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JOSE JESUS M. DISINI, JR., ET AL. v.

THE SECRETARY OF sanctions against double jeopardy, undue delegation of


JUSTICE, ET AL., legislative authority and the right against unreasonable
G.R. No. 203335, FEBRUARY 18, 2014 searches and seizure;
o • Sections 6 and 7 of the Cybercrime
Constitutional law; Unsolicited commercial communications, Act more than doubles the liability for
also known as “spam” is entitled to protection under freedom of imprisonment for any violation of existing penal
expression. To prohibit the transmission of unsolicited ads would deny laws are in violation of the petitioners’ right
a person the right to read his emails, even unsolicited commercial ads against Double Jeopardy;
addressed to him. Commercial speech is a separate category of o • Section 12 of the Cybercrime Act,
speech which is not accorded the same level of protection as that which permits the NBI and the PNP “with due
given to other constitutionally guaranteed forms of expression but is cause” to engage in real time collection of traffic
nonetheless entitled to protection. The State cannot rob him of this data without the benefit of the intervention of a
right without violating the constitutionally guaranteed freedom of judge, violates the Petitioners’ Constitutionally-
expression. Unsolicited advertisements are legitimate forms of protected right to be free from unreasonable
expression. searches and seizure as well as the right to the
Criminal law; Cyberlibel under Section 4(c)(4) of the privacy of communications;
Cybercrime Law is constitutional. The Court agrees with the Solicitor o • Section 19 of the Cybercrime Act, which
General that libel is not a constitutionally protected speech and that authorizes the Respondent Secretary of DOJ to
the government has an obligation to protect private individuals from block or restrict access to any content upon
defamation. Indeed, cyberlibel is actually not a new crime since Article a prima facie finding that the same violates the
353, in relation to Article 355 of the Penal Code, already punishes it. law, contains an undue delegation of legislative
In effect, Section 4(c)(4) above merely affirms that online defamation authority, infringes upon the judicial power of the
constitutes “similar means” for committing libel. But the Court’s judiciary, and violates the Petitioners’
acquiescence goes only insofar as the cybercrime law penalizes the Constitutionally-protected right to due
author of the libelous statement or article. Cyberlibel brings with it process and freedom of expression; and
certain intricacies, unheard of when the Penal Code provisions on libel o • Section 4(c)(4) defines libel as a cybercrime and
were enacted. The culture associated with internet media is distinct in relation to Section 6 of the law increased the
from that of print. penalty from 6 months to 4 years and 2 months
Criminal law; Section 5 of the Cybercrime Law that punishes to the greater period of 6 years to 10 years,
“aiding or abetting” libel on the cyberspace is a nullity. The terms infringes upon the right to freedom of expression
“aiding or abetting” constitute broad sweep that generates chilling and also restricts the freedom of the press. Under
effect on those who express themselves through cyberspace posts, Section 12, a prima facie finding by the Secretary
comments, and other messages. Its vagueness raises apprehension on of DOJ can trigger an order directed at service
the part of internet users because of its obvious chilling effect on the providers to block access to the said material
freedom of expression, especially since the crime of aiding or abetting without the benefit of a trial or a conviction. Thus,
ensnares all the actors in the cyberspace front in a fuzzy way. What is RA 10175 infringes upon the right to freedom of
more, as the petitioners point out, formal crimes such as libel are not expression and also restricts the freedom of the
punishable unless consummated. In the absence of legislation tracing press. The increased penalties, plus the ease by
the interaction of netizens and their level of responsibility such as in which allegedly libelous materials can be removed
other countries, Section 5, in relation to Section 4(c)(4) on Libel, from access, work together as a “chilling effect”
Section 4(c)(3) on Unsolicited Commercial Communications, and upon protected speech.
Section 4(c)(2) on Child Pornography, cannot stand scrutiny. 2. No other plain, speedy, or adequate remedy in the court of
law, and that this Petition is therefore cognizable by the SC’s
FACTS: judicial power under Article VIII, Section 1 par. 2 of the
Petitioners Jose Jesus M. Disini, Jr., Rowena S. Disini, Lianne Constitution and pursuant to Rule 65, Sec. 1 of the 1997
Ivy P. Medina, Janette Toral and Ernesto Sonido, Jr., as taxpayers, file Rules of Civil Procedure, as amended.
a Petition for Certiorari and Prohibition under Rule 65 of the 1997
Rules of Civil Procedure, the petitioners seek to 1) nullify Sections ARGUMENTS/DISCUSSIONS:
4(c)(4), 6, 7, 12 and 19 of RA 10175, otherwise known as the 1. The Cybercrime Act Violates Free Speech:
“Cybercrime Prevention Act of 2012” for violating the fundamental o • imposes heavier penalties for online libel than
rights protected under the Constitution; and 2) prohibit the paper-based libel; single act of online libel will
Respondents, singly and collectively, from enforcing the afore- result in two convictions penalized separately
mentioned provisions of the Cybercrime Act. under the RP and the Cybercrime Act;
Named as Respondents are the Secretary of Justice, the o online libel under the Cybercrime Act will ensure
Secretary of the Interior and Local Government, the Executive Director the imprisonment of the accused and for a much
of the Information Communications Technology Office, the Chief of the longer period. Such changes will result in a chilling
Philippine National Police, and the Director of the National Bureau of effect upon the freedom of speech;
Investigation. o • with the passage of the Cybercrime Act, Senator
Vicente Sotto III’s earlier threat to criminally
ISSUES/GROUNDS: prosecute all bloggers and internet users who
1. Sections 4(c)(4), 6, 7, 12 and 19 of The Cybercrime Act were critical of his alleged plagiarism of online
violate the petitioners’ constitutionally protected rights to materials for use in his speech against the
freedom of expression, due process, equal protection, Reproductive Health Bill became real; threat of
privacy of communications, as well as the Constitutional criminal prosecution under RA 10175 will work to
preclude people such as Petitioners from posting o To consider that all penal provisions in all specials
social commentaries online, thus creating a laws are cybercrimes under Section 6, it • follows
“chilling effect” upon the freedom of expression; that:
o • gives the DOJ Secretary blanket authority to 1. Complaints filed by intellectual property
restrain and block access to content whether rights owners may be acted upon the
authored by private citizens or the organized press Respondent DOJ Secretary to block
sans any hearing of any kind but merely upon a access to websites and content upon a
mere prima facie showing that a particular mere prima facie showing of an
Internet article constitutes online libel; infringement;
o • respondents must demonstrate how the 2. Foreign sites (e.g. Amazon.com)
Cybercrime Act will fare under strict scrutiny offering goods on retail to Philippine
2. Sections 6 and 7 of the Cybercrime Act violate the Double citizens may be blocked for violating the
Jeopardy and Equal Protection Clauses of the Constitution: Retail Trade Law;
o • Persons who commit crimes using information 3. Foreign service providers such
and communication technologies (ICTs) face the as Skype may be blocked from offering
possibility of being imprisoned more than double voice services without securing a license
the imprisonment laid down in the RPC or special from the National Telecommunications
law, simply by the passage of the Cybercrime Act; Communication;
o • the cybercrimes defined and punished under 4. YouTube video may be blocked for
Section 6 of the Act are absolutely identical to the presumably violating the IP Code.
crimes defined in the RPC and special laws which o • The Cybercrime Act fails the two tests laid down
raises the possibility that an accused will be by the Court in Abakada Guro Party List v.
punished twice for the same offense in violation of Purisima (GR No. 166715) to determine the
the Constitution; validity of delegation of legislative power: (1) the
o • Congress created a class of offenders who completeness test and (2) the sufficient standard
commit crimes “by, through or with the use” of test
ICTs in violation of the equal protection clause 1. Nowhere in the Cybercrime Act’s
3. The Real Time Collection of Traffic Date Violate the Right declaration of policy does it lay down
to Privacy and the Right Against Unreasonable the legislative policy with respect to the
Searches and Seizure: blocking of content. No limits upon the
o • No compelling state interest that justifies real takedown power of the respondent DOJ
time collection of data; the authority vested on the Secretary;
Philippine National Police and the National Bureau 2. Prima facie standard is not enough to
of Investigation to collect data is not bounded by prevent the DOJ Secretary from
any reasonable standard except “due cause” exercising infinite discretion and
which presumably, the PNP and NBI will determine becoming the supreme authority in the
for itself; Philippine Internet landscape.
o • While the privacy of suspected terrorists, PRAYER:
through the Human Security Act, are protected by 1. Declare null and void, for being unconstitutional, Sections
the intervention of the Court of Appeals 4(c)(4), 6, 7, 12 and 19 of RA 10175;
before surveillance operations are conducted, 2. Prohibit all Respondents from implementing Sections 4(c)(4),
the privacy of all citizens may be infringed without 6, 7, 12 and 19 of RA 10175;
judicial participation in the Cybercrime Act; 3. Issue a TRO enjoining the Respondents from implementing
o • Neither the PNP nor the NBI is required to justify Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175; and
the incursion into the right to privacy; 4. Issue other reliefs, just and equitable in the premises.
o No limits imposed upon the PNP or the NBI since 5. The Supreme Court on Tuesday, February 18, upheld as
they can lawfully collect traffic data at all times constitutional most provisions of Republic Act 10175 or the
without interruption; Cybercrime Law, including online libel – subject to one
o • No stated justification for this warrant-free condition.
unlimited incursion into the privacy of citizens 6. The High Court also struck down a provision of the law that
4. The Respondent DOJ Secretary’s Take Down Authority under gives the state the power to take down online content
Section 19 of the Cybercrime Act violates Due Process and without a court warrant.
is an Undue Delegation of Legislative Authority 7. Seeking to strike a balance between fundamental freedoms
o • The DOJ Secretary’s overwhelming powers to and government control, the High Court decided on the
order the restriction or blocking of access to constitutionality of Republic Act 10175 a little over a year
certain content upon a mere prima facie finding afteroral arguments were heard on Jan 15, 2013.
without any need for a judicial determination is in 8. Among the hotly-debated issues during the oral arguments
clear violation of petitioners’ Constitutionally was the law's provision on online libel. (READ: 'Libel gone is
protected right to due process; best-case scenario for SC cybercime ruling')
o • The Cybercrime Act contemplates that the 9. The Supreme Court decision, penned by Justice Roberto
respondent DOJ Secretary will be “judge, jury and Abad, ruled online libel to be constitutional but with an
executioner” of all cybercrime-related complaints; exception – that is, in cases where it covers persons other
than the original author. Recipients of, and netizens who
react to a potentially defamatory post, will not be covered by
online libel.

Unconstitutional provisions
Three provisions were voted down as categorically unconstitutional:
 Section 4 (c)(3) which pertains to unsolicited commercial
communications
 Section 12 which pertains to real-time collection of traffic
data
 Section 19 which pertains to restricting or blocking access to
computer data
The SC decided that Section 19 – granting power to the
Department of Justice (DOJ) to restrict computer data on the basis
of prima facie or initially observed evidence – was not in keeping with
the Constitution. The said automatic take-down clause is found in
Section 19 of the cybercrime law.
Even the SOLICITOR General, in his defense of RA 10175,
admitted before the SC that Section 19 is "constitutionally
impermissible, because it permits a form of final restraint on speech
without prior judicial determination."
Section 12 would have allowed law enforcement authorities with due
cause to collect or record by technical or electronic means "traffic
data" in real time.
Section 4 (c)(3) of the law says that "the transmission of
commercial electronic communication with the use of computer system
which seek to advertise, sell, or offer for sale products and services are
prohibited" unless certain conditions – such as prior affirmative
consent from the recipient – are met. This was ruled unconstitutional.
A separability clause contained in Section 29, Chapter VIII of the law
allows the rest of the law to "remain in full force and effect" even if
certain provisions are held invalid.

Nuances in other provisions


 Three other provisions were not struck down and remain in
the law, but they will not apply in certain cases as decided
by the SC. Among these provisions is online libel, which is
constitutional as far as the original author is concerned.
 Section 5, which pertains to aiding or abetting the
commission of a cybercrime and to the attempt to commit a
cybercrime, was declared unconstitutional only in the
following cases: child pornography, unsolicited commercial
communications (or spam), and online libel. Section 5 will
apply to all other cybercrimes outlined in the law.
 National Bureau of Investigation (NBI) Cybercrime Division
Chief Ronald Aguto explained to Rappler that it will also be
hard for both law enforcement and the prosecution to prove
the "attempt to commit a cybercrime."
 Aiding a nd abetting the commission of a cybercrime, he
added, might unduly cover certain players in the online
industry.
 Section 7, which pertains to liability of a cyber criminal under
other laws, was declared unconstitutional only in the
following cases: online libel and child pornography.
 The SC cited the guarantee against double jeopardy or being
punished more than once for the same offense – a
guarantee outlined in the Constitution – in deciding on
Section 7.
 Libel is punishable by Article 353 of the Revised Penal Code,
while child pornography is punishable by RA 9775 or the
Anti-Child Pornography Act
 A person convicted of libel or child pornography can only be
punished once, under the coverage of a single law.