Anti-cybercrime law allows 'totalitarian online censorship

One of the country's leading technology law experts has blasted the new anti-cybercrime law for permitting "unrestricted and unregulated censorship," reminiscent of a "totalitarian state." Petitioners led by JJ Disini of the UP College of Law are challenging the constitutionality of the Cybercrime Prevention Act before the Supreme Court, arguing that it violates the freedom of expression by enabling authorities to block access to any material on the Internet. According to their petition, the law violates Constitutional provisions on the “freedom of expression, due process, equal protection, privacy of communications, double jeopardy, and right against unreasonable searches and seizure.” The Cybercrime Prevention Act (RA 10175) was signed into law last September 12. 'Chilling effect' Disini said that certain provisions of the law make way for "prior restraint," thereby pre-empting free online discourse. “Na-censor ka na, ‘di ka pa nakakasuhan,” explained Disini. In particular, Disini was referring to Section 19 of the new law: it authorizes the Justice Secretary to block any content that is found to be in violation of the law merely at "face value" (prima facie). Taking down of webpages or content at first glance can be “dangerous as it could be used in many different ways.” Disini also said that the law is contrary to common practice that conviction of crimes needed evidence to prove that they were committed “beyond reasonable doubt.” “It may impede ordinary citizens to carry out comments (or information),” co-petitioner and blogger Janette Toral warned. In the petition's introduction, the petitioners charge that the law's objectionable provisions "restrict the fundamental right to free speech and the freedom of the press with respect to online content in the same way a totalitarian state would do so -- through unrestricted and unregulated censorship." The respondents in the case include the secretaries of Justice and of the Interior and Local Government; the executive director of the Information and Communications Technology Office (ICTO); the chief of the Philippine National Police (PNP); and the director of the National Bureau of Investigation (NBI). Online libel The petition also opposed Section 4, which deals with online libel. (See related story.) In the context of commenting about public officials online, Disini said that the law may cause people not to talk: “Sa takot mo na makasuhan ka, ‘di ka na lang magsasalita… Pati ‘yung gusto mong sabihin, ‘di mo na masasabi," he said.

Meanwhile, Toral believes that the Cybercrime Law will not change the overall dynamics of online discussion but will instead actually make netizens more responsible in the comments they make: “Magkakaroon ka ngayon ng responsibility sa pagbibigay ng opinyon.” Double jeopardy Disini warned that not only does the law penalize cybercrimes with greater penalties than if these were committed in traditional media, it also allows for the accused to be tried as if they had also committed the crime in traditional media. It's a case of "double jeopardy", Disini said. Libel is already punishable under the Revised Penal Code by a penalty of up to P6,000 and or imprisonment of up to six years. Based on RA 10175, if the crime is committed using a computer or similar technologies, penalty fine could go up to as much as P500,000, with up to 12 years of imprisonment. Wholesale surveillance Another section that the petitioners contest is the law’s Section 12, which allows the NBI and the PNP to collect traffic data real-time “with due cause” even without a court order. “This unwarranted authority to engage in wholesale surveillance of all cellular, data, mobile, Internet and computer communications violate the right to be free from unreasonable searches and seizure, as well as the right to the privacy of communications,” the petition reads. Disini said, “Hindi ibig sabihin, walang limitasyon ang authority nila (PNP, NBI)… Kasi nava-violate nito ‘yung right to privacy.” Disini explained that traffic data is used if the authorities do not know yet who is the perpetrator of the crime. The Cybercrime Law then, said Disini, can be used by authorities for “surveillance” all the time. “Mas matindi pa ito sa Human Security Act (kung saan parang) mas protektado pa ang mga terorista… Kahit (may) oversight ng huwes man lang sana,” said Disini. (See related report.) Meanwhile, Toral said, “Kung tutuusin, importante ‘yung pag-collect ng real-time na data para sa mga text scams.. We need to put a stop sa text scams.” She added, “Positive ‘yan para sa anonymous na sites, text scams… Maganda sana… pero still, it violates a right.” Flood of petitions Press freedom advocates, media groups and lawyers earlier noted that certain provisions of the new law threaten the freedom of expression and of the press, both rights duly protected by the Philippine Constitution. On September 25, several journalist organizations had already filed a similar petition to entirely scrap the

Cybercrime Law. Senator Teofisto “TG” Guingona III also said that he would also file a similar petition. In a statement, Guingona said, “With this law, editors and owners of these sites will be forced to lock down their websites and prevent people from commenting.” He added, “Unjustifiable prior restraint is an archaic policy that should not be in our statute books.” Kabataan Partylist representative Raymond Palatino is also expected to file his own petition against the new law. Only hope? While waiting for the high court to hopefully scrap the law, Disini said he wished that the Court would also issue a temporary prohibition so that the law would not be implemented before the petition's day in court. Meanwhile, Toral said in a phone interview that certain provisions needed to be clarified as to whether how the law could be implemented. “(We filed the petition) para madesisyunan ba kung valid o invalid ‘yung mga provisions,” said Toral. Toral added, “Sooner or later, they (cybercrime offenders) cannot just get away with it (cybercrime) anymore.” International social media research group Socialbakers ranked the Philippines as the eigth largest country in the world in terms of number of Facebook users, with more than 29 million Pinoys on the social network. The country is also the tenth largest nation on Twitter, with over 9.5 million users. — TJD/HS, GMA News

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