A Safer Cyberspace?

March 1, 2014 at 11:15pm

Last week, in a much-awaited decision, the Supreme Court issued its ruling on the cases questioning the constitutionality of the cybercrime law. On the most part, the decision is actually good and makes cyberspace safer, especially for children, and less friendly to criminals. Most of the sections of the law were declared constitutional while a few others were declared unconstitutional and invalid.

Among others, the Supreme Court declared as valid and constitutional the following provisions, namely: Section 4(a)(1) that penalizes accessing a computer system without right; Section 4(a)(3) that penalizes data interference, including transmission of viruses; Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad faith to the prejudice of others; Section 4(b)(3) that penalizes identity theft or the use or misuse ofidentifying information belonging to another; Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual activity for favor or consideration;  Section 4(c)(2) that penalizes the production of child pornography; Section 4(c)(4) that penalizes online libel; Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal Code are committed with the use ofinformation and communications technologies; Section 8 that prescribes the penalties for cybercrimes; Section 13 that permits law enforcement authorities to require service providers to preserve traffic data and subscriber information as well as specified content data for six months; Section 14 that authorizes the disclosure of computer data under a court-issued warrant; Section 15 that authorizes the search, seizure, and examination of computer data under a court-issued warrant; Section 17 that authorizes the destruction of previously preserved computer data after the expiration of the prescribed holding periods; Section 20 that penalizes obstruction of justice in relation to cybercrime investigations; Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC); and, Section 26(a) that defines the CICC’s Powers and Functions.

On the other side, the Court declared as void and unconstitutional: Section 4(c)(3) of Republic Act 10175 that penalizesposting of unsolicited commercial communications; Section 12 that authorizesthe collection or recording of traffic data in real-time; and Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to suspected Computer Data.

Among all the provisions declared constitutional, the most controversial has been Section 4(c)(4) that penalizes online libel aswith respect to the original author of the post; the Supreme Court howeverdeclared void and unconstitutional with respect to others who simply receivethe post and react to it. In effect the ruling does not consider “Liking”“Sharing” or “Commenting” as tantamount to aiding or abetting the crime oflibel. To justify its holding, the Court reasoned that “except for the originalauthor of the assailed statement, the rest (those who pressed Like, Comment andShare) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting.” It recognizes that the “old parameters for enforcing the traditional form of libel would be a squarepeg in a round hole when applied to cyberspace libel.  The Court however warned that, if the “Comment” does not merely react to the original posting but creates an altogether new defamatory story . . . then that should be considered an original posting published on the internet.

One can argue that the opportunities provided by cyberspace for communicating information and opinion has special characteristics that distinguish it from traditional modes of publication. Theoretically, every person can use the internet-based social media; these include ordinary individuals who have no special skills for investigation and who are not aware of their accountability and can express their opinion on a range of issues of public concern. This can promote transparency, public accountability, and authentic democracy. Indeed, time and again, including the corruption scandals of the last few months, we have seen how netizens have influenced public events and shape governance and political decisions.

After extolling the benefits afforded by the Internet to the public, the High Court warned that it could also be used by the ill motivated to harm others. In the words of the ponencia, “the cyberspace is a boon to the need of the current generation for greater information and facility of communication.  But all is not well with the system since it could not filter out a number of persons of ill will who would want to use cyberspace technology for mischiefs and crimes.”

The Supreme Court’s decision to uphold the constitutionality of on-line libel follows this thinking about the dangers of the Internet. The ruling is anchored on Article 353 of the Revised Penal Code with online defamation simply another means of committing libel.  As I have pointed out in another article I wrote for an online media site, opinions can be expressed and made public just like any other media with the difference that unlike other forms of media,transmission and dissemination of messages in cyberspace is instantaneous and made to a much broader audience base. Libelous material when posted in the Internetcan have devastating and lasting impact on the subject that can cause the aggrieved greater reputational damage.

While conceding the point that libel via the Internetcan be extremely harmful, I do not however share the view that criminalizing defamatory speech is a good and effective remedy to counter the intended evil. Tuesday’s column will be devoted to this and make the case for decriminalizing libel.