“Subsequent Punishment”

019_Disini v Secretary of Justice, G.R. No. 203335, February 11, 2014

Facts:

The case arises out of consolidated petitions to the Supreme Court on the constitutionality of
several provisions of the Cybercrime Prevention Act of 2012, Act No. 10175. The Act is the
government’s platform in combating illegal cyberspace activities.

Petitioners challenge the constitutionality of the following provisions of the cybercrime law
that regard certain acts as crimes and impose penalties for their commission as well as provisions
that would enable the government to track down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A.
10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and Functions.

Issue:

Whether or not the Cybercrime Prevention Act of 2012 is constitutional, considering the
petitioners’ contention that 21 separate sections of the Act violate their constitutional rights,
particularly the right to freedom of expression and access to information.

Ruling:

Sections 4(c)(3), 12, and 19 of the Cybercrime Prevention Act of 2012 is unconstitutional.
 in Morfe v. Mutuc, it ruled that the right to privacy exists independently of its identification with
liberty; it is in itself fully deserving of constitutional protection.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s
papers and effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable. Further, it states that no search warrant shall issue except upon probable
cause to be determined personally by the judge. Here, the Government, in effect, seizes and places
the computer data under its control and disposition without a warrant. The Department of Justice
order cannot substitute for judicial search warrant. (In Relation to Sec. 19)

In this case,
 Section 4(c)(3) violated the right to freedom of expression by prohibiting the electronic
transmission of unsolicited commercial communications.
 Section 12 in violation of the right to privacy because it lacked sufficient specificity and
definiteness in collecting real-time computer data.
 Section 19 of the Act for giving the government the authority to restrict or block access to
computer data without any judicial warrant.

Notes:

Among 21 challenged sections, the Court declared Sections 4(c)(3), 12, and 19 of the Act as
unconstitutional.

Section 4(c)(3) prohibits the transmission of unsolicited commercial electronic

communications, commonly known as spams, that seek to advertise, sell, or offer for sale of
products and services unless the recipient affirmatively consents, or when the purpose of the
communication is for service or administrative announcements from the sender to its existing users,
or “when the following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for
the recipient to reject receipt of further commercial electronic messages (opt-out) from the same
source;
(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and
(cc) The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the message.”

The government argued that unsolicited commercial communications amount to both

nuisance and trespass because they tend to interfere with the enjoyment of using online services
and that they enter the recipient’s domain without prior permission.

The Court first noted that spams are a category of commercial speech, which does not
receive the same level of protection as other constitutionally guaranteed forms of expression ,”but
is nonetheless entitled to protection.” It ruled that the prohibition on transmitting unsolicited
communications “would deny a person the right to read his emails, even unsolicited commercial ads
addressed to him.” Accordingly, the Court declared Section4(c)(3) as unconstitutional.
 Section 12 of the Act authorizes the law enforcement without a court warrant “to collect
or record traffic data in real-time associated with specified communications transmitted by means of
a computer system.” Traffic data under this Section includes the origin, destination, route, size,
date, and duration of the communication, but not its content nor the identity of users.

The Petitioners argued that such warrantless authority curtails their civil liberties and set the
stage for abuse of discretion by the government. They also claimed that this provision violates the
right to privacy and protection from the government’s intrusion into online communications.

According to the Court, since Section 12 may lead to disclosure of private communications,
it must survive the rational basis standard of whether it is narrowly tailored towards serving a
government’s compelling interest. The Court found that the government did have a compelling
interest in preventing cyber crimes by monitoring real-time traffic data.

As to whether Section 12 violated the right to privacy, the Court first recognized that the right
at stake concerned informational privacy, defined as “the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion.”

In determining whether a communication is entitled to the right of privacy, the Court applied
a two-part test:

(1) Whether the person claiming the right has a legitimate expectation of privacy over the
communication, and
(2) whether his expectation of privacy can be regarded as objectively reasonable in the
society.

The Court noted that internet users have subjective reasonable expectation of privacy over
their communications transmitted online. However, it did not find the expectation as objectively
reasonable because traffic data sent through internet “does not disclose the actual names and
addresses (residential or office) of the sender and the recipient, only their coded Internet Protocol
(IP) addresses.”

Even though the Court ruled that real-time traffic data under Section 12 does not enjoy the
objective reasonable expectation of privacy, the existence of enough data may reveal the personal
information of its sender or recipient, against which the Section fails to provide sufficient safeguard.
The Court viewed the law as “virtually limitless, enabling law enforcement authorities to engage in
“fishing expedition,” choosing whatever specified communication they want.”

Accordingly, the Court struck down Section 12 for lack of specificity and definiteness
as to ensure respect for the right to privacy.

Section 19 authorizes the Department of Justice to restrict or block access to a

computer data found to be in violation of the Act. The Petitioners argued that this section also
violated the right to freedom of expression, as well as the constitutional protection against
unreasonable searches and seizures.

The Court first recognized that computer data constitutes a personal property, entitled to
protection against unreasonable searches and seizures. Also, the Philippines’ Constitution requires
the government to secure a valid judicial warrant when it seeks to seize a personal property or to
block a form of expression. Because Section 19 precluded any judicial intervention, the Court
found it unconstitutional.