REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
MANILA, BRANCH _______

People of the Philippines,

Plaintiff, Criminal Case No. 82693
-versus- For: Violation of R.A. 10175
(Cybercrime Prevention Act
Kurl Louis A. Aldueza, Jessa Cris R. Sumapid, of 2012)
Tony Rey Y. Dichoso, Tamara Joy S. Carandang
Julie Ann A. Verzo, Paolo G. Batitis, Dixie Zapanta,
John Ryan Alcos (Individual Bloggers)
Accused.
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MEMORANDUM

Accused “INDIVIDUAL BLOGGERS”, thru the undersigned counsel, unto this

Honorable Court, respectfully avers the following:

STATEMENT OF THE CASE

1. This is a case of a violation of the Anti-Cyber Crime Act filed by the NBI against the
individual bloggers of the Arellano Law Students upon its investigation ordered by the
Department of Justice upon finding malicious statements, liking, sharing or reposting of
the hacked post of the Canuck Chief’s website.

2. On May 10, 2020, plaintiff filed a Complaint for ________ against herein defendant.

3. On May 18, 2020, defendant received summons issued by the Honorable Court to file an
answer.

4. On May 28, 2020, defendant filed an answer against the plaintiff.

5. On June 5, 2020, a preliminary conference was held in the presence of plaintiff,

defendant and their respective counsels.

6. Accordingly after presentation of the pieces of evidence, the Honorable Court ordered
the parties to submit their respective Memoranda on or before June 20, 2020, otherwise the
case is deemed submitted for decision.
 STATEMENT OF THE FACTS

7. Arellano Law Alumni in Canada (ALAC) is an association of graduates of Arellano

University School of Law (AUSL) based in Canada. ALAC owns and administers a website
under the name “Canuck Chiefs”.
8. Being exposed in a more liberal society, “Canuck Chiefs” posted blogs in their website
and FB home page expressing their support for the divorce bill now pending in the
Philippine Congress.

9. The website of Arellano University School of Law (AUSL) was allegedly hacked for 48
hours by Noah Lagundi, prinicipal website manager of Arellano Law Alumni in Canada’s
website called “Canuck Chiefs”. He posted in AUSL’s website a pro-divorce statement
which appeared to be an official statement of AUSL.

10. Upon learning of the hacking, different student organizations of AUSL posted blogs and
comments, sent messages (via SMS), images and videos(via social media), opposing the
divorce bill, protesting Canuck Chief’s act of hacking, explaining that Canuck Chief’s
website and FB account were fake, and saying that divorce is against their beliefs.

11. In an attempt to control the situation, the officers of the Arellano Law Student
Government (ALSG) put up an information campaign against Canuck Chiefs on television,
radio, social media and other platforms. They instructed all students, alumni, school
officials and employees, sympathizers to post blogs and comments against the divorce bill
in the website of Canuck Chiefs at exactly 3 p.m., Philippine time, on May 8, 2020.

12. The simultaneous hits caused the Canuck Chief’s website to crash, prompting the
Department of Justice to conduct an investigation and ordered the National Bureau of
Investigation (NBI) to conduct an investigation.

13. Consequently, NBI seized in real time the social media conversations, and blocked the
computer data. Upon finding a prima facie violation of the Anti-Cybercrime Act, instituted
the appropriate criminal action against the bloggers who posted malicious comments
and/or liked, reposted or shared the various posts in the internet, herein defendants.

STATEMENT OF THE ISSUES

14. Whether or not the statements made by the bloggers were in the exercise of freedom of
expression.

15. Whether or not NBI’s seizure of computer data is a valid restraint of speech.

16. Whether or not the acts of the bloggers (i.e. liking, sharing, and/or reposting) were in
violation of the Anti-Cyber Crime Law.
 ARGUMENTS AND DISCUSSION

I. The statements made by the individual bloggers are in the exercise of freedom of
expression.

17. The blogs and comments made by the AUSL students and organizations were covered
by the freedom of expression safeguarded by the Constitution.

xxx The right to freedom of expression, thus, apply to the entire

continuum of speech from utterances made to conduct enacted,
and even to inaction itself as a symbolic manner of
communication. Freedom of speech includes the right to be
silent. The Bill of Rights that guarantees to the individual the
liberty to utter what is in his mind also guarantees to him the
liberty not to utter what (is or) is not in his mind. xxx (Diocese of
Bacolod vs. Comelec (GR 205728, 21 Jan 2015)

18. The NBI contends that speeches are made from words or phrases of an individual and
that it will not cover comments and statements on internet blogs. However, the law
recognizes the Internet/Wikipedia as the Fifth Estate to wit:

xxx The scope of freedom of expression is so broad that it

extends protection to nearly all forms of communication. It
protects speech, print and assembly regarding secular as well as
political causes, and is not confined to any particular field of
human interest. The protection covers myriad matters of public
interest or concern embracing all issues, about which
information is needed or appropriate, so as to enable members of
society to cope with the exigencies of their period. The
constitutional protection assures the broadest possible exercise of
free speech and free press for religious, political, economic,
scientific, news, or informational ends, inasmuch as the
Constitution’s basic guarantee of freedom to advocate ideas is
not confined to the expression of ideas that are conventional or
shared by a majority.

The constitutional protection is not limited to the exposition of

ideas. The protection afforded free speech extends to speech or
publications that are entertaining as well as instructive or
informative. Specifically, in Eastern Broadcasting Corporation
(DYRE) v. Dans,41 this Court stated that all forms of media,
whether print or broadcast, are entitled to the broad protection of
the clause on freedom of speech and of expression. xxx (Chavez
v. Gonzales, G.R. No. 168338, February 15, 2008)

II. The act of seizure of the NBI in an invalid restraint of speech and expression
19. The act of seizure by the NBI of the computer data is invalid because a warrant is
necessary for such seizure. Pertinent provisions of A.M. No. 17-11-03-SC states that:

A Warrant to Search, Seize and Examine Computer Data

(WSSECD) is an order in writing issued in the name of the
People of the Philippines, signed by a judge, upon application of
law enforcement authorities, authorizing the latter to search the
particular place for items to be seized and/ or examined. (Section
6.1 of A.M. No. 17-11-03-SC)

The verified application for a WSSECD, as well as the

supporting affidavits, shall state the essential facts similar to
those in Section 4.3 of this Rule, except that the subject matter is
the computer data sought to be searched, seized, and examined,
and all other items related thereto. In addition, the application
shall contain an explanation of the search and seizure strategy to
be implemented, including a projection of whether or not an off-
site or on-site search will be conducted, taking into account the
nature of the computer data involved, the computer or computer
system's security features, and/or other relevant circumstances,
if such information is available. (Section 6.2 of A.M. No. 17-11-
03-SC)

If the judge is satisfied that there is probable cause to believe that

the facts upon which the application for WSSECD exists, he
shall issue the WSSECD, which must be substantially in the
form prescribed under "Annex C" of this Rule. (Section 6.3 of
A.M. No. 17-11-03-SC)

20. The NBI contends that it is not within the bounds of the rules of procedure under the
Rules of Court, the detection, investigation, and prosecution of cybercrime offenses
necessitate a rule of procedure especially for the application, issuance and implementation
of court warrants technically suited to the nature of cybercrime offenses. Hence, AM
supplements the existing Rules of Criminal Procedure as clearly stated in Section 1.3 of
A.M. No. 17-11-03-SC, which provisions shall continue to govern the preliminary
investigation and all stages of prosecution of criminal actions involving violations of RA
10175, including all crimes defined and penalized under by the Revised Penal Code, as
amended, and special laws, committed by, through and with the use of information and
communications technologies.

23. The seizure of the NBI is violative of the freedom of speech and expression as a content
based regulation, it unduly curtails expression because it seized the computer data after it
is published which creates a chilling effect of fear of subsequent punishment.
 xxx Their right to discuss matters affecting their welfare or
involving public interest is not subject to be subjected to prior
restraint or subsequent punishment unless there is clear and
present danger. Malabanan vs. Ramento. , (GR L-62270, 21 May
1984)

21. The statements made by the AUSL bloggers will not pass the clear and present danger
test because the same are based on their beliefs. It is considered as core speech because the
statements communicate political, social and religious ideas. There is no evil in the subject
statements.

A content-based regulation bears a heavy presumption of

invalidity and is measured against the clear and present danger
rule. Under this rule, the evil consequences sought to be
prevented must be substantive, “extremely serious and the degree
of imminence extremely high. (Diocese of Bacolod vs. Comelec
GR 205728, 21 Jan 2015)

22. If the court treat this as content – neutral regulation, it will not pass the intermediate
scrutiny test. Under the O’Brien Test, the government regulation is valid when:

1. It is within the constitutional power of the government.

2. Purpose is an important or substantial government interest.
3. Government interest is unrelated to suppression of free
speech.
4. The incidental restriction on free speech is no greater than is
essential to the furtherance of said state interest. Diocese
of Bacolod vs. Comelec GR 205728, 21 Jan 2015

The regulation made is not within the power of the government because there is an
unreasonable search and seizure made by the NBI since there is no warrant of seizure
contemplated under A.M. No. 17-11-03-SC Cyber Crime Warrant. The purpose of the
seizure is not of important or substantial interest for the government to protect since the
crashing of the website only affects the Canucks Chief and the Arellano University School
of law. The NBI’s act of regulation suppressed the free speech and it will create a chilling
effect that would affect other students who wants to voice out their belief against divorce.
The restriction does not make furtherance to any state interest.

III. There is no violation of Anti – Cyber Crime Law

23. There is no libel because the statements are not malicious. The students of AUSL only
stated what their beliefs are— that they are against divorce, but they did not gave
malicious statements which tends to cause dishonor, discredit or contempt against AUSL or
the Canucks Chiefs. The elements of libel are under Revised Penal Code Art. 353 to 355 to
wit:
 1. Imputation of a wrong against another person.
2. Publication of the imputation.
3. Person defamed is unidentifiable by a third person
4. With malice, bad faith (no good faith or good motive)

24. The statements made by the AUSL students and organizations are covered under the
Doctrine of Fair Comment being a privilege communication because divorce is a public
concern.

Fair Comment is a privileged communication to criticize and

comment on matters of public interest without being liable for
defamation or libel provided that the comment is an honest
expression of opinion and free of malice. (Republic Real Estate
Corp., vs. Jimenez-David; GR 134677)

25. The sharing, liking or reposting of the post of the AUSL Website does not fall within
any violation in the Anti – Cyber Crime Law. It does not come under the “aiding or
abetting to commit” violation of the law since it was already declared unconstitutional.

xxx Although Section 5 (a) of RA 10175 was declared valid

insofar as authors of libelous statements are concerned, it is
invalid insofar as persons “aiding and abetting”, and
“attempting” in the commission of libel as constituting
cybercrime for being overbroad. It penalizes those who merely
react to the original post. In the cyberworld, there are many
actors. If the post is made available to the public, meaning to
everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of
preferences on the program screen such as “Like”, “Comment”
or “Share”. On Twitter, a user has “Followers” enabling the
subscriber to read the user’s posts. These actors, who merely
reacted to the alleged defamatory statement or article, were not
the authors of the statements posted in social media. The old
parameters for enforcing the traditional form of libel would be a
square peg in a round hole when applied to cyberspace libel.
Unless Congress crafts a cyber libel law that takes into account
its unique circumstances and culture, such law will tend to
create a chilling effect on the millions that use that use this new
medium of communication in violation of their constitutionally
guaranteed right to freedom of expression. xxx (Disini vs .
Secretary of Justice, GR 203335)

CLOSING STATEMENT
26. The AUSL Bloggers did not violate any of the provisions of the Anti-Cybercrime Law
by sharing, liking and reposting the articles nor when they posted their statements and
beliefs as it falls under the valid exercise of freedom of expression.

Freedom of expression is a fundamental and basic right guaranteed and protected by the
Constitution.

And granting, for the sake of argument, that the AUSL bloggers did post malicious
statements, the act of the NBI of searching and seizing computer data and information
without a valid search warrant is illegal, rendering the seized data inadmissible in evidence
as against them.

PRAYER

WHEREFORE premises considered, the defendant respectfully prays that the

complaint be dismissed with costs against the plaintiff.

Other relief and remedies as may be deemed just and equitable under the premises
are likewise prayed for.

RESPECTFULLY SUBMITTED.

City of Manila, June 9, 2020.

Alyza Mae V. Alvarez

Julienne A. Argosino
Jemaruh A. Cajuday
Raphael Anton Gabriel S. Dalida
Mark Angelo S. Enriquez
Joelyn Marie G. Gamboa
Earl Kevin H. Peralta
Edvangeline M. Rodriguez