By CARLOS DAVE B. GARCIA and BRYAN G. VILLASANA
(Article Posted Online: October 8, 2012, 10:01pm)
MANILA, Philippines — “I want to emphasize that not all of the provisions here are complained about,” said Senator Edgardo J. Angara, in defense of the newly ratified Republic Act No. 10175 or the Cybercrime Prevention Act of 2012, which he principally authored.
Angara categorized that among the 23 provisions under the act, “only three are being questioned.”
The new law, according to Angara, is a very strong public policy for the good of the majority, since it is developing a new venue of communication which did not exist some 30 years ago.
“The Information and Communications Technology (ICT) sector is the one creating almost 600,000 jobs and earning our country almost $9 billion right now, and in three years’ time, it will create 1.3 million jobs… With [the Anti-]Cybercrime Law, there is protection for the integrity and confidentiality of information,” Angara said, underscoring that in effect, the law expands the rights of Internet users.
In an official statement, Business Processing Association of the Philippines (BPAP) President Benedict Hernandez hailed the passage of this new law, saying that “these recent developments significantly enhance our operating environment and contribute to the overall potential of the Philippine IT-BPO industry going forward.”
“The Cybercrime Prevention Act will help sustain and enhance investor confidence and strengthen our position as one of the world’s top locations for high-value IT-BPO services,” said Hernandez.
He added that the industry expects to post a 20-percent growth or more than $13 billion in revenue overall for the year.
Angara also recalled the Filipino-generated “ILOVEYOU” virus that spread in May 2000, noting that no one was prosecuted even if it caused $9 billion in damages.
“The law is not going to impair the right of Internet user… Now that [the Philippines] has 36 or 37 million Internet users, their right in using the Internet is more secured. Even their conversations with their partners, the money that they remit, or their bank accounts are better protected,” said Angara.
However, De La Salle University Law School Dean Jose Manuel Diokno said that despite its positive objectives—to regulate Internet use and get rid of unwanted online activities—and other strengths, the wide-ranging Anti-Cybercrime Law covered several extraneous areas, which only magnified its ambiguity and other weaknesses.
“Any kind of speech, whether it is done on the Internet or in ordinary communication, cannot be subjected to prior restraint from the government, unless a court allows it,” Diokno stated in a phone interview last Friday, citing the Constitution and Supreme Court decisions. “The problem with [the Anti-]Cybercrime Law is that it seems to take away the power of the court and give it to [the Department of Justice]. The DOJ, of course, is not a court; it belongs to the Executive Department, so there’s constitutional issue already.”
In an exclusive interview with Manila Bulletin in Pasay City last Friday, Cybercrime Investigation and Coordinating Center (CICC) Chair Geronimo Sy clarified that as part of the Executive Department, “[the DOJ’s] main task is really to investigate and prosecute bad elements.”
“If you shout libelous remarks at me here in the physical world, if you do that online, it doesn’t mean you’re exempted anymore,” Sy explained.
Blogger Noemi Lardizabal-Dado, though, sided with Diokno’s views, saying that “‘cybercrime’ should be defined clearly and the penalties should be [formulated] based on the crimes involved.” The law, she thought, is “so vague.”
In defense of R.A. 10175, Sy, who was designated as head of the CICC just last week, said that the DOJ is currently drafting the Implementing Rules and Regulations (IRR) to clarify some of the provisions in the law.
“Hopefully, the window of the gap between the effectivity of the law and the issuance of the IRR will not be very long, but if there are certain acts that have already been committed during this [gap], that is clearly [a violation to] the Cybercrime Prevention Act; it does not require clarification from the [IRR], since there are already crimes as it is.”
Diokno agreed: “Authorities can begin enforcing the law on provisions that can be directly enforced even without the [IRR], but they should follow a certain process.”
Setting up the new Cybercrime office is an example of the said provision, according to Sy.
Meanwhile, Diokno noted the collection of traffic data without warrant or court order as another flaw of the Anti-Cybercrime Law.
“The danger is not really in the ‘Liking’ [of a post], but more of the surveillance aspect, because these things are really intended to be private conversations,” said Diokno.
Sy only likened the traffic data to various closed circuit televisions (CCTVs) that have been placed in highways, which will only acquire non-content data, such as the conversation’s time, destination, number code, and frequency.
“In case of traffic data, it’s just an online version [of the CCTV] but nobody will intervene if it’s content or personal things. The state will not proscribe that. We’ll not intervene on that without a warrant,” assured Sy.
Chapter IV, Section 19 of the law, which is about “Restricting or Blocking Access to Computer Data,” concerns another blogger, Jane Uymatiao, as it is a power also given to the Justice Department.
“The take down clause should be well defined because you can take down [computer data] for other purposes. But if you’ll just take down a blog, it is dangerous,” worried Uymatiao.
In response, Angara said that he is now taking steps to correct the situation by filing “a measure to amend the said provision to include the requirement of a Court Order before the [DOJ] clamps down any website, unless there is clear and present danger that you cannot wait a minute longer.”
The legal field uses the “clear and present danger” as a standard to consider when freedom of speech can be curbed. To illustrate, the said standard takes away from anyone the right to shout “Fire!” in a crowded theater when there is actually no fire, as the act threatens public safety.
Uymatiao also pointed out that in view of today’s technology, young Internet users are now exposed to the possibility of committing libel even in their arguments. She noted the Juvenile Delinquency Act of 2006, which puts liability even to a 15-year-old.
But Sy set aside these unfounded fears and maintained that the law is still essential to the Philippines, where cybercrimes, abuses and complaints that have not yet been acted upon in the past are now commonplace. He particularly addressed bloggers who are critical of the new law.
“I think we should really have a broader approach and a bigger discussion on what really the law is all about and not just focus on [certain] provisions… These bloggers are prudent people; they don’t want to be libeled so [the law is] also for their protection, especially that our cyberspace here in the Philippines is unregulated.”
“We have to know what that particular fear is and from that, we have to address it if it’s legitimate,” Sy added. “But just to say, [if we do] not point out what exactly is being feared, it may not be helpful to the society at all.”
As for the libel clause, Sy admitted that the higher penalty will be followed because the new Anti-Cybercrime Law already amended the Revised Penal Code. He pointed out the harmful nature of the Internet, that once the libelous statements are posted, “it is available instantly to everyone without barriers [and] cost.”
However, the assistant justice secretary quickly raised the idea that there has to be a complainant first or somebody who is libeled, since his new office won’t be monitoring all the statements, tweets or shout-outs in social networking sites, unlike what others believe.
“Of course a lot of people will say anything and everything, but does it make sense?” Sy said. “There has to be a complainant first. For it to be a libelous statement, somebody has to be libeled.”
For the section that prohibits the aiding of the commission of the cybercrime like online libel, Angara said that conspiracy can only be proven if there is connivance between the author of the libelous statements and those who share it.
“If you don’t know the author but you liked and shared what he said, it cannot be considered as abetting, since the two should have first talked and agreed prior to sharing the information,” the outgoing senator explained.
Sy’s new Office for Cybercrime also aimed for international cooperation since the Cybercrime Prevention Act “will be a useless law if we do not coordinate it with other countries, especially when the servers that contain these information or data are not within the country.”
He also stressed that the person who commits cybercrime outside the country can also be liable, since “the one who you libeled against here [could still] file [a case] against you because it is available in the Philippines. But since you’re outside of the country, you cannot be arrested [unless] there’s a warrant against you.”
As of press time, 12 petitions to stop the new law’s implementation have already been filed by different individuals in the Supreme Court. Some legislators have also filed bills in Congress to amend some of the provisions that are being questioned by the concerned parties.
“For me, some have to be repealed and some have to be amended,” suggested Dado, who forms part of a group of bloggers that is currently drafting a Magna Carta for Philippine Internet Freedom to protect the rights of the netizens. She also brought out the news that the United Nations has already adopted Internet Freedom as a basic human right.
“My opinion is that we need an Anti-Cybercrime Law. The problem is when they included provisions that now affect netizens,” said Uymatiao, who recommends the decriminalization of libel.
But Sy stated that decriminalization has a separate component.
“It could be decriminalization—you don’t have any more imprisonment, you’ll just impose a fine, or you’ll just impose a civil liability,” said Sy. “My personal opinion is that we will impose only a criminal fine, so it’s not decriminalization, but there’s an imposition of a fine, which is also a penalty.”
Meanwhile, Angara said that there is still time for this law to be amended in Congress.
“This has been threshed out at the committee level, plenary and bicameral conference [so] this should be able to get out. I am sure that we can do it within the life of this Congress and within this session,” declared Angara.
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