High Court asked to extend TRO on cybercrime law

MANILA -- Petitioners against the implementation of the Cybercrime Prevention Act of 2012 formally asked the Supreme Court (SC) on Tuesday to extend the temporary restraining order (TRO) issued on the law.

The law will take effect on February 6, a day after the 120-day stay order expires.

At the end of the four-hour oral arguments, lawyer Harry Roque requested the justices to extend the TRO until “such time that it is lifted by the Court.”

Chief Justice Maria Lourdes Sereno noted the request, saying this will be discussed in the coming en banc sessions.

During the hearing, Sereno appeared to be toeing Malacañang’s line in support of Republic Act 10175.

This developed after she repeatedly stated that there must be a balance between the right to privacy of individuals and the right to free speech, which was the intended effect of the assailed law.

Militant students joined other groups on Tuesday in asking the Supreme Court to nullify the Cybercrime Prevention Act of 2012 (Virgil Lopez/Sunnex)

During her interpellation of Roque, one of the 16 petitioners that assailed the law, Sereno said the State is vested by the Constitution with the power to regulate certain freedoms that has the potential to inflict harm on others, or infringe on other people’s rights.

She raised the point of victims of cyber-bullying who felt that there was no other recourse for them but to take their own lives because they can no longer deal what is proliferating in social networking sites against them.

“Definitely, the regulation of people’s behavior or better nature is the intended effect of criminal statutes... Isn’t a little restraint the intended effect (of the law)? I am most concerned for those who commit suicide, who can't wait for a harmful post to be deleted,” she said.

Roque replied that in these modern times, social networking sites such as Facebook and Twitter already had mechanisms by which they can prevent cyber-bullying or isolating those tend to criticize them online.

“In the free marketplace of ideas, police power must not infringe on protected freedoms. Unless we change the Constitution, we need to protect these freedoms,” he said.

Policemen were deployed outside the premises of the Supreme Court in Manila, where the oral arguments on the constitutionality of the cybercrime law was held Tuesday (Virgil Lopez/Sunnex)

He added that while he commiserates with those who committed suicide because of cyber-bullying, the court and the people must be guided by a long-established precept that “the wound of hurt feelings is the balm of clear conscience.”

But Sereno cut him off, and said that he does not understand that the Court needs to strike a balance between two conflicting rights.

“After understanding that there is nothing you can’t completely delete in the cyberspace, is it not the legitimate state interest to find balance between freedom of expression and the protection of privacy which libel laws intended to protect?” she said.

Roque said that precisely, the balance in cases such as libel may be through the initiation of civil damages, and not through incarceration, like what happened to one of his clients, journalist Alexander Adonis, who was jailed for libel by former House Speaker Prospero Nograles.

“We don’t question the police power of the government but only the fact that it would infringe on certain freedoms because it may affect the constitutionally guaranteed rights. That’s precisely why it’s a justifiable issue, and why we say the law is insidious and must be voided for over breadth. It may not be the best means to arrive at the truth, but unless we change the Constitution, we need to continue to protect vigilantly the constitutionally guaranteed rights,” he said.

Sereno’s line of questioning was similar to that of Associate Justice Marvic Leonen, who pointed out that none among the parties in Roque’s group of petitioners have experienced prosecution under the cybercrime law, and that they were only questioning the law on the basis of over breadth and its supposed chilling effect.

Leonen also cited the case of his former student Chris Lao, who became a sort of Internet sensation in 2011 after his outburst on television became viral on the Internet.

He also pointed out that several people, including celebrities who have a huge following in Twitter and Facebook, appear to yield vast power to destroy another individual by posting a derogatory information online, which can be multiplied a hundredfold.

“Is it not the right of government to come in, in order to remove the megaforce of individuals who are careless? Because I would agree with you that jurisprudence is clear, that the interpretation of libel law is different, that it is not the fact of defamation but the act of malice and reckless disregard for truth. So truth by itself is not enough. So what’s wrong with this law?” Leonen questioned his former colleague at the University of the Philippines College of law.

Roque’s only replied that the law is overbroad, as it covers protective freedoms.

Both Sereno and Leonen are appointees of President Benigno Aquino III, who signed the controversial law in September last year.

Associate Justice Antonio Carpio, who is known in the judiciary as a technology-savvy magistrate and one who is pushing for the computerization and modernization of the SC, phrased his questions on the fact that the Philippines is a signatory to the United Nations’ Human Rights committee, which decriminalizes libel.

“Everybody now uses computer to type a news report, so practically, all libel crimes now are cybercrimes,” he said.

Asked by Carpio if the Revised Penal Code provision on libel would be assumed unconstitutional, what would be its effect on cybercrime law, Roque replied that it would make libel provisions in RA 10175 also unconstitutional.

Meantime, Justices Teresita Leonardo-de Castro and Diosdado Peralta said there is something wrong with Section 7, which provides separate conviction for online libel under the Revised Penal Code.

"In this case, there is no additional element to distinguish crime under this law (RA 10175) and what is included in the RPC. What is mentioned in Section 7 is not an element of the crime. What Section 6 penalizes is the same as that in the RPC," she said.

Peralta said the law was ambiguous why it increased the penalty of online libel by one degree or six years and one day to 12 year imprisonment from six months and one day to six years.

“By increasing the penalty by one degree, you are already providing for a different kind of libel but no new element was introduced. Section 7 is clearly infirm," he said.

Senator Teofisto Guingona III made the opening statement for the petitioners, wherein he described RA 10175 as a “cyber-Dracula,” which is biding its time inside its tomb until the SC decides to strike it at the heart “with a stake of reason” by declaring the law unconstitutional.

Guingona said the law threatens and assaults the fundamental constitutional right to speak, the right against unreasonable searches and seizures, against double jeopardy and to be accorded equal protection of the laws.

“I rise to assail a law that nurtures values from a Draconian past thoroughly inconsistent with the demands of modern times; a law with fangs that instill fear in the people’s hearts, threatening to such the life out of our freedom of speech and expression,” he said.

The Office of the Solicitor General, representing Congress and Malacañang, will argue its case next Tuesday.

Congress, however, has an option to send a lawyer who will defend Section 19, which the OSG said is unconstitutional for lack of judicial warrant in accessing computer data.

Three magistrates were absent during the oral arguments – Justices Presbitero Velasco Jr., Arturo Brion, and Estela Perlas-Bernabe.

Velasco was the original member-in-charge but he was forced to inhibit from the case after another group of petitioners, the National Union of Journalists of the Philippines, asked for it. The case was then re-raffled to Justice Roberto Abad.

Tuesday’s oral arguments also marked the first time that Leonen attended the oral arguments since his appointment to the High Court last November. (JCV/Virgil Lopez/Sunnex)