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Legislative attempts to curtail free expression: TRO stops RA 10175 implementation | CMFR

Legislative attempts to curtail free expressionTRO stops RA 10175 implementation

The year 2012 marked a change in the legislative environment in the Philippines for journalism practice—unfortunately, the bills and laws introduced are likely to negatively impact press freedom and free expression.

The campaign for the decriminalization of libel has not only stalled; the inclusion of online libel in the Cybercrime Prevention Act, passed last September, even raised the penalties for the offense if committed online from six months to four years to six to ten years.

Some members of the House of Representatives also insist on a Right of Reply (ROR) rider in any Freedom of Information (FOI) law approved by Congress. On the other hand, the FOI bill continues to languish in Congress

Also, please see: FOI: Foiled again


THE MOST contentious law so far affecting online expression as well as print and broadcast media was signed into law at the end of the third quarter of 2012.  But implementation of the Cybercrime Prevention Act of 2012 (Republic Act 10175), which would have limited free expression on and off the Internet, was put on hold after the Supreme Court en banc issued a 120-day Temporary Restraining Order (TRO) last Oct. 9. The Supreme Court issued the TRO in response to more than 15 petitions for certiorari, prohibition and injunction filed by various groups and individuals including journalists and free press advocates.

The petitions asked the Supreme Court to either declare the entire law unconstitutional, or to repeal its provisions that undermine free expression in both the new (the Internet) and the old media (print and broadcasting).

The 9th petition

CMFR is one of the petitioners in GR no. 203453 (NUJP, PPI, CMFR et.al vs ES et. Al]). The petition—signed by 20 organizations and 253 individuals—was filed on Oct. 3, the day RA 10175 took effect.The petitioners asked the SC to rule on the Cybercrime Prevention Act or Republic Act (RA) No. 10175, a law  the petitioners say establishes a regime of ‘cyber authoritarianism’ and  “undermines all the fundamental guarantees of freedoms and liberties that many have given their lives and many still give their lives work to vindicate, restore and defend.”“It is a law that unduly restricts the rights and freedoms of netizens and impacts adversely on an entire generation’s way of living, studying, understanding and relating,” the petitioners stated.

Aside from CMFR, the petitioners include the NUJP and the Philippine Press Institute. Other organizations that joined the e-petition are the Philippine Center for Investigative Journalism, the Center for Community Journalism and Development, the Philippine Center for Photojournalism, the Cebu Citizens-Press Council, Bulatlat, MindaNews, and PinoyWeekly, among others.

The petitioners who signed the hard copy of the ninth petition are CMFR’s Melinda Quintos de Jesus, NUJP’s Rowena Paraan, Joseph Alwyn Alburo of GMA Network Inc. and NUJP, and Ariel Sebellino of the Philippine Press Institute. They are joined by more than 250 e-petitioners, comprised mostly of journalists and media practitioners.

The Free Legal Assistance Group (FLAG) of attorneys Jose Manuel I. Diokno, Pablito V. Sanidad, Ricardo A. Sunga III, and Theodore O. Te served as counsel for the ninth petition.

The Act was signed into law by President Benigno S. Aquino III on Sept. 12, and took effect on Oct. 3. It penalizes (1) offenses against the confidentiality, integrity and availability of computer data and systems; (2) computer-related offenses; and (3) content-related offenses including libel/defamation “committed through a computer system or any other similar means which may be devised in the future.”

Arguments raised in the petitions for certiorari and prohibition include the following:

A) The Cybercrime Act curtails press freedom and free expression by applying criminal libel to offenses committed online.

Politicians and other powerful individuals in the Philippines have historically abused the existing law on criminal libel to silence criticism. The husband of former President and Pampanga 2nd district Rep. Gloria Macapagal Arroyo, for example,  filed 11 libel suits against 46 journalists and demanded approximately P140 million in damages. (Miguel Arroyo dropped all libel suits in May 2007 after undergoing heart surgery.)

In several instances, the lower courts and investigating prosecutors have dismissed allegations of libel in online articles, claiming that the penal code does not cover communications on the web. The new law would change this, extending criminal libel to websites, blogs and social media platforms. Some critics say the law would also cover information shared over texts or instant messaging tools on mobile smartphones. This means that a person who sends a text message containing “malicious” comments could be charged with criminal libel.

The classification of libel as a content-related offense is the most contentious provision not only among journalists and media workers but also among civil society organizations. Sec. 4 Article 3.c.4 or “Libel” adopts in toto Article 355 of the 82-year-old Revised Penal Code, which punishes any person who commits libel by means of writing with imprisonment, fine or both.

If read together with Sec. 5 (Aiding and Abetting), some law experts said even those who share or like a “libelous” post may face criminal charges under the new law.

The chilling effect of facing imprisonment, or the inconvenience of attending hearings and hiring legal help, can lead to self-censorship. The inclusion of libel as a content-related cybercrime offense shows a clear disregard of the importance of the free exchange of ideas on the Net.

B) The cybercrime law legitimizes the arbitrary blocking of websites and other data and violates a person’s right to privacy.

If implemented, the Department of Justice (DOJ) can arbitrarily order the blocking of websites or the online media accounts of a person or a group without due process under this law. DOJ and other government agencies can monitor and collect traffic data in real time, and without a warrant. While authorities are prohibited from collecting data on content and user identities, this kind of traffic data can still be used to identify a person and access content on their computers.

In an interview with the news website InterAksyon, lawyer J.J. Disini said: “They may be able to compile non-content data, such as a subscriber’s mobile number and the number of a text message’s recipient, but that doesn’t stop them from independently finding who the owner of that number is.”

The possibility of the government’s using this provision against selected groups of individuals is not as far-fetched as some government spokespersons claim.

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