REPUBLIC OF THE PHILIPPINESSUPREME COURT

MANILA

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES,

Petitioners, - versus - G.R. No. __________________

THE EXECUTIVE SECRETARY PAQUITO OCHOA, For: Certiorari, Prohibition

andInjunction with Prayer for Temporary Restraining Order

Respondents,x---------------------------------------------x

P E T I T I O N

Petitioners, through counsel, respectfully state:

PREFATORY STATEMENT

Article 142. Inciting to sedition. - The penalty of prision correccional in its maximum period xxx shall be imposed xxx upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the (Government of the United States or the Government of the Commonwealth of the Philippines) or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest xxx rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices.

It must be noted that the Cybercrime Prevention Act 0f 2012 penalizes the

violation of the archaic law above with imprisonment with a range of six years

and one day to twelve years if committed with the use of the internet or iPhone™,

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for circulating messages which “tend to stir up the people against lawful

authorities” such as encouraging hackers to attack government websites.

If the cybercrime statute existed during Edsa I or Edsa II, those who

circulate message categorized as “scurrilous libels against the government” will

also merit a possible 12 years imprisonment.

            We wish to exaggerate if only to emphasize the monstrosity of the threat.

Under RA 10175 there would not have been an EDSA I, there would not have

been an EDSA II and there will never be an EDSA III.

I.

NATURE OF THE PETITION

1. This is a Special Civil Action for Certiorari and Prohibition

under Rule 65 of the Revised Rules of Court seeking to declare the

following provisions, inter alia, of the Republic Act No. 10175,

otherwise known as the “Cybercrime Prevention Act of 2012”

(“Cybercrime Statute”), unconstitutional on the grounds that these

provisions violate the freedom of expression, due process, equal

protection, the right to privacy and correspondence, and the right

against unreasonable searches and seizures within the meaning of

constitutional doctrine:

Section 4(C)(4) (e-Libel)

Sections 5(a) (“aiding or abetting”)

Section 5(b) (“attempt”)

Section 6

Section 7

Section 8, ¶7 (penalties corresponding to Section 5)

Section 11 (“duties of law enforcement authorities”)

Section 12 (“real-time collection of traffic data”)

Section 13 (“preservation of computer data”)

Section 15 (“search, seizure and examination of computer

data”)

Section 17 (“destruction of computer data’)

Section 19 (“restricting or blocking access to computer

data”)

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Section 20 (“noncompliance”)

Section 21 (“jurisdiction”)

Section 22 (“international cooperation”)

2. To prevent manifest injustice and inequality, Petitioner also

prays for the issuance of a Temporary Restraining Order to enjoin the

implementation and enforcement of the foregoing sections of the

Cybercrime Statute until final judgment.

3. Section 5 (1)(2)(a), Article VIII of the Constitution provides

that the Honorable Court shall have the power to rule on the

constitutionality or validity of a law, namely, “All cases in which the

constitutionality or validity of any treaty, international or executive

agreement, law, presidential decree, proclamation, order, instruction,

ordinance, or regulation is in question.”

4. The subject of the Petition is of transcendental importance

which has overreaching significance to society and paramount public

interest, considering its impact on the public and social media.

5. There is no other plain, speedy and adequate remedy in

the ordinary course of law available to Petitioners for the reason that

the Cybercrime Statute is in full force and effect.

6. The exercise of the Honorable Court’s power of judicial

review requires the concurrence of the following requisites, all of which

are present in the instant Petition, namely: (1) the existence of an

appropriate case; (2) an interest personal and substantial by the party

raising the constitutional question; (3) the plea that the function be

exercised at the earliest opportunity; and (4) the necessity that the

constitutional question be passed upon in order to decide the case.

7. Herein Petitioner, suing as citizen, taxpayer, and Member

of the House of Representatives, possesses locus standi, which is

defined as a personal and substantial interest in the case such that the

party has sustained or will sustain direct injury as a result of the

governmental act that is being challenged. The implementation of RA

10175 involves the illegal disbursement of public funds since Section

27 (Appropriations) thereof provides that, “The amount of Fifty million

pesos (PhP50,000,000.00) shall be appropriated annually for the

implementation of this Act.” Thus petitioner has legal standing as

taxpayer. Moreover, the Honorable Court ought to exercise judicial

review over the Cybercrime Statute, because the statute is a matter of

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transcendental importance, of overarching significance to society, and

of paramount public interest.

II.

THE PARTIES

8. Petitioner NERI J. COLMENARES is a duly-elected

Representative of the House of Representatives, Philippine Congress.

As a duly elected legislator, Petitioner holds legal standing to see to it

that the prerogative, powers and privileges vested by the Constitution

in his office remain inviolate. Thus, he is allowed to question the

validity of any official action which infringes on his prerogatives as

legislator.1 He may be served with court notices and other process

through the undersigned counsel.

9. Respondent is a public officer tasked with the enforcement

and implementation of the Cybercrime Statute. Respondent Executive

Secretary, SEC. PAQUITO OCHOA is the alter ego of the President of

the Philippines. He may be served with summons and other process at

the Office of the Executive Secretary, Malacanang, JP Laurel St., San

Miguel Manila;

III.

PROCEDURAL ANTECEDENTS

10. On July 27, 2010, House Bill No. 85 entitled “An Act

Defining Cybercrime, Providing for the Prevention, Investigation,

Suppression, and the Imposition of Penalties Therefor and for Other

Purposes” was filed. H.B. 85 was later consolidated with all bills

dealing with cybercrime. The consolidation resulted to H.B. 5808.

11. On May 9, 2012, H.B. 5808 was approved on second

reading.

1 Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506, 520; Biraogo vs. The Philippine Truth Commission of 2010, G.R. No. 192935, G.R. No.

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12. Following amendments, H.B. 5808 was approved on third

reading on May 21, 2012. It was transmitted to the Senate on May 23,

2012.

13. On the side of the Senate, Senate Bill No. 2796 entitled “An

Act Defining Cybercrime, Providing for Prevention, Investigation and

Imposition of Penalties Therefor and for Other Purposes”, was filed on

May 3, 2011,

14. On 24 January 24, 2012, amendments were introduced and

on the same day, S.B. 2796 was approved on second reading.

15. S.B. 2796, on third reading, was approved on January 30,

2012.

16. H.B. 5808 and S.B. 2796 were reformulated as Republic Act

No. 101751, as passed otherwise known as “Cybercrime Prevention Act

of 2012.”2

17. The bicameral report inserted two provisions which were

not provided in Senate Bill 2796 and House Bill 5808, and which

subsequently found its way into RA 101751 namely: (i) Section 19 of

RA 101751 which granted the Justice Department the power to block

access to computer data, and (ii) the proviso in Section 6 of RA 101751

which provides for a one degree increase in penalty for violations of

the Revised Penal Code using computer technology. A copy of the said

bills on 3rd reading is attached as Annex “A” for the Senate version

and Annex “B” for the House version respectively3.

18. On September 12, 2012, the President of the Philippines

approved Republic Act No. 10175, and this took effect fifteen (15) days

after the completion of its publication in the Official Gazette and at

least two (2) newspapers of general circulation.

IV.

ISSUES

A.

2 Attached is a copy of the law downloaded from the internet in the official websites of the Official Gazette, http://www.gov.ph/2012/09/12/republic-act-no-10175/ 3 Copies of said Bills from the Congressional Commission on Science, Technology and Engineering http://www.comste.gov.ph/legislation/cybercrime-prevention-act

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WHETHER THE CYBERCRIME PREVENTION ACT OF 2012 OUGHT TO INCORPORATE MULTI-TIERED PROPORTIONALITY ANALYSIS FOR FREE SPEECH CASES, ESPECIALLY E-LIBEL, FOR IT TO MEET THE SUFFICIENCY OF STANDARDS TEST AND COMPLETENESS TEST IN ASSISTING ANY TRIER OF FACT.

B.

WHETHER THE INTERPRETATION AND ADMINISTRATION OF THE STATUTE WILL RESULT TO ROVING COMMISSIONS AND ROVING WARRANTS.

C.

WHETHER THE STATUTE IS CONTRARY TO EQUAL PROTECTION, UNDULY DELEGATES LEGISLATIVE AND POLICY MAKING FUNCTIONS, VIOLATES THE RIGHT OF PRIVACY OF COMMUNICATION AND CORRESPONDENCE, IS VOID FOR BEING VAGUE, IS VOID FOR OVERBREADTH, THEREBY VIOLATING THE BASIC CONSTITUTIONAL REQUIREMENT FOR A VALID LAW.

V.

ARGUMENT

A.A FACIAL READING OF THE STATUTE WILL LEAD THE HONORABLE COURT TO CONCLUDE THAT THE STATUTE DOES NOT INCORPORATE THE MULTI-TIERED PROPORTIONALITY ANALYSIS THAT OUGHT TO BE DEPLOYED IN FREE SPEECH, ESPECIALLY E-SPEECH, NAMELY, PROPORTIONALITY ANALYSIS AND PROBABILITY ANALYSIS.

19. As of date, an internet firestorm is raging on about the

recent enactment of the Cybercrime Statute. A reading of the

substance of the text points to espionage of e-databases and e-

resources. It does attempt to flag down a number of criminal offenses

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as “content-related,” such as cybersex, child pornography, and email

spamming of unsolicited commercial communications.

20. There is a whole debate about creating distinctions

between “content-related speech” and “content-neutral” speech in

constitutional law under the Philippine Bill of Rights and allied doctrinal

considerations under the First Amendment of the United States

Constitution.

21. In short, content-based laws and regulation (e.g., laws

punishing religious hate speech) come under higher pressure and

higher scrutiny for it to pass constitutional muster under any court of

law.

22. But whether content-based or content-neutral, there

is no question that the Cybercrime Statute will reduce the sum

total of internet speech and opinion among internet users

great and small in the Philippines.

23. At this time Petitioner may be unable to list the breadth

and depth of the statute’s potential coverage, but Petitioner does say

that everything from home-grown blogs to tweets on Twitter® to the

website of a country’s central bank can be put to prosecutorial

scrutiny.

24. Petitioner is of the view that the aforequoted provisions of

the Cybercrime Statute, as they now stand, ought to be declared

unconstitutional for infringing the fundamental right of free speech, for

the reason that a facial reading of the law will lead the

Honorable Court to conclude that the statute, in present form,

does not incorporate the multi-tiered proportionality analysis

in free speech doctrine, what more for rapidly emerging

doctrine on internet speech or e-speech.

25. At the top of the internet firestorm debate of the

Cybercrime Statute is an apparent rider on libel, or what Petitioner

may refer to as e-Libel. This appears to be under the heading

“content-related offenses” under Section 4(c)(4).

26. The Cybercrime Statute perfunctorily defines e-Libel as

“The unlawful or prohibited acts of Libel as defined in Article 355 of the

Revised Penal Code, as amended, committed through a computer

system or any other similar means which may be devised in the

future.”

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27. Referring to the Penal Code’s Article 355, the Cybercrime

Statute incorporates the old definition of libel: “Libel means by writings

or similar means. — A libel committed by means of writing, printing,

lithography, engraving, radio, phonograph, painting, theatrical

exhibition, cinematographic exhibition, or any similar means, shall be

punished by prision correccional in its minimum and medium periods

or a fine ranging from 200 to 6,000 pesos, or both, in addition to the

civil action which may be brought by the offended party.”

There is no question that the Cybercrime Prevention Law will reduce the sum total of internet speech and opinion among internet users great and small in the Philippines and beyond, because its Sections, read in their entirety, raise the constitutional price of an essential political good today.

28. It ought to be asked whether the Cybercrime

Statute advances the conditions of freedom compared to

conditions status quo ante, or conditions prior to the passage

of the act.4 This is part of the overall moving proportionality analysis

that should have been considered in the writing of the Statute in the

first place.

29. The answer to that question, is that the constitutional

price of the Cybercrime Statute is too high.

30. Specifically on e-Libel, Petitioner asks how might ordinary

courts of law, from the municipal trial courts in provinces to the

regional trial courts in cities, proceed to apply the provisions of e-Libel

to, say, a Twitter follower of someone who may have felt maligned by a

malicious imputation in a 140-character Tweet?

31. Whether the aggrieved party is a public figure or not,

Petitioner argues that a mere facial analysis of the provisions

corresponding to e-Libel will show that those provisions are

unconstitutional, because routine trial court decision-making may not

readily have the know-how to deploy the sundry proportionality tests

that go into any libel case, what more for e-Libel. Going by our social

4 Cf. Kent Greenawalt, Free Speech Justifications, 89 COLUM. L. REV., 119, 135-136 (1989) (“The critical question is now how well truth will advance absolutely in conditions of freedom, but how well it will advance in conditions of freedom as compared with some alternative set of conditions.”)

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demography and if only to over-emphasize to highlight the absurdity of

the law, a Mac user can be hailed to court before a judge who can

barely send SMS. This question also implicates a question of

administrability, which Petitioner will discuss further below.

32. All libel charges implicate a proportionality analysis – a

“balancing act” – weighing at least three zones of interest, namely, a

bundle of societal interests, the interests of the aggrieved person (who

felt insulted by the Tweet), and the interests of the accused, before

conviction could proceed.

33. Consider the sample of proportionality principles:

Should the malicious imputation subject of the e-Libel case be

brought under content-based restriction or a content-

neutral restriction? Upon hurdling this threshold question only

then can the judge proceed to apply lower or higher standards of

scrutiny, such as the clear-and-present danger test (for content-

based speech) or the bundle of tests pertaining to time, manner,

and place regulation (for content-neutral cases).

Are there instances when content-neutral analysis (which

requires a lower threshold than clear and present danger)

can be wrongfully applied by the trier of fact? A case in

point is the selective targeting of websites that broadcast one

message, and one message only (e.g., religious hate speech) and

then the site visitor overloads that site with traffic as to result to

blocking out the site or rendering it inaccessible by others. This

is symbolic speech in action, and thus the aggrieved party – the

owner or administrator of the website or blog – including a

government website – will argue for the application of a content

neutral test (which is a lower litmus test), where conviction can

be had against the offender more easily, when in fact content-

based analysis ought to have been the case. Thus there can be

instances when certain acts that are apparently content-

neutral will implicate content-based analysis.

Should the trier of fact consider the communicative impact of

the speaker’s message, or should he stay within the four corners

of, say, the 140 characters of a Tweet message? Assessing

communicative impact is a debate in and of itself in libel

jurisprudence because it requires the judge to go outside his

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(limited) personal understanding of norms outside courtroom

records and dive into prevailing social practices. For instance, a

judge ought to consider whether the one insulted by the Tweet

has only 5 followers, as opposed to, say, 5 million followers.

On the communicative impact, should the judge consider how

other people reacted to what the speaker said? Or is there

such a thing as an intrinsically harmful e-speech?

Does the malicious imputation carry any significant social benefit

to public dialogue which would outweigh the harm done to the

aggrieved party?

Can a plea that the malicious imputation could have been carried

out in another venue beyond the internet, be a valid reposite

by the prosecution against the defense?

On free speech methodology tied to time and place, what

test should the judge deploy? Should she use the “clear-and-

present-danger test” (in times and regions of social peace) or the

“dangerous tendency rule” (in times and regions of social unrest,

usually deployed in seditious libel)? (Are these valid tests for e-

Libel under today’s circumstances?)

Was the malicious imputation uttered in a public forum, a

semi-public forum, or a private forum? (Do these legal

fictions and legal categories even apply to ephemeral and

electronic media?)

34. If one cannot expect the ordinary trier of fact to readily

come to terms with these tests, not only will there be a dissonance in

constitutional method and constitutional analysis, triers of fact,

being legal factories, will be unduly burdened by the Cybercrime

Statute and operationally reverse the presumption of innocence

to a presumption of guilt. Legislative policy ought to be mindful

that trial courts are legal factories which issue hundreds, if not

thousands of judgments in any given day. Legislators ought to consider

this demography, which will likely stay remain in the medium term.

On its face, the Cybercrime Statute is unconstitutional, because it does not incorporate possible defenses to the charge of e-Libel as part of the statutory text, thus effectively passing a prohibitive burden to the

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defense attorney, if not the poor judge who works under an archaic analogue system, to make the proportionality analysis himself.

35. Case law requires this finding.

36. The heightened burden created by the Cybercrime Statute

can effectively reverse the presumption of innocence to a presumption

of guilt. The dangers which the Cybercrime Prevention Law pose to

free speech are readily apparent, and proponents of this statute ought

to have figured into the text the various nuances and tiers, tagged

under a broader corpus of free speech “proportionality analysis”, as

easy textual references to possible defenses, no doubt complex as

they already are in electronic speech.

37. For proportionality analysis is not easy. How serious must

the harm be before e-speech may be suppressed? How likely must the

harm be? How imminent must it be? Should it matter whether the

speaker intended to cause the harm?5

38. The codification of proportionality and probability tests

should inform not just e-Libel, but pretty much all other provisions of

the cybercrime law. It is one thing to name the criminal activity which

the State ought to punish, and quite another to operationalize the law-

in-the-books in the entire justice system. If on its face a statute fails to

consider the-law-in-action, a constitutional question will surely be

raised.

39. In Southern Hemisphere Engagement Network v. Anti-

Terrorism Council, the Honorable Court en banc held that a facial

invalidation of a statute is allowed in free speech cases, wherein

certain rules of constitutional litigation are rightly excepted.6 It is

settled that the application of the overbreadth doctrine is limited to a

facial kind of challenge and, owing to the given rationale of a facial

challenge, applicable only to free speech cases.7 By its nature, the

overbreadth doctrine has to necessarily apply a facial type of

invalidation in order to plot areas of protected speech, inevitably

almost always under situations not before the court, that are

impermissibly swept by the substantially overbroad regulation.8

5 Cf. GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 19 (2008) (citations omitted).6 See Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010 (en banc).7 See Id.8 See Id.

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The Congress must obviously decide, in the first instance, whether a danger exists which calls for a particular protective measure. But where a statute is valid only in case certain conditions exist, the enactment of the statute cannot alone establish the facts which are essential to its validity. These facts are absent.

40. Case law requires this finding.

41. There is also no doubt that every presumption is to be

indulged in favor of the validity of the statute.9 Indeed Section 2

(“Declaration of Policy”) of the Cybercrime Statute can be laudatory

and much wisdom can lie in legislative declarations.

42. But while legislative declaration can satisfy the

requirement of the Constitution concerning emergency legislation,10 it

does not preclude inquiry into the question whether, at the time and

under the circumstances, such special conditions existed which

are essential to validity under the Constitution. As a statute,

even if not void on its face, may be challenged because invalid as

applied,11 the result of such an inquiry may depend upon the specific

facts of the particular case. Whenever the fundamental rights of free

speech and assembly are alleged to have been invaded, it must

remain open to challenge and to present the issue whether

there actually did exist at the time a clear danger, whether the

danger, if any, was imminent, and whether the evil

apprehended was one so substantial as to justify the stringent

restriction interposed by the Legislature. The legislative

declaration, like the fact that the statute was passed and was

sustained by the highest court of the State, creates merely a

rebuttable presumption that these conditions have been

satisfied.12

9 Lawyers Against Monopoly And Poverty (LAMP) v. Secretary of Budget and Management, G.R. No. 164987, April 24, 2012 (en banc). See also Mulger v. Kansas, 123 U.S. 623, 661. 10 See, e.g., In re McDermott, 180 Cal. 783, 183 P. 437.11 See Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S. Ct. 106.12 See Whitney v. California, 274 U.S. 357, 374, 378-379 (1927).

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43. In Lawyers Against Monopoly And Poverty (LAMP) v.

Secretary of Budget and Management,13 the Court en banc reiterated

the rule that every presumption should be indulged in favor of the

constitutionality and the burden of proof is on the party alleging that

there is a clear and unequivocal breach of the Constitution. This

presumption of constitutionality, said the Court, can be overcome only

by the clearest showing that there was indeed an infraction of the

Constitution, and only when such a conclusion is reached by the

required majority may the Court pronounce, in the discharge of the

duty it cannot escape, that the challenged act must be struck down.14

44. Petitioner has discharged this burden. On the face of the

statute there are no “special conditions” that would require a

permissible statutory infringement of electronic speech within the

meaning of LAMP.

For having failed to incorporate proportionality and probability analysis in free speech, especially the rapidly emerging area of e-speech, the Cybercrime Statute is unconstitutional for failing the sufficiency of standards test and the completeness test. Thus the effect of the Cybercrime Statute is the undue delegation of too wide a legislative and policy making function to both the trier of fact and the law enforcer.

45. Case law requires this finding.

46. A facial analysis of the Cybercrime Statute will lead the

Honorable Court to conclude that it does not provide sufficient

standards within the meaning of Free Telephone Workers Union v.

Minister of Labor 15 as to sufficiently constraint the discretion of

administrative agencies and law enforcement agencies engaged in

prosecutorial functions.

47. Under the sufficiency of standards test, a statute must not

only define a fundamental legislative policy, mark its limits and

boundaries, and specify the public agency to exercise the legislative

power. It must also indicate the circumstances under which the

legislative command is to be effected. To avoid the taint of

13 Lawyers Against Monopoly And Poverty (LAMP) v. Secretary of Budget and Management, G.R. No. 164987, April 24, 2012 (en banc).14 Id.15 G.R. No. L-58184, October 30, 1981.

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unlawful delegation, there must be a standard, which implies at the

very least that the legislature itself determines matters of principle and

lays down fundamental policy.16

48. Under the completeness test, a law must be complete in all

its terms and provisions when it leaves the legislature that nothing is

left to the judgment of the delegate. The legislature does not abdicate

its functions when it describes what job must be done, who is to do it,

and what is the scope of his authority. However, a delegation of power

to make the laws which necessarily involves a discretion as to what it

shall be may not constitutionally be done.17

49. For failing to incorporate multi-tiered proportionality

standards, the statute lacks manageable standards for both the trier of

fact and for law enforcement, and thus the statute ought to fail for

lacking complete, sufficient standards within the meaning of

substantive due process. The effect of any lack of sufficient standards

is the undue delegation of too wide a legislative and policy making

function to both the trier of fact and the law enforcer.

THE APPARENT RIDER ON E-LIBEL APPEARS TO BE UNDER THE HEADING “CONTENT-RELATED OFFENSES” IN SECTION 4(C), BUT THIS HEADING DOES NOT ALERT THE TRIER OF FACT TO THE TERM OF ART ‘CONTENT-BASED´ WITHIN THE MEANING OF THE BILL OF RIGHTS, RATHER IT IS A CAPTION MEANT TO DISTINGUISH E-LIBEL FROM THE NOMENCLATURE OF PREVIOUSLY LISTED OFFENSES SUCH E-ESPIONAGE AND “COMPUTER-RELATED OFFENSES.”

50. The Cybercrime Statute ought to have implicated

jurisprudence about the meaningful distinction between “content-

related speech” and “content-neutral” speech in constitutional law

under the Philippine Bill of Rights and the First Amendment.

51. Certainly the traditional conception of libel, whether civil

law or common law, is usually subject to content-based restriction

(which requires heightened scrutiny and carries the presumption of

constitutional infirmity where the burden shifts to the government). As

discussed, there can be instances when certain acts that are

apparently content-neutral will implicate content-based analysis, e.g.,

blocking out a website that broadcasts only one message.

16 Id.17 E.g., Edu v. Ericta, G.R. No. L-32096, October 24, 1970

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52. Content-neutral restrictions range from laws prohibiting

noisy speeches near the hospitals, banning billboards in residential

communities, to even requiring the disclosure of the names of all

leaflets (which Section 14 of the Cybercrime Statute purports

to require). The Court generally employed different standards to test

the constitutionality of these two types of restrictions.18

53. In Newsounds Broadcasting Network Inc. v. Dy, the Court

held that content-neutral regulation is one merely concerned with the

incidents of the speech, or one that merely controls the time, place or

manner, and under well defined standards; and a content-based

restraint or censorship is one where the restriction is based on the

subject matter of the utterance or speech. Content-based laws are

generally treated as more suspect than content-neutral laws because

of judicial concern with discrimination in the regulation of expression.

Content-neutral regulations of speech or of conduct that may amount

to speech, are subject to lesser but still heightened scrutiny.19

54. Even if the trier of fact would choose to apply the

clear and present danger test in content-based restrictions,

still much debate is occurring on what constitutes “clear” and

“present”, and even the original proponents of these tests

such as Holmes and Brandeis were not consistent. Petitioner

points this out not to refute the propriety and constitutional

entrenchment of the clear and present danger test in

Philippine jurisprudence but to point out that a fortiori even

greater complex issues will be implicated when the trier of fact

is called to decide upon the criminality of ephermeral

communication and electronic messages online.

On its face the Cybercrime Statute fails to incorporate reasonably sufficient standards that would aid the trier of fact to distinguish between e-speech in ordinary times and places and e-speech made in extraordinary times and places; in fact no such attempt can be made because e-speech is by nature not spatially constrained, nor can the speaker, endorser, actor, and receiver

18 See Newsounds Broadcasting Network Inc. v. Dy, G.R. Nos. 170270 &179411, April 2, 2009; see also GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 17 (2008) 19 See Newsounds Broadcasting Network Inc. v. Dy, G.R. Nos. 170270 &179411, April 2, 2009.

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of such speech be conveniently located in time and place by the trier of fact.

55. Free speech doctrine makes a distinction speech uttered in

ordinary times and places, and speech uttered in extraordinary times

and places. There is no question that circumstances of peace and

order throughout Philippine society are not homogenous. A case in

point is that the statute fails to consider whether the e-speech uttered

is in a conflict zone or in a peace zone.

56. In Cabansag v. Fernandez,20 the Court en banc, speaking

through Justice Bautista Angelo, incorporated the Holmes-Brandeis

clear and present danger formula:

The question in every case, according to Justice Holmes, is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree (citing Schenck vs. U. S., 249 U.S. 47 (1919)).

57. Cabansag turns to the leading case of Schenck, where

Justice Holmes, speaking for a unanimous Court, stated:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.21 (emphasis supplied)

58. Thus in ordinary times a speaker uttering e-speech may be

within her constitutional rights at one place and time, but may be held

liable for e-Libel under the Cybercrime Statute at another place and

time. If, say, a 140-character Tweet is “uttered” in Manila but

retweeted or otherwise “endorsed” by a second speaker over social

media in conflict zones in Mindanao or Basilan, which standard ought

to apply? (In fact, the dissenting opinion of Justice Carpio in MVRS

Publications v. Islamic Da’Wah Council22 made special mention of the

“Special Circumstance of Muslim Secession in the South” in free

speech (vs. tort) analysis.) Will the clear and present danger test (in

20 G.R. No. L-8974, October 18, 1957. 21 Id. at 52.22 G.R. No. 135306, January 28, 2003

16

times of relative peace, as in Manila) or perhaps even the dangerous or

bad tendency rule (in times of existential crisis, as in Basilan) apply?

And, if the trier of fact allows the joinder of both defendants, can the

court apply different tests to different defendants?

59. There is certainly no question that any free speech inquiry

—especially if the speech implicates the e-Libel provision of the

Cybercrime Statute—would require a “case-by-case inquiry” within the

meaning of case law. But precisely the Petitioner is concerned when

different defendants from different places and circumstances are

hailed by a trier of fact owing to a malicious imputation which

associates all of them in cyberspace and then that trier of fact

proceeds to apply a constitutional test that is tied to spatiality.

60. If the Court – nay, it ought to have been the Legislature in

this case – decides to pursue a uniform standard regardless of war or

peace, perhaps to pursue the spirit of the 1987 Constitution in the

aftermath of Martial Law – then should e-speech be intrinsically

considered within the four corners of a 140 character tweet? Is there

such a thing as an intrinsically libelous remark that can be abstracted

from social circumstance? Petitioner raises these questions not

for the Honorable Court to answer them, but because the

Cybercrime Statute does not answer them.

61. The greater question, to the Petitioner, is that in

order to protect the rights of innocent dissenters, the

proponents of the Cybercrime Statute should have set forth

manageably objective standards that would assist the trier of

fact in adjudicating over ephemeral communications that are

not tied to time and place.

62. It ought to be considered, then, whether it is not the

speaker of the e-speech, but it ought to be the actor of the speech,

who ultimately brings the harm. Here, the government should thus

direct its punishment and deterrence towards actors, not speakers.

But precisely the Cybercrime Statute makes no attempt to set

objective standards.

Without manageable standards set forth in the Cybercrime Law in the name of proportionality and probability analysis that can meet the dynamic nature of e-speech, the modest provisions of the e-

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Libel provision will operate as essentially open-ended restrictions of expression.

As a matter of fact, history would show that the Cybercrime Statute contains a similar rider on libel, recast in contemporary society as e-Libel in Section 4(C)4, and may thus face a similar fate to the US Espionage Act of 1917 and Sedition Act of 1918.

63. As a matter of jurisprudential behavior, it has been

observed that the relatively modest provisions of the US Espionage Act

of 1917 were thus converted into essentially open ended

restrictions of seditious expression.23

B.

IF THE INTERPRETATION OF THE E-LIBEL PROVISION OF THE CYBERCRIME STATUTE IS IN DANGER OF OPEN-ENDED INTERPRETATION BY THE TRIER OF FACT OR LAW ENFORCER, THEN NO MATTER HOW “SPECIAL” THE “CYBERCRIME COURT” OR “SPECIALLY TRAINED” THEIR JUDGES CAN BE, THERE CAN BE NO AVOIDANCE TO THE RESULT THAT THE E-LIBEL WILL ALLOW FOR ROVING COMMISSIONS IF NOT ROVING WARRANTS IN IMPLEMENTATION.

64. Case law supports this finding.

65. In the case of Salazar v. Achacoso, the Honorable Court en

banc, speaking through Justice Sarmiento, referred to Stanford v. State

of Texas24 when it cautioned the Secretary of Labor from issuing

warrants that amounted to “roving commissions” to search as

pleased.25

In particular, no sufficient standard can be found in the cybercrime statute to assist the trier of fact whether to consider joint, cumulative action among 'netizens' in dynamic social media.

66. As intimated, should the judge consider the communicative

impact of the speaker’s message, or should he stay within the four

23 See GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 26 (2008), citing, e.g., G. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME 135-234 (2004); Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 36-108 (1941); Rabban, The Emergence of Modern First Amendment Theory, 50 U. CHI. L. REV. 1205 (1983). 24 379 U.S. 476 (1965).25 G.R. No. 81510, March 14, 1990.

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corners of, say, the 140 characters of a Tweet message? Assessing

communicative impact is a debate in and of itself in libel

jurisprudence because it requires the judge to go outside his

(limited) personal understanding of norms outside the

courtroom records and dive into prevailing social practices. For

instance, a judge ought to consider whether the one insulted by the

Tweet has only 5 followers, as opposed to, say, 5 million followers.

67. Wigmore is of the view that the legislature should be

permitted to consider the cumulative danger posed by many

individually harmless speakers in deciding whether there is sufficient

danger to warrant suppression of speech.26 In Whitney v. California,27

the US Court held that the essence of the offense denounced by the

Act is the combining with others in an association for the

accomplishment of the desired ends through the advocacy and use of

criminal and unlawful methods. Whitney considered whether “united

and joint action” involves even greater danger to the public peace and

security than the isolated utterances and acts of individuals.28 But

while condonation (by someone else) of a breach enhances

“probability” under the broad clear and present danger test, and while

expressions of approval (such as clicking “Like” or retweeting) add to

such probability, still these signs of approval, endorsement, if not

personal incorporation are categories that are misplaced in social

media and e-speech.

68. Thus, suffice it to say that there remain serious

republication issues of e-speech and ephemeral statements over

internet social media which the Cybercrime Statute omits to resolve.

Given the enormous changes in media and politics since the adoption

of the free speech doctrine on traditional libel, to what extent, if any,

should the corpus of constitutional doctrine on traditional libel apply to

e-speech?29 For instance, in social media, the line between public

speech and private speech is blurred. The fact of the matter is

that there are public aspects in every utterance made online,

and the statue fails to consider this dynamic. The blurring of the

26 See GEOFFREY R. STONE, ET AL., CONSTITUTIONAL LAW 1083 (2005), citing Wigmore, Abrams v. United States: Freedom of Speech and Freedom of Thuggery in War-Time and Peace-Time, 14 ILL. L. REV. 539, 549-550 (1920).27 274 U.S. 357 (1927)28 Id. at 371-37229 Cf. GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 7 (2008).

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private and the public was observed in traditional libel cases,30 what

more for the emerging question of e-Libel.

C.

WHETHER THE STATUTE IS CONTRARY TO EQUAL PROTECTION, UNDULY DELEGATES LEGISLATIVE AND POLICY MAKING FUNCTIONS, VIOLATES THE RIGHT OF PRIVACY OF COMMUNICATION AND CORRESPONDENCE, IS VOID FOR BEING VAGUE, IS VOID FOR OVERBREADTH THEREBY VIOLATING THE BASIC CONSTITUTIONAL REQUIRMENTS FOR A VALID LAW.

69. The various petitions filed before this Honorable Court

touched on all the above issues in this argument, and Petitioner

believes it has been more than adequately discussed by these

petitions. Without vacating our position that indeed the law is

unconstitutional for having violated the constitutional tenets required

for a valid law, herein petition will only discuss certain aspects of this

argument to amplify the presence of said infirmities in RA 10175.

70. RA 10175 inserts a proviso under Section 6, that was not

contained in the bills approved on third reading by both Houses of

Congress:

Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

71. This is not only invalid because the bicameral

committee has no jurisdiction or power to add a provision,

especially as it creates a new penalty for the crime, but also

because it violates equal protection doctrine.

72. Indeed “the internet” is not evil per se, but the statute

in question views cyberspace as inherently evil and treats those

who use it in violation of a rule with unjust discrimination by

providing a penalty higher than an act committed without the use

of an internet. What standards distinguish internet users from

other “ordinary” criminals the law does not explain.

30 See, e.g., Chafee, Book Review, 62 HARV. L. REV. 891, 899-900 (1949).

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73. Ordinary crimes under the Revised Penal Code such as

those in Article 154 (Unlawful use of means of publication and

unlawful utterances), Article 282 (Grave Threats), Article 283

(Light Threats) Article 178 (Using fictitious name and concealing

true name) are penalized with penalties beyond fourteen years.

Surely, the mind of a “violator” using the internet could not be

more evil than that violating the Revised Penal Code.

74. By way of example, we cite an excerpt in the Legal

Memorandum of Rep. Neri Javier Colmenares, dated October 6,

2012, on the Constitutional and Legal Implications of the

Cybercrime Preventions Act of 2012:

We cite the implication of RA 10175 on those violating Article 154 of the RPC through the use of the internet. Many internet users including the media could go to prison for at least 6 months for ‘unlawful utterance’ or posting ‘false news’ under Article 154 which:

Art. 154. Unlawful use of means of publication and unlawful utterances. — The penalty of arresto mayor and a fine ranging from P200 to P1,000 pesos shall be imposed upon: 1. Any person who by means of printing, lithography, or any other means of publication shall publish or cause to be published as news any false news which x x x cause damage to the interest or credit of the State;

2. Any person who by the same means, or by words, utterances or speeches shall encourage disobedience to the law or to the constituted authorities or justify, praise xxx any act punished by law;

3. Any person who shall maliciously publish or cause to be published any official resolution or document xxx before they have been published officially; or

4. Any person who shall xxx publish, or distribute or cause to be printed, published, or distributed books, pamphlets, periodicals, or leaflets which do not bear the real printer's name, or which are classified as anonymous.

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One should not be lulled by the innocuous ‘one degree’ mentioned in the law, because one degree means a lot of years in prison in the Revised Penal Code. The penalty for arresto mayor is one month and one day to six months. The next higher degree is prision correccional with a very serious penalty of more than six months to six years. This is a lot of time for anyone who mistakenly publishes through his facebook a “false news” which may damage the ‘credit’ of the government or a public official. What is false news in the first place ? And why penalize the content of free speech ?

Bloggers could go to prison for “praising” or merely ‘justifying’ the act of protesters in hacking into government websites to protest the passage of the cybercrime law. You have to be very careful that the ‘document’ you post in your website has been officially published or you and those who re-post your document may end up in jail for years.

Notice paragraph 4 in Article 154, which could be interpreted to mean punishment for those posting a periodical, leaflet or pamphlet without naming the printer or the author (anonymous). Would a public official who plagiarized an excerpt from a book or a periodical or even an internet blog site of another, go to prison for six years if he posts his speech in the internet without naming the printer or the author? It is indeed a distinct possibility because the “mala in se” nature of the crime under the Revised Penal Code has been transposed into a “mala prohibita” under the special law called the Cybercrime Prevention Act.

Additionally, using RA 10175 in relation to Article 154 of the RPC, could violate the privilege rule for online media, with regards the secrecy of their sources. After all, the law prohibits using anonymous sources.

Little did the authors of the “bicameral committee” report realize, that by transposing the entire Revised Penal Code circa 1932, wholesale, into a law that regulates the modern technology in cyber space, they will be opening a pandora’s box that would create so much havoc on constitutional rights as we know it.

(emphasis supplied)

If only for this, the cybercrime law must be struck down.

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75. There are many other provisions in the Revised Penal

Code that suddenly leaps into an absurdly draconian measure

because it was applied in an act using cyberspace technology.

76. Worse, the accused under the cybercrime law is not just

vulnerable but is actually a victim of double jeopardy especially if he is

charged under a special law (such as violation of the Omnibus Election

Code) and under another special law in RA 10175.

77. What is more, RA 10175 inserted Section 19, which is not

found in both the bills passed on third reading by the two Houses of

Congress, to wit:

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

78. This is another violation of due process and equal

protection. A state prosecutor in an ordinary complaint before it

cannot curtail the rights of a respondent even after a finding probable

cause against that respondent. Under RA 10175, the prosecutor can

immediately block access and curtail a host of rights of a person, who

may not even be an accused, merely on the basis of prima facie

findings. Worse, there is no requirement that an appropriate

information be filed in court from such prima facie finding, thus the

government’s restriction of access has no limitation in scope and

duration.

79. The Cybercrime Statute is also another example of an ultra

vires act by the bicameral committee. There are only two Houses in

Congress, not three, and the bicameral committee cannot invent a

right-restricting provision on its own. Each House of Congress

empowered their representatives to the bicameral committee to assert

the version of its respective House. They did not grant their

representatives at the bicameral level the power to invent additional

provisions, especially those that curtail rights and increase penal

sanctions, into their deliberation. For acting without jurisdiction, these

insertions have to be struck down.

80. The above, and a host of other provisions in RA 10175,

practically runs roughshod over generations of Supreme Court

decisions that strike down laws that are vague, overbroad, or violate

the constitutional principles protecting the right to privacy.

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81. These draconian measures have no place except in the

dustbin of repressive and unconstitutional laws.

VI.

TEMPORARY RESTRAINING ORDER

82. In view of the fact that Republic Act 10175 is in full force

and effect, pending action by the Honorable Court Petitioner prays for

the issuance of a temporary restraining order enjoining respondents

from implementing the aforequoted sections of the Cybercrime

Prevention Act of 2012. Unless the implementation of the statute is

enjoined, Petitioner, if not Philippine society at large will suffer grave

and irreparable injury.

VII.

RESERVATION

83. Petitioner respectfully manifests his reservation to file

supplemental pleadings and briefs to further develop his theory of the

case, including but not limited to the issues concerning the

constitutionality of the following sections:

Section 5(b) (attempt)

Section 6

Section 7

Section 8, ¶7 (penalties corresponding to Section 5)

Section 11 (“duties of law enforcement authorities”)

Section 12 (“real-time collection of traffic data”)

Section 13 (“preservation of computer data”)

Section 15 (“search, seizure and examination of computer data”)

Section 17 (“destruction of computer data’)

Section 19 (“restricting or blocking access to computer data”)

Section 20 (“noncompliance”)

Section 21 (“jurisdiction”)

Section 22 (“international cooperation”)

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84. The foregoing sections implicate, among other serious

constitutional questions, the right to privacy, equal protection,

confiscatory taking and regulatory taking, applicability and

enforceability of international law to the Cybercrime Statute,

enforcement of long arm statutes within the meaning of substantive

due process, exertion of criminal jurisdiction under international law,

roving warrants, overbreadth, and lingering administrabilty issues.

PRAYER

WHEREFORE, in view of the foregoing, Petitioner respectfully

prays that the Honorable Court:

1. Issue a temporary restraining order to immediately enjoin

the Respondent/s from implementing the Cybercrime Prevention Act of

2012 pending resolution of this case;

2. Set the case for oral argument;

3. Declare the provisions of the Cybercrime Prevention Act of

2012 as null and void for being unconstitutional; and

4. Issue such other reliefs as may be deemed just and

equitable.

Quezon City for Manila. 8 October 2012.

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By:

A. EDSEL F. TUPAZCounsel for Petitioner

41 N. Romualdez StreetBF Homes Subdivision, Quezon City 1120

[e] aet@TupazLaw.com | T. +63 2 368 5775 | F. +63 2 368 5656

PTR No. 6456913 - 03/02/2012 – Quezon CityIBP No. 874024 - 12/19/2011 – Pasig City

Roll of Attorneys No. 49482MCLE Exemption No. III-001797

Copy furnished:THE EXECUTIVE SECRETARYMalacanang Palace, Manila

EXPLANATION FOR SERVICE BY REGISTERED MAIL

This Petition was served on the respondent/s by registered mail

because of time, personnel and geographical concerns and constraints;

the distance involved as well as lack of manpower to cause service by

personal delivery constrained counsel to cause service by registered

mail.

A. EDSEL F. TUPAZ

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