It's filed -- petition to kill Internet libel!
By BERTENI "TOTO" CATALUÑA CAUSING
Author of the book "Simplified Libel Law in the Philippines"
A petition meant to kill cyber libel has been filed at 3:39 p.m.. today (September 24, 2012) before the Supreme Court of the Philippines. It was docketed G.R. No. 203306.
|The front page of the petition, stamped by the Supreme Court|
The same libel on the Internet was reported by controversial blogger Raissa Robles as having been inserted by Senator Tito Sotto into Republic Act No. 10175, which report was backed by the journal of the Senate during the deliberation about it.
Entitled "Petition for Prohibition", it was filed also to assail the "unsolicited advertisement" provision of the same law, contending that advertisement is a form of expression that must also be protected.
Another important provision of the same law wanted killed by the same petition is Section 6 therein, which increases imprisonment by one degree for all crimes under the Revised Penal Code and special penal laws if committed through or with the use of the Internet.
Section 6 is "too dangerous, too encompassing, too sweeping and too overreaching" because it sweeps all criminal laws even without justification why all these crimes should be increased by one strung higher.
Ordinary libel in the Revised Penal Code, for instance, is penalized with an imprisonment of prison correccional minimum (2 years and 4 months) to prision correccional medium (4 years and 2 months). If Section 6 of RA 10175 is applied, it is punished with an imprisonment of prision correccional maximum (6 years) to prision mayor minimum (8 years).
(READ THE FULL PETITION AT THIS LINK: http://totocausing.blogspot.com/2012/09/read-to-learn-petition-to-declare-cyber.html )
The arguments for nullity
A. Substantial Due Process Test
Cyber libel does not pass the strict scrutiny of "substantial due process test" that is used for laws involving fundamental human rights such as the freedom of expression, of speech, and of the press, and of liberty of persons.
Light scrutiny or rational basis is used if the non-fundamental rights are the ones sought to be regulated, which rights are only economic or social welfare in nature.
Under the strict scrutiny rule, the State has the burden to prove that it is compelling to sacrifice the fundamental rights involved to allow its law to stay valid.
As such, it is required of the State to prove its interest weighs more in the "balancing of interest test" or its interest is compelling because there is a "clear-and-present danger" to protect the State's interest.
In the Internet libel, the petition written by this author, who is the president of both ALAM and HMMI, pointed out that no matter how defaming or how wild is the published libel the computer systems and databases connected to the Internet will not be destroyed or tampered with or altered.
Rather, it is hacking, spreading of viruses, and stealing of passwords that can destroy, not the heated words that might be posted on Facebook or any other blog sites.
Look at "Innocence of Muslims" video posted on YouTube. The extreme passion and emotion generated by the said video have not affected the state of the hardware, software, the data and data bases, the efficiency of the exchange of information.
The YouTube video has incited and excited Muslims to kill the US ambassador and three other embassy staffers in Libya and has caused extreme uproar in the rest of the Middle East. But it cannot destroy the Internet systems and data or information stored and exchanged.
In the second rule under strict scrutiny of the "substantial due process test," the State is required to prove that the means employed by RA 10175 will substantially advance the purpose of the law.
The cyber crime law (RA 10175) said in its Section 2 that its purposes are to protect the computers and computer systems connected to the net, the data stored therein and data or information being exchanged against destruction or alteration or tampering with, to keep its efficiency, and to protect and keep the integrity of the databases and data exchanged against hackers.
It is very clear that the means employed by RA 110175 that is to imprison libelers on the Internet cannot improve the security against destruction of computer systems, data and the exchanges therein, or does not help to make better or worse the keeping of the efficiency and integrity of the computers, computer systems.
The same is true for "unsolicited advertisement" law on the net, it does not affect computer hardware, software, computer systems, data and its structures or the exchanges therein that must be kept accurate, precise, true, and reliable.
Increasing the punishment for crimes under the RPC and special penal laws does not also keep the Internet safe or alter the configurations are viruses do, does not cause destruction to the hardware and software and others.
B. Equal Protection Test
Under the strict scrutiny using equal protection clause, which means that those similarly situated must be treated similarly, it is required that there must be valid reasons in classifying or separating online potential libelers from those who publish in newspapers, radios and televisions.
Additionally, the State is required to prove that the classification is connected to the purpose of the law, the classification is not limited to existing conditions only, and the law applies to all members of the class.
There are no clear good or valid reasons that can be seen to separate the class of online users from the class of writers and authors whose works are published in newspapers, radios and television.
One difference is that it is easy to post libelous articles, pictures or videos on the Internet and it is not that easy for newspapers, radios and televisions that require editing and approval of the publishers and managers..
Another difference is that it is also easy to post replies or rebuttals on the net by means of threading on comments spaces as in Facebook or posting independent blogs on blog sites or on separate walls on Facebook. So that anyone shamed in public on Facebook or other posts can easily post neutralizing rebuttals.
In newspapers, radios and televisions, the publication of replies or rebuttals need consent of the editors and publishers and the replies or rebuttals are to be edited first or rejected altogether, thereby making it hard to neutralize the defamation caused.
So that it is clearly illogical to make life hard for those classified as online users when there exist built-in neutralizing facilities on the Internet. To the contrary, the cyber libel keeps life easier for libelers in newspapers, radios and televisions.
It cannot be understood how can online libels be more disastrous than libels printed in newspapers and broadcast in radios and televisions.
Neither has the State proven with empirical data that the number of online users is more in number than those who watch televisions, listen to radios and read newspapers.
Having shown the failures in two of the four scrutinies, it is now enough to prove the cyber libel law is invalid.
The same results show in applying the strict equal protection test on "unsolicited advertisement" and on the provision increasing by one degree the punishment for crimes listed in RPC and special penal laws..
The reliefs being sought
The petition seeks the immediate issuance of a Temporary Restraining Order (TRO) to suspend first the implementation of the laws on cyber libel law, "unsolicited advertisement" and on increasing of penalties for crimes under RPC and special penal laws if committed through or with the use of the Internet.
The petition also seeks to declare that the Senate, the House of Representatives, and the Office of the President as having acted in grave abuse of discretion in coming out with the three laws, cyber libel, unsolicited advertisement and increasing of penalties for crimes committed through or with the use of Internet.
The petition also seeks to issue a writ of prohibition to stop the implementation of these three laws included in RA 10175.