Likening the cybercrime law to a vampire that “sucks the life out of freedom of speech and expression,” Sen. Teofisto Guingona III on Tuesday asked the Supreme Court to strike down specific provisions of the law.

Guingona delivered the opening remarks at the start of oral arguments on the Cybercrime Prevention Act of 2012, or Republic Act No. 10175, in yesterday’s en banc session of Supreme Court justices.

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The cybercrime law is covered by a temporary restraining order (TRO) issued by the tribunal following several petitions objecting to its more stringent penalties for libel committed online and a takedown provision that allows the justice department to unilaterally close down a website. Implementation of the law has been suspended for four months until February.

Guingona initially thanked the Supreme Court for the TRO that “has thankfully put to sleep… (this) Cyber-Dracula.”

He urged the tribunal to enact a more permanent ruling on the law “to impale (it) of its ghostly provisions with the stake of reason. As cyber-Dracula lies helpless in its sleep, we plead for the final decisive action to banish our anger, anxiety and fears altogether.”

Twelve justices led by Chief Justice Maria Lourdes Sereno were in attendance to question the challenges put up by the petitioners who wanted the high court to strike down the law for allegedly being unconstitutional.

Five provisions

The high court listened to petitioners argue on five provisions of RA 10175 on online libel, cybersex, punishing libel one degree higher than the penalty imposed by the Revised Penal Code, the “take-down” policy that allows the Department of Justice to block or restrict a website with libelous content, the government authority to collect traffic data and penalizing an Internet user who abets a cybercrime.

Harry Roque, among the five designated petitioners-counsels, asked the high court to strike down on the basis of the principle of “overbreadth” (being too general) as well as vague Section 4 (c)4 and 4(1) that criminalizes libel online.

Roque cited for instance the fact that blogs on the Internet had spaces for comments. “What happens now if there is a libelous comment left on the comment space. Are blog owners liable for libel and is reposting links, actionable?” he asked.

Roque also asked whether under this provision social media networking sites like Facebook or Twitter and Internet Service Providers (ISPs) could be held liable for having posts found to contain malicious statements.

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Laughter in court

It was the questioning though of Associate Justice Marvic Leonen that brought the audience outside the court to laughter.

Leonen cited the case of a former UP law student and now lawyer Chris Lao who had been subjected to cyber-bullying. Lao gained Internet infamy when he was videotaped driving his car right through flooded waters.

“Would you agree with me that there were tweets and FB posts that were quite defamatory to Chris Lao?” Leonen asked Roque, who replied that he had no personal knowledge of the posts.

Derek Ramsey’s followers

Leonen then pointed out that some people had a huge following in Twitter like actor Derek Ramsey who had 840,842 followers.

“Some of them have a stronger following which can mean they have the potential and ability to destroy others,” he told Roque.

Leonen asked Roque whether it was not the right of the State then to protect ordinary citizens.

“Therefore, is there not a right of the government, a State interest in coming in to remove the megaphones of some individuals who are careless?” Leonen said.

Suicide

For her part, Sereno said she was concerned about people who committed suicide because they could no longer wait for libelous posts against them to be taken down.

Sereno then asked Roque whether the State had the “right to regulate the invasion of privacy.”

Roque said he commiserated with people who ended up killing themselves because of their situation but he also underscored the need to make a “delicate balance of interests.”

Sereno said that the high court was now trying to engage in exercising that balance of interests.

Roque said that according to the UN Human Rights Committee, the way to achieve this balance was decriminalizing libel in a way that people who were victims of libel could seek civil damages against those who offended them.

Several justices agreed with the arguments of Bayan Muna Rep. Neri Javier Colmenares that a cyber-offender would be prosecuted for violating both the cybercrime law and the Revised Penal Code, and if found guilty would be penalized one degree higher than the penalty provided under the Code.

Double jeopardy

Colmenares said the provision violated the constitutional prohibitions on double jeopardy, cruel and unjust punishment, and due process.

“The law allows what the Constitution prohibits so that law should be struck down,” he said.

Colmenares also argued that offenses such as libel through newspaper articles did not have a substantial distinction between libel committed via Internet, and information and communication gadgets, which the law penalizes.

“No new elements were added, so the penalty should not be raised,” Colmenares argued, responding to a query from Justice Diosdado Peralta on whether the law practically provided for a different kind of libel.

All libel cyber-libel

Under questioning by Justice Antonio Carpio, Colmenares agreed that all libel would now be practically considered cyber-libel because even newspapers use computers to send and process stories.

This is because the law does not distinguish whether a computer is connected online on not, Carpio said.

Rodel Cruz, who argued against the take-down provision of the law, said the rules concerning warrantless searches and seizures should be the same whether in the real world or in cyberspace.

Confisfactory

Cruz said Section 19 was “confisfactory” because it allowed the justice department to restrict or block one’s access to his or her computer data should the agency deemed prima facie or on first appearance that the user was violating the law.

Jesus Disini Jr., who argued against the provision authorizing the government to collect real-time data, agreed with De Castro’s observation that “the coverage [of the provision] is any one or any group.”

“There is no assurance that only real-time data are being collected,” Disini said, adding that netizens could rely only on the “conscience of the law enforcer” that their privacy was not being violated by the data collection.

Person’s identity

Asked by Carpio if collecting real-time data was just like the government asking for one’s mobile phone bill without the name and address of the owner of the account, Disini replied details on the bill could be used to reveal a person’s identity, the people he called or texted, their locations, or even the websites he visited if the cell phone had Internet connection, thus establishing his profile without the person knowing it.

Disini said any collection of real-time data should be covered by a court order so that that precise data to be collected would be specified.

The high court concluded its hearing after more than four hours.

The tribunal will convene again on Jan. 22, this time to listen to the arguments of Solicitor General Francis Jardeleza on the government’s stand on the law’s implementation.

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