Memorandum Assailing the Constitutionality of the Cybercrime Prevention Act of 2012

Submitted by: Cammayo, Mary Grace [Pick the Anabella Hernandez,date] Lim, Alexander Mendoza, Mara Krishna Polloso, Paul Romeo Santos, Lamberto Uy, Herazeus Christine Y. 4A Abad, Anna Fe Cammayo, Mary Grace

Submitted to: Atty. Rene B. Gorospe Professor Legal Forms Class

Faculty of Civil Law University of Santo Tomas

October 9, 2012

Republic of the Philippines SUPREME COURT City of Manila CONCERNED LAW STUDENTS OF THE PHILIPPINES, INC. (CLAWS) Petitioner, -versusHON. JUAN PONCE ENRILE, HON. FELICIANO BELMONTE, JR., HON. PACHITO OCHOA, Executive Secretary, Respondent. x--------------------------------------------------------------x PETITION COMES NOW the petitioner, by the undersigned counsel, and to this Honorable Court, respectfully alleges: 1. That the petitioner is a duly recognized Philippine corporation with its principal office located at Office of the Concerned Law Students of the Philippines, Mezzanine Floor, Main Building, University of Santo Tomas, Sampaloc, Manila, incorporated by a group of concerned law students from premier law schools in the Philippines; 2. That Hon. Juan Ponce Enrile as Senate President, Hon. Feliciano S. Belmonte, Jr. as Speaker of the House, and Hon. Pachito Ochoa as Executive Secretary acted without or in excess of its jurisdiction, or with grave abuse of discretion in promulgating and implementing Republic Act No. 10175, also known as the Cybercrime Prevention Act of 2012; 3. That there is no appeal from such act or any plain, speedy and adequate remedy in the ordinary course of law; 4. That a certified true copy of the law sought herein sought to be declared unconstitutional is hereto attached as Annex A together with copies of all pleadings and documents relevant and pertinent thereto; 5. That Internet use in the Philippines has grown rapidly in the past decade. It has given rise to countless opportunities to a lot of Filipinos in every field imaginable. It has served as venue for growth and development in businesses, trade, engineering,
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G.R. No. ___________________ For: Writ for Prohibition and Mandamus

arts and sciences and has sped up the exchange of information about practically all aspects of life. It has since been an integral part of our daily lives.1 However, the internet also has its own disadvantages and one of these is cybercrime. In recent years, we have witnessed how cybercrime has emerged as the latest and most complicated problem in the cyber world. Criminal activities in the cyberspace are now on the rise.2 6. That in order to combat cybercrime, our lawmakers enacted Republic Act 10175, also known as the Cybercrime Prevention Act of 2012. Such law took effect last October 3, 2012. Unfortunately, due to the inadvertently inserted vague provisions in the law, the Cybercrime Law now poses serious threats to internet freedom, the right to privacy and other essential civil liberties including the freedom of speech, expression, and the press;3 the constitutional right against double jeopardy; and the equal protection clause. The insertion of provision regarding online libel and vague sections on data collection and sanctions is essentially an online censorship law.4 7. That cybercrime is an actual danger to democracy, human rights and the rule of law. Nevertheless, measures to fight and prevent cybercrime must be based on laws that fully respect civil liberties.5 8. In light of all the foregoing, we respectfully submit the following arguments assailing the constitutionality of the Cybercrime Prevention Act before this Honorable Court: A. Violation of the Freedom of Expression Clause Section 4 (c) (4) of the Cybercrime Prevention Act provides as follows: SEC. 4.Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this Act: xxx (c) Content-related Offenses: xxx (4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future. On the other hand, Section 5 (a) of the same law provides:
Explanatory Note of House Bill No. 6613 by Representative Teddy Casino and Representative Raymond Palatino. 2Ibid. 3Ibid. 4Ibid. 5 Explanatory Note of Senate Bill No. 52 by Senator Edgardo Angara.
1

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SEC. 5. Other Offenses. The following acts shall also constitute an offense: (a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable. Taken together, Section 4(c)(4) and Section 5 (a) of the Cybercrime law clearly infringes on the citizenrys right to freedom of expression enshrined under Article III, Section 4 of the 1987 Constitution. First, said provisions suffer from vagueness for lack of specific definition of the terms abet or aid. The Void for Vagueness Doctrine posits that a law which either forbids or requires the doing of an act in terms so vague that people of ordinary and common intelligence must necessarily guess at its meaning and differ as to its application is considered invalid since it does not adequately inform or warn its subjects as to what are expected of them.6A law is void on its face if it does not aim specifically at evils within the allowable governmental control, but sweeps within its ambit other activities that constitute an exercise of protected expressive rights 7. In this case, the word aid or abet, for lack of specific definitions upon which it would operate, would include acts or activities which effectively encroach upon areas of protected speech. In this case, those who play a part in unwittingly or willfully encouraging the spread of libelous content shall likewise be charged for abetting libel. For instance, the simple act of clicking the "Like" button of Facebook or re-tweeting posts on Twitter may be tagged as unlawful as well. In the same vein, Cybercrime Prevention Act is labeled as a mala prohibita law, it being a special law. In laws which are mala in se, criminal intent or criminal mind is a necessary ingredient in order for conviction to lie on the crime charged. Examples of mala in se crimes are murder, robbery, theft, and other offenses punishable under the Revised Penal Code. Mala prohibita laws like the Cybercrime Prevention Act, punishes prohibited acts, although they may not be inherently evil. Thus, the mere commission of an act without criminal intent is sufficient to sustain a
6Gorospe;

Constitutional Law: Notes and Readings on the Bill of Rights, Citizenship and Suffrage; Volume 1; p. 306; Manila: Rex Bookstore.
7

Tribe; American Constitutional Law; 2nd ed.; p. 1022; New York: The Foundation Press Inc. Page 4 of 11

conviction. In the law under consideration, the expansive terms of abet or aid would include within its ambit, sending into prison persons who unwittingly commit acts which they believe in good faith are part and parcel of their right to freedom of expression . For instance, even if one is just trying out a brand of humor where somebody's name is used as a verb or noun to signify not-too-admirable acts such as Noynoying, Sottomy, etc., one could get arrested, the same being considered by law to have been uttered under libelous circumstances. Secondly, the said provisions act as a prior restraint in the exercise of ones freedom of speech and expression. "Prior restraint is generally understood as an imposition in advance of a limit upon speech or other forms of expression. In determining whether a restriction is a prior restraint, one of the key factors considered is whether the restraint prevents the expression of a message.8 Otherwise stated, prior restraint operates to prevent a person from expressing his opinions or ideas in a more tangible form for fear of subsequent punishment after its publication. Section 19 of the said law vests a broad discretionary power to the Department of Justice, to wit: SEC. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data. By virtue of such provision, the DOJ can effectively ban or restrict access to a computer data, say a blog or account, if it finds the contents stated therein prima facie libelous. This acts as prior restraint for it creates fear on the part of an individual to freely articulate his/her thoughts. As such, he/she may just as well engage into self-censorship for fear of being detected later on and subsequently prosecuted. Or worse, he/she may simply shut down or suspend his own account. The scenarios are not just mere fabrications of the overactive imagination but rather authentic interpretations drawn by citizens of this country when the law was first implemented . For instance, a day before the law became effective on October 3, 2012, several blogs of various netizens were either shut down or suspended by the account holders themselves for fear of being punished for the criticisms or opinions they have posted on their blogs, which the government may well find to be prima
8

Chavez v. Gonzales, G.R. No. 168338, February 15, 2008. Page 5 of 11

facie libelous. The chilling effect of this law has marred such fateful day in our history. Where the Philippines was once the bastion of true democracy, such idyllic circumstance is now extinct, overruled by the rich and powerful politicians of our day. The Supreme Court in one case held that, Freedom of expression has long enjoyed the distinction of being a preferred right and thus, a weighty presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms.9 B. Violation of the Right Against Double Jeopardy Section 21, Art. III, 1987, Constitution, provides that "No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Section 7 of the Cybercrime Law on the other hand states that: SEC. 7.Liability under Other Laws. A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. Rule 117, Section 7 of the Rules on Criminal Procedure provides that, Double jeopardy would bar subsequent prosecutions for the offense charged, or for any attempt to commit the same or a frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. In this case for instance, libel punishable under this act is likewise punishable under Revised Penal Code (RPC). Hence, despite the fact that the crime arises from the same or similar acts or omissions, they are punished separately, and worse, conviction in any one of them is not a bar to a subsequent conviction under the other law. The only difference being that, libel under this special law has a heavier penalty than that in the RPC. The same is also truein the case of plagiarism which is punishable under Intellectual Property Code (IPC), a special law. Thus, if an act of plagiarism amounts to a copyright infringement under the IPC, the violator may likewise be held liable
9Ayer

Productions v. Hon. Capulong and Juan Ponce Enrile, G.R. No. 82380, April 29,1988 Page 6 of 11

under the Cybercrime Prevention Act if he/she uses information and communications technology (ICT) for its commission. C. Violation of the Equal Protection Clause The provision of R.A. 10175 manifestly violates the equal protection clause guaranteed by the Constitution. It discriminates between the offenders who commit libel by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, and to the offenders who commits libel under R.A. 10175. As enunciated in several jurisprudence, there are qualifications in order for a classification to be valid. First, the classification must be based on substantial distinctions; secondly, the classification must be germane to the purpose of the law; thirdly, the distinction must not be limited to present conditions only; and lastly, it must apply equally to all member of the same class.10 Applying the qualifications to the provisions of R.A. 10175 and Art. 355 of the Revised Penal Code, it is clear that the former provision fails to satisfy the first requirement for a valid classification, which is that the classification must be based on substantial distinctions. There is no substantial distinction between an offender who commits libel under Art. 355 and an offender who commits a similar act under R.A.10175. By reading the provision of R.A.10175, one can glean that the act punishable is the same as the act provided for in Art.355. The only difference seems to be the medium through which the crime was committed. The offender is the same person who just communicated the act in another medium. By punishing libel as a cybercrime simply because it is committed through a computer system, the clear intent of the law is to single out netizens in their chosen medium of expression, which is patently discriminatory and contrary to the supreme law of the land. D. Violation of the Due Process Clause Section 1, Article III of the 1987 Constitution guarantees that 'no person shall be deprived of life, liberty or property without due process of law. Due process is a part of the guarantees of freedom and fair play which are birthrights of all who live in the country11 and is therefore inviolable. However, under Section 19 of the
10 11

Biraogo v. The Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010. Salonga v. Pano, G.R. No. 59524, February 18, 1985, 134 SCRA 438, 443. Page 7 of 11

Cybercrime Prevention Act, 'when a computer data is prima facie found to be in violation of the provisions of this Act, the Department of Justice (DOJ) shall issue an order to restrict or block access to such computer.' This now calls for an examination of what prima facie evidence means under the law and its possible implications. Prima facie evidence is thus defined as evidence good and sufficient on its face. Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient. Evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue it supports, but which may be contradicted by other evidence.12Prima facie evidence thereby passes the burden of evidence upon the person accused of violation instead of the State proving his guilt beyond reasonable doubt. The provision of the Cybercrime Law clearly gives enormous power to the DOJ as mere prima facie finding of violation, without court intervention, gives it the authority to block or restrict access to computers, thereby amounting to seizure. Whereas now no search warrant or warrant of seizure may issue except upon probable cause to be determined by a judge, 13 Section 19, now popularly called the takedown provision, does not require probable cause but only prima facie evidence determined not by a judge but by the Department of Justice. Reference should be made on the interpretation made by the US Court in the case of United States v. Warshak. Here the United States Court of Appeals for the Sixth Circuit ruled that a person has a reasonable expectation of privacy in his emails and that the government violated Warshak's Fourth Amendment rights by compelling his internet service provider to turn over his emails without first obtaining a warrant based upon probable cause.14

12H. 13

Black, et al., Black's Law Dictionary 1190 (6th ed.,1990). Sec. 2, Art II of the 1987 Constitution: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. United States v. Warshak, December 14, 2010. Page 8 of 11

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The cybercrime law is devoid of sufficient standards that would guide the DOJ in its determination of prima facie evidence of guilt. If read together with the other provisions of the Act, this gives DOJ a wide latitude of discretion to confiscate properties even without a reasonable determination of existence of violation.. E. Violation of the Right against Illegal Search and Seizure Section 15 (e) of the Cybercrime law gives the law enforcers, within the time specified in the warrant, to render inaccessible or remove those computer data in the accessed computer or computer and communications network. Section 17 even provides for Destruction of Computer Data, Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination." Furthermore, the real time data collection of traffic data violates the right to privacy and the right against unreasonable searches and seizure. Real time collection of traffic data under the Cybercrime Act authorizes the PNP and the NBI to install devices at the networks of telecommunications, mobile and Internet service providers to capture data about communications. It is conceivable that the PNP or NBI can monitor all traffic since the law does not establish standards for the exercise of the authority to collect data. No limits are imposed upon either the PNP or the NBI since they can lawfully collect traffic data at all times without interruption. It is conceivable that the PNP and the NBI can at all times possess all traffic data on all internet, mobile, fixed line and related. WHEREFORE, it is respectfully prayed, that pending the proceedings in the action, a preliminary injunction be granted ordering the respondets to desist and refrain from further proceedings in the premises, and that after due notice and hearing, a Writ of Prohibition be issued commanding the said respondent to desist absolutely and perpetually from further proceedings in the matter in question. City of Manila, Philippines, this 9th day of October 2012

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ABAD, SANTOS, UY & ASSOCIATES LAW OFFICE 2/F Erlag Bldg., 102 Esteban St., Legazpi Village, Makati City 1229 Tel. Nos. 812-6688/813-6989 Email address: uyabadsantoslaw2012@yahoo.com

By: ATTY. JUAN DELA CRUZ 1234 Wall Street Ave., Sta. Cruz, Manila Roll No. 11118 PTR No. 32456, 2/2/2012; Manila IBP No. 32456, 1/3/2012; Manila MCLE Compliance No. 1234; 4/10/2012

Copy furnished:

ATTY. PEDRO AQUINO 2174 Wall Street Ave., Sta. Cruz, Manila Roll No. 11119 PTR No. 35456, 2/2/2012; Manila IBP No. 82456, 1/3/2012; Manila MCLE Compliance No. 2934; 4/10/2012

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VERIFICATION AND CERTIFICATE OF NO FORUM SHOPPING Republic of the Philippines) City of Manila ) S.S. Rene B. Pe, after having been duly sworn deposes and says: 1. That he is the petitioner in the above-entitled petition for writ of prohibition and mandamus; that he has caused its preparation; that he has read it and the allegations therein are true of his own knowledge or based on authentic records; 2. That he certifies that he has not heretofore commenced any action or filed any claim involving the same issues before any other court, tribunal or quasi-judicial agency, that to the best of his knowledge, there is no pending action or claim, and that if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report such fact within five (5) days therefrom to this Honorable Court.

Rene B. Pe CLAWS Representative

JURAT SUBSCRIBED AND SWORN to before me, in the City of Manila, this 24th day of August, 2010, the affiant exhibiting to me his Passport No. XW22749 issued by the Department of Foreign Affairs on January 10, 2009.

ATTY. JUAN DELA CRUZ 1234 Wall Street Ave., Sta. Cruz, Manila Roll No. 11118 PTR No. 32456, 2/2/2012; Manila IBP No. 32456, 1/3/2012; Manila MCLE Compliance No. 1234; 4/10/2012

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