R.A. No. 10175: CYBERCRIMES LAW
Initial Discussion on Legal and Political Implications prepared by KabataanPartylist
ONLINE LIBEL
While RA No. 10175 makes clear mention of libel related to Art. 355 of theRevised Penal Code and committed through computer systems (Sec. 4(c)4), thereis no mention in the law of the penalty to be imposed on such offense.It is an elementary rule in criminal law that there can be no crime can becommitted, nor punishment imposed without a pre-existing penal law.Contingent upon the existence of a penal law is the definition of the particularpenalty imposable on the criminal offense defined.In the Chapter on Penalties in RA No. 10175, no express mention is made on thespecific penalty imposable on Libel as defined in the law.Thus, it is reasonable to assume that while the crime of libel committed througha computer system exists under the law, no person can or should ever bepenalized on the mere commission of libel through a computer system underSec. 4(c)4), under the elementary criminal law principle stated above.The only persons benefited by this gap in the law would be those who would infact commit libel through a computer system, i.e. actual writing of libelousmaterial through a computer system.
MISLEADING PROVISION
However, it is debatable whether such protection due a gap in the law wouldapply to published online articles, which may or may not contain libelousmaterial.As such, what is most bothersome to civil libertarians and online writers is thecatch-all provision under Sec. 6, in which all offenses defined under the RevisedPenal Code and special laws committed through information andcommunications technologies shall be imposed with a penalty one degree higherthan that provided in the Code and special laws.Under this provision, the use of information and communications technologies tocommit crimes under the RPC and special laws is considered a specialaggravating circumstance, which does not only increase the penalty to itsmaximum period as other special aggravating circumstances, but increases thepenalty one degree higher, akin to a qualifying aggravating circumstance.As information and communications technologies had been vaguely defined inthe law, it can be assumed that such ICT includes all platforms by whichinformation is communicated online
–
blogs, websites, social networking sites.
Thus, all content in such platforms which may contain libelous material may nowbe subject to a criminal suit one degree higher than the penalty imposed on libelunder the RPC.This is a path to the wrong direction at a time when the Supreme Court hadalready made clear steps towards the decriminalization of libel, by makingpreferences on fines instead of prison terms.By imposing a penalty one degree higher than what had been stated in the RPCon libel, longer prison terms are guaranteed for persons found to have publishedor posted material containing libelous remarks online.The new law is thus a threat to the constitutional freedoms of the press andexpression.The relative freedom of publication utilized by online critics of government policies shall now be curtailed.
ACCESS WITHOUT RIGHT
The provision on Illegal access punished
mere
access to the whole or any part of a computer system without right with a fine of at least P200,000 and/or prisionmayor.As many of the employed youth are now working in industries in which they areutilizing computers systems, it is feared that this provision may be exploited byunscrupulous employers to further control and restrict the rights of employeesin their workplaces.For merely accessing internet sites for personal use on work time, the employeemay be subjected to termination and criminal prosecution, on the basis that suchaccess is deemed illegal access punishable under the law.
DUE PROCESS ISSUES
The law may be treading upon unconstitutional waters on the powers beinggranted to law enforcement agencies, which includes preservation, disclosure,search and seizure and destruction of computer data.At the onset, the role of the courts in the grant of warrants relative to thepreservation, disclosure, search and seizure and destruction of computer data isunclear.In the provision preservation of content, while a court order is required for thepreservation of content, the one-time six-month extension of such preservationorder does not require another court order.
Preservation Order
As the preservation of data is akin to the garnishment of personal property or anasset preservation order in civil forfeiture proceedings in which the free use anddisposition of private property is restricted, the six-month extension cannot beleft to the mere volition of law enforcement authorities.
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Cybercrimes Legal Brief
R.A. No. 10175: CYBERCRIMES LAW
Initial Discussion on Legal and Political Implications prepared by Kabataan Partylist
Initial Discussion on Legal and Political Implications prepared by Kabataan Partylist
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