Facts

The case arises out of consolidated petitions to the Supreme Court of the Philippines on
the constitutionality of several provisions of the Cybercrime Prevention Act of 2012, Act
No. 10175.

The Petitioners argued that even though the Act is the government’s platform in
combating illegal cyberspace activities, 21 separate sections of the Act violate their
constitutional rights, particularly the right to freedom of expression and access to
inforamtion. 

In February 2013, the Supreme Court extended the duration of a temporary restraining
order against the government to halt enforcement of the Act until the adjudication of the
issues.

Decision Overview
Justice Abad delivered the Court’s opinion.

The government of Philippines adopted the Cybercrime Prevention Act of 2012 for the
purpose of regulating access to and use of cyberspace.  Several sections of the law define
relevant cyber crimes and enable the government to track down and penalize violators.  

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.