis B. Reyes, The Revised Penal Code: Criminal Law Book One ___ (2012).
68Idat__.
69 Id at __.
70 Id at __.
71SeeREVISEDPENALCODE,art3.
19

On June 5, 1987 Executive Order No. 187 fully restored the force
and effect of Article 178 of the Revised Penal Code, among others,
after the repeal of several Presidential Decrees.72
Article 178. Using fictitious name and concealing true name. The
penalty of arresto mayor and a fine not to exceed 500 pesos shall
be imposed upon any person who shall publicly use a fictitious
name for the purpose of concealing a crime, evading the
execution of a judgment or causing damage.
Any person who conceals his true name and other personal
circumstances shall be punished by arresto menor or a fine not to
exceed 200 pesos.73 (Emphasis supplied)

Under this Article, there are 2 punishable acts. The first act is using a
fictitious name to conceal a crime, avoid judgment or cause damage.
This is clearly justified, as it would be very difficult, if not impossible,
for the public officials in-charge to find the offender. 74 This is especially
true when a person fakes his identity around a certain neighborhood,
where no one would suspect that he/she is a wanted person.
The elements of the first paragraph of article 178 includes: (1)
using a fictitious name; (2) the purpose is to conceal a crime, avoid
execution of judgment or cause damage. It is good to note that
fictitious name here means a name, which is non-existent, not one
being used by another person. This is not to be confused with identity
theft, which is another subject matter all together.
The second act punishable under this article is concealment of
true name and other circumstances without any qualification.75 The
elements of this paragraph are the following: (1) concealment of true
name or other circumstances and; (2) for the mere purpose of
concealment. This means that the act of concealment itself, even
though not for the purpose of concealing a crime, avoiding a judgment
or causing damage, is punishable. 76 This is a more general provision,
punishes any form of concealment of name or personal circumstances,
for any reason.77

72RepealingPresidentialDecreesNos.38,942,970,1735,1834,1974,And1996AndArticles142A
And142BOfTheRevisedPenalCodeAndRestoringArticles135,136,137,138,140,141,143,144,
146,147,177,178,And179ToFullForceAndEffectAsTheyExistedBeforeSaidAmendatoryDecrees,
EONo.187,s.1987(1987).
73SeeREVISEDPENALCODEart178.
74Id.atpar.1
75Id.par.2.
76Id.
77Id.

20

To this day, there is only one case, which reached the Supreme
Court as regards punishing someone for concealing a personal
circumstance, more specifically concealment of marital status in his
voters certificate.78 This was however not a criminal proceeding, and
the respondent was merely fined P 12,000.79
On Article 154 of the Revised Penal Code
Another provision, which penalizes acts related to identity
concealment, is Revised Penal Code Article 154 on Unlawful use of
means of publication and unlawful utterances, more specifically under
paragraph 4.
Art. 154. Unlawful use of means of publication and unlawful
utterances. The penalty of arresto mayor and a fine ranging from
P200 to P1,000 pesos shall be imposed upon:
xxx
4. Any person who shall print, publish, or distribute or cause to
be printed, published, or distributed books, pamphlets,
periodicals, or leaflets which do not bear the real printer's name,
or which are classified as anonymous.80 (Emphasis supplied)

Under this provision, the publisher or distributor of anonymous works

shall be penalized. The elements of this crime are: (1) printing,
publication, distribution or causing to print, publish, or distribute books,
pamphlets, periodicals or leaflets; (2) such do not bear the real
printers name or anonymous. The provision did not specify, define nor
qualify the kind of books, pamphlets, periodicals, or leaflets. This idea
shall be of importance on the latter part of this paper.
The Nature of Offenses as Defined in Special Penal Laws
Other crimes outside the ambit of the Revised Penal Code are
crafted by the legislature through passing several Republic Acts,
otherwise known as Special Penal Laws. These offenses are not
considered as felonies, because mens rea is not an essential element
thereto, in contrast to those punishable by RPC, which requires criminal
intent.81
78GalonvsRail,A.M.No.265SCRA770,776(1996).
79Id.
80SeeREVISEDPENALCODEart154(4).
81MensRea,availableathttps://www.law.cornell.edu/wex/mens_rea(LastaccessedJuly18,2015).
21

These offenses are more commonly known as mala prohibita, which

means they are not inherently evil and they are only bad because
the State chose to prohibit such acts. 82 This is done in the exercise of
the states police power. It is inherent in every sovereign to exercise
reasonable control over persons and property within its jurisdiction in
the interest of the general security, health, safety, morals, and welfare
except where legally prohibited.83
On Republic Act 6085
On November 7, 1963, C.A. 142, or the Anti-Alias Law has been
passed.84 This law prohibits the use of aliases or names other than the
name registered in the civil registrar or name given upon baptism,
save for specific cases. This has been amended, on August 4, 1969, by
R.A. 6085 otherwise known as the Anti-Alias Law. One of the striking
differences between the two is that the scope of where the use of
aliases ay be permissible has been broadened. C.A. 142 only allowed
literary purposes, while R.A. 6085 allowed list of where a person could
justifiably use an alias. Section 1 of the amended law provides that,
Sec. 1. Except as a pseudonym solely for literary, cinema,
television, radio or other entertainment purposes and in
athletic events where the use of pseudonym is a normally
accepted practice, no person shall use any name different from
the one with which he was registered at birth in the office of the
local civil registry, or with which he was baptized for the first time,
or, in case of an alien, with which he was registered in the bureau of
immigration upon entry; or such substitute name as may have been
authorized by a competent court: Provided, That persons, whose
births have not been registered in any local civil registry and who
have not been baptized, have one year from the approval of this act
within which to register their names in the civil registry of their
residence. The name shall comprise the patronymic name and one
or two surnames.85 (Emphasis supplied)

Since there was a specific and broader enumeration, which includes (1)
literary, (2) cinema, (3) television, (4) radio or other entertainment
purposes and (5) athletic events where the use of pseudonym is a
normally accepted practice, we follow the Latin maxim expressio unius
est exclusio alterius, which means mentioning one thing implies the
82Crime,availableathttps://www.law.cornell.edu/wex/crime(LastaccessedJuly18,2015).
83MerriamWebsterDictionary,PolicePower,availableathttp://www.merriam
webster.com/dictionary/police%20power(LastaccessedJuly28,2015).
84AnActToRegulateTheUseOfAliases[ANTIALIASLAW]C.A.No.142(1932).
85AnActAmendingCommonwealthActNumberedOneHundredFortyTwoRegulatingTheUseOf
Aliases[ANTIALIASLAWAMENDMENT]1(1969).

22

exclusion of the others not mentioned. 86 This means that the law
punishes the use of pseudonyms for the purposes other than those
enumerated.
There are already a handful of cases decided under this law. The
Supreme Court has laid down two tests to determine whether there has
been a violation of this law, namely: (1) whether there has been a
habitual use of a pseudonym for a purpose not allowed by the law and
(2) whether the pseudonym has caused confusion or prejudice. 87
Ursua v. CA: A case of judicial legislation
Curiously, there is a landmark case decided by the Supreme Court,
which added another qualification as to who may be prosecuted by the
Anti-Alias Law. In Ursua vs CA, the court added another qualification as
to who may be prosecuted under the Anti-Alias Law.88 It held that,
The objective and purpose of C.A. No. 142 have their origin and
basis in Act No. 3883, An Act to Regulate the Use in Business
Transactions of Names other than True Names, Prescribing the
Duties of the Director of the Bureau of Commerce And
Industry in its Enforcement, Providing Penalties for Violations
thereof, and for other purposes, which was approved on 14
November 1931 and amended by Act No. 4147, approved on 28
November 1934.
xxx
The confusion and fraud in business transactions which the antialias law and is related statutes seek to prevent are not present here
as the circumstances are peculiar and distinct from those
contemplated by the legislature in enacting C.A. No. 142 as
amended.89 (Emphasis supplied)

The court here interpreted the Anti-Alias Law as a product of Act

No. 3883, An Act To Regulate The Use In Business Transactions Of
Names Other Than True Names, Prescribing The Duties Of The Director
Of The Bureau Of Commerce And Industry In Its Enforcement, Providing
Penalties For Violations Thereof, And For Other Purposes and therefore
added, used for business transaction as another element of the

86Atty.MarkNetteE.Concepcion,BIRrulingNo.01412:Istheenumerationofallowabledeductions
exclusive?,availableathttp://www.philstar.com/business/799675/birrulingno01412enumeration
allowabledeductionsexclusive(LastaccessedJuly19,2015).
87LimHokAlbanov.RepublicOfThePhilippines,104Phil.795(1958).
88 Ursua, 256SCRAat 155-154.
89 Id.

23

offense.90 However, the court seemed to go a bit too far with its
interpretation of the law. The wording of the Anti-Alias law did not
provide, that an alias should be used for business transactions for it to
be illegal.91 It instead provided for a list of where an alias may be
used.92 It is clear that outside the ambit of such list, one is already in
violation of the Anti-Alias Law. 93
The court failed to recognize that Act No. 3883 is a different law, which
seeks to prevent a different wrong. Although the two statues have
certain similarities, they should still stand separately, the RA 6085
being a more general provision, while Act No.3883 the more specific
one. Thus, the case of Ursua v CA may be said to have resulted into a
judicial legislation.
The court may have exceeded in its jurisdiction in adding another
element to the offense. Although its intention is noble, that is, to
minimize those who might be prosecuted under R.A. 6085, judicial
legislation is never the right way. It is upon the part of the legislative
department to amend or revise the said law, and not upon the judiciary
to change the law.
Two-fold test under Philippine Jurisdiction
The use of pseudonyms is likewise covered under some specific
provisions of the Civil Code.94
Article 379. The employment of pen names or stage names is
permitted, provided it is done in good faith and there is no injury to third
persons. Pen names and stage names cannot be usurped. 95 (Emphasis
supplied)

Under this article, one is allowed to use pen names or stage name, an
idea which was reiterated in C.A. 142, as amended by RA 6085,
allowing the use of pseudonym in literary and/or other entertainment
purposes. This provision implies that the test to know whether a
pseudonym may be used under Philippine jurisdiction may be divided
into two phases.

90 Id.
91 See, AMENDED ANTI-ALIAS LAW 1 .
92 Id.
93 Id.
94 SeeCIVILCODE,art379.
95Id.
24

First phase is determining the purpose for which it is used. As

mentioned earlier, our current laws provide for a specific and exclusive
list of allowable purpose for which pseudonym may be used. Under our
civil laws, there are two purposes for which the law allows for the use
of pseudonyms: in literary works, i.e. the use of pen names, and in
entertainment industry, i.e. the use of stage names.
On the other hand, our criminal laws provide for a wider range of
allowable use of pseudonyms: in literary works, in entertainment
industry such as in cinema, television, and radio, and in athletic events
where the use of pseudonyms are a common practice.
Should the use of pseudonym passed the first phase, it shall go
through another phase, which is determining its effect to third persons.
Under the Civil Code, only the pseudonyms, which are used in good
faith, are allowable. There is a further requirement that no one is
injured by the use of such. This is the reason why the use of a
pseudonym already in use by another person is not permissible.
As regards our penal laws, the second phase refers to the
confusion it causes to the public. In the Ursua v. CA case, the court
penned the decision stating the legislative intent behind C.A. 142, as
amended by R.A. 6085.
The enactment of C.A. No. 142 as amended was made primarily to
curb the common practice among the Chinese of adopting
scores of different names and aliases, which created
tremendous confusion in the field of trade. Such a practice almost
bordered on the crime of using fictitious names which for obvious
reasons could not be successfully maintained against the Chinese
who, rightly or wrongly, claimed they possessed a thousand and one
names. C.A. No. 142 thus penalized the act of using an alias name,
unless such alias was duly authorized by proper judicial proceedings
and recorded in the civil register. 96 (Emphasis supplied)

Therefore, when the use of pseudonym is one of the allowed purposes

under our penal laws, it should likewise be not confusing to the public,
in order for such pseudonym be allowed, even without registering it.
The two requisites must concur.

96Ursua,256SCRAat154.
25

CHAPTER V
Anonymity

Current

Online

Use

of

Pseudonymity

and

As mentioned earlier, the real world and cyber world, although

are very much connected, are two different and distinct realms. The
effect of the interactions done between the two media creates a
different impact as well. It is only reasonable to craft different laws for
these different worlds, the cyber world being sui generis.97
The use of pseudonyms in the cyberspace has always been a
common practice. While pseudonyms are Greek in origin, its prevalent
use in the Internet started with Christopher Pooles idea of starting a
website where anyone may post while concealing their identity by
using pseudonyms.98 He himself used a pseudonym: moot (everything
in small letters).99 He has been awarded the most influential person of
2009 by Time magazine, based on an Internet-poll. 100 Because of this,
moot was obliged to reveal himself as Christian Poole, his true name. 101
This, however, did not stop him in being an advocate of the non-realname Internet, which allows people to use pseudonyms and
anonymity.102
On the other hand, there are advocates as well of online
transparency. One of the most famous advocates of this is Mark
Zuckerberg, the founder of Facebook.103 In his belief, the use of real
names in the cyber world should be upheld. He believes that it is
important to present ones true identity in order to prevent an abusive
behavior towards another.104 In fact, in Facebook, an account may be
deleted if it has come to the attention of the administrators that one is
using a fake name.105

97 MARCHANT, supra note 25, at 86.

98BernieHogan,PseudonymsandtheRiseoftheRealNameWeb,availableat
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2229365(LastaccessedAugust1,2015)
994chansmoottakesproanonymitytoTED2010,availableat
http://arstechnica.com/staff/2010/02/4chansmoottakesproanonymitytoted2010/(LastaccessedJuly
21,2015)
100TIMEStaff,TheWorldsMostInfluentialPersonIs,availableat
http://content.time.com/time/arts/article/0,8599,1894028,00.html(LastaccessedJuly21,2015)
101Hogan,supranote98.
102Id.
103NolanFeeney,MarkZuckerbergDefendsFacebooksRealNamePolicy,availableat
http://time.com/3943322/facebookrealnamepolicymarkzuckerberg/(LastaccessedJuly25,2015)
104Id.
105 Id.

26

However, this is founded on the notion that ones use of a

pseudonym is for the purpose of committing a wrong or to hide ones
identity. This is a form of hasty generalization. In fact, there are a lot of
reasons why people choose to use pseudonyms or be completely
anonymous, and to commit a wrong anonymously is only a small part
of the whole picture.
Pseudonymity and Anonymity as an exercise of the Right to Privacy
Right to privacy, as mentioned earlier, is a constitutional right. This
right should be respected at all times, save for established exceptions.
There are a lot of reasons why a person would rather have some of
his/her statements, opinions or actions in the Internet be private.
One instance is in case of upholding professionalism. 106 Since
employers are very picky when it comes to their employees, employers
often do some research, even to the extent of stalking their
employees social media pages. As such, some employers put into
consideration the online activities and even opinions of their
employees, and at times, these matters even become a deal breaker
for the employees employment. In this case, the employee may want
to separate his/ her personal life with his/ her professional life. One
basic way of doing this is through using pseudonyms or being just
anonymous online.
Another instance is in case of avoiding public attention. 107 This is
especially true in case of family members of politicians or celebrities,
whose family members are often the target of the public as well. In this
case, these people do it for security reasons, to avoid them from the
threat of being stalked by other people. This seems to be fair enough,
for these people did not actually choose to be public figures, but they
cannot escape the limelight because of the fact that they are related to
a public figure.
On the other hand, others simply want to keep their real identity
private. This is somehow justifiable since the use of real identity has its
place: real world. When dealing with cyber world, especially with
matters not damaging or causing injury to someone in the real world, a
separate online identity creation is fair enough. This is especially true

106JillianYork,TheRighttoAnonymityisaMatterofPrivacy,availableat
https://www.eff.org/deeplinks/2012/01/rightanonymitymatterprivacy(LastaccessedJuly25,2015).
107Id.

27

in cases of the LGBT community, abuse survivors and discriminated

minorities.108
Pseudonymity and Anonymity as an exercise of Freedom of Speech
and Expression
Freedom of speech and/or expression is likewise a right, which is
constitutionally guaranteed. In this light, another reason why people
choose to use pseudonyms or be anonymous is because they treat it
as a form of exercising freedom of speech. Some people claim that
they can express themselves better and participate in debates and
discussions if they do it anonymously or using pseudonyms. 109 They
use pseudonymity and/or anonymity as a tool to circumvent
censorship or to avoid bureaucratic control or harassment by
authorities or others.110 This is especially true for those who are
expressing unpopular opinion, or people who are being discriminated
outright. Being anonymous online equals the playing field for
everyone.
Likewise, others claim that they use pseudonyms and/or
anonymity as a form of exercise of freedom of expression. Some
people want to create a separate online persona of themselves, which
they do not necessarily put into real life. In a sense, they want to
create a fictional character online, which they may use for a lot of
purposes. This is especially true in social media and online gaming
channels.
Moreover, some people use pseudonymity or anonymity as an avenue
to be creative. They make an online persona of who they are not, just
for the sake of it. If one is rich or famous, he/she may want to create a
fictitious, ordinary person, so that he/she may see how other people
treat an ordinary person. Or perhaps, a member of an LGBT community
simply wants to create an identity, which will fully express
himself/herself, without the threat of discrimination.
Threat of Prosecution
108RebeccaMacKinnonandHaeinLim,GooglePlusFinallyGivesUponItsIneffective,Dangerous
RealNamePolicy,availableat
http://www.slate.com/blogs/future_tense/2014/07/17/google_plus_finally_ditches_its_ineffective_dangerou
s_real_name_policy.html(LastaccessedJuly26,2015).
109DirkVoorhoof,Internetandtherightofanonymity,availableat
http://www.psw.ugent.be/Cms_global/uploads/publicaties/dv/05recente_publicaties/Anonymity.Voorhoof.e
ditedjuly2010.pdf(LastaccessedJuly26,2015).
110Id.

28

The Cybercrime Law impliedly widened the scope of the

applicability of the Revised Penal Code as well as the existing Special
Penal Laws into the cyber world. This may be problematic because the
original applicability of these laws was only in real world. This can be
inferred, as the date of crafting these penal laws was as early as way
back in 1930, where the technological advancement today was not
taken into consideration by the framers of the Code.
With these laws being made applicable in the cyber world, the
use of pseudonyms and anonymity online is made illegal. Although
there has been no concrete action filed against online anonymity of
anyone, by the fact that these laws exist and are made applicable to
the cyber world, anyone who uses pseudonym or anonymity online is
under the threat of prosecution. This being said, these laws should be
revisited and reconsidered.

29

Chapter VI International Views on the Protection of Online

Identity
As the technological development these days become more
advanced, the laws of the international community have evolved to
cater these advancements.
The international community has
recognized the need for the protection of some more specific rights,
which are not really new because they were rooted from the basic
fundamental rights, which are now needed by the people as the world
rapidly evolves.
The United Nations special rapporteur on freedom of expression
has reported recently to the United Nations Human Rights Council
regarding the online use of encryption and anonymity. 111 It was
reported that the right to online anonymity is a leading instrument in
protecting peoples freedom of expression as well as right to privacy,
especially now that we are in the digital age. 112 This right should
include not only the journalists, but also those ordinary Internet
users.113 This report was supported by a lot of human rights advocates,
who made a joint statement on the same day of the report, convincing
that the different countries adopt the reports recommendations.114
At present, some States are still hesitant to give its citizens the right to
online anonymous expression. This is due to a lot of factors. For
instance, Russia and China have enacted laws, which require its
citizens to use their real names in registering for social media. This was
done to prevent parody accounts and internet trolling.115
Likewise, the United States and United Kingdom raised the point that
online anonymity may aid the terrorists in conducting more acts of
terrorism.116 They claim that terrorists and criminals may take
advantage of such technology to communicate to each other, without
being able to be detected by the authorities. 117 In fact, both the US and
UK government have ensured that these communication companies
make way to circumvent consumer protection. 118 This is also true in
111UN, Supranote33.
112Id.
113Id.
114Id.
115GlynMoody,ChinaToRequireRealNameRegistrationForOnlineServicesAndBansOnParody
Accounts,availableathttps://www.techdirt.com/articles/20150205/07045929918/chinatorequirereal
nameregistrationonlineservicesbansparodyaccounts.shtml(LastaccessedJuly30,2015)
116UN, Supranote33.
117Id.
118Id.

30

France. Its government wants to strengthen its control over online

activities.119

The United Nations Report on Online Encryption and Anonymity

To this day, there are a very few laws addressing protection of
online anonymity. With this, the United Nations special rapporteur
produced a report on the matter, discussing the need for protection of
these online rights and gave recommendations thereafter.120
According to the special rapporteur, the different states attempt to
ban or intercept anonymous communications during protests was an
unjustified restriction to the right to freedom of peaceful assembly
under the Universal Declaration of Human Rights (UDHR) and the
International Covenant on Civil and Political Rights (ICCPR).121
Any government, under international law, has no right to restrict its
citizens freedom of expression, except when such restriction pass all
the requisites provided.122 Under article 19 (3) of the ICCPR, it is
provided that,
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either orally, in writing or in print,
in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law
and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals.123 (Emphasis supplied)

119ARTICLE19,supranote60.
120 Id.
121Id.
122Limitations,availableathttps://www.article19.org/pages/en/limitations.html(LastaccessedJuly30,
2015).
123ICCPRhttp://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx(LastaccessedJuly26,2015).

31

Under this article, there is a three-fold test in order to determine

whether the restriction to freedom of expression is justified. 124 First is it
should be provided by law, then it should be for a legitimate purpose,
and finally, there should be a necessity to it. 125 Further, according to
the report, under international law, states are required to
demonstrate, publicly and transparently, that less intrusive means
were unavailable or had failed, and that only broadly intrusive
measures, such as backdoors, would achieve the legitimate aim. 126
European Declaration of freedom of communication on the Internet
On May 28, 2003, the Committee of Ministers of the Council of Europe
adopted a Declaration regarding freedom of communication on the
Internet.127 It contained several statements containing the stand of the
ministers regarding the different concepts surrounding the activities on
the Internet.128 One of which, includes,
Principle 7: Anonymity
In order to ensure protection against online surveillance and to enhance the
free expression of information and ideas, member states should respect the
will of users of the Internet not to disclose their identity. This does
not prevent member states from taking measures and co-operating
in order to trace those responsible for criminal acts, in accordance with
national law, the Convention for the Protection of Human Rights and
Fundamental Freedoms and other international agreements in the fields of
justice and the police.129 (Emphasis supplied)

In this declaration, the ministers reaffirmed its peoples right to remain

anonymous.130 However, it laid down the condition that such anonymity
should not be used to perpetrate an unlawful act.131
This condition has been demonstrated in the case of K.U. vs Finland.132
The facts of the case provided that an anonymous person used the
persona of the complainant, who was 12 years old at that time, to
advertise a dating site.133 The ad consisted of his personal information,
124Id.
125Limitations,supranote121.
126ARTICLE19,supranote60.
127 CouncilofEuropeCommitteeofMinisters,Declarationonfreedomofcommunicationonthe
Internet,availableathttps://wcd.coe.int/ViewDoc.jsp?id=37031(LastaccessedJuly26,2015).
128 Id.
129Id.
130 Id.
131 Id.
132K.U.v.Finland,Appl.No.2872/02(2008).
133Id.

32

as well as a link leading to his web page where his photo is displayed
together with some other personal information. 134 The European Court
held unanimously that although online anonymity should be respected,
when such right is used to perpetrate a wrong, in this case a violation
of their Article 8 on right to respect for private and family life, then it
will not be upheld.135

Inter-American Commission on Human Rights

On December 31, 2013, the Inter-American Commission on
Human Rights, through a special rapporteur produced a report on
Freedom of Expression and the Internet.136 On the said report, it
recognized the efforts done by some states, such as Mexico, Chile,
Argentina and Canada in upholding peoples right to privacy and
freedom of expression in the Internet.137
In relation to the recognition of the different international organizations
of the fact that one of their general principles is to adopt [a]pproaches
to regulation developed for other means of communication such as
telephony or broadcasting cannot simply be transferred to the
Internet but, rather, need to be specifically designed for it, the
Commission acknowledged that the Internet, being a sui generis
medium, should have laws which specifically address it, rather than
rely on the general laws to apply to it.138
In relation to Article 11 of the American Convention, the Commission
laid down two policies: protecting anonymous speech and protecting
personal data.139 The Commission further discussed how to balance
anonymity in the Internet vis--vis the need for online transparency in
certain transactions and interactions.140
Online identification and authentication requirements need to be
used exclusively in sensitive and risky transactions and
interactions, and not broadly for all services and
applications. Authentication requirements must follow the
principle of proportionality, which in this case indicate that if the

134Id.
135Id.
136FreedomofExpressionandtheInternet,availableat
http://www.oas.org/en/iachr/expression/docs/reports/2014_04_08_Internet_ENG%20_WEB.pdf(Last
accessedJuly30,2015).
137Id.
138Id.
139Id.
140 Id at 59-60.

33

risk is high, the collection of additional information from the user is

justified. However, if the risk is low, there is no reason to do so.
Among other things, this balance encourages anonymous platforms
and services on the Internet, which enable freedom of expression in
contexts of repression or self-censorship. Also, the principle of
diversity indicates that multiple identification schemes must
be encouraged for online users, in order to avoid single or
concentrated identifiers that can lead to security abuses and
privacy intrusions.141 (Emphasis supplied)

This presents another way of drawing the line between when to be

anonymous and when real personal information should be disclosed. It
all boils down into the riskiness and sensitivity of the transaction
and/or interaction.142 An example of this is when a counsel conducts a
correspondence with his/her client using the Internet. This involves a
sensitive interaction and therefore, online identification and
authentication requirements are expected.
The Commission likewise recognized that not only anonymous speech
should be protected but also personal data.143
The protection of anonymous speech on the Internet is,
nevertheless, insufficient to guarantee a private space
conducive to the exercise of the right to freedom of expression. To
achieve this purpose, the confidentiality of personal data online
needs to be guaranteed. Nowadays most online communications
between individuals create privacy risks, since everything that
happens on the Internet leaves a digital footprint. This means that
enormous quantities of information about individuals can be
intercepted, cached, and analyzed by third parties. 144 (Emphasis
supplied)

Protection of personal data is an essential element for one to fully and

effectively exercise his/her right to privacy and freedom of
expression.145 However, as the commission mentioned, this is quite
difficult, for everything everyone does online may be retrieved. 146 This
is not necessarily bad because this is what the authorities use in cases
of unlawful exercise of such right. However, the state should first
determine whether using these digital footprints is absolutely
necessary to uphold justice. Otherwise, the state has no right to use
such information for any other purpose.

141Id.
142 Id.
143 Id at 60.
144 Id.
145 Id.
146 Id.
34

Chapter VII Analysis

The present Philippines current laws present to its citizens some
degree of threat. The laws right now are clearly restraining the use of
pseudonymity and anonymity in the cyber world, save for one case
where the court has apparently exceeded its jurisdiction in interpreting
a current statute.147
The section 6 of the Cybercrime Law implicitly sets the scope of the
existing penal laws of the Philippines by declaring that the acts
punishable by the RPC and special penal laws shall likewise apply in
the cyber world.148 This creates a problem, for the people may not be
aware that they can be prosecuted because of using fictitious names in
their social media accounts and the like.
On The Catch-all Provision of the Cybercrime Law
As the cyber world grows and as the technological advancement
continues, the real world needs to adjust its laws to cater to the
specific setting of the cyber world. The concept of the cyber world
having special laws that address it is not really a far-fetch idea. Even
the lawmakers at present have recognized this, thus the creation of
Cybercrime law.149 However, just when they have realized that the
cyber world needs a special set of laws and regulation, they placed a
blanket provision, which has put their realization into waste.150
This is especially true in case of libel, since by virtue of the catch-all
provision, libel, which is already punished under the Revised Penal
Code, does not need to be specifically stated in the Cybercrime Law
itself. This can be seen in the dissenting opinion on Chief Justice
Sereno, citing the deliberations of the legislature during the rafting of
the Cybercrime Law.151
[On Online Libel] Regrettably, the records of the Bicameral
Conference Committee deliberation do not show that the legislators
took into careful consideration this domino effect that, when taken as
a whole, clearly discourages the exercise of free speech. This,
despite the fact that the records of the committee
deliberations show that the legislators became aware of the
need to carefully craft the application of the one-degree increase in
penalty and "to review again the Revised Penal Code and see

147 Referring to the case of Ursua v. CA, as previously discussed.

148 SeeTHECYBERCRIMEPREVENTIONACTOF2012,6.
149 DisiniJr.,716SCRAat389392.
150 Id.
151 Id.
35

what ought to be punished, if committed through the

computer." But against their better judgment, they proceeded to
make an all-encompassing application of the increased
penalty sans any careful study, as the proceedings show:
THE CHAIRMAN (REP. TINGA). With regard to some of these offenses,
the reason why they were not included in the House version initially is
that, the assumption that the acts committed that would make
it illegal in the real world would also be illegal in the
cyberworld, no.
For example, libel po. When we discussed this again with the
Department of Justice, it was their suggestion to include an allencompassing paragraph...
THE CHAIRMAN (SEN. ANGARA). (Off-mike) A catch all
THE CHAIRMAN (SEN. TINGA). ...a catch all, wherein all crimes
defined and penalized by the Revised Penal Code as amended
and special criminal laws committed by, through, and with the
use of information and communications technology shall be
covered by the relevant provisions of this act. By so doing, Mr.
Chairman, we are saying that if we missed out on any of these
crimes we did not specify them, point by point they would
still be covered by this act, no.
So it would be up to you, Mr. Chairman...
THE CHAIRMAN (SEN. ANGARA). Yeah.
xxxx
THE CHAIRMAN (REP. TINGA). ...do we specify this and then or do we
just use an all-encompassing paragraph to cover them.
THE CHAIRMAN (SEN. ANGARA). Well, as you know, the Penal Code is
really a very, very old code. In fact, it dates back to the Spanish time
and we amend it through several Congresses. So like child
pornography, this is a new crime, cybersex is a new crime. Libel
through the use of computer system is a novel way of slandering and
maligning people. So we thought that we must describe it with more
details and specificity as required by the rules of the Criminal Law.
Weve got to be specific and not general in indicting a person
so that he will know in advance what he is answering for. But
we can still include and let-anyway, we have a separability clause, a
catch all provision that you just suggested and make it number five.
Any and all crimes punishable under the Revised Penal Code not
heretofore enumerated above but are committed through the use of
computer or computer system shall also be punishable but we should
match it with a penalty schedule as well.
So weve got to review. Mukhang mahirap gawin yun, huh. We
have to review again the Revised Penal Code and see what
ought to be punished, if committed through the computer.
Then weve got to review the penalty, huh.

36

THE CHAIRMAN (REP. TINGA). I agree, Mr. Chairman, that you are
defining the newer crimes. But I also agree as was suggested earlier
that there should be an all-encompassing phrase to cover these
crimes in the Penal Code, no. Can that not be matched with a penalty
clause that would cover it as well? Instead of us going line by line
through the
THE CHAIRMAN (SEN. ANGARA). So you may just have to do that by a
reference. The same penalty imposed under the Revised Penal Code
shall be imposed on these crimes committed through computer or
computer systems.152 (Emphasis supplied)

Based on this, it appears that the members of the legislature had

recognized the need to be more specific in providing the people with
the crimes that they may have to answer for. 153 They even recognized
the need to review the penal laws. 154 Although in the end, they simply
decided to include a catch-all provision, which shall save them a lot of
time and effort.155
There was likewise a dangerous assumption that all the laws at present
extend their scope into the cyber world. 156 As what was discussed
earlier, cyber world is sui generis, and to directly parallel it with the
real world would be unjust.157 Since the circumstances surrounding the
cyber world is very different from those surrounding the real world, it is
only fair to expect that a different set of laws especially made for cyber
world be had.
This is not to say, however, that the legislative department should
create a totally different set of laws. However, the author contends
that the laws should be tailor-fitted to address the specific attending
circumstances in the cyber world. Some real world laws might be fairly
applied even if done online, while some may not.
Revisiting the Existing Penal Laws
As mentioned earlier, the Revised Penal Code was approved on
1930, a time when the Internet was far from being invented. The
lawmakers at that time crafted the law in such a way that they picture
152Id.
153 Id.
154 Id.
155 Id.
156 Id.
157 See Chapter II of this paper.
37

the effects of the penalized acts to the society. Applying now these
penal laws to a world where the effects of the penalized acts are
different was never the intent of the legislature.
Likewise, the C.A. 142 was approved on 1936 and the R.A. 6085
was approved on 1969. Again, during these times, there was no
Internet yet. In fact, Internet only boomed around mid to late 90s. 158
The lawmakers were not aware of the fact that the future lawmakers
would apply the laws enacted way back there to something that did
not even exist yet at that time.
Thus, to extend the applicability of these penal laws to something,
which was different from the context to which the law was made in the
first place, is plain injustice to the people. The laws should adjust to the
present reality it is faced with, and not the other way around. These
laws, which were meant to govern only real-world actions, should not
be extended to apply to those acts done in the cyber world, because
acts done in these different worlds produce different effects.
Use of Anonymity and Pseudonymity as a form of first level privacy
When a person uses an online pseudonym, what happens is the
person avoids being discovered easily. This does not mean, however,
that the person who uses anonymity or pseudonymity is
undetectable.159 With the use of technology nowadays, everything on
the Internet may be traced.160
Thus, the privacy being exercised here is not an absolute onethat is
whenever the authorities should need to go after the anonymous
person, they can do so with the use of advanced technologies. This
means that all it takes is effort, in order for one to know the real
identity of the other. The effect of using a pseudonym in real life differs
from using pseudonyms online, as using a fictitious identity online only
protects a person up to a certain level. A normal Internet user, should
the transaction or interaction with another person be far from risky or
confidential, would not anyway waste his/her time finding out who the
person behind the anonymous post or pseudonym is.

158SteveCase,SteveCase:TheCompleteHistoryOfTheInternet'sBoom,Bust,BoomCycle,
availableathttp://www.businessinsider.com.au/whatfactorsledtotheburstingoftheinternetbubbleof
thelate90s20111(LastaccessedJuly25,2015).
159 Jacob Palme & Mikael Berglund, Anonymity on the Internet, available at
http://dsv.su.se/jpalme/society/anonymity.pdf (Last accessed July 30, 2015).
160 Id.

38

With this, to provide a blanket provision stating that the RPC and
special penal laws, which are made originally to contemplate acts done
in real life, be made applicable in online transactions and interactions
is a blatant mistake.
Creation and Determination of Ones Online Identity
In accordance with the principle set by the State, full disclosure
may not always be necessary and may be set aside if done to exercise
ones constitutional right, in this case, the right to privacy and freedom
of expression. Although there is a possibility of using this right in
furtherance of doing a wrong, such as cyber trolling and fraud
perpetration, such instances are just a fraction of the whole picture,
and there are many other reasons why people choose to remain
anonymous or use pseudonyms online. Therefore, it is unjust to
suppress the exercise of right to privacy and freedom of expression of
the people because of these instances.
The creation and determination of ones online identity, one that
is separate and distinct from ones real identity, is often used as ones
expression of his alter ego, or repressed feelings. While creating an
alter ego in the real business setting is against the law, one cannot say
that the same holds true for online expression. It is and it was never a
wrong to find a means of expressing ones self, if done without the
intention of doing and without causing harm unto other people, at least
on a significant level.
On legitimate registration of Pseudonyms
One may argue that the law did not necessarily prohibit the use
of pseudonyms, for as long as they register it with the civil registrar.
The law provides,
Sec. 2. Any person desiring to use an alias shall apply for authority
therefor in proceedings like those legally provided to obtain
judicial authority for a change of name, and no person shall be
allowed to secure such judicial authority for more than one alias. The
petition for an alias shall set forth the person's baptismal and family
name and the name recorded in the civil registry, if different, his
immigrant's name, if an alien, and his pseudonym, if he has such
names other than his original or real name, specifying the reason
or reasons for the use of the desired alias. The judicial authority
for the use of alias the Christian name and the alien immigrant's
name shall be recorded in the proper local civil registry, and no
person shall use any name or names other, than his original or real

39

name unless the same is or are duly recorded in the proper

local civil registry.161 (Emphasis supplied)

However, aside from being a widely accepted practice, even way

before the Cybercrime Law has affirmed the RPCs and special penal
laws applicability to the cyber world, the requirement of registration to
the civil registrar of each and every pseudonym used online by the
people is very impractical, considering that there are several millions
of Filipinos currently using pseudonyms online at present and even
some use more than one pseudonym. Furthermore, the use of
pseudonyms and anonymity online is susceptible to changes. It is very
easy to delete or change ones identity online.

161SeeANTIALIASLAWAMENDMENT2.
40

Chapter VIII Conclusion and Recommendation

Conclusion
The threat of prosecution toward the Filipino citizens is not a light
matter. If not addressed, such may result into a chilling effect. Since
some people are rather unsure of whether they can be sued by using
pseudonyms and/or anonymity online, people would rather not attempt
to do such, resulting in undue restriction to their freedom of expression
and violation of their right to privacy.
All of these are because the Cybercrime Law discreetly expanded
the scope of our existing penal laws. Cyber world is a sui generis. It is a
mistake to assume that the penal laws apply broadly in both two
different worlds. It is therefore more logical and just to make a
separate set of laws, especially penal ones since it should be strictly
construed, which are applicable solely in the cyber world.
The catch-all provision of the Cybercrime Law has a very broad
scope, which if followed to the letter, may result in injustice to Filipino
citizens. The citizens have the right to be well informed of the acts,
which are penalized. The citizens deserve more than just a catch-all
provision, especially that it is a penal law and they may be imprisoned
if they did such penalized acts.
By the virtue of section 6 of the Cybercrime law giving effect to
online applicability of RPC articles 178 and 154 and the whole of R.A.
6085 among others, it appears that people who are using fictitious
name, pseudonyms and/or anonymity in engaging if different online
activities, such as social media, might be imprisoned and face other
penal sanctions. This, in effect, violates peoples right to privacy and
freedom of expression.
It is incumbent upon the legislative department to act on the
matter. The case or Ursua v. CA, although presented a noble attempt to
minimize the prosecution in using aliases by adding another element,
has resulted in a judicial legislation, which is frowned upon in our
jurisdiction. The legislature should pass a law, which should allow the
people to use anonymity and pseudonymity in their online activity, as
an ancillary to their right to privacy and freedom of expression.
Recommendation
Establishing the Right to Create Online Internet Identity

41

The current laws in the Philippines does not explicitly say that
one has a right to create an online identity different from ones real life
identity. However, as the technology evolves and as it becomes a huge
part of peoples lives, the need for the extension of right to privacy and
freedom of expression of the people to their activities done online has
becoming more apparent.
In Canada, the court has already recognized the need to
explicitly pronounce that people has indeed the right to online
anonymity by its pronouncement in the case of R v. Spencer.162 Its
decision has been tagged as the landmark case for peoples right to
online anonymity. It provided that,
Informational privacy is often equated with secrecy or confidentiality,
and also includes the related but wider notion of control over, access
to and use of information. However, particularly important in the
context of Internet usage is the understanding of privacy as
anonymity. The identity of a person linked to their use of the
Internet must be recognized as giving rise to a privacy interest
beyond that inherent in the persons name, address and telephone
number found in the subscriber information.
xxx
Some degree of anonymity is a feature of much Internet activity
and depending on the totality of the circumstances, anonymity may
be the foundation of a privacy interest that engages
constitutional protection against unreasonable search and
seizure.163 (Emphasis supplied)

The court of Canada has recognized the fact the one of the essential
parts of Internet usage is the capacity of people to be anonymous. It is
a method of exercising ones privacy online, and not necessarily done
to do a wrong.
In this light, the author recommends that our legislature take a proactive part in the recognition of this specific right, in furtherance and
pursuant to the constitutional guarantee of right to privacy and
freedom of expression.
However, it is good to note that this right, just like any other
right, is not absolute. If a person uses this right to perpetrate a wrong,
do injustice unto others or cause injury to others, then he/she should
be liable for the damage, which resulted from his/her own acts, either
162JacobGershman,CanadiansHaveaRighttoOnlineAnonymity,NationsTopCourtRules,
availableathttp://blogs.wsj.com/law/2014/06/13/canadianshavearighttoonlineanonymitynationstop
courtrules/(LastaccessedJuly30,2015).
163R.v.Spencer,2014SCC43,(2014).

42

criminally or civilly. Some examples of the limitations to this right

include identity theft and cyber bullying.
Creation of a Standard: The Three-Fold Test
In case of doubt, it is helpful to create a standard to determine
whether there has been a valid exercise of the right to online identity.
Thus, the author proposes a three-fold test, to serve as a guide, in case
there is a doubt as to the validity of the exercise of such right.
First, there should be an online or with the use of computer use
of a pseudonym or anonymity. The laws relating to the use of
pseudonym or anonymity in the real world still holds true; the author
merely proposes to establish online freedom, as the Internet, was in
the first place created to facilitate peoples free exchange of ideas and
expression, at least online.
Second, the use of anonymity or pseudonymity must not be for
perpetration of a crime. If the purpose of the non-disclosure of name or
use of fictitious name is, for example, to facilitate an act of terrorism,
then such use should not be permitted, and the user must face the
consequences of his/her acts.
Lastly, there must be no real harm done to third persons by
virtue of using anonymity or pseudonymity. The user, in case of such,
shall be liable for any damage caused.
Revising the Catch-all Penal Provision under the Cybercrime Law
As what was discussed during the deliberations of the
Cybercrime Law, each penal law should be first evaluated to see which
crimes are really a wrong and must be penalized even if done in a
different world, that is cyber world. Although it requires a lot of effort
from the legislature, this is the proper solution to make sure that the
exercise of police power in penalizing some acts are at least well
thought of. This provision, although seemingly simple and harmless,
has far-reaching implications, which are too sweeping, and if analyzed
properly, too dangerous. As Chief Justice Sereno pointed out in her
dissenting opinion,
Perhaps it is the deceivingly simple and innocuous wording of
the provision that has successfully masked its invidious
repercussions. Or perhaps, it is because of the provisions indirect,
rather than frontal attack on free speech that has left the majority
unconcerned. Indeed, it is often the quiet and creeping

43

interference upon fundamental rights that succeeds

absolutely undermining liberty.164 (Emphasis supplied)

in

It is recommended that the legislature re-examine the Revised

Penal Code as well as the special penal laws and discuss amongst
themselves which specific provisions would be considered a crime if
done with, by and through the use of computer technology. Doing this
would make the public understand better which acts they are not
supposed to do.

164 DisiniJr,723SCRAat136.
44