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Disini v. The Secretary of Justice Select Language

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Expands Expression

Electronic / Internet-based Communication

February 11, 2014

Law or Action Upheld, Law or Action Overturned or Deemed Unconstitutional

G.R. No. 203335

Philippines, Asia and Asia Pacific

Supreme (court of final appeal)

Constitutional Law

Cyber Security / Cyber Crime

Privacy, On-line Expression, Data Protection and Retention

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C ASE A N AL Y SIS 
Case Summary and Outcome
The Supreme Court of Philippines declared Sections 4(c)(3), 12, and 19 of the Cybercrime Prevention Act of 2012 as
unconstitutional. It held that Section 4(c)(3) violated the right to freedom of expression by prohibiting the electronic
transmission of unsolicited commercial communications. It found Section 12 in violation of the right to privacy because it
lacked sufficient specificity and definiteness in collecting real-time computer data. It struck down Section 19 of the Act for
giving the government the authority to restrict or block access to computer data without any judicial warrant.

Facts
The case arises out of consolidated petitions to the Supreme Court of the Philippines on the constitutionality of several
provisions of the Cybercrime Prevention Act of 2012, Act No. 10175.

The Petitioners argued that even though the Act is the government’s platform in combating illegal cyberspace activities, 21
separate sections of the Act violate their constitutional rights, particularly the right to freedom of expression and access to
inforamtion.

In February 2013, the Supreme Court extended the duration of a temporary restraining order against the government to halt
enforcement of the Act until the adjudication of the issues.
Decision Overview
Justice Abad delivered the Court’s opinion.

The government of Philippines adopted the Cybercrime Prevention Act of 2012 for the purpose of regulating access to and use
of cyberspace. Several sections of the law define relevant cyber crimes and enable the government to track down and penalize
violators.

Among 21 challenged sections, the Court declared Sections 4(c)(3), 12, and 19 of the Act as unconstitutional.

Section 4(c)(3) prohibits the transmission of unsolicited commercial electronic communications, commonly known as spams,
that seek to advertise, sell, or offer for sale of products and services unless the recipient affirmatively consents, or when the
purpose of the communication is for service or administrative announcements from the sender to its existing users, or “when
the following conditions are present: (aa) The commercial electronic communication contains a simple, valid, and reliable way
for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source; (bb) The
commercial electronic communication does not purposely disguise the source of the electronic message; and (cc) The
commercial electronic communication does not purposely include misleading information in any part of the message in order
to induce the recipients to read the message.”

The government argued that unsolicited commercial communications amount to both nuisance and trespass because they
tend to interfere with the enjoyment of using online services and that they enter the recipient’s domain without prior
permission.

The Court first noted that spams are a category of commercial speech, which does not receive the same level of protection as
other constitutionally guaranteed forms of expression ,”but is nonetheless entitled to protection.” It ruled that the prohibition
on transmitting unsolicited communications “would deny a person the right to read his emails, even unsolicited commercial
ads addressed to him.” Accordingly, the Court declared Section4(c)(3) as unconstitutional.

Section 12 of the Act authorizes the law enforcement without a court warrant “to collect or record traffic data in real-time
associated with specified communications transmitted by means of a computer system.” Traffic data under this Section
includes the origin, destination, route, size, date, and duration of the communication, but not its content nor the identity of
users.

The Petitioners argued that such warrantless authority curtails their civil liberties and set the stage for abuse of discretion by
the government. They also claimed that this provision violates the right to privacy and protection from the government’s
intrusion into online communications.

According to the Court, since Section 12 may lead to disclosure of private communications, it must survive the rational basis
standard of whether it is narrowly tailored towards serving a government’s compelling interest. The Court found that the
government did have a compelling interest in preventing cyber crimes by monitoring real-time traffic data.

As to whether Section 12 violated the right to privacy, the Court first recognized that the right at stake concerned
informational privacy, defined as “the right not to have private information disclosed, and the right to live freely without
surveillance and intrusion.” In determining whether a communication is entitled to the right of privacy, the Court applied a
two-part test: (1) Whether the person claiming the right has a legitimate expectation of privacy over the communication, and
(2) whether his expectation of privacy can be regarded as objectively reasonable in the society.

The Court noted that internet users have subjective reasonable expectation of privacy over their communications transmitted
online. However, it did not find the expectation as objectively reasonable because traffic data sent through internet “does not
disclose the actual names and addresses (residential or office) of the sender and the recipient, only their coded Internet
Protocol (IP) addresses.”

Even though the Court ruled that real-time traffic data under Section 12 does not enjoy the objective reasonable expectation
of privacy, the existence of enough data may reveal the personal information of its sender or recipient, against which the
Section fails to provide sufficient safeguard. The Court viewed the law as “virtually limitless, enabling law enforcement
authorities to engage in “fishing expedition,” choosing whatever specified communication they want.”
Accordingly, the Court struck down Section 12 for lack of specificity and definiteness as to ensure respect for the right to
privacy.

Section 19 authorizes the Department of Justice to restrict or block access to a computer data found to be in violation of the
Act. The Petitioners argued that this section also violated the right to freedom of expression, as well as the constitutional
protection against unreasonable searches and seizures.

The Court first recognized that computer data constitutes a personal property, entitled to protection against unreasonable
searches and seizures. Also, the Philippines’ Constitution requires the government to secure a valid judicial warrant when it
seeks to seize a personal property or to block a form of expression. Because Section 19 precluded any judicial intervention,
the Court found it unconstitutional.

D E C ISIO N D IREC T IO N 

G L O B AL P ERSP EC T IV E 

C ASE SIG N IF IC AN C E 

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