For media law students: Continuation of topics on “prior restraint” (2014)

For media law students: Continuation of topics on “prior restraint” (2014)

Supreme Court decision on the Cybercrime Law striking down the so-called “take-down” clause, Section 19, majority, excerpts: “Section 19 of the Cybercrime Law  empowers the Department of Justice to restrict or block access to computer data:  

“ “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.”

     “Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable searches and seizures. The Solicitor General concedes that this provision may be unconstitutional.xxx Computer data  may refer to entire programs or lines of code, including malware, as well as files that contain texts, images, audio, or video recordings. xxx  The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so would make him judge, jury, and executioner all rolled into one.

     “Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the  balancing of interest test, and the clear and present danger rule.

      “Section 19, however, merely requires that the data to be blocked be found  prima  facie  in violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to any penal  provision. It does not take into consideration any of the three tests mentioned above.

     “The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to freedom of expression and against unreasonable searches and seizures.xxx” (penned by Justice Abad)

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Justice Carpio separate concurring and dissenting; excerpts of concurring as to Section 19 being violative of the free speech clause etc. : “Section 19 of RA1 175 Violative of the Free Speech Free Press Privacy of Communication and Search and Seizure Clauses xxx The OSG concedes the unconstitutionality of Section 19 which authorizes the Department of Justice (DOJ) to issue an order to restrict or block access to computer data, that is, any representation of facts, information, or concepts in a form suitable for processing in a computer system, 90 whenever the DOJ finds such data prima facie violative of RA 10175. The OSG’s stance on this take down clause is unavoidable. Section 19 allows the government to search without warrant the content of private electronic data and administratively censor all categories of speech. Although censorship or prior restraint is permitted on speech which is pornographic, commercially misleading or dangerous to national security,  only pornographic speech is covered by RA 10175 (under Section 4(c)(2) on online child pornography). Moreover, a court order is required to censor or effect prior restraint on protected speech.  By allowing the government to electronically search without warrant and administratively censor all categories of speech, specifically speech which is non-pornographic, not commercially misleading and not a danger to national security, which cannot be subjected to censorship or prior restraint, Section 19 is unquestionably repugnant to the guarantees of free speech, free expression and free press and the rights to privacy of communication and against unreasonable searches and seizures. Indeed, as a system of prior restraint on all categories of speech, Section 19 is glaringly unconstitutional.

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Justice Leonen separate concurring and dissenting. excerpts of concurring as to the unconstitutionality of Section 19, excerpts: “The “Take Down” Clause Section 19 of Republic Act No. 10175 is unconstitutional because it clearly allows prior restraint. xxx

xxx

      “Among all the provisions, this is the sole provision that the Office of the Solicitor General agrees to be declared as unconstitutional.

       “IV (A) A Paradigmatic Example of Prior Restraint

       “There is no doubt of the “chilling effect” of Section 19 of Republic Act No. 10175. It is indeed an example of an instance when law enforcers are clearly invited to do prior restraints within vague parameters. It is  blatantly unconstitutional.

      “Chavez v. Gonzales  presents a clear and concise summary of the doctrines governing prior restraint:

      “ “ Prior restraint  refers to official governmental restrictions on the  press or other forms of expression in advance of actual publication or dissemination.  Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it  precludes governmental acts that required approval of a proposal to  publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the  business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as  previous restraint or censorship.  Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.

        “ “Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid , and “any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows,”  it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution,  but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against.” (Chavez vs. Gonzales)

“As worded, Section 19 provides an arbitrary standard by which the Department of Justice may exercise this power to restrict or block access. A  prima facie finding is sui generis  and cannot be accepted as basis to stop speech even before it is made. It does not provide for judicially determinable  parameters. It, thus, ensures that all computer data will automatically be subject to the control and power of the Department of Justice. This provision is a looming threat that hampers the possibility of free speech and expression through the internet. The sheer possibility that the State has the ability to unilaterally decide whether data, ideas or thoughts constitute evidence of a  prima facie commission of a cybercrime will limit the free exchange of ideas, criticism, and communication that is the bulwark of a free democracy.

       “ There is no question that Section 19 is, thus, unconstitutional. “