Saturday, October 6, 2012

ALAM IS FULL OF HOPE FOR CYBER PEOPLE



ALAM IS FULL OF HOPE 
FOR CYBER PEOPLE

 (NOTE: IN THIS ARTICLE IS EXPLAINED WHY CHALLENGED PROVISIONS ARE UNCONSTITUTIONAL IN THE SIMPLEST LANGUAGE POSSIBLE)


By BERTENI “TOTO” CATALUÑA CAUSING
Author of the book entitled “Simplified Libel Law in the Philippines”


We, in Alab ng Mamamahayag (ALAM), are hopeful that the Supreme Court En Banc will nullify the clear null and void provisions of Republic Act 10175, or the Cybercrime Prevention Act of 2012 once its Petition for Prohibition is taken up for debates before the Supreme Court.
Readying my black toga for the oral arguments
Lest, we guarantee we can deliver the best arguments so far known on issues of due process in making of laws and on freedom of expression, of speech, and of the press.

You can read in full our Petition for Prohibition with application for Temporary Restraining Order (TRO) at this website:   http://totocausing.blogspot.com/2012/09/read-to-learn-petition-to-declare-cyber.html.

The unacceptable provisions are cyber libel [Section 4(c)(4)], unsolicited advertisement [Section 4(c)(3)], the clause that increases by one degree the imprisonment for all crimes under the Revised Penal Code and special penal laws [Section 6], the clause allowing double jeopardy [Section 7], spy provision [Section 12], and blocking clause [Section 19].

Of these provisions, ALAM challenged cyber libel, unsolicited advertisement and upgrading by one degree of the punishment for crimes under the Revised Penal Code and other penal laws if committed through or with the use of the Internet.

We intend to adopt all other ten (10) petitions filed thus far as if filed by us, as well as all the reliefs prayed therein.

Two tests of due process

We use two tests to prove these provisions of RA 10175 as unconstitutional.

The two tests we used are: (1) substantial due process test using the strict scrutiny rule; and (2) equal protection test using also the strict scrutiny rule.

Before explaining what these two tests are and showing the unconstitutionality when the tests are applied to the questioned clauses, let us make it clear to the lay persons what is strict scrutiny rule.

Strict scrutiny means that the State is placed under a strict examination and burden to prove its cause why it has to have the laws being challenged and this is used when the rights involved are fundamental.  Rights are fundamental if they are basic human rights, including those inalienable rights that cannot be surrendered even by the persons concerned.  Rights are not fundamental if they are only economic and social welfare rights.

Now, under the Substantial Due Process Test, the State has to prove the following: (a) that its interest in achieving the purposes of the law is compelling to justify sacrificing fundamental rights; and (b) that the means or procedure used will substantially advance the purposes.

How can the State say now that it has compelling interest to achieve the purposes of RA 10175 to justify a sacrifice of the fundamental right to freedom of expression, of speech, and of the press as well as the right to liberty that is deprived if a person is imprisoned?

We will know the answer if we know the purposes why RA 10175 was passed.

In the case of RA 10175, its purposes can be summed up in these: (a) to keep the Internet systems free from harm and destruction and to keep it efficiently working; and (b) to keep the Internet data and access free from hacking, intrusion and alteration.

Take a quick think.

Can the worst libel or defamation or even unsolicited advertisement destroy the computers connected to the Internet or destroy the Internet itself?  The answer is undisputedly “NO!”

Can the worst libel or defamation or even unsolicited advertisement destroy or access the databases of anybody or any office?  The answer is a resounding NO!
                                                                                                       
If that is so, it is clear that this cyber libel law does not connect to the purposes of RA 10175. 

If it is not connected, can we say now that there is a compelling State interest to sacrifice freedom of expression, of speech, and of the press in order to achieve an environment where internet systems are free from harm or its databases are kept from intruders? The clear answer is: it is not even needed because no matter how harsh or insulting are the blogs, videos and photos this cannot serve the State interest to protect the computers systems connected to the Internet and the databases therein.

Take a quick think, again.

By punishing people shouting in the Internet through YouTube or Facebook or other websites, can the act of punishing advance the purpose of protecting the computer systems connected to the Internet and the databases therein?  The clear answer is again: THERE IS NO CONNECTION.

The equal protection clause simply means that the law must pass the question of whether people who are similar are treated similarly by the law.  This means that you are looking at a class or a group of people upon whom the law shall be applied similarly.

To say whether a law passes the test of equal protection test, it must be shown that the persons sought to be affected are classed as a group with substantial distinction or that the classification is reasonable.

Now, who are the people involved in the cyber libel law? They are those who use Internet who in some emotional or passionate moments happened to explode their feelings into Facebook, YouTube, Twitter and other websites.

By imprisoning them for libel, the State is effectively including the online libelers into the class of those committing libel in newspapers, broadcast entities. 

Now, because equal protection clause means people situated similarly must be treated or punished similarly, can we say now that online libelers is indeed similar with libelers on newspapers and broadcast entities?

I beg your pardon, President P-Noy.  The online libelers cannot be classed in the same league as the journalists or people who commit libel in newspapers and broadcast entities.

First, those who write and publish in newspapers and those who speak on broadcast programs are usually trained how to write and taught on the ethics of journalism. Additionally, that is their daily vocation.  While the "onliners" include people from all walks of life: children, youths, students, pupils, maids, drivers, farmers, professionals who have no knowledge about journalism such that they cannot be expected to behave the way journalists do.

Second, those who are criticized in newspapers and broadcast entities cannot easily have their rebuttals or side published to equalize the effect of defamation.  While those who are criticized online can always refute anytime or in as quick as two seconds by putting their reactions on the comment’s thread or by posting reactions on his own page or wall in case of Facebook, or twit his counter-statements.  The underlying justification of less-libertarian thinkers why libel in newspapers and broadcasts are punished is the substantial difficulty for replies or rebuttals to get published, which reason is not present in online utterances.

Third, online facilities provide unlimited infrastructure to accommodate public discussions of issues on the conduct of officials, policies, laws being proposed, fitness of candidates during elections. This uniqueness is not available in newspapers and broadcast media.

Fourth, online social network encourages interactions among people of varied tribes and religions and they become unlimited fora for marketplace of ideas. While newspapers and broadcast media are too small for non-journalists to participate in discussions.

Fifth, online platforms provide avenues for advocacies to flourish considering its power to reach unlimited frontiers.  Newspapers and broadcast media, on the other hand, are limited.

Sixth, online facilities are indispensable for people to have powerful expressions of their criticisms on official conducts in government, which feature is not present in newspapers and broadcast entities.  The right to criticize is an inalienable and inherent right of the governed against the governors.


Sweeping upgrade of imprisonment


As to Section 6 of RA 10175, the clause increasing the degree of imprisonment on all crimes under the Revised Penal Code and special penal laws when committed through or with the use of the Internet, it will not also pass the substantial due process test and equal protection clause using the strict scrutiny rule.

This is so because that other than the right to liberty, the law is so vague for being overreaching that no citizen, ordinary or learned in the science of law, can understand what fundamental rights should be affected. 

By simple look at due process that is meant simply as notice that is easy to understand to the affected parties, it cannot be said that a complicated law like Section 6 of RA 10175 could make the citizens or “netizens” understand the law.

Because it cannot be known what rights must be affected, it cannot now be determined whether the State interest is compelling to advance the purposes of the law.  And if it cannot be said so, then it means that it failed to pass the test of whether the State interest is compelling to advance the purposes of the law.   So that even without examining the means employed to advance the purposes, Section 6 of RA 10175 now fails the substantial due process test.


Double jeopardy


As to Section 7 of RA 110175 allowing another prosecution and conviction of libel or any other crime just because an internet was used will be a violation of the Constitution’s prohibition against double jeopardy.

Double jeopardy means that no person can be twice prosecuted or convicted for one offense.

For example, in committing a crime of murder with the use of the Internet where the mastermind emailed a letter to the gunman and sent money by internet to accomplish the plot, it means that the means employed was through Internet. 

After trying a person in this case under Section 7 of RA 10175, can he still be tried under the Revised Penal Code (RPC) by proving the same facts that he used the Internet without violating the double jeopardy clause?

The RPC punishes murder committed by whatever means or tools and it does not distinguish murders as to the tools or means used.  The same is true in all other crimes under the RPC and special penal laws. 

This means that it does not make a murder committed with the use of internet as a separate murder when charged against under the RPC different from that murder when committed

Under the principle of criminal law, what makes one crime different from another is when at least one element of the crime is found in one and not found in the other. And yet using internet as a tool of the crime is not an element but only a constitutive fact that is absorbed as a means of committing a crime.

Clearly then, one person is being jeopardized twice under Section 7 of RA 10175.

For instance, the Supreme Court struck down a charge of rebellion complex with murder filed by then Justice Secretary Franklin M. Drilon against then Defense Secretary Juan Ponce Enrile during the time of Cory Aquino.  The Court ruled that murder was used as a tool to commit rebellion so that Enrile cannot be charged with rebellion at the same time charging him with murder.

To make it clearer, a person who issued a check can be charged twice, one for violation of bouncing checks law and the other for estafa or swindling because he used the checks to swindle.

The elements of swindling are only two: (a) deceit; and (b) damage.  There is at least one element of bouncing checks law violation that is not found in the two elements of estafa and this is the act of issuing a check despite knowledge that it has no funds.  This situation is different when we look at Section 7.

The fact that a constitutional provision against double jeopardy is directly violated it is enough to declare it as null and void.  It does not need to show that this clause failed the substantial due process test and the equal protection clause.


Spy Clause


As to the “spy clause,” it is very clear that the fundamental right affected is the right to privacy of communication and this is written in Section 3 of Article III of the Constitution, which adds that any evidence obtained in violation thereof cannot be admitted in any proceeding for any purpose.

The spy clause of RA 10175, or Section 12, allows the authorities to monitor and record information from all internet exchanges and postings provided these are limited only to traffic data that it defined as the origin, the time of exchange or posting, and the recipient.  It does not allow monitoring and recording of the content of the data exchanged or posted.

This is dangerous and it cannot be allowed.  The track or path of private communications is included in the right to privacy of communication. 

For the State to cause prejudice on its citizen even by the slightest degree, there must be an affirmative law or constitutional provision allowing such prejudice.  The fact that Section 3 of Article III of the Constitution does not give right to know who is a caller in a cellphone and who is the receiver and at what time is the call, then the State cannot create laws that go beyond what is not authorized by the Basic Law.

Thus, even without using the substantial due process test and equal protection clause, this spy clause is clearly unconstitutional.


Blocking Clause


Section 19 of RA 10175 gives power to the Department of Justice Secretary, and to the prosecutors deputized by the Secretary, to issue an order to close down an Internet page even if the only basis is the belief of the Secretary that there is a prima facie evidence that a cyber crime is being committed.

Now, to say whether there is a prima facie evidence is a matter of opinion.  If it happens that in the belief of the prosecutor one page was used to commit a cybercrime, he alone can order the blocking of access to this website.

This is an act of confiscation of the right to the freedom of expression, of speech, and of the press because the person concerned can no longer express if his site is closed down.

Moreover, a website is like a house that keeps the papers and effects of a person.  For instance, all his postings, documents, photos and videos are stored therein.  By just a subjective opinion that there is a prima facie evidence that he commits a cybercrime, the Secretary of Justice can now close down that site.  If it were an actual house, it is as if the Secretary ordered the padlocking of the home of another.

But by the way, how can the Secretary arrive at a prima facie case that a website was being used to commit crime that is secretly done?  There is no other way but by means of spying or hacking into or gaining access into the person’s website or email accounts or even Facebook accounts.  If that is so, then this is a violation of search without warrant and it is illegal under Section 2 of Article III of the Constitution that prohibits searches without warrant from the court.

Hence, by just invoking alone a constitutional provision is being violated by this blocking clause or what Atty. JJ Disini calls as a “takedown clause” and even without subjecting the same to the substantial due process test and equal protection clause, the same is found as unconstitutional.
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