Rocky road

IN WHAT could be an attempt to preempt a Supreme Court decision on the unconstitutionality of the Cybercrime Prevention Act of 2012 (RA 10175), the Department of Justice (DOJ) has announced that it is recommending the removal of the provision on online libel in the Act. The DOJ, said Secretary Leila de Lima, would also recommend the removal of the provisions on child pornography and other offenses already covered by other laws.

The provisions on online libel in RA 10175 are arguably the most dangerous threats to free expression among the law’s many  problematic provisions. In addition to adopting wholesale the 83-year old libel provisions in the Revised Penal Code (RPC) of 1930, RA 10175 also raises the penalties for online libel. The RPC already penalizes libel with prison terms of six months per count in addition to whatever fines the courts may impose. But online libel as provided for in RA 10175 could earn those convicted of the offense as much as ten years in prison.

Draconian defamation and libel laws have been used to silence journalists, oppositionists, and ordinary citizens across the entire planet. In the Philippines the decriminalization of libel, which makes it an instrument of repression contrary to the Constitution, has been proposed by free expression and press freedom groups for decades. But despite an October, 2011 declaration by the United Nations Human Rights Committee that the Philippine libel law is excessive and should be reviewed, neither the Aquino administration through the DOJ, or the 15th Congress on its own initiative, took any action to address the issue.

Although it’s been a long time coming, the DOJ suggestion to amend RA 10175—which only Congress when it convenes in July this year can make into law—does send a message to Congress that it could translate into amendments to RA 10175. But it also defaults on addressing the even more fundamental problem of criminal libel, which has been part of Philippine law for 83 years since the US colonial period, and the campaign against which has failed to yield results despite the efforts of various groups.

Past administrations, among them that of Joseph Estrada, have used criminal libel to stop reporting and comment unfavorable to them. But criminal libel was systematically used  against the press by the Arroyo regime, during whose nine-year time in office the government and its surrogates threatened critical journalists with libel suits, Gloria Macapagal-Arroyo’s husband actually sued 46 journalists for libel in a transparent attempt to silence criticism of his wife’s government, and at least two journalists—Joaquin Briones Jr. of Masbate and Alex Adonis of Davao—were sentenced to prison terms.

Among the libel law’s intimidatory characteristics is the threat of being arrested on a Friday afternoon and being held in some nasty Philippine prison during weekends for failure to post bail, in addition to being thrown into the same prison upon conviction, as Davao broadcaster Adonis, who served two years of a four-year sentence, was in 2007. While proposing the removal of the provision on online libel in RA 10175 should be welcomed, criminal libel even more urgently needs repeal.

Secretary de Lima has also announced that her department is thinking of “clarifying” the power to “take down” websites it considers libelous with which the Act endows DOJ, but only in the Implementing Rules and Regulations. But that particular provision requires outright repeal as much as the provisions on libel. It gives DOJ the unprecedented power of acting as both judge (it is empowered to decide what online utterances are libelous) and executioner (it can block or take down the website or blog where the material it deems “offensive” appeared).

Equally dangerous is the power to monitor websites and blogs the Act gives the Philippine National Police (PNP). Because the PNP can’t possibly monitor all the blogs and websites online, it’s likely to limit its monitoring to sites and blogs critical of government and/or its agencies and institutions, thus giving its monitoring power a political character. The DOJ, however, is silent on that particular provision, which free expression groups have been protesting since RA 10175 was signed into law by President Benigno Aquino III on September 12, 2012.

However, whatever amendments to the Cybercrime Prevention Act, if at all and if any, will be introduced and adopted will depend on the 16th Congress, which, as a result of the May 13, 2013 mid-term elections, is even more firmly under the influence if not control of the Aquino administration than the 15th.

This doesn’t preclude independent action by members of either the House of Representatives or the Senate. But much will nevertheless depend on what the Aquino administration and its allies in Congress are prepared to concede by way of amendments to RA 10175, or even its replacement by a reasonable, constitutionally-consistent law. Equally at issue is the fate of the Freedom of Information bill, which has failed to pass Congress since 2010 despite a two-decade campaign, and which will be reintroduced come July.

Despite the DOJ announcement, it’s not yet the time to take out the champagne glasses. If the experience of the Netizen, press freedom and free expression groups with the campaign against RA 10175 and for an FOI act is any gauge, between the DOJ proposals for amendments, themselves limited and deficient to begin with, and their realization in the form of a Cybercrime Prevention Act those groups can live with, is a rocky road littered with many pitfalls. They’re called congressmen and senators.