Constitutionality of cybercrime law questioned before SC

MANILA, Philippines—A third petition has been filed before the Supreme Court questioning the constitutionality of several provisions of Republic Act 10175 or the Cybercrime Prevention Act of 2012 saying it tramples upon the fundamental rights of the people.

In a 31-page petition for certiorari and prohibition dated Sept. 25, petitioners Jose Jesus M. Disini Jr., Rowena S. Disini, Lianne Ivy P. Medina, Jeanette Toral and Ernesto Sonido Jr. urged the high court to stop the Department of Justice, Department of the Interior and Local Government, Commission on Information and Communications Technology (CICT), Philippine National Police and the National Bureau of Investigation from implementing the law.

The Act was signed into law by President Benigno Aquino III on Sept. 12.

Petitioners specifically asked the high court to nullify Sections 4[c]4, 6, 7, 12, 19 of the law.

“[T]hese provisions are constitutionally infirm. Taken together, they restrict the fundamental rights to free speech and the freedom of the press with respect to online content in the same way a totalitarian state would do so — through unrestricted and unregulated censorship,” the petition stated.

Sec. 4 (c) [4] of the law criminalizes libel, not only on the internet, but also on “any other similar means which may be devised in the future.”

Sec. 6 raises by one degree higher the penalties provided for by the Revised Penal Code for all crimes committed through and with the use of information and communications.

Sec. 7 provides that apart from prosecution under the assailed law, any person charged [with] violation of the said law the offender can still be prosecuted for violations of the Revised Penal Code and other special laws.

Sec. 12 authorizes law enforcement authorities to “collect or record by technical or electronic means” communications transmitted through a computer system sans warrant.

Sec. 19 authorizes the DOJ to block access to computer data when such data “is prima facie found to be in violation of the provisions of this Act.”

“It is undeniable that the Cybercrime Act in this context is a content-based regulation, that is, one that seeks to restrict speech at first blush appears to violate the Cybercrime Act,” petitioners stated.

Aside violation of free speech, the law also violates the double jeopardy and equal protection clause of the Constitution because it allows simultaneous prosecution for violation of the Cybercrime Act and the Revised Penal Code.

Violation of the Cybercrime Prevention Act will impose a penalty higher than that of the Revised Penal Code but it does not preclude the prosecution for the same offense for violation of the Penal Code.

Also, petitioners said 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,” the petitioners said.

“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,” it added.

“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 communications.”

On the other hand, Section 19 allows the DoJ to compel the take down of any internet or on-line content without any need for a judicial determination.

Aside from the Disini, et al. petition, businessman Louis “Barok” Biraogo and Alam party list also filed separate petitions with the high court assailing the constitutionality of the same provisions in the law.