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Disini vs.

Secretary of Justice
Section 4(c)(3) of the Cybercrime Prevention Act 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.”
OSG: 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.
SC: 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.

The provision is as reproduced as follows: “Sec. or “(iii) The following conditions are present: . among others. – The transmission of commercial electronic communication with the use of computer system which seeks to advertise. sell.A 10175 is VOID. subscribers or customers. When the Cybercrime Prevention Act of 2012 (R. it contained a provision which prohibits spam or unsolicited commercial advertisements from being sent to emails. 4. or offer for sale products and services are prohibited unless: “(i) There is prior affirmative consent from the recipient.A. – The following acts constitute the offense of cybercrime punishable under this Act: “x x x “(c) Content-related Offenses: “x x x “(3) Unsolicited Commercial Communications. 10175) was passed. Cybercrime Offenses.Summary of Disini decision on Unsolicited Commercial Communication The SC held on February 11. or “(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users. The constitutionality of the entire law was challenged before the court and the particular provision on anti-spam was sought to be declared as valid. 2014 that the Cybercrime offense on posting unsolicited commercial communications under Section 4 (c) (3) of R.

users. or customers (e. 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. spam and spam” on a menu. and reliable way for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source. the source of the message is not disguised. the communication is for service and/or administrative announcements by the sender to its existing subscribers.“(aa) The commercial electronic communication contains a simple.) Third. in taking cognizance of this. maintenance. the court was still struck down by the SC despite the presence of the three qualifications saying that the provision still violates commercial free speech—a form of freedom of speech guaranteed and protected by the 1987 Philippine Constitution. etc. provided for a short history of spam. “(bb) The commercial electronic communication does not purposely disguise the source of the electronic message. there must be prior affirmative consent from the recipient. and there is no misleading information to induce the recipient to read the message. .g. It was then carried over in internet chat rooms to refer to someone as making a repetitive comment. spam. The abovementioned provision does not prohibit spam totally for it provided for three exceptions. First.” As may be deduced. service notices. the communication provides for an opt-out link which allows recipients to unsubscribe from receiving messages. valid. Second. The Supreme Court. However. the provision is intended against electronic spam emails sent by businesses or individuals who seek to sell products and services. The term “spam” referring to a repetition of a sentence or comment traced to a Monty Python’s Flying Circus scene where the actors repeatedly read out “Spam.

and they interfere with the owner’s peaceful enjoyment of his property. in effect. they create inefficiency in commerce and technology. the people would be denied of their right to read their emails if the sending of spams would be prohibited. in invalidating Section 4 (c) (3) of R. PERSONAL COMMENTS: . it is essential to consider that the recipient has always the option of deleting or ignoring these messages. trespass on the recipient’s right to privacy as spams enter the recipient’s domain without any consent or permission. through snail mail. the Government cannot deny this right to the people as commercial speech remains a form of freedom of expressions guaranteed and protected by and under the Constitution even if with limited protection. the Solicitor General’s position is that commercial speech enjoys limited protection under the law. they have an adverse effect on the network capacity of internet service providers. through the Solicitor General.A. in its attempt to defend the legality of the provision argued that spam messages are a “nuisance” for they end up wasting email storage space. According to the Supreme Court. enjoy protection under the constitutional guarantee of freedom of speech saying that they are “legitimate forms of expression. people have already been receiving unsolicited advertisements even before the computer age. The Court said that if they rule otherwise. Furthermore.Commercial speech enjoys protection The Supreme Court. Hinging on the aforementioned reasons. The Supreme Court on the other hand noted that the Government was not able to present basis for their claims—particularly on the supposed resulting inefficiency of computers as a result of receiving spam messages. To the Court. The sender of the spams. The same goes for its electronic counterparts. 10175 held that commercial speech including spam mail. there is no declaration that unsolicited advertisements are a nuisance and illegal since there is a likelihood that people may be remotely interested in them.” The Philippine Government. Consequently.

Consequently.1. 203335. o The SC took judicial notice of this practice  On the rationale of the Court as to the non-existence of a law which declares spam messages as nuisance. April 22. the interference may possibly affect his online exercise of his right to free speech.  CJ Sereno’s Dissent (G. 3. For offline spam advertisements. The right of the recipient to choose what to receive.  Businesses at their inception rely on marketing or advertising to boost their name and products/services o They are likely to avail of one of the cheapest ways of advertising—flyers for offline and physical advertising and social media and emails for online advertising. 2. 2014) I also explain my position on the validity of regulating the transmission of unsolicited commercial communications under Section 4(c)(3). They will not survive much less thrive. it will have a negative effect on start-ups and small-medium enterprises (SMEs) due to their reliance on cheaper advertising alternatives. The law (or the provision) they just struck down is the law that declares online spam as a nuisance and thus prohibiting it. No.R. . Infringement on the property rights of the recipient vs. no law exists. Right of the businesses to advertise. Commercial speech is the least protected right under the freedom of speech. free expression and free association that e-mail services facilitate. o If spam is prohibited. I believe that the regulation prevents harmful conduct that may interfere with an e-mail user’s enjoyment of his e-mail.

One of those forms of attack includes what is called "mail bombing. may I emphasize that the questioned provision is not burdensome to commercial speech at all since the law does not prohibit the sending of unsolicited e-mail per se. I disagreed with the majority when they declared the questioned provision unconstitutional.54 This is a form of Denial of Service (DoS) attack. Hence. . Section 4(c)(3)(iii) allows the sending of unsolicited e-mails. make a valid observation when they point out in their motions for reconsideration that contrary to the holding of the majority. 56 This situation would impede the robust exchange of ideas as well as the speedy flow of information and communication. It is precisely so that recipients of unsolicited commercial communications can prevent the congestion of their e-mail accounts that the provision requires that recipients of unsolicited commercial communications be allowed to opt out under Section 4(c)(3)(iii). the assailed provision seeks to prevent malicious attacks done through the sending of e-mails. since the majority had proceeded to review Section 4(c)(3). online transmission of unsolicited commercial communications is not of the same level as unsolicited advertisements by mail. However. and (c) 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. let me now explain my position on the matter. ordinary mail advertisements are not as voluminous while e-mail ads can be so voluminous that they interfere with an e-mail user’s enjoyment of his e-mail account.55 We can thus imagine a situation in which an e-mail account reaches its storage capacity. as these e-mails are "bounced" back to the senders.Validity of regulating unsolicited commercial communications under Section 4(c)(3)."53 Here. an attacker intentionally sends large volumes of e-mail to a single address in an effort to overwhelm the mail server and degrade the communication system by making it unserviceable. Petitioners Cruz et al.52 Firstly. I fully agree with the opinion of Justice Roberto Abad that commercial speech should be protected even if it does not enjoy the same level of protection as other categories of free speech and expression. first. which the victim cannot opt out from. However. as it prevents other users who are using the same server from accessing their e-mails. provided that the following conditions are present: (a) the commercial electronic communication contains a simple.. thereby preventing the account holder from receiving legitimate mails. (b) the commercial electronic communication does not purposely disguise the source of the electronic message. without delving into the merits of petitioners’ arguments. valid. Additionally. I have previously found the petitions questioning Section 4(c)(3) dismissible because of a failure to establish that a pre-enforcement judicial review thereof was warranted. Indeed. and reliable way for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source. because the said petitions are dismissible per se.

Thus. unlike ordinary mail commercial communications can be used for another form of attack called "phishing. the government. as petitioners pointed out. and a link is provided to check his or her balance. a known company. or even from a contact whose email account has been "hacked. where the user gets an e-mail that prompts him or her to follow a link given in the e-mail. Such harmful conduct may interfere with a user’s enjoyment of his e-mail and consequently of his legitimate exercise of his fundamental rights that e-mail facilitates.60 It is said that phishing is typically executed as follows:61 A successful phishing attack deceives and convinces users with fake technical content and social engineering practices. Hence. financial. and other confidential information."57 It is an internet scam done by offering enticing deals or false statements (such as winning a cash prize). . Or the e-mail may contain a link to perform a security check on the user’s account.Secondly. The e-mail may contain a message stating that a particular transaction has taken place on the user’s account. I respectfully disagree with the facial invalidation of Section 4(c)(3) and hold that it is not unconstitutional. though the e-mail says otherwise. This link leads to a phishing Web site. Section 4(c)(3) is valid because it seeks to regulate a potentially harmful conduct. and has emerged as an effective method of stealing personal and confidential data of users.58 The message used for phishing may appear to be coming from a department store. a bank."59 Phishing can attack millions of e-mail addresses around the world. unsolicited e-mail commercial communications. Most phishing attacks are initiated through e-mails. aimed at tricking users into disclosing their personal.