Introduction

Background of the Study

In democratic and enthusiastic country the most
fundamental rights that emboast the ideals of a
democratic society is the freedom of expression which
includes the freedom of speech,the press and the like.
It is primodial that these freedom are free from
restraint in order for a pool of ideas to flow freely.
However, be that as it may, as already been settled
every right found in the 1987 Constitution especially
that of the Freedom of Speech and Expression is not
absolute. Lest, the enactment of the Republic Act 10175
An Act Defining Cybercrime, Providing For The
Prevention, Investigation,Suppression and The
Imposition of Penalties Therefor And For Other Purposes
or otherwise known as the Cybercrime Prevention Act of
2012.

Section 2 of the Declaration of Policy states that The

State recognizes the vital role of information and
communications industries such as content production,
telecommunications, broadcasting electronic commerce,
and data processing, in the nations overall social and
economic development. The State also recognizes the
1 Republic Act 10175 (An Act Defining Cybercrime, Providing for the Prevention,
Investigation, Suppression, and the Imposition of Penalties therefor and for other Purposes.
http://www.gov.ph/2012/09/12/republic-act-no-10175/

importance of providing 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
the need to protect and safeguard the integrity of
computer, computer and communications systems,
networks, and databases, and the confidentiality,
integrity, and availability of information and data
stored therein, from all forms of misuse, abuse, and
illegal access by making punishable under the law such
conduct or conducts. In this light, the State shall
adopt sufficient powers to effectively prevent and
combat such offenses by facilitating their detection,
investigation, and prosecution at both the domestic and
international levels, and by providing arrangements for
fast and reliable international cooperation.

Thusly, based on the aforementioned declaration of

policy of the same law, the law was proposed to answer
the growing number of crimes committed in the online
world which seems to be unreachable considering the
volume of the internet violators and violations that
have been occuring since the rise of the new media.
After a rigorous processes the legislators where
adamant to finally enact the Cybercrime Law of 2012 as
2 Republic Act 10175 (An Act Defining Cybercrime, Providing for the Prevention,
Investigation, Suppression, and the Imposition of Penalties therefor and for other Purposes.
Section 2, Declaration of Policy http://www.gov.ph/2012/09/12/republic-act-no-10175/

evidenced by the thirteen Senators who voted for the

implemmentation of the law. The Republic Act 10175 was
finally signed and sealed on September 12, 2014.
The main contents of the law provided the following
punishable acts as follows and defined. These are
according to the law offenses against confidentiality,
integrity and availability of computer data and
systems. Illegal Access, the access to the whole or any
part of a computer system without right.3 Illegal
Interception, the interception made by technical means
without right of any non-public transmission of
computer data to, from, or within a computer system
including electromagnetic emissions from a computer
system carrying such computer data.4 Data Interference,
the intentional or reckless alteration, damaging,
deletion or deterioration of computer data, electronic
document, or electronic data message, without right,
including the introduction or transmission of viruses.5
Other computer related forgery; The input, alteration,
or deletion of any computer data without right
resulting in inauthentic data with the intent that it
be considered or acted upon for legal purposes as if it
were authentic, regardless whether or not the data is
directly readable and intelligible; or the act of
3 Republic Act 10175, Section 4 (1)
4 Republic Act 10175, Section 4 (2)
5 Republic Act 10175, Section 4 (3)

knowingly using computer data which is the product of

computer-related forgery as defined herein, for the
purpose of perpetuating a fraudulent or dishonest
design.6 And the most controversial provision; Libel
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.
Revised Penal Code Art. 355 states Libel means by
writings or similar means.

A libel committed by means

of writing, printing, lithography, engraving, radio,

phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means, shall
be punished by prision correccional in its minimum and
medium periods or a fine ranging from 200 to 6,000
pesos, or both, in addition to the civil action which
may be brought by the offended party.The Cybercrime
Prevention Act strengthened libel in terms of penalty
provisions.
The electronic counterpart of libel has been
recognized since the year 2000 when the E-Commerce Law
was passed. The E-Commerce Law empowered all existing
laws to recognize its electronic counterpart whether
commercial or not in nature.

6 Republic Act 10175, Section 4 (1) Computer related forgery (i) (ii)
7 Revised Penal Code Article 335Republic Act 10175, Section (5)

Due to a seem encompassing provisions of the Cybercrime

law most if not all the citizens were hesistant as to
its implementation. The citizens mostly the netizens
contend that by virtue of this law, the most sacred
right to freely express their thoughts in the internet
will be restraint worse they will even be subjected to
imprisonment. Which is not an ideal scenario to a
society who once were subjected to a malignant era of
martial.
Meanwhile; before this law came into effect there
were laws and policies regulating internet access in
the country; Such as the Philippine E-commerece Law,
was enacted in June 2000 as a result to online risks
caused by the I Love You virus. A certain Onel De
Guzman, a Filipino citizen created a computer virus or
worm which was known as I Love You virus or Love
Letter Virus which left almost 5.5 billion USD worth
of damage worldwide. The law protects the users with
regard to privacy, confidentiality, anonymity and
content control. The accused was never prosecuted
prompting the government to pass laws to remedy the
predicament and to further the efforts of the
government in terms of strengthening the policies
regarding the internet use.
This paper will specifically deal with the immenent
violation of this law on the Freedom of Speech,
Expression and Due process of the netizens and the

citizens in general. Furthermore, this paper will also

give an analysis of online libel that will serve as the
basis of the restraint in the Freedom of Speech and
Expression.

Review of Related Literature

In 2000, a virus which resulted a havoc to the
cyberspace system called the I Love You virus
prompted the congress to enact Republic Act 8792
otherwise known as the Electronic Commerce Act or the
E-commerce Law. Such that the PHCERT was created and a
Budapest Convention was held due to the number of
hacking attacks and cybercrimes recorded in 2001. In
2003, a computer crime section of the Philippine
National Police was created and the first cybercrime
conviction occured last 2005, with JJ Maria Giner
convicted under the e-commerce law. The growth of
cybersex has recorded on its speek on 2007 including
child trafficking. As such various laws connection with
these crimes have been enacted. Republic Act 9775 or
the Anti-Child Pornography and Republic Act 9995 or the
Anti-Photo and Video Voyeurism Act were enacted in
2009. In 2010, it was reported that 9 our of 10
Filipinos are victims of various forms of cybercrime
ranging from hacking attacks to online scams. And in
2010, congress passed an all encompassing law which
will cover all areas of crimes committed in the
cyberspace the Cybercrime Prevention Act of 2012.
However, due to its legal challenges which prompted
different sectors to file petitions which their main
contention was that the law is a violation of the

freedom of speech and expression to include due

process. The law was temporarily suspended for meantime
as the highest tribunal discusses the petitions on the
table.
In 2014, the Supreme Court lifted the suspension
and finally set the law into its full implementation.
Republic Act 10175 then became effective afterwards.

8The Philippine Cybercrime Prevention Act of 2012 by Alberto B.Salvador, Jr.

http://www.crc.gov.mn/file/newfile/CSF-5-INP-18-PH-Cybercrime-Prevention-Act.pdf

Discussion and Conclusion

Republic Act 10175 otherwise known as the Cybercrime
Prevention Act of 2012 was signed on September 12, 2012
which created a barraged in the entire country most
especially in t cyberspace world. Its enactment
prompted different human rights organizations to go out
and protest as to the unconstitutionality of the said
law. The main contention of those who oppose the law is
that it is a blatant threat to the most enjoyed freedom
in the country, the freedom of speech to specifically
mention the provision which creates online libel. Due
to the number of organizations that have showed their
utmost rejection of the Cybercrime Law to include the
petitions that were initiated to repeal the law hoping
that the Supreme Court would have been convinced to
their heed.
Among these groups are The National Union of
Journalist of the Philippines or the NUJP, the Blogger
Netizens for Democracy know as BAND, The youth groups
such as the Kabataan Partylist and the Bagong Alyansang
Makabayan and Bayand Muna. All these groups filed
petition for partial consideration of the law before
the Supreme Court. However, despite the protest on the
decision rendered by the Supreme Court on Feb 12, it
upheld the provisions which was primarily assailed by

these watchdogs. The Supreme Court upheld the

constitutionality most of the provisions of the law
including online libel.
Indeed, looking at the letter of the law its
primary purpose is to curve crimes involving the use of
the internet. Consider the excalating number of child
pornography, cybersex and the like. All these are
stipulated in the law. However, this paper will only
focus on the provision which generally touches the core
of the general public who are probably writing
something right now without even an afterthought that
they are already committing an act that could put them
behind bars. Clearly, an infringment of the freedom of
speech and expression explicitly protected by the 1987
Constitution.
The Philippines has been considered to be the most
active internet users all over the world. In fact, the
Filipinos are one of the most active Facebook, Twitter
and Instagram. To include all the blogging websites
where it is now a modern forum where they vent their
frustration over the government/government officials.
It has been an effective mobilization for the online
activist to encourage the populace to take an active
move not necessarily against the government but to
inform the public of their social civic responsibility
towards the government. Here comes the new law

threatening this freedom the Filipinos have enjoyed

since the internet era started.
The internet is the best avenue of expression and
speech. It has been wide free medium that has been an
effective and instant dessimination of thoughts and
information not just between regions but all borders of
the world. It has been a forum of different expressions
because then there was no such law that criminalizes
acts or utterences which is being posted through the
internet. In short, a restraint on this freedom has
been created and has put a hunchback on the necks of
any of the active internet users.
Thus, Article III of the 1987 Consitution
specifically Section 4 provides that; No law shall be
passed abridging the freedom of speech, of expression,
or of the press, or the right of the people peaceably
to assemble and petition the Government for redress of
grievances.

The Cybercrime law provides that "the unlawful and

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." Libel is defined

by Article

335 of the Revised Penal Code; as a public imputation

and malicious imputation of a crime, or of a vice or
9 1987 Constitution, Article III Section (4)

defect, real or imaginary, or any act, omission,

condition, status, or circumstances tending to cause
the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who
is dead.
"Public" means that the imputation was heard, read
or seen by somebody else, regardless of number, other
than the person to whom the imputation was directed.
Article 355 provides that this can be committed "by
means of writing, printing, lithography, engraving,
radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means".
Libel is punishable by imprisonment that can last as
long as 4 years and 2 months in jail.
Prior to the Cybercrime Law, it was not clear whether
or not the phrase "or any similar means" in our libel
law included computers. Computers were non-existent in
1932, the year our 80-year-old Revised Penal Code took
effect, and therefore could not have been contemplated
or even foreseen by the framers of the law.
It is a rule in the implementation and
interpretation of laws that what is not included in the
law is excluded.

And if there is any ambiguity

10

concerning the application of the phrase "or any

similar means" in this criminal statute, the same will
10 See: Velasco vs. Blas 115 SCRA 540

always be applied liberally in favor of the accused and

strictly against the state .11The rule in statutory
construction on ejusdem generis, which states that an
all-encompassing phrase at the end of the provision
must be construed in the same nature as the specific
words preceding it, does not apply considering that the
specific words are not of the same nature.12
Considering all these well-entrenched rules, it is
most likely that any libel case based on written
messages, comments, blogs, or posts in sites such as
Facebook, Twitter, or any other comment-spaces of other
social media in the Internet could be dismissed as it
is doubtful that computers are included in the law and
the uncertainty should be applied in favor of the
accused. Moreover, considering that statements and
opinions written in the Internet are within the
penumbra of the people's constitutional right of
speech, the preference is for the protection of the
expressions made.
Perhaps this was the reason why the unchecked and
uncensored inter-active written communications,
comments, replies, blogs, and messages in the Internet
have at times bordered on libel, if not actually
constituting libel. One only has to look at the
11 People vs. Subido 66 SCRA 545
12 Colgate Palmolive vs. JimenezG.R. No. 14787 January 28, 1961

comment-spaces in the various articles written in the

Opinion section of Interaksyon.com, and in the websites
of various newspapers. Very strong and negative
comments can readily be read. Even comments in Facebook
and Twitter show these. But somehow, this kind of freewheeling interaction, though at times very offensive,
has developed through time a kind of special tolerance
among the inter-actors. The public has found an
accessible direct medium to ventilate their opinions,
and people are learning to go beyond offensive opinions
and accept them as just another point of view. This is
a very healthy development in a democracy where free
expression must be actively robust.13
As former Justice William Douglas of the United
Supreme Court said a
"...function of free speech under our system of
government is to invite dispute. It may indeed best
serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they
are, or even stirs people to anger. Speech is often
provocative and challenging. It may strike at
prejudices and preconceptions and have profound
unsettling effects as it presses for acceptance of an
idea. That is why freedom of speech, though not
13 Analysis: The Cybercrime Law and How it Affects Your Freedom of Speech by Atty; Mel
Sta. Mariahttp://www.interaksyon.com/article/43328/analysis--the-cybercrime-law-and-howit-affects-your-freedom-of-expression

absolute, is nevertheless protected against censorship

or punishment, unless shown likely to produce a clear
and present danger of a serious substantive evil that
rises far above public inconvenience, annoyance or
unrest There is no room under our Constitution for a
more restrictive view. For the alternative would lead
to standardization of ideas either by legislatures,
courts, or dominant political or community groups."
(Terminiello vs.Chicago 337 US 1)14
But now, by adopting the RPC libel provisions, the
Cybercrime law has clearly put the spectre of
imprisonment as an imminent threat to our free-wheeling
bloggers, commentators, repliers and others who write
in the internet. This is a step-back in our respect,
appreciation and implementation of freedom of
expression and indeed in our democratic way of life.
This may engender an environment of "silence coerced by
law" as characterized by former Justice Brandeis of the
United Supreme Court (Whitney vs. California 274 U.S.
357).15
The Constitution provides that any law restricting the
freedom of speech and expression carries with it the
burden of proving its constitutionality. Clearly, the
aforementioned law is a form of prior restraint and
14 Terminiello vs.Chicago 337 US 1
15 Whitney vs. California 274 U.S. 357

subsequent punishment. The former is technically an act

of the government imposing restriction to freely
express his thoughts and ideas on a certain matter and
the latter which go hand in hand with the former, since
the freedom of speech and expression is an illusory
whereby one is free from expressing his thoughts but is
endangared of subsequent punishment. The Cybercrime law
clearly violates these two aspects of the freedom of
expression. The highest tribunal in fact upheld the
constitutionality of online liber with respect to the
original author of the post and null and void with
respect to the others who simply receive and reacted on
this.
Here comes another defect of the law. Its
overbroad and all encompassing provisions in connection
with the online libel. Considering the scenario;
someone tweeted or published something, subsequently
someone retweeted it. It is a modified form of reposting a partular post, then unknown to the original
author someone copied an posted it on Facebook and so
on and so forth. The question here is, since the law
provides that the original author will be held liable;
how can the enforcer in this particular situation alone
find the culprit of the particular malicious post
without undergoing some fishing expedition? Will the
government authorize such action just to pin down the
author of the libelous post?

It has been considered that an overbreadth law

creates some sort o chillin effect since it gives the
government an unbridled power just to implement the
law. In further analysis, this will not only affect the
ordinary netizens but the media who are mostly inclined
to be committing the prohibited act considering their
exposure in the internet. Hence, it can be deduced that
its effect is curtailing the freedom of the media to
inform and critize anything and everything that
involves public interest.
The cybercrime law affects the media in the sense
that the Supreme Court still sustains libel as a
criminal offense subject to the penalty of
imprisonment. Critics of the law say libel laws provide
a chilling effect on media and freedom of speech and
expression. Given the ease with which libel complaints
can be initiated the malice presumption rule can have a
chilling and daunting effect to the public,
particularly to media practitioners, Ateneo School of
Government Dean Tony La Via said on his take on the
cybercrime law.

16

Moreover, the internet is a medium of modern

demonstration wherein tit creates a wave of protest
against any erring public official and their official
acs. Now the Supereme Court ruled that there are two
16 Ateneo School of Government Dean Tony La Via See: http://www.rappler.com/thoughtleaders/51684-la-vina-future-of-libel

different standards of malice applied between private

and public individuals the same vein shall be construed
as it renders it illusory the mandate of the
Constitution that no law shall be passed abridging the
freedom of speech and expression. Freedom of expression
should be equally apllied to the new means of
communication specifically that of the internet.
Another stressing point is the excessive and
heavier penalty on the online libel than the libel
provided in the Revised Penal Code. The new law ;
drastically increases the penalty for computer-related
libel, with the minimum punishment raised 12-fold, from
six months to six years. The maximum punishment is
doubled from six to 12 years in prison.

17

In

incoporating the 80-year old libel provision from the

Revised Penal Code creates a disproportionate standards
of libelous statements and even malice since the
circumstances back compared to what is current and
trending is far different. These advances in technology
was perhaps not contemplated when the libel provision
in the RPC was included. At best, a different standard
of malice should have been carried in the new law. Not
just stricter standard, perhaps that standards that
clearly seperates from the libel committed in the
written instrumments than that the internet because the
differences are so bold and prominent.
17 http://gulfnews.com/news/asia/philippines/philippines-anti-cybercrime-law-willharm-free-speech-international-rights-watchdog-says-1.1082413

In a mouthful decision of the Supreme Court; it

further divided online libel between public official
and private individual.
The quest of repealing the law did not stop within
the Philippine borders as it awaken the attention of
the different international human rights organizatons.
New York based International Human Rights Watch (HRW).
Brad Adams director for HRW underscored the Cybercrime
Law violates the freedom of expression and is
incompatible with the Philippines obligation under the
international law.
The International Covenant on Civil and Political
Rights, to which the Philippines has been a partner
since 1986, ensures "the right to freedom of
expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or
in print, in the form of art, or through any other
media of his choice."18
In an article made by Prof. Roque it was further
emphasized The new Cybercrime law is an outright
defiance of the UN Human Rights Committee View in the
case of Alexander Adonis vs. Republic of the
Philippines.

18 https://ph.news.yahoo.com/human-rights-watch--cybercrime-law-violates-freeexpression-rights.html

In that View, the UNHRC declared that Philippine

libel law under the RPC contravenes freedom of
expression on two counts: one, it is a disproportionate
means by which to achieve its avowed goal of protecting
the privacy of private persons; and two, because there
is an alternative in the form of civil libel, or the
payment of damages. The UNHRC also took the view that
our libel in the Philippines, because it does not
recognize truth as a defense, is additionally defective
on this ground.19

The right to freedom of opinion and expression is

as much a fundamental right on its own accord as it is
an enabler of other rights, including economic,
social and cultural rights, such as the right to
education and the right to take part in cultural life
and to enjoy the benefits of scientific progress and
its applications, as well as civil and political
rights, such as the rights to freedom of association
and assembly. Thus, by acting as a catalyst for
individuals to exercise their right to freedom of
opinion and expression, the Internet also facilitates
the realization of a range of other human rights. The
vast potential and benefits of the Internet are rooted
in its unique characteristics, such as its speed,
19 See: http://www.rappler.com/thought-leaders/12715-cybercrime-law-see-you-incourt-pnoy

worldwide reach and relative anonymity. At the same

time, these distinctive features of the Internet that
enable individuals to disseminate information in real
time and to mobilize people has also created fear
amongst Governments and the powerful. This has led to
increased restrictions on the Internet through the use
of increasingly sophisticated technologies to block
content, monitor and identify activists and critics,
criminalization of legitimate expression, and adoption
of restrictive legislation to justify such measures20
Over the last years, indeed, the Philippines has
meade no move to curve the crimes being committed in
the cyberworld. Which made easy for large syndicates or
even the small ones to take avdvantage of such
deficiency on the part of the government. Given the
lack of financial and technical facilities it took the
Philippines to finally enact a law that will answer to
these prevailing and growing crimes such as child
pornography, cybersex and other content related crimes.
However, in doing so an important aspect of the freedom
of the people to express their views, thoughts or even
give information to the public is greatly in peril.
There is no doubt as to the intention of the government
to clean the country of such enormous immoral dealings
being done with the aid of the internet. What cannot be
20 Human Rights Council Seventeenth session Agenda item 3 Promotion and
protection of all human rights, civil, political, economic, social and cultural rights,
including the right to development.

justified is the fact that as the internet as the

medium of fast, spontaneous and effective means to
inform the passive members of society who turns out to
be active ones now will be meted an imprisonment just
because they have posted something malicious and
libelous in the internet. Truly, there should be some
sort of stricter policy impose in the internet
considering the veracity of its reach. One single
activity can go one thousand miles across the pacific,
that is how powerful the internet particulary the use
of Facebook, Twitter and other blogging websites but
the government should have thought that penalty which
appears to be heavier and disproportionate can directly
affect the protected freedom of speech embeded in the
Constitution.
Unlike any other medium, the Internet enables
individuals to seek, receive and impart information and
ideas of all kinds instantaneously and inexpensively
across national borders. By vastly expanding the
capacity of individuals to enjoy their right to freedom
of opinion and expression, which is an enabler of
other human rights, the Internet boosts economic,
social and political development, and contributes to
the progress of humankind as a whole. 21

21 Conclusion: See 67.

http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf

It is high time for the lawmakers to dicriminalize

libel because as far as the public is concern the
Philippines is a democratic country where every citizen
has their right to sprout their bad feelings towards
the government and even to any lay individual in
consonnance with good motives and absent of ill will.
Democracy demans a free market of idea in all forums.
It may not be absolute but it shall never be hindered
absent a government compelling reason to do so.
Democracy needs active citizens not passive ones. And
this law slowly but surely develops that kind of
mentality amongst people. To keep quiet in fear of
prosecution. Until and unless the government repeal or
amend the libel provision of the law; until and unless
the government creates a new standard of libel which
appropriately applies to activities pertaining the use
of internet; the law stands as a violation of the
Freedom of Speech and Expression of the Filipino
people.