NEWSBREAK

Cybercrime law: '50

shades of liability'
The Cybercrime Prevention Act may extend liability for libel and allow the
arbitrary closure of websites, lawyers say

Purple Romero
Published 8:20 PM, October 02, 2012
Updated 8:24 PM, October 02, 2012

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MANILA, Philippines - "50 shades of liability" is how Pamantasan ng Lungsod ng

Maynila Law Dean Ernest Maceda described the layers of ambiguity in Republic
Act No. 10175 or the Cybercrime Prevention Act.
Unlike the bestselling book "50 Shades of Grey," however, the law's contents are
far from sexy.

Maceda and other lawyers warned that the newly signed Cybercrime Prevention
Act, given the vast domain of the online universe, may extend liability for libel and
allow the arbitrary closure of websites.

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Let's look at these so-called "shades" of liability:

1. From the publisher to the 'retweeter'

Article 360 of the Revised Penal Code states that, "Any person who shall publish,
exhibit, or cause the publication or exhibition of any defamation in writing or by
similar means," shall be held responsible for libel.

The provision specifies that "the author or editor of a book or pamphlet, or the
editor or business manager of a daily newspaper, magazine or serial publication
is responsible for the defamations contained therein to the same extent as if he
were the author thereof."

But if this Penal Code provision is applied in online libel, who can be sued?
The Cybercrime Prevention Act seeks to provide an answer. It defines libel as
the "unlawful or prohibited acts of libel as defined in Article 355 of the Revised
Penal Code, as amended, committed through a computer system or any other
similar means which may be devised in the future."

This is problematic, lawyers said, since much can be done using a "computer
system," which is the gateway to the online world.

If someone uses this "computer system" to re-tweet a defamatory comment, for

example, is he liable for libel?

Maceda said the Cybercrime Prevention Act is vague on this.

In a September 20 editorial "A blow against free speech," the Philippine Daily
Inquirer said that the law's provision on libel offered "no distinctions, no
qualifications" as to who shall be held liable for libel or what actions constitute the
crime. The Inquirer raised the following questions:

"When a newspaper reader e-mails a possibly libelous article to a friend, is that

reader now liable for libel, too?"

"When an online viewer tweets a link of a possibly libelous video to a friend, is

that first viewer now liable for libel, too?"

"When a friend 'likes' or shares or comments on a possibly libelous post on

Facebook, is that friend now liable for libel, too?"

Maceda said these should be addressed in the law's implementing rules and
regulations (IRR). But he stressed that since the law itself does not make these
distinctions, it would be difficult to find these in the IRR as well.

Guingona's dissent

Sen Teofisto Guingona III, the only senator who voted against the passage of the
cybercrime prevention bill into law, said: "Transplanting the Revised Penal Code
definition of libel without specifying who is liable exposes the owner of online
newspapers, blogs, sites to liability. "

He added: "This is problematic because in the case of online communities,

people are encouraged to actually participate (make comments, re-tweet, repost
on facebook). With this law, editors and owners of these sites will be forced to
lock down their websites and prevent people from commenting. I believe that
editors can regulate the works of their writers but if you gag the general public,
surely the Constitutional right to freedom of expression is threatened."

Another law, however, already clarifies when a service provider is held liable or
not for libel. Republic Act 8792 or Electronic Commerce Act of 2000 states that
"Service Providers" may not be held liable for the possible offenses committed by
clients if they do not have "actual knowledge" or are not aware of the facts of the
publication or distribution of a libelous material.

In the case of Aquino vs RP Nuclei Solutions and Olandres, a Pasig city

prosecutor said RP Nuclei Solutions cannot be held liable for the libelous
remarks made in the forum www.greeddyumbass.com because the company
only hosts and does not own or operate the site.

2. The journalist and social media

Libel, as defined in Article 353 of the Revised Penal Code, is a "public and
malicious imputation of a crime, or of a vice or defect, real or imaginary, or any
act, omission, condition, status or circumstance tending to discredit or cause the
dishonor or contempt of a natural or juridical person, or to blacken the memory of
one who is dead."

Article 355 says that this can be in the form of "writing, printing,lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic
exhibition, or any similar means."

De La Salle College of Law Dean Jose Manuel Diokno said it is redundant to

make libel a cybercrime because libel - as defined in the Revised Penal Code -
already includes online publication as a platform for the crime.

Ateneo School of Government Dean Antonio La Viña agreed, saying

"publication" refers to all kinds - whether online or not.

But Maceda said that the Cybercrime Prevention Act helps clarify what the
phrase "any similar means" refers to, which is the Internet. Ultimately, of course,
it is the Supreme Court or Congress that should define what the phrase "any
similar means" really means, he added.

The absence of "Internet libel" has led to the dismissal of a case against a lawyer
in 2011.
In 2009, dermatologist Vicki Belo filed a libel case against lawyer Argee
Guevarra for calling her "Reyna ng Kaplastikan, Reyna ng Kapalpakan" (Queen
of Deceit, Queen of Incompetence) on his Facebook account. The Antipolo
regional trial court dismissed the case in 2011, saying Internet libel was not
defined in any law at the time.

In another case, however, the Department of Justice (DOJ) said that the phrase
"similar means...covers libelous statements posted in the Internet."

Assistant City Prosecutor Viven C. Andino said this in a resolution which ordered
the filing of a libel case against former Newsbreak editor-in-chief and now
Rappler editor at large Marites Dañguilan Vitug in 2011. The libel case was in
connection with a story that Vitug wrote on the alleged role of Supreme Court
Justice Presbitero Velasco Jr in the 2010 campaign of his son Lord Allan for the
lone congressional post of Marinduque.

Vitug interviewed residents who said that the justice invited them to join his son’s
ticket, with a promise that he would help fund their campaign. The article
appeared on ww.abs-cbnnews.com.

With the Cybercrime law, UP lawyer Harry Roque said this online platform
extends to the social media. He said journalists can be sued for libel not only for
their articles now, but also for what they have posted on their Facebook or
Twitter accounts.

La Viña cautioned that a distinction should be made between the social media
accounts of news organizations and their reporters. This will address the
question on who caused the publication of a libelous remark. If a journalist
tweeted using his personal account, then in principle, his editors should not be
held liable for that tweet, La Viña added.

A lawyer who asked not to be named, citing company policy, said the provision is
tricky. For example, messages - libelous or not - could be inadvertently posted on
one's account due to a virus or hacking. The law is silent on this.

3. 'Borderless' crime

The same lawyer said that the Cybercrime Prevention Act broadens jurisdiction
for libel.
Section 21 of the new law states that the "Regional Trial Court shall have
jurisdiction over any violation of the provisions of this Act including any violation
committed by a Filipino national regardless of the place of commission.
Jurisdiction shall lie if any of the elements was committed within the Philippines
or committed with the use of any computer system wholly or partly situated in the
country, or when by such commission any damage is caused to a natural or
juridical person who, at the time the offense was committed, was in the
Philippines."

The lawyer took this to mean that even if a journalist was outside the country
when he posted an article considered libelous, a case may still be filed against
him by the offended party in the Philippines.

The lawyer also asked: "What does 'partly' mean?"

4. Against freedom of speech

The Center for Media Freedom and Responsibility has criticized the Aquino
administration for passing the Cybercrime Prevention Act, saying it ignored the
2011 declaration of the United Nations Human Rights Committee that the libel
law is "excessive" because it puts violators behind bars.

Roque said the law is against the UNHRC view, which asserts that criminalizing
libel violates freedom of expression.

Diokno also noted that the Cybercrime Prevention Act further increased the
penalty for libel.

Section 6 of the new law states: "...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."

This means that those who committed libel using a "computer system" may stay
behind bars from 6 to 12 years when ordinary libel is only punishable with
imprisonment from 6 months to 4 years.

Also Under Sec. 19 of the law, the DOJ is given the power to "issue an order to
restrict or block access" to computer data that is "prima facie found to be in
violation of the provisions of this Act."
Diokno said this is dangerous because it goes against the clear and present
danger principle. Under this principle, he said, the government, before
committing an extreme act, must not only establish "prima facie" (at first sight)
evidence but show there is imminent and grave danger that it needs to prevent
from happening.

Diokno stressed that this provision should be struck down as unconstitutional.

- Rappler.com

http://www.rappler.com/newsbreak/12766-50-shades-of-liability

In transit on Cyber Law

By: Ricardo J. Romulo - @inquirerdotnet
Philippine Daily Inquirer / 12:26 AM March 08, 2014

Few laws, if any, have received the minute scrutiny the Supreme Court justices gave
Republic Act No. 10175. Thus, if I were a law dean, I would encourage my faculty,
particularly those handling constitutional law and criminal law, to team-teach an
elective to study the ramifications of the recent en banc decision of the high court on the
consolidated cases questioning RA 10175, or the Cybercrime Prevention Act of 2012.
The consolidated decision (the “Cyber Law decision,” for short), which disposed of
several cases that was headed by Jose Jesus M. Disini Jr. et al. vs The Secretary of
Justice et al., G.R. No. 203335, was issued last Feb. 18.

I have not seen such line-by-line consideration of a law by any branch of the
government, other than in line vetoes by the executive branch in an approved
budget. Laws are ordinarily adjudged en toto as either valid or invalid, but the Supreme
Court, in the Cyber Law decision, seemed to have examined RA 10175 line by line and,
in its verdict, specified what its assessment was in each of the affected sections of the
law.

The majority opinion penned by Associate Justice Roberto A. Abad together with the
separate concurrences and/or dissents by Chief Justice Maria Lourdes P. A. Sereno and
Associate Justices Antonio T. Carpio, Arturo D. Brion, Jose Catral Mendoza, and
Mario Victor F. Leonen constitute a rich source of material for considering in depth
public policy issues raised by the decision.
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This paper’s Talk of the Town (3/2/14) illustrates the decision’s many facets. It
published the views from three legal experts: Harry Roque on what the Supreme Court
said about the doctrine of “overbreath,” Oscar Franklin Tan on the decision’s impact on
the “public figure doctrine,” and Emerson S. Bañez on the metaphors used by the high
court in dealing with “spam.” Other lawyers will surely see different meanings
depending on what aspect of the decision they happen to focus on.

The number of petitions filed by itself, 15 in all, indicates the interest engendered by
RA 10175. It includes lawyers and nonlawyers. The law, after all, deals with
“…cyberspace, a system that accommodates millions and billions of simultaneous and
ongoing individual accesses to and uses of the Internet. The cyberspace is a boon to the
need for the current generation for greater information and facility of communication.
But … it could not filter out a number of persons of ill will who would want to use
cyberspace technology for mischiefs and crimes.”

Section 2 of RA 10175, Declaration of Policy, states in more detail what the law intends
to achieve and how it intends to do it. Recognizing, on one hand, the “vital role of
information and communication industries … in the nation’s overall social and
economic development,” and, on the other, “the importance of providing an
environment conducive to the development, acceleration, and rational application and
exploitation of information and communications technology…” as well as, thirdly, “the
need to protect and safeguard the integrity of computer, computer and communications
systems, networks and databases, and the data stored therein from all forms of misuse,
abuse and illegal access…,” the law enables the State to “adopt sufficient powers to
effectively prevent and combat such offenses by facilitating their detection,
investigation, and prosecution … and by providing arrangements for fast and reliable
international cooperation.”

That burden is borne largely by Sections 4 and 5. Section 4 enumerates (a) offenses
against the confidentiality, integrity, and availability of computer data and systems; (b)
computer-related offenses; and (c) content-related offenses. Section 5 adds two other
new offenses in the universe of crimes, namely “aiding and abetting in the commission
of cybercrime” and “attempt in the commission of cybercrime.” The rest of the law
deals with penalties, and administrative implementation and enforcement.

RA 10175’s scorecard: Three sections or parts of sections were declared void for being
unconstitutional (namely, Section 4(c)(3) on posting of unsolicited commercial
communications); Section 12 on collection and recording of traffic data in real-time;
and Section 19 on the authority granted to the Department of Justice to restrict or block
access to suspected computer data. Sixteen, ranging from some crimes enumerated in
Section 4, to imposition of penalties in Sections 6 and 8, to enforcement, prosecution,
and administrative matters, were considered valid.

The Supreme Court considered Section 4(c)(4), on online libel, as partly constitutional
(with respect to the “original author”) and partly unconstitutional (with respect to those
who simply receive the post and react). Finally, Section 7 was left for future
determination to await the application to an actual case. But that portion of Section 7 on
the double charging of a person, respectively, for online libel and child pornography,
both under RA 10175 and the Revised Penal Code (for online libel) or under RA 10175
and RA 9775 (for child pornography) was invalidated under the principle of double
jeopardy.

It is obvious that the Cyber Law decision, despite nearly 40 pages of text to its detailed
rulings, was not intended by the Supreme Court to be the last judicial word on the
matter.

Ricardo J. Romulo is a senior partner of Romulo Mabanta Buenaventura Sayoc & De

Los Angeles.

Read more: http://opinion.inquirer.net/72350/in-transit-on-cyber-

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