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PETITION TO DECLARE
CYBER LIBEL UNCONSTITUTIONAL
Republic of the philippines
ALAB NG MAMAMAHAYAG (alam),
HUKUMAN NG MAMAMAYAN MOVEMENT INC.,
JERRY S. YAP, BERTENI “TOTO” CAUSING,
HERNANI Q. CUARE, PERCY LAPID, TRACY
CABRERA, RONALDO E. RENTA, CIRILO P.
SABARRE JR., DERVIN CASTRO ET AL.,
-versus- G.R. No. 203306
OFFICE OF THE PRESIDENT,
represented by President Benigno Simeon Aquino III,
SENATE OF THE PHILIPPINES,
and HOUSE OF REPRESENTATIVES,
Petition for Prohibition
The petitioners, by the undersigned counsel, and a jury system advocacy group, respectfully file this Petition for Prohibition.
1. This petition is of transcendental importance because it involves an oversweeping and highly-controversial provisions of the Republic Act 10175 recently passed by the Congress- consisting of the Senate and the House of Representatives – and signed into law on September 12, 2012 by President Benigno Simeon Aquino III.
2. One of these provisions is one loosely called cyber libel that is Section 4 (c)(4) of Republic Act 10175, otherwise known as “An Act Defining Cybercrime, Providing for the Prevention, Investigation, Suppression and the Imposition of Penalties Therefor and for Other Purposes.”
3. Another provision is “unsolicited advertisement” that is Section 4(c)(3) of the same law.
4. Another provision is that is too encompassing and too vague is Section 6 of the same RA 10175.
5. A copy of the law downloaded from the official website of the government, www.gov.ph is attached hereto as ANNEX “A,” the exact web address is www.gov.ph/downloads/2012/09 Sept/20120912-RA-10175-BSA. pdf.
6. The petition is transcendental because the subject matters—libel online, “unsolicited advertisement” and the sweeping provision upgrading the penalties for crimes under Revised Penal Code and special penal laws committed by the use of internet—will affect the lives of the Filipinos, young and old, minor and adults, journalists or otherwise, professionals and non-professionals, schoolchildren and out-of-school youths, overseas Filipino and those at home, natural and juridical persons, software developers or just plain hobbyists, the generation of today and of the future.
7. This is so because all the human beings are getting more and more dependent on the cyberworld for almost all needs for communications, documentations, perpetuation of memorable memories, expressions, advocacy works, education and schools, journalistic and other forms of writings, religious preachings, and all others lumped into the so-called blogs,
8. The reach is infinite that it has become the biggest exchange highway of information about varied cultures, religions, traditions, dogmas, doctrines, schools of thought to serve as the most effective tool among former adversaries to understand each other.
9. It provides possibilities that are endless for business and trade to flourish making use of it to express ideas about what can be ventured into among partners geographically far from one another.
10. It has shown its indispensability in changing the world order and the way people of the world think.
11. It has shown its necessity in the birth of democratic principles around the world that it ousted dictatorial regimes in Tunisia, Egypt, Libya, Yemen and is still continuing to determine the outcome of battles in Syria at this writing.
12. It is always desirable to generate more citizen participation in discussions of public issues that are healthy for the formulation of national policies, laws, programs, projects, issues and election candidates’ fitness to offices.
13. It is the only way to make online Filipinos aware of all national issues, and thier number may outnumber those who rely on newspapers, televisions and radios.
14. As demonstrated by the 2010 elections, about 10 million voters got their decisions on who to vote from online duscussions.
15. All these are due to the unique nature of online world, sui generis it may be.
16. It may be that it allows free-wheeling duscussions, defenses against accusations, counter-accusations, heated debates to the point of name callings and below-the-belt arguments, to the point of wild, uninhibited and robust exchange of words, but at the end of the day all is fair in online wars or assaults even against honor because everybody is free to rebut till the end of time to diminish the effect of damage to reputation, let alone the confusion that follows as to who is right or truthful.
17. Elementary pupils and high school students are online users, too.
18. College students are heavier users because they do so also for their researches;
19. Even the housemaids and drivers use Facebook nowadays during their free time, debating even against professionals online -- a healthy sign of learning and becoming more knowledgeable about issues affecting them and enabling them to express even without newspapers that need editing.
20. There are those who contend themselves to clicking “like” and “share”, other just read posts that interest them.
21. All these are facing death or slowed-down enthusiasm, knowing this now chilling effect of cyber libel.
22. Thus, everybody, no matter where a person belongs is qualified to be a proper party in this petition.
23. Thus, Alab ng Mamamahayag (ALAM), whose office address is located at ALAM Headquarters at the Ground Floor of the National Press Club Bldg., No. 1 Magallanes Drive, Intramuros, Manila—which group was organized to represent sectors who believe in Genuine Free Press as the only way to make government better and transparent and in Jury System as the only means to attain true justice by the people, for the people, and of the people—is filing this petition as represented by its chair Jerry S. Yap and president Berteni “Toto” Cataluña Causing.
24. Also a petitioner is Hukuman ng Mamamayan Movement Inc. (HMMI)—which advocates Jury System as the only means to attain true justice by the people, for the people, and of the people—represented by its president Berteni “Toto” Cataluña Causing, whose office is located at Unit 1, #2368 Leon Guinto St. cor. JB Roxas St., Malate, Manila.
25. In their individual capacities as journalists, Berteni Toto Cataluña Causing and Jerry Sia Yap are also filing this petition and they may be served with notices and other processes at Unit 1, No. 2368 Leon Guinto St. cor. JB Roxas St., Malate, Manila.
26. Other journalists joining as petitioners here are Tracy Cabrera and Percy Lapid who may be served with notices at Police Files Tonight, JGV Publishing Inc., Delgado corner 19th Sts., Port Area, Manila.
27. Columnist and newswriter Hernani Q. Cuare is also joining this petition and he may be served with notices care of Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St., Malate, Manila.
28. Lawyers Ronaldo E. Renta, Cirilo P. Sabarre Jr. and Dervin Castro also join this petition and they may be served with notices at Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St., Malate, Manila.
29. Others who signed in a separate verification and certificate of non-forum shopping also join this petition with their addresses written corresponding their names. These and all other petitioners are online heavy users, too.
30. The respondent Office of the President, represented by President Benigno Simeon Aquino III, can be served with subpoenas and other notices at Malacañang Palace, Manila, the Senate of the Philippines can be served with subpoenas and other notices at GSIS Building, Reclamation Area, Pasay City, and the House of Representatives can be served with subpoenas and other notices at Batasan Bldg., Batasan Hills, Quezon City.
The Causes of Action
31. The most fundamental right of every person against laws or any acts of the State is protected by Section 1, Article III of hte Constitution.
32. Section 1 says:
No person shall be deprived of life, liberty and property without due process of law nor shall any person be denied the equal protection of the law.
33. From Section 1 the jurists formulated two important tests to measure whether laws passed by the Congress meet the most fundamental entitlement in the bill of rights, that gift of nature that can stand alone to protect all rights of humanity, so called as gift because it comes along at the moment of birth of human life.
34. The first test is called substantive due process test.
35. When the right that is affected by a law is fundamental right of the people, substantive due process requires strict scrutiny to know whether the end is a compelling State’s interest and whether the means employed substantially advances that compelling end, while at the same time the burden of proof rests on the State.
36. When the right involved is non-fundamental as being economic or social welfare nature, only the existence of a rational connection is inquired into; a non-strict scrutiny where the burden of proof rests on the challenger.
37. The second test is the equal protection challenge, where strict scrutiny is used when what is involved is a fundamental right and that burden rests on the State; and where a mere rational basis is the gauge when the right involved is non-fundamental.
38. In the instant case, the rights involved are fundamental: the right to expression, of speech, and of the press and the right to liberty that is affected when persons are imprisoned for crimes.
39. Hence, the State has the burden that RA 10175 passes the two tests under the strict scrutiny rule.
40. Let the right to expression, of speech, and of the press and the right to liberty be taken into consideration by the substantive due process test.
41. There is no doubt that these rights are fundamental, as they are even textual entitlements, meaning these are written in the Constitution.
42. No less than the Constitution proscribes the making of any law abridging the freedom of expression, of speech, and of the press, declaring:
No law shall be passed abridging the freedom of expression, of speech, and of the press... (section 4, Art. 3, Constitution)
43. The right to express is also proclaimed in the Universal Declaration of Human Rights, under its Article 19.
44. The Philippines being a state party to the said universal declaration has the obligation to respect and protect such right under the doctrine of pacta sunt servanda.
45. The same is also a law in the Philippines under the incorporation clause of the Constitution.
46. Let us then examine the ends or objectives of the State (represented by the President, the Senate and the House of Representatives) in enacting RA 10175.
47. This can be discovered by reading Section 2 of RA 10175, which provides its objectives as follows:
a. To provide an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy and intelligible access to exchange and/or delivery of information; and
b. To protect and safeguard the integrity of computer, computer and communication systems, networks and databases, and the confidentiality, integrity of information and the data stored therein, from all forms of misuse, abuse, and illegal access.
48. Are these objectives so compelling to set aside the people’s fundamental rights to expression, of speech, and of the press and the right to liberty?
49. By shallow analysis and comparison, it is very clear to see that those objectives are NOT compelling to sacrifice the people’s entitlements to freedom of expression, of speech, and of the press and the right to liberty.
50. To think, the state has the burden to show it has compelling interest to defeat that command of the Constitution for it not to make laws abridging the freedom of expression, of speech, and of the press.
51. Moreover, since these freedoms are on the top of the tiers of fundamental rights, the clear-and-present-danger-to-the-state test shall be used to know whether there is a compelling interest to cast these entitlements aside.
52. For sure, no matter how scathing the remarks or opinions may be posted on Facebook, twitted on Twitter, or posted on blog sites, through videos, graphics or texts, these can never, ever affect the machines’ efficiency, its hardwares or softwares.
53. No matter how false are these facts used in any story posted on Facebook, twitted on Twitter, or posted on blog sites, through videos, graphics or texts, these can never affect the efficiency of the machines’ hardwares and softwares.
54. Let it be stressed that the tools of the feedom of expessions, of speech, and of the press when exercised online are simple computer languages, “html” or otherwise, and these do not require the use of complicated codes, mainly because all it needs are simple texts to write the expressions, some calligraphy to hasten the look of a blog page, some images or pictures to hasten its beauty to the eyes or strengthen the message being protrayed by the text’s story or opinions or some video footage that can be linked to the blogs by the use of “html” code “href” placed before the address or location of the video, or videos that can be embedded by adding “iframe” code before “href” and defining the length and width by using computer units called “pixels.”
55. To the contrary, what determines efficiency of any computer system are the size of the random access memory (RAM), the kind of processors, the “giga” size of its memories, the sound cards, video cards, etc., and the efficient functioning can be affected by the size of the data stored, the viruses that alter the configurations therein or the wear ad tear of the computers.
56. For sure, any video, photos or texts posted in exercises of these fundamental rights can never be viruses, can never be fraud, can never be causes for computer parts to break down although these eat up memory spaces.
57. Actually, even “unsolicited advertisement,” a form of expression, can never cause the efficiency of the computer to diminish.
58. So that there is clearly no compelling interest also to regulate “unsolicited advertisement,” defined as a crime under Section 4(c)(3) of RA 10175.
59. So that even if “unsolicited advertisement” were to be deemed not a fundamental right, the law needs to show a rational basis to regulate the same.
60. But the truth is, the interest affected in the case of “unsolicited advertisement” is actually the right to liberty of the concerned individual, so that what will be affected by this law is still a right that is fundamental.
61. To the contrary, advertisements promote free enterprise that is a hallmark of any democracy, enliven trade and business and redound into employment generation and tax collections.
62. After all, annoying advertisements can simply be deleted by recepients.
63. But what makes defining “unsolicited advertisement” as a crime and providing imprisonment as a punishment is stupid because it is illogical to exist.
65. It is because there is no such a thing as advertisement that is solicited by a recepient.
66. How can a recepient solicit if he or she, in the first place, does not know yet what is the advertisement all about.
67. Nobody can decide to solicit a thing that is not known yet like advertisements.
68. Only after seeing an advertisement that one can decide to like it or not.
69. But mind you, even if one likes an advertisement, he or she cannot solicit it because it is already there in his or her internet page.
70. So that if the recepients can have means against unlikeable or offending advertisements, and that means is through deleting, blocking or unsubscribing, what is then the logic or rationale of the State to imprison those who caused the unsolicited advertisement?
71. Talking of increasing by one degree the imprisonment on crimes under the Revised Penal Code and special penal laws, as stated in Section 6 of RA 10175, what is the State interest here in relation to the purpose of keeping the efficiency of computers systems linked up to the internet and data therein?
72. For sure, the liberty of persons are at stake in implementing Section 6.
73. As such, strict scrutiny still applies and this requires proof from the State to say there is clear-and-present danger or that it is favored by the balancing of interest to justify it to regulate liberty and other fundamental rights involved.
74. However, RA 10175 does not state how its objectives are connected to the hundreds or thousands of crimes defined in all of the Revised Penal Code and special penal laws.
75. As such, if we talk about whether there is a lawful end in it to justify regulating all crimes found in RPC and special penal laws, RA 10175 is very vague yet very sweeping in providing for Section 6.
76. Now, let us go to the means employed even if it is to be conceded that there is compelling interest to regulate freedoms of expression, of the speech, and of the press, and the right to liberty, even if there is a lawful end for the common good.
77. As for libel, with the means employed that is to imprison the deemed libeler with an imprisonment or fine or both imprisonment and fine that is one degree higher than provided under the RPC and special penal laws, will it substantially advance the end of RA 10175 if it is allowed to regulate freedom of expression, of speech, and of the press, or the freedom to send out “unsolicited advertisement”, or the freedoms or rights involved in all crimes listed in the RPC and special penal laws, that in all cases liberty is at stake?
78. The answer is a big “NO.”
79. No matter how far the State suppresses freedom of expression, of speech and of the press, no matter how far the State prevents “unsolicited advertisements”, no matter how far the State suppresses or regulates the fundamental rights involved in all crimes under the RPC and special penal laws, it will never affect the computer systems connected to the internet and the data therein.
80. For sure, no matter the libel, no matter the “unsolicited advertisement” and no matter the exercise of the rights involved in any of the crimes under RPC and special penal laws, all the existing computer systems will function efficiently or defectively independently of how those fundamental rights are exercised.
81. Ergo, by the substantial due process test, the provisions of RA 10175 on libel [Section 4(c)(4)] and “unsolicited advertisement” [Section 4(c)(3)] and Section 6 therein that upgrades by one degree the penalties in all the crimes listed in the RPC and special penal laws must be struck down as unconstitutional.
82. That being so, the Office of the President, the Senate of the Philippines, and the House of Representatives must be prohibited from enforcing these provisions of RA 10175.
83. Let the equal protection clause be applied.
84. Jurisprudence developed the test of reasonableness and it has four (4) requisites:
a. The classification rests on substantial distinctions or reasonable basis;
b. The distinction is germane to the purposes of the law;
c. The classification is not limited to existing conditions only; and
d. The classification applies to all members of the class.
85. Is there a reasonable or valid basis or substantial distinction to classify users posting scathing imputations, opinions or facts, as separate and distinct from those imputations published in newspapers and broadcast on radios and televisions, including those caused by reporters, journalists, editors, publishers, broadcasters?
86. Be it noted that there are only two differences that are immediately apparent between online publishers and offline publishers.
87. The first difference is that online users commit acts of publication much easier because almost all sites allow free usage and it is readily available at the click of their fingers.
88. The second difference is that online publications can be rebutted in seconds by posting a reaction on the comment space found at the bottom of every posting on Facebook and other social networks.
89. Anyway, rebuttals can be done in separate blog sites.
90. Rebuttals done in separate sites cane be linked to the comment areas beneath.
91. Thus, the second difference shows that unlike in newspapers and broadcast facilities, there are various self-neutralizing mechanisms in online defamation.
92. The underlying wisdom why defamatory imputations published in newspapers and broadcast entities are being punished as libel is because the alleged victims have no way of getting their rebuttals published if there is no consent on the part of the newspapers and broadcast entities.
93. Now, if the alleged victim of online defamation does not react online, he is deemed to have accepted the truth or correctness of the imputations and the acceptance of truth or correctness erases libel right away.
94. We now ask: given the nature of online defamation publication stated above, is this substantive enough to make online users a distinct class of their own than their counterparts who do the same acts outside the cyber world?
95. The answer of the petitioner is a humble “NO.”
96. There is no clear emperical data that can back up any claim that online libel is more ferocious in causing damage than those written in newspapers and broadcast on tvs and radios.
97. For sure, the respondents that have the burden cannot present any actual data gathered; neither the law RA 10175 wrote in any provision justifying the classification.
98. In fact, online users can argue that more people watch televisions or listen to radios than online viewers or readers.
99. To the contrary, televisions, radios and newspapers have invaded already the online world by means of streaming, live or late, or maintaining news websites.
100. This fact that shows the tvs and radios as well as newspapers are also present online does not make a difference for pure online users who have no tvs, radios or newspapers to boot to be punished one degree higher than the regular libel the people know since way back when.
101. Ergo, the classification made by RA 10175 to separate internet libelers from newspaper, tv and radio libelers is invalid, unreasonable and insubstantial.
102. The same can be said to “unsolicited advertisement” and the persons who would use online facilities to commit crimes listed under the RPC and special penal laws.
103. The ads aired by newspapers online can be classified as “unsolicited advertisement,” as well as those streamed live by radios and tvs.
104. Hence, there is also no valid classification as to “unsolicited advertisement,” assuming it can logically exist.
105. By being sweeping, too general and overreaching, there is also no valid classification of online users for the purpose of applying the laws on crimes listed in RPC and special penal laws.
106. Now, is the classification germane to the purposes of the law that is RA 10175?
107. As discussed above, it cannot even be seen how “unsolicted advertisement” and online libel connect to the purpose of keeping the efficiency of computer or computer systems connected to the internet and the data therein.
108. To repeat computer systems live and die independent of libel, “unsolicited advertisement” and even crimes under RPC and special penal laws.
109. As such, it is also clear that classifying online libelers from journalists doing similar acts offline does not connect to the purpose of the law.
110. Having shown two fallacies in equal protection tests already and that it needs only one failure to invalidate the law, there is no more need to discuss the application of two other requisites.
111. Now, let the second purpose be examined.
112. The second purpose is to safeguard and protect the integrity of online infrastructures and data therein.
113. This refers more to protection against hackers and access thieves, protect the true state of information pure from alterations, as well as theft of monies from banks and cards.
114. Without explaining further, the same can be said:
a. There is no compelling interest to sacrifice the stated fundamental freedoms to achieve the end;
b. There is no way the ends of RA 10175 to be substantially advanced by employing the means.
115. As to “unsolicited advertisement,” there is also no rational basis.
116. As to crimes under RPC and special penal laws, there are no specific statements what rights are being sought to be affected by a compelling State interest, in other words Section 6 is oversweeping, too general and overreaching for ordinary citizens to understand.
117. Clearly, the Office of the President, the Senate of the Philippines, and the House of Representatives committed grave abuse of discretion in enacting into a law Republic Act 10175 in so far as it includes Section 4(c)(4), Section 4(c)(3) and Section 6 therein.
The Application for TRO
118. Having clearly shown the strong merits of the online people, there is no dispute that their rights are unmistakable.
119. Considering the damage already caused on the State and its people in terms of reputation in the eyes of the free world and the United Nations that keeps sacred Article 19 of the Universal Declaration of the Human Rights, there is an urgent need to suspend first the efficacy of these libel provision, “unsolicited advertisement,” and Section 6 provisions of RA 10175.
120. Considering the extent of the chilling effect being caused by the same law upon the minds of online bloggers nad other users, minding the thought of a higher degree of punishment than ordinary libel, there is an urgent need to suspend first the efficacy of the same provisions of RA 10175.
121. It is therefore begged of the supreme Court to issue immediately a temporary restraining Order (TRO) against implementation of Section 4(c)(3), Section 4(c)(4) and Section 6 of RA 10175.
WHEREFORE, it is respectfully prayed of the Supreme Court to issue immediately a Temporary Restraining Order (TRO) to enjoin the respondents from executing or implementing Section 4(c)(3), Section 4(c)(4) and Section 6 of RA 10175.
Further, after due notice and hearing, oral or otherwise, and submission of pleadings or memoranda as the Court may require, a writ of prohibition be issued enjoining permanently the respondents from executing or implementing Section 4(c)(3) and Section 4(c)(4) of Ra 10175.
Other reliefs just and equitable are also prayed for. September 24, 2012. Manila.
HUKUMAN NG MAMAMAYAN MOVEMENT, INC. (HMMI)
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
RENTA PE CAUSING SABARRE CASTRO & ASSOCIATES
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
BERTENI CATALUÑA CAUSING
IBP No. 894664 / 03-20-2012 / Manila
PTR No. 0675267 / 03-27-2012 / Manila
Roll No. 60944/ MCLE Compliance No. IV-0007338, August 10, 2012
CIRILO P. SABARRE JR.
IBP No. 856677 /01-03-2012
PTR No. 117312429 /01-03-2012
Roll No. 53639 / MCLE Compliance No. IV-0003755
DERVIN V. CASTRO
IBP No. 836900/11-18-2010 up to 2012
PTR No. 0335125 /01-03-2012
Roll No. 53624 /MCLE Compliance No. IV-0007336, August 10, 2012
OFFICE OF THE PRESIDENT
Malacañang Palace, Manila
SENATE OF THE PHILIPPINES
GSIS Bldg., Reclamation Area, Pasay City
HOUSE OF REPRESENTATIVES
Batasan Bldg., Batasan Hills, Quezon City
Far distance and lack of manpower compelled the service of this Petition for Prohibition by registered mails.
CIRILO P. SABARRE JR./DERVIN V. CASTRO/BERTENI CATALUÑA CAUSING