The Cybercrime Prevention Law: Initial Discussion on Legal and Political Implications
by Atty. James Mark Terry Ridon
National President and General Counsel, Kabataan Partylist
While RA No. 10175 makes clear mention of libel related to Art. 355 of the Revised Penal Code and committed through computer systems (Sec. 4(c)4), there is 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 be committed, nor punishment imposed without a pre-existing penal law.
Contingent upon the existence of a penal law is the definition of the particular penalty imposable on the criminal offense defined.
In the Chapter on Penalties in RA No. 10175, no express mention is made on the specific penalty imposable on Libel as defined in the law.
Thus, it is reasonable to assume that while the crime of libel committed through a computer system exists under the law, no person can or should ever be penalized on the mere commission of libel through a computer system under Sec. 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 in fact commit libel through a computer system, i.e. actual writing of libelous material through a computer system.
However, it is debatable whether such protection due a gap in the law would apply to published online articles, which may or may not contain libelous material.
As such, what is most bothersome to civil libertarians and online writers is the catch-all provision under Sec. 6, in which all offenses defined under the Revised Penal Code and special laws committed through information and communications technologies shall be imposed with a penalty one degree higher than that provided in the Code and special laws.
Under this provision, the use of information and communications technologies to commit crimes under the RPC and special laws is considered a special aggravating circumstance, which does not only increase the penalty to its maximum period as other special aggravating circumstances, but increases the penalty one degree higher, akin to a qualifying aggravating circumstance.
As information and communications technologies had been vaguely defined in the law, it can be assumed that such ICT includes all platforms by which information is communicated online – blogs, websites, social networking sites.
Thus, all content in such platforms which may contain libelous material may now be subject to a criminal suit one degree higher than the penalty imposed on libel under the RPC.
This is a path to the wrong direction at a time when the Supreme Court had already made clear steps towards the decriminalization of libel, by making preferences on fines instead of prison terms.
By imposing a penalty one degree higher than what had been stated in the RPC on libel, longer prison terms are guaranteed for persons found to have published or posted material containing libelous remarks online.
The new law is thus a threat to the constitutional freedoms of the press and expression.
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 prision mayor.
As many of the employed youth are now working in industries in which they are utilizing computers systems, it is feared that this provision may be exploited by unscrupulous employers to further control and restrict the rights of employees in their workplaces.
For merely accessing internet sites for personal use on work time, the employee may be subjected to termination and criminal prosecution, on the basis that such access is deemed illegal access punishable under the law.
DUE PROCESS ISSUES
The law may be treading upon unconstitutional waters on the powers being granted 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 the preservation, disclosure, search and seizure and destruction of computer data is unclear.
In the provision preservation of content, while a court order is required for the preservation of content, the one-time six-month extension of such preservation order does not require another court order.
As the preservation of data is akin to the garnishment of personal property or an asset preservation order in civil forfeiture proceedings in which the free use and disposition of private property is restricted, the six-month extension cannot be left to the mere volition of law enforcement authorities.
A due process issue may thus arise from this provision.
On the other hand, the power to compel the disclosure of computer data through an order has been granted to law enforcement authorities.
Although the law requires the issuance of a court warrant prior to such order, the nature of such court warrant is unclear. This is due to the fact that instead of the order to disclose arising from such court order or warrant, it is the law enforcement authorities that are imposing the order to disclose information.
This may be a violation of the constitutional rights to privacy and due process, as only the courts can compel, through an order, the production or disclosure of information regularly within the ambit of the right to privacy.
Search and Seizure Order
As to search and seizure, the procedure state in the law does not follow the constitutional, statutory and jurisprudential standards and doctrines on the conduct of search and seizure of private property.
There is no mention on the conduct of accounting on the property seized, nor does the law require the presence of the persons owning such property to be seized, among others persons who must be present during the conduct of search and seizure operations.
The law states that upon the expiration periods provided in the law, computer data subject to preservation and examination shall be destroyed.
This is a dangerous provision that allows the taking and destruction of private property without a determination whether such property are proceeds or instruments or related to a criminal act to merit continuing seizure and eventual destruction.
Without qualification, all computer data that had been subject to preservation and examination orders may be summarily destroyed instead of being returned to the owners, regardless of whether such computer data are not proceeds, instruments or related to a criminal act.
Due process will again be prejudiced by this provision.