THE CYBERCRIME Prevention Act of 2012 is the worst assault on free expression since Ferdinand Marcos declared martial law 40 years ago if only for its potential to affect the 26 to 30 million Filipinos, including journalists, who regularly access the Internet to upload information through personal blogs or news sites, who comment on public issues in chat rooms or social media, or even those who communicate via email.
President Benigno Aquino III signed RA 10175 on the 12th of September, ironically—or perhaps appropriately—martial law month, unleashing a firestorm of protest which has so far taken not only the form of challenges to its constitutionality before the Supreme Court, but also the hacking of government websites. Journalists’ and media advocacy groups are also preparing an online petition for the Supreme Court to declare the entire act unconstitutional, even as spontaneous calls for marches and demonstrations have gone viral over cyberspace.
The incorporation of the 82-year old libel law into the Act’s roster of cybercrimes is only one of its egregious flaws. The Act also raises by one degree the penalty for all the crimes it lists—some of which, like libel and child pornography, are already covered by the law. Among other consequences, it strengthens even further the use for harassment of libel as a criminal offense. From penalties ranging from six months’ to four years’ imprisonment, those found guilty of libel would be imprisoned from six to 12 years under the provisions of the Act.
Prior to the filing of a court case for online libel, however, the Department of Justice can declare that there is prima facie evidence of libel in any online information, comment, or video, and can forthwith bar access to the site—whether a Facebook, twitter, or email account, or a blog or website—or cause the removal of the offending material. This provision in effect gives the DOJ the power of judge, jury and executioner. The Act is practically a bill of attainder—expressly prohibited by the Constitution—that punishes without trial. This power, however, does not prevent the DOJ from filing charges in court for the same offense, thus exposing the supposed offender to double jeopardy, or being twice held liable for the same offense.
Some lawyers also argue that those who upload material before the effectivity of the law on Oct. 3 could also be liable to libel charges if the material is still online on that date, thus making the Act also an ex-post facto law, or a law that retroactively penalizes an act that was not illegal at the time it was passed.
Add to these Section 12 of the Act which empowers the Philippine National Police and the National Bureau of Investigation to collect online traffic data in real time with the help of Internet service providers, thus subjecting individuals who are online to police surveillance without the benefit of a court order.
When asked during a Malacanang press conference why such an obvious attack on free expression as RA 10175 was passed during this administration, Presidential Spokesperson Edwin Lacierda shifted the blame to Congress, ignoring the fact that President Aquino was a party to it by affixing his signature to the bill. Lacierda changed his tune in subsequent days, arguing that freedom demands responsibility. Deputy spokesperson Abigail Valte later joined Lacierda in declaring that it was the journalists’ and Netizens’ fault, because they were not militant enough to question the bill and object to its provisions while it was still pending in Congress.
And yet not only were journalists’, media advocacy and Netizens’ groups not consulted or even informed when the bill was being discussed, the Act’s inclusion of libel among cybercrimes—and raising the penalty for it—was also the result of a veritable conspiracy during the bicameral conference, despite questions raised earlier by, among others, Kabataan party list congressman Raymond Palatino.
As for Lacierda’s pious arguments in favor of responsibility, that has always been the primary plank of the self-regulatory regime journalists and media advocacy groups including the Center for Media Freedom and Responsibility have supported, rather than the use of State sanctions to compel ethical behavior among journalists and media practitioners. Finally, Mr. Aquino cannot escape responsibility for the Act, which, rather than veto, he after all signed into law.
The Act was signed at the same time that various political groups including the Liberal Party mishmash of so -called political parties and dynastic denizens—the wives, children, nieces, nephews, uncles, aunts, parents, etc. of people already in Congress and Malacanang– were announcing their rosters of candidates for the Senatorial elections in 2013.
The entire journalism and media community, as well as all 30 million Netizens, must demand from these creatures a clear declaration on which side of free expression they’re on—whether they’re for it as an indispensable imperative in a country that dares call itself a democracy, or whether, like the sponsors and signatories of the Act, they are at heart no less authoritarian than the conspiracy that from 1972 onwards helped establish and made dictatorship endure for 14 years.
Both the failure to make a clear statement on their position re the Cybercrime Prevention Act of 2012 and/or a declaration for it should be cause enough for media practitioners, whether in print and broadcasting, or online, to campaign through the media whether old or new against these individuals as well as all those sponsors of RA 10175 who’re still running for office. Free expression is as vital as air and water in the realization of authentic democracy. Unlike party affiliations, or the conflict between the elite victims of martial law and their victimizers, free expression is non-negotiable. A campaign to hold accountable those who’re savaging it, or who’re likely to further savage it, might even imbue the coming elections with some meaning.