For CNN Philippines Serbisyo All Access show, episode on “Paninirang-Puri” or defamation, April 19, 2016, 10am-11am: May we suggest that the hosts read up on jurisprudence on the following: 1) Privileged Communication; 2) the Public Figure Doctrine; 3) the Fair Comment rule – (these are also compiled in any media law book); para po maiwasan ang pagpapalaganap ng maling legal principles ukol sa media law (in order to avoid disseminating erroneous legal principles on media law). Sana po ay maiwasto nyo ang mga maling legal principles na pinalaganap ng inyong show (it is hoped that the hosts will correct the erroneous legal principles disseminated by the show) Salamat po.
If you were not at the Supreme Court yesterday and want to get more details beyond the storified version of the Solicitor General’s oral arguments on the Cybercrime Law, here they are: these are right-clicked from rappler reporter Purple Romero’s twitter account (twitter.com/purpleromeropo), they’re live tweets; i copied them from bottom to top for a chronological flow of the proceedings, consolidated where proper instead of paragraphing every 146 letters of tweet.
We could call them: “court transcripts by live tweets”, a new phenomenon in judicial proceedings.
Just some comments so I won’t have to interrupt the flow. The Solgen said that surveillance of traffic data will only show the I.P. address and not the identity of the person. Jeez.
An I.P. address is not just a number. Most of us who use the internet for work or communication use only one or two personal computers: your mobile/ laptop personal computer and a desktop personal computer in the office. Whatever computer you use, whether your PC or a public computer, law enforcement authorities who have your IP address and are on real-time surveillance are capable of knowing where you are. An I.P. address of your personal computer leads to your office address or your home address either through the records of the internet service provider or through physical surveillance; and therefore to your identity. And then PO1 (police officer 1) can continue gleefully following your every activity in the internet – without a court order!
When confronted with the absence of standards for what constitutes “due cause” as ground for real-time collection of traffic date (real-time surveillance of internet data) thru questions from CJ Sereno, Justice Carpio, Justice Tessie de Castro, and Justice Marvic Leonen, (what is due cause?), the SolGen, after hemming and hawing, in the end, said (and I don’t blame him, his is an unenviable job): “law enforcement can start with internal rule”.
Internal rule? Kalurky. (kaloka, rough translation: drives me crazy or are you mad). It is being suggested that law enforcement authorities would agree among themselves that they would be angels for all time and will not snoop on anyone’s internet activity except try to track down the code-breaking & code-writing of hackers. This is like saying: Let’s just trust them nalang, okay.
From twitter.com/purpleromeropo: “Oral arguments on the Cybercrime law now starting at SC. Solgen Francis Jardeleza: Revolutionary change has given malefactors to invent a new crime: cybercrime. Jardeleza: Most important chapters of Cybercrime law are 2,3,4. Chapters 2&3 define acts punishable under the law. Chapter 4 specifies new investigative tools to effectuate the law, to locate and identify the anonymous cyber criminal… Jardeleza outlining how Cybercrime law can help authorities trace and arrest “Mr. Hacker.” Jardeleza: The specter of Big Brother was raised. We categorically say RA 10175 does not authorize Big Brother surveillance. Jardeleza: Sec. 12 will only bring law enforcement to IP address, not address like Kalaw 1, 2, 3,4, 5. Jardeleza: We humbly submit that Sec.19 (takedown clause) be struck down, but Sec. 19 does not make void whole Ra 10175. Jardeleza: Is it unconstitutional for the State to criminalize libel? According to this Court, no. Jardeleza: If an utterance is libelous in the physical world, doesn’t it follow that it is libelous in the cyberworld? Jardeleza: Defamation is defamation, whether we communicate through megaphones, letters, radio, tv or email. Jardeleza: For journalists – defamation is defamation whether stories find themselves printed in broadsheet or internet edition. Jardeleza: A “like” is an approval of opinion. Jardeleza: Can a journalist who works for same paper with print and online edition be prosecuted twice? We humbly submit no….
Justice Abad: Can online libel be punished even without RA 10175? Jardeleza: Yes.
Abad: We have legislative admission that online libel does not clearly extend to Internet postings
Jardeleza: Things can go viral – what about reputation?
Justice De Castro: Libel will be considered under broad crimes in Sec. 6
Leonen: Congress does not seem to understand that libel in 1935 is not the libel we have today
Jardeleza: There is no freedom of expression involved in the case of Mr. Hacker.
Leonen: Wouldn’t the best way to protect us from libel is through civil action? Jardeleza: These are matters we submit to those elected
Justice Carpio: If penal law suppresses freedom of speech, it can be facially attacked? Jardeleza: Libel is unprotected speech.
Carpio: You can get traffic data from PLDT without court warrant, correct? Jardeleza: Yes, provided there is due cause
Carpio on collection of traffic data w/o warrant: Let us go to the judge! If u want we can designate a judge 24/7.You can go to his house
Jardeleza: Not all intrusions are unconstitutional, [they are unconstitutional] only if they are unreasonable
Carpio: It’s the use of internet that makes it a cybercrime? Jardeleza: Theoretically, yes
De Castro: Who will initiate determination of due cause? The law does not say how due cause is to be determined. Jardeleza: You’re right.
Jardeleza: The medium can change, but the competing values are the same. Does it harm reputation?
Justice Bersamin: Attempt in the commission of cybercrime – in the revised penal code there is overt act, we don’t seem to require it here
Jardeleza: There is no definition (of attempt in the commission of cybercrime) in RA 10175
Justice Del Castillo: There is no definition of due cause, it’s subject to abuse.
(1/2) Leonen: Are we not giving too much blanket authority to authorities to inspect data packet?
(2/2) Jardeleza: It’s constitutional but we agree there could be more robust procedures
Jardeleza: Cybersex targets cyber prostitution not obscenity.
CJ Sereno: This innocuous-looking section (Sec.3) is the one that caused the most objection (Sec.3 is the definition of terms)
CJ Sereno: You said Sec. 12 is the heart of regulation. If we strike it down, this law is good for nothing.
CJ Sereno: We might ourselves find standards for due cause, absent.
Jardeleza: Law enforcement can start w/internal rule
Carpio: Why are we allowing law enforcers to do a shortcut? They could always go to the judge.
Abad: I do not find in cybersex provision anything on prostitution or trafficking. The law does not say that. That’s the problem.
Abad: What assurance can you give us that policeman will use real-time collection for a good purpose? None.
Parties are given 20 days to file respective memorandum. Petitioners will file second amended petition on Jan.30.
CJ Sereno on TRO extension: We will address that in due time.
Amalia Muhlach aka Amalia Fuentes vs. Bianca Gonzales & Annabelle Rama on internet libel
This case was dismissed on preliminary investigation stage on both substantive and jurisdictional grounds. It is effective only as to the parties. Upon petition of the losing party, it may be reviewed by the DOJ Secretary – if any such petition is filed. A fiscal’s resolution is not jurisprudence or case law; it is one prosecutor’s action on a pending complaint; you could say it is his/her legal opinion.
So… on jurisdictional grounds, the fiscal said (as reported by pep.ph): “there is no such thing as Internet libel under RPC [Revised Penal Code]. Article 355 of the RPC is very specific that libel can only be committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition or any similar means. In 1932, when RPC became a law, there was no computer yet, much less modes of communication via the Internet. They were only introduced recently.” “Legislature therefore could not have intended to include Internet communications as a means of committing libel when it codified the criminal statutes in 1932. Although lately a Cybercrime Law was enacted, the acts attributed to Bianca and Annabelle as allegedly constituting the crime of libel took place before the enactment of the said law.”
On substantive grounds, the fiscal said: “(I)t (the article ) was a fair and true report of Bianca’s interview of Annabelle.xxx (S)he (Annabelle Rama) was just recounting past event/s in her and husband’s Eddie’s life during the interview. If ever, she revealed events in their life that involved Amalia, that was but part of the narration.”
What is my opinion?
Here’s a snippet, it’s not the entire opinion. In certain instances, fiscals have given due course to complaints based on internet libel and have filed criminal cases upon them. Some prosecutors have entertained them, some have not.
Such that you have one case in the Supreme Court on venue, on where not to file a complaint of internet libel; the venue of where the article was “printed and first published”, if in cyberspace, cannotbe construed to mean where the offended party first viewed or accessed it (complainant’s argument) because this would allow the complainant to harass the respondent. (It leads to a ridiculous situation where the offended party could say, oh I opened my laptop in Batanes on a business trip and that’s where I saw the blog site so I will file my case there).
So… that’s the state of Philippine jurisprudence on the matter. It however shows that the Supreme Court never shirked from construing antiquated provisions of the Revised Penal Code in a commonsensical fashion and in the context of prevailing technological realities.
