In Defense of the Cyber Penal Code of the Philippines

Read the first part: In Defense of the Cybercrime Prevention Act of 2012

Disclaimer: This opinion is not of a member of the bar nor of a law student.

The Cybercrime Prevention Act actually seeks to protect the free and safe use of information and communications technologies (ICT), including the Internet. In Section 4 of the law, the various cybercrimes were defined. These include hacking, e-tapping, spreading of computer virus, and spamming, among others. Being a poser, use of registered tradenames, and using of ICT for child pornography are also punishable.

The one thing I did not like  in Section 4 is the wording in (c) Content-related Offenses:

(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration. (bold and underline supplied)

The word 'cybersex' in that provision is misleading to the effect that sex done online, even between consenting adults without marital obligations, are illegal. Though, the provision specifically states that it must be done for 'favor or consideration'. I am hereby proposing that the word 'cybersex' be replaced with the word 'cyberprostitution'.

Now, the most contested of all provisions in the whole law is that on libel:

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

Which is actually just borrowing the whole definition of libel from the 80 year-old Revised Penal Code:

Article 353. Definition of libel. - A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

The new law just specified a new way of committing libel, which is via ICT, adding to the various methods possible at that time:

Article 355. Libel means by writings or similar means. - A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means,...

I see nothing wrong in modernizing our laws.

Many are scared that this provision will take away the freedom from the Internet. That everything we post online is libelous, therefore, would result in Internet blackout because we will be too scared to post anything or those brave enough would be jailed. This idea is wrong.

First, not everything you say is libelous. You just do not say a libelous statement out of the blue. From a decision of the Supreme Court, G.R. No. L-47971 dated October 31, 1990 written by former Associate Justice Medialdea, the four elements of libel are:

1) The imputation of a discreditable act or condition to another; 2) publication of the imputation; 3) Identity of the person defamed; and 4) existence of malice

Second, not everything you put online is public. There is such a thing as private message, private groups, private settings, and all other things private and secret. If your intention is to really make it public, then the third reason is for you: not everything you post in public is seen by everyone. If the supposed offended party have no knowledge of what you said, then who will sue you? Last, not all offended parties would want to sue each and every instance he was defamed.

There seem to be a misunderstanding that the only possible offended parties in libel are public officials. Libel can also happen to juridical persons and private persons. Libel law was not intended to shut-up public dissent. It was intended to protect the privacy and honor of persons. Others would argue still that libel law is unconstitutional as the Constitution states that:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

Well, I am sorry to tell you that not everything in the Constitution is executory. That is why the Constitution commands a parliament to make specific laws and that is why a Supreme Court was tasked to be the final interpreter of the Constitution. In another decision of the Supreme Court, G.R. No. 172203 dated February 14, 2011 written by Associate Justice del Castillo, the opening paragraph says:

Freedom of expression enjoys an exalted place in the hierarchy of constitutional rights. Free expression however, "is not absolute for it may be so regulated that [its exercise shall neither] be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society." Libel stands as an exception to the enjoyment of that most guarded constitutional right.

The freedom of expression is not absolute simply because the rights of another person will be put at risk. Law is about balancing the freedom of a person versus the rights of another. Imagine a country where everyone can say just absolutely everything one wants to say. That would be anarchy. Freedom is best defined by its limitations and from an unforgettable lecture of Atty. Perez in highschool elective law class:

Your freedom ends where others begin.

So what is the correct balance? Truly, the freedom of expression is one of the highest rights that it is even in the Bill of Rights in the Constitution. I would be swayed to agree then that the punishment for libel should not be 10 nor four years of jail time. To this effect, I hereby support the call to pass a Libel Decriminalization Law.