Tag Archives: Philippines Revised Penal Code

[Statement] Statement on the Cybercrime Prevention Act of 2012-CLRD

Statement on the Cybercrime Prevention Act of 2012

The Philippines is again faced with another hasty legislation, the Cybercrime Prevention Act of 2012 (R.A. 10175), passed with the speed of light, should be given not just a closer look but a downreaching scrutiny. A perusal of the law would warrant a declaration of unconstitutionality for the fact that it curtails basic constitutional rights not only of children but of everyone else who utilizes the cyberspace to connect with the world. The said law also runs against the principle of separation of powers.

For Children’s Legal Rights and Development Center (CLRDC) Inc., the law in question obviously infringes on many constitutionally guaranteed rights and principles specifically on the following:

1. It curbs not only one’s right to freedom of expression, speech and press, let alone one’s right to privacy. This pertains to Section 12 of the said law, which actually allows authorities to “collect or record by technical or electronic means” communications transmitted through a computer system”. Authorities can now have access to personal data, listen or record private conversations and correspondences even without a warrant.

Section 12 contravenes the very essence of Art. III (Bill of Rights) of the 1987 Constitution, particularly Sections 3 (1) on inviolability of privacy of communication, and 4 on freedom of speech, of expression, of the press, and peaceful assembly.

2. This law also criminalizes cyber libel which can be prosecuted apart from that of the traditional libel punishable under the Revised Penal Code, therefore violating the ne bis in idem principle under the general principle of international law or the rule on double jeopardy.

3. A violation of the separation of powers can also be gleaned from the law which gives the Department of Justice much jurisdiction on restricting or blocking access to computer without prior judicial determination for as long as there is prima facie evidence that said computer was used in the commission of any of the prohibited acts under it. This clearly is a function, a power exclusive to the courts and not to the executive. To encroach upon a co-equal branch’s power is not only a violation of the separation of powers but a violation of one’s right to due process.

4. The said law also exhibits vagueness particularly when it comes to the Regional Trial Court’s (RTC) jurisdiction over the acts committed in violation of the former. How can jurisdiction be determined considering that the World Wide Web or internet is so far reaching that it can even be used outside the Philippine jurisdiction. More so, how are we to determine an act that is in violation of the law from that of a casual or ordinary conversation not to mention that a mere posting of libelous comments on social media appears also to be punishable.

No right is absolute indeed but it is also guaranteed by our very Constitution that no person shall be deprived of his or her right to life, liberty and property with out due process of law and under this instance, under this law, due process is not complied with, thus it should be declared unconstitutional.

In the Philippines, there are still many crimes that needs more attention like enforced disappearance, torture, extra-legal killings, human trafficking – – these are non-derogable rights that should not be relegated to the sidelines and must be looked into. The enactment of RA 101275 reflects the government’s alleged inattention and apathy to the reigning culture of impunity, the reason why disappearance, torture, trafficking, extra-legal killings remain unbridled and no perpetrators are brought to justice, so to speak.

We call on our fellow rights defenders to remain vigilant as we call on our government to respect constitutionally guaranteed rights and repeal RA 10175.

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[Statement] Republic Act No. 10175: legislating “one (1) degree higher” for impunity -PAHRA

Republic Act No. 10175: legislating “one (1) degree higher” for impunity

Our human right to the freedom of information
has not yet been made justiciable,
already a law is readied to curtail
our human right to the freedom of expression.

Republic Act No. 10175 –

AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES –

was drafted, discussed, signed into law with all the good intentions to decisively stop the “perpetuation of licentiousness” ( Petition for Certioriari by members of the Ateneo Human Rights Center or AHRC Petition) and other harmful acts perpetrated within the cyber communities and affecting as well millions of Filipino users of the internet. R.A. No. 10175 was to take into effect last October 3, 2012.

The Philippine Alliance of Human Rights Advocates (PAHRA) “like” / agree with the AHRC Petition arguing that singularly and / or collectively the following provisions in R.A. 10175, as they transgress the …Bill of Rights in Article III of the 1987 Constitution of the Philippines, are

“unconstitutional”:

Chapter II: Punishable Acts

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act: xxxxxxx

(4) Libel. – The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

SEC. 5. Other Offenses. – The following acts shall also constitute an offense:

(a) Aiding or abetting in the Commission of Cybercrime. – Any person who wilfully aids or abets in the commission of any of the offenses enumerated in this Act shall be liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

SEC. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

SEC. 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data

The above provisions are also non-compliant with the International Covenant on Civil and Political Rights (ICCPR) which was ratified by President Corazon Aquino and signed recently by President Benigno S. Aquino III, ironically, days before the 40th anniversary of the imposition of Martial Law which violently suppressed, among other human rights, the freedoms of information and of expression.

Furthermore, in relation to the issue of libel, the U.N. Human Rights Committee states in General Comment No. 34 (2011): “States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.”

Even as early as January 24 Senate Session when Senator Vicente Sotto inserted the libel clause, provisions have been made to lodge within the said law that if implemented would be like viruses for impunity. Unwittingly or otherwise, congress has legislated

“one (1) degree higher” for impunity.

One person too many, after exercising one’s freedom of expression, have been a victim of vilification and later became a subject of extra-judicial killing or enforced disappearance or torture. Human rights defenders in exposing also through cyber bulletin boards the anomalies and abuses done by government and / or security forces officials are often harassed and criminalize, as in the case of Cocoy Tulawie. The objectionable provisions, despite protestation to the contrary, can be used to legitimize violations.

If not amended of the objectionable provisions, those directly responsible for the passage of R.A. 10175 will be held also accountable for the human rights violations and criminal acts done in its name.

PAHRA unites with all those petitioners who call on the responsibles of the Executive and Legislative Branches of Government, as well as the Supreme Court, to:

1. Facilitate the issuance of a Temporary Restraining Order to desist in implementing R.A. No. 10175;

2. Schedule a Department of Justice public hearing and input its results in the Oral Arguments before the Supreme Court;

3. Amend or declare null and void Sections 4 (4), 5, 6, 7 and 19 of R.A. No. 10175.
October 8, 2012

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[From the web] ‘Cybercrime’ law threatens free speech and must be reviewed | Amnesty International

Philippines: ‘Cybercrime’ law threatens free speech and must be reviewed | Amnesty International.

October 4, 2012

A new ‘cybercrime’ law in the Philippines poses serious risks to freedom of expression and must be reviewed, Amnesty International said.

Under the new law, known as the Cybercrime Prevention Act of 2012 (Republic Act No. 101750), a person could be sentenced to 12 years imprisonment for posting online comments judged to be libellous.

“The ‘cybercrime’ law rolls back protections for free speech in the Philippines. Under this law, a peaceful posting on the Internet could result in a prison sentence,” said Isabelle Arradon, deputy Asia director at Amnesty International.

The law, which came into effect on Wednesday, broadly extends criminal libel (defined in the Philippines as the public and malicious imputation of a discreditable act that tends to discredit or dishonour another person and which currently exists under the Revised Penal Code) to apply to acts “committed through a computer system or any other similar means which may be devised in the future”.

It also increases the criminal penalties for libel in computer-related cases.

Read full article @ www.amnesty.org

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[In the news] Petitions vs cybercrime law continue to flood SC -PhilStar.com

Petitions vs cybercrime law continue to flood SC
By Edu Punay, The Philippine Star
September 29, 2012

MANILA, Philippines – Protests against RA 10175 or the Cybercrime Prevention Act continues to mount at the Supreme Court (SC) after a fifth group yesterday filed another petition seeking to stop implementation of questioned provisions in the new law.

A group of journalists, bloggers and lawyers led by UP law professor Harry Roque Jr. argued that five provisions of the law violate not only constitutional rights of citizens in cyberspace but also run counter to the contractual obligation of the government to the United Nations.

They slammed the government for criminalizing libel on the Internet when the United Nations had already pointed out that libel under the Revised Penal Code was “incompatible” with the Filipino’s freedom of expression.

Petitioners cited the findings of UN Human Rights Committee on the case of radio broadcaster Alexander Adonis, who sought relief from the UN after having been found guilty on the libel charge slapped by former House speaker Prospero Nograles and imprisoned for two years.

Read full article @ www.philstar.com

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[From the web] How the Cybercrime Law criminalizes ‘Likes’ and tweets – InterAksyon.com

ANALYSIS | How the Cybercrime Law criminalizes ‘Likes’ and tweets
By Atty. Mel Sta. Maria, News5
September 28, 2012

Atty. Sta. Maria teaches at the Ateneo School of Law, and is the resident legal analyst of News5.

Last May, Interaksyon.com posted news about how a judge in the United States had ruled that “Liking” something on Facebook is not necessarily Constitutionally protected speech. The ruling has been criticized as threatening to free speech, as well as for being out of touch with how Facebook and its users behave.

Some of the questions and criticisms lobbed against the US judgment are relevant to Filipinos now, as the country wakes to a new Cybercrime Law that will have great implications for free expression online.

Consider these following points:

Republic Act 10175, the Cybercrime Law, is a special law.

What does that mean?

It is an accepted legal rule that offenses under special laws are considered MALA PROHIBITA as distinguished from MALA IN SE. In the latter, there must be a criminal mind to be convicted. In murder, theft, robbery and other offenses punished by our Revised Penal Code, for example, intention to do wrong is an essential element. In the former, MALA PROHIBITA, there need not be a criminal mind. The mere perpetuation of the prohibited act is enough.

Read full article @ www.interaksyon.com

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