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Memorandum Assailing the Constitutionality of the Cybercrime Prevention Act of 2012

Cammayo, Mary Grace

[Pick the date]

Submitted by:

Abad, Anna FeCammayo, Mary GraceHernandez, Anabella

Lim, AlexanderMendoza, Mara Krishna

Polloso, Paul RomeoSantos, Lamberto

Uy, Herazeus Christine Y.

4A

Submitted to:

Atty. Rene B. GorospeProfessor

Legal Forms Class

Faculty of Civil LawUniversity of Santo Tomas

October 9, 2012


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Republic of the PhilippinesSUPREME COURT

City of Manila

CONCERNED LAW STUDENTS OF THEPHILIPPINES, INC. (CLAWS)Petitioner,

-versus-

HON. JUAN PONCE ENRILE, HON. FELICIANOBELMONTE, JR., HON. PACHITO OCHOA, ExecutiveSecretary,

Respondent.

x--------------------------------------------------------------x

PETITION

COMES NOW the petitioner, by the undersigned counsel, and to this Honorable

Court, respectfully alleges:

1. That the petitioner is a duly recognized Philippine corporation with its principal

office located at Office of the Concerned Law Students of the Philippines, Mezzanine

Floor, Main Building, University of Santo Tomas, Sampaloc, Manila, incorporated by

a group of concerned law students from premier law schools in the Philippines;

2. That Hon. Juan Ponce Enrile as Senate President, Hon. Feliciano S. Belmonte, Jr. as

Speaker of the House, and Hon. Pachito Ochoa as Executive Secretary acted without

or in excess of its jurisdiction, or with grave abuse of discretion in promulgating and

implementing Republic Act No. 10175, also known as the Cybercrime Prevention Act

of 2012;

3. That there is no appeal from such act or any plain, speedy and adequate remedy in

the ordinary course of law;

4. That a certified true copy of the law sought herein sought to be declared

unconstitutional is hereto attached as Annex A together with copies of all

pleadings and documents relevant and pertinent thereto;

5. That Internet use in the Philippines has grown rapidly in the past decade. It has

given rise to countless opportunities to a lot of Filipinos in every field imaginable. It

has served as venue for growth and development in businesses, trade, engineering,

G.R. No. ___________________For: Writ for Prohibition andMandamus


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arts and sciences and has sped up the exchange of information about practically all

aspects of life. It has since been an integral part of our daily lives. 1 However, the

internet also has its own disadvantages and one of these is cybercrime. In recent

years, we have witnessed how cybercrime has emerged as the latest and most

complicated problem in the cyber world. Criminal activities in the cyberspace are

now on the rise. 2

6. That in order to combat cybercrime, our lawmakers enacted Republic Act 10175,

also known as the Cybercrime Prevention Act of 2012. Such law took effect last

October 3, 2012. Unfortunately, due to the inadvertently inserted vague provisions

in the law, t he Cybercrime Law now poses serious threats to internet freedom, the

right to privacy and other essential civil liberties including the freedom of speech,expression, and the press; 3 the constitutional right against double jeopardy; and the

equal protection clause. The insertion of provision regarding online libel and vague

sections on data collection and sanctions is essentially an online censorship law. 4

7. That cybercrime is an actual danger to democracy, human rights and the rule of law.

Nevertheless, measures to fight and prevent cybercrime must be based on laws that

fully respect civil liberties. 5

8. In light of all the foregoing, we respectfully submit the following arguments assailing

the constitutionality of the Cybercrime Prevention Act before this Honorable Court:

A. Violation of the Freedom of Expression Clause

Section 4 (c) (4) of the Cybercrime Prevention Act provides as follows:

SEC. 4.Cybercrime Offenses. The following actsconstitute the offense of cybercrime punishable underthis Act:

xxx(c) Content-related Offenses:

xxx(4) Libel. The unlawful or prohibited acts of libel asdefined in Article 355 of the Revised Penal Code, asamended, committed through a computer system or anyother similar means which may be devised in the future.

On the other hand, Section 5 (a) of the same law provides:

1 Explanatory Note of House Bill No. 6613 by Representative Teddy Casino and Representative RaymondPalatino.2Ibid. 3Ibid. 4Ibid. 5 Explanatory Note of Senate Bill No. 52 by Senator Edgardo Angara.


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SEC. 5. Other Offenses. The following acts shall alsoconstitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids in thecommission of any of the offenses enumerated in thisAct shall be held liable.

Taken together, Section 4(c)(4) and Section 5 (a) of the Cybercrime law

clearly infringes on the citizenrys right to freedom of expression enshrined under

Article III, Section 4 of the 1987 Constitution.

First, said provisions suffer from vagueness for lack of specific definition of the terms abet or aid. The Void for Vagueness Doctrine posits that a law which

either forbids or requires the doing of an act in terms so vague that people of

ordinary and common intelligence must necessarily guess at its meaning and differ

as to its application is considered invalid since it does not adequately inform or

warn its subjects as to what are expected of them. 6A law is void on its face if it

does not aim specifically at evils within the allowable governmental control, but

sweeps within its ambit other activities that constitute an exercise of protectedexpressive rights 7.

In this case, the word aid or abet, for lack of specific definitions upon

which it would operate, would include acts or activities which effectively encroach

upon areas of protected speech. In this case, those who play a part in unwittingly or

willfully encouraging the spread of libelous content shall likewise be charged for

abetting libel. For instance, the simple act of clicking the "Like" button of Facebook

or re-tweeting posts on Twitter may be tagged as unlawful as well.

In the same vein, Cybercrime Prevention Act is labeled as a mala prohibita

law, it being a special law. In laws which are mala in se , criminal intent or criminal

mind is a necessary ingredient in order for conviction to lie on the crime charged.

Examples of mala in se crimes are murder, robbery, theft, and other offenses

punishable under the Revised Penal Code. Mala prohibita laws like the Cybercrime

Prevention Act, punishes prohibited acts, although they may not be inherently evil.

Thus, the mere commission of an act without criminal intent is sufficient to sustain a

6Gorospe; Constitutional Law: Notes and Readings on the Bill of Rights, Citizenship and Suffrage; Volume 1; p.306; Manila: Rex Bookstore.

7 Tribe; American Constitutional Law; 2 nd ed.; p. 1022; New York: The Foundation Press Inc.


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conviction. In the law under consideration, the expansive terms of abet or aid

would include within its ambit, sending into prison persons who unwittingly

commit acts which they believe in good faith are part and parcel of their right to

freedom of expression . For instance, even if one is just trying out a brand of humor

where somebody's name is used as a verb or noun to signify not-too-admirable acts

such as Noynoying , Sottomy , etc., one could get arrested, the same being

considered by law to have been uttered under libelous circumstances.

Secondly, the said provisions act as a prior restraint in the exercise of ones

freedom of speech and expression. "Prior restraint is generally understood as an

imposition in advance of a limit upon speech or other forms of expression. In

determining whether a restriction is a prior restraint, one of the key factors

considered is whether the restraint prevents the expression of a message. 8

Otherwise stated, prior restraint operates to prevent a person from expressing his

opinions or ideas in a more tangible form for fear of subsequent punishment after

its publication.

Section 19 of the said law vests a broad discretionary power to the

Department of Justice, to wit:

SEC. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie found to be inviolation of the provisions of this Act, the DOJ shall issuean order to restrict or block access to such computerdata.

By virtue of such provision, the DOJ can effectively ban or restrict access to a

computer data, say a blog or account, if it finds the contents stated therein prima facie libelous. This acts as prior restraint for it creates fear on the part of an

individual to freely articulate his/her thoughts. As such, he/she may just as well

engage into self-censorship for fear of being detected later on and subsequently

prosecuted. Or worse, he/she may simply shut down or suspend his own account.

The scenarios are not just mere fabrications of the overactive imagination but rather

authentic interpretations drawn by citizens of this country when the law was first

implemented . For instance, a day before the law became effective on October 3,

2012, several blogs of various netizens were either shut down or suspended by the

account holders themselves for fear of being punished for the criticisms or opinions

they have posted on their blogs, which the government may well find to be prima

8 Chavez v. Gonzales, G.R. No. 168338, February 15, 2008.


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facie libelous. The chilling effect of this law has marred such fateful day in our

history. Where the Philippines was once the bastion of true democracy, such idyllic

circumstance is now extinct, overruled by the rich and powerful politicians of our

day.

The Supreme Court in one case held that, Freedom of expression has long

enjoyed the distinction of being a preferred right and thus, a weighty presumption

of invalidity vitiates measures of prior restraint upon the exercise of such

freedoms. 9

B. Violation of the Right Against Double Jeopardy

Section 21, Art. III, 1987, Constitution, provides that "No person shall betwice put in jeopardy of punishment for the same offense. If an act is punished by a

law and an ordinance, conviction or acquittal under either shall constitute a bar to

another prosecution for the same act." Section 7 of the Cybercrime Law on the other

hand states that:

SEC. 7.Liability under Other Laws. A prosecutionunder this Act shall be without prejudice to any liabilityfor violation of any provision of the Revised Penal Code,as amended, or special laws.

Rule 117, Section 7 of the Rules on Criminal Procedure provides that,

Double jeopardy would bar subsequent prosecutions for the offense charged, or

for any attempt to commit the same or a frustration thereof, or for any offense

which necessarily includes or is necessarily included in the offense charged in the

former complaint or information.

In this case for instance, libel punishable under this act is likewise punishable

under Revised Penal Code (RPC). Hence, despite the fact that the crime arises from

the same or similar acts or omissions, they are punished separately, and worse,

conviction in any one of them is not a bar to a subsequent conviction under the

other law. The only difference being that, libel under this special law has a heavier

penalty than that in the RPC.

The same is also truein the case of plagiarism which is punishable under

Intellectual Property Code (IPC), a special law. Thus, if an act of plagiarism amounts

to a copyright infringement under the IPC, the violator may likewise be held liable

9 Ayer Productions v. Hon. Capulong and Juan Ponce Enrile , G.R. No. 82380, April 29,1988


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under the Cybercrime Prevention Act if he/she uses information and

communications technology (ICT) for its commission.

C. Violation of the Equal Protection Clause

The provision of R.A. 10175 manifestly violates the equal protection clause

guaranteed by the Constitution. It discriminates between the offenders who commit

libel by means of writing, printing, lithography, engraving, radio, phonograph,

painting, theatrical exhibition, cinematographic exhibition, or any similar means,

and to the offenders who commits libel under R.A. 10175. As enunciated in several

jurisprudence, there are qualifications in order for a classification to be valid. First,

the classification must be based on substantial distinctions; secondly, theclassification must be germane to the purpose of the law; thirdly, the distinction

must not be limited to present conditions only; and lastly, it must apply equally to all

member of the same class. 10

Applying the qualifications to the provisions of R.A. 10175 and Art. 355 of the

Revised Penal Code, it is clear that the former provision fails to satisfy the first

requirement for a valid classification, which is that the classification must be basedon substantial distinctions. There is no substantial distinction between an offender

who commits libel under Art. 355 and an offender who commits a similar act under

R.A.10175.

By reading the provision of R.A.10175, one can glean that the act punishable

is the same as the act provided for in Art.355. The only difference seems to be the

medium through which the crime was committed. The offender is the same person

who just communicated the act in another medium. By punishing libel as a

cybercrime simply because it is committed through a computer system, the clear

intent of the law is to single out netizens in their chosen medium of expression,

which is patently discriminatory and contrary to the supreme law of the land.

D. Violation of the Due Process Clause

Section 1, Article III of the 1987 Constitution guarantees that 'no person shall

be deprived of life, liberty or property without due process of law. Due process is a

part of the guarantees of freedom and fair play which are birthrights of all who live

in the country 11 and is therefore inviolable. However, under Section 19 of the

10 Biraogo v. The Philippine Truth Commission of 2010 , G.R. No. 192935, December 7, 2010. 11 Salonga v. Pano, G.R. No. 59524, February 18, 1985, 134 SCRA 438, 443.


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Cybercrime Prevention Act, 'when a computer data is prima facie found to be in

violation of the provisions of this Act, the Department of Justice (DOJ) shall issue an

order to restrict or block access to such computer.'

This now calls for an examination of what prima facie evidence means under

the law and its possible implications.

Prima facie evidence is thus defined as e vidence good and sufficient on its

face. Such evidence as, in the judgment of the law, is sufficient to establish a given

fact, or the group or chain of facts constituting the party's claim or defense, and

which if not rebutted or contradicted, will remain sufficient. Evidence which, if

unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the

issue it supports, but which may be contradicted by other evidence. 12 Prima facie

evidence thereby passes the burden of evidence upon the person accused of

violation instead of the State proving his guilt beyond reasonable doubt.

The provision of the Cybercrime Law clearly gives enormous power to the

DOJ as mere prima facie finding of violation, without court intervention, gives it the

authority to block or restrict access to computers, thereby amounting to seizure.Whereas now no search warrant or warrant of seizure may issue except upon

probable cause to be determined by a judge, 13 Section 19, now popularly called the

takedown provision, does not require probable cause but only prima facie

evidence determined not by a judge but by the Department of Justice.

Reference should be made on the interpretation made by the US Court in the

case of United States v. Warshak. Here the United States Court of Appeals for theSixth Circuit ruled that a person has a reasonable expectation of privacy in his

emails and that the government violated Warshak's Fourth Amendment rights by

compelling his internet service provider to turn over his emails without first

obtaining a warrant based upon probable cause. 14

12 H. Black, et al ., Black's Law Dictionary 1190 (6th ed.,1990).13

Sec. 2, Art II of the 1987 Constitution:The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, andno search warrant or warrant of arrest shall issue except upon probable cause to bedetermined personally by the judge after examination under oath or affirmation of thecomplainant and the witnesses he may produce , and particularly describing the place to besearched and the persons or things to be seized.

14 United States v. Warshak, December 14, 2010.


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The cybercrime law is devoid of sufficient standards that would guide the

DOJ in its determination of prima facie evidence of guilt. If read together with the

other provisions of the Act, this gives DOJ a wide latitude of discretion to confiscate

properties even without a reasonable determination of existence of violation..

E. Violation of the Right against Illegal Search and Seizure

Section 15 (e) of the Cybercrime law gives the law enforcers, within the time

specified in the warrant, to render inaccessible or remove those computer data in

the accessed computer or computer and communications network. Section 17 even

provides for Destruction of Computer Data, Upon expiration of the periods as

provided in Sections 13 and 15, service providers and law enforcement authorities,

as the case may be, shall immediately and completely destroy the computer data

subject of a preservation and examination."

Furthermore, 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 serviceproviders to capture data about communications.

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. 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 andrelated.

WHEREFORE , it is respectfully prayed, that pending the proceedings in the action, a

preliminary injunction be granted ordering the respondets to desist and refrain from

further proceedings in the premises, and that after due notice and hearing, a Writ of

Prohibition be issued commanding the said respondent to desist absolutely and

perpetually from further proceedings in the matter in question.

City of Manila, Philippines, this 9 th day of October 2012


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ABAD, SANTOS, UY & ASSOCIATES LAW OFFICE2/F Erlag Bldg., 102 Esteban St.,

Legazpi Village, Makati City 1229Tel. Nos. 812-6688/813-6989

Email address: [email protected]

By:

ATTY. JUAN DELA CRUZ1234 Wall Street Ave., Sta. Cruz, Manila

Roll No. 11118PTR No. 32456, 2/2/2012; ManilaIBP No. 32456, 1/3/2012; Manila

MCLE Compliance No. 1234; 4/10/2012

Copy furnished:

ATTY. PEDRO AQUINO2174 Wall Street Ave., Sta. Cruz, Manila

Roll No. 11119PTR No. 35456, 2/2/2012; ManilaIBP No. 82456, 1/3/2012; Manila

MCLE Compliance No. 2934; 4/10/2012


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VERIFICATION AND CERTIFICATE OF NO FORUM SHOPPING

Republic of the Philippines)City of Manila ) S.S.

Rene B. Pe, after having been duly sworn deposes and says:

1. That he is the petitioner in the above-entitled petition for writ of prohibition andmandamus; that he has caused its preparation; that he has read it and theallegations therein are true of his own knowledge or based on authentic records;

2. That he certifies that he has not heretofore commenced any action or filed any claiminvolving the same issues before any other court, tribunal or quasi-judicial agency,that to the best of his knowledge, there is no pending action or claim, and that if heshould thereafter learn that the same or similar action or claim has been filed or is

pending, he shall report such fact within five (5) days therefrom to this HonorableCourt.

Rene B. PeCLAWS Representative

JURAT

SUBSCRIBED AND SWORN to before me, in the City of Manila, this 24 th day of August, 2010, the affiant exhibiting to me his Passport No. XW22749 issued by theDepartment of Foreign Affairs on January 10, 2009.

ATTY. JUAN DELA CRUZ1234 Wall Street Ave., Sta. Cruz, ManilaRoll No. 11118

PTR No. 32456, 2/2/2012; ManilaIBP No. 32456, 1/3/2012; ManilaMCLE Compliance No. 1234; 4/10/2012

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