R.A. 10175: A Threat to the Freedom of Expression? By 2008-000234 I.

Introduction Among the changes in the Philippines over time is the increasing role of mass media in shaping its political landscape. Media in the contemporary days of Philippine politics has been playing significant roles in reaching out to common people. Media covers print, broadcast and social media. It is through these avenues that people are able to receive and disseminate information regarding the current events in the Philippines and abroad. As a result, the media is evolving further in order to keep up with the changes of society and now has the role of being the bridge between public authorities and private individuals. Media in social networking sites gives people an opportunity to voice their opinions and criticisms on matters of public importance. Social media became the common form of media that people access in order for them to participate in discourse about the latest issues facing society today. Social media networking sites such as Rappler, Facebook and Twitter, where anyone may right on certain issues, have been the most commonly used websites in the Philippines. These websites has features which allows any of its users to post and comment on any picture, post or any statement made released in the internet. These posts may come in the form of pictures, status updates, links or any other similar audio, visual or audio-visual depiction of anything pictured in reality. Through the internet, people are allowed to say anything they want on any post where they have access to. However, the absence on any covering law in the use of the internet leads to the abuse of the opportunity and privilege of expressing their sentiments through social media. The incidents of cyberbullying have been a proof for such abuse. This is apart from other crimes committed through the internet such as pornography, cybersex and hacking. With these problems being established brought the enactment of the Republic Act No. 101751 (R.A. 10175 for brevity). The enactment of this law caused the protests from various internet users. Protesters, which includes

1 An Act Defining Cybercrime, Providing for the Prevention, Investigation, Suppression and the Imposition of Penalties therefor and for Other Purposes (2012).

a legislator who opposed the passage of the law2, contend that R.A. 10175 does not recognize free speech and that the enactment of the law was brought about by the reason that government officials cannot handle criticisms.3 The purpose of this paper to is determine whether or not R.A. 10175 deprives people of freedom of expression as far as social media is concerned and if it does, this paper shall seek to determine whether or not such deprivation of freedom of expression is justified and has undergone due process. In line with the purpose, this paper shall look into the provisions of R.A. 10175. This paper shall also present the relevant constitutional provisions regarding the role of media in the Philippine society and the rights each person is entitled to, all in the context of their participation in social media. Relevant media laws may also be discussed. This paper shall likewise characterize Philippine politics in the contemporary period and how media influenced the shaping of the Philippine political landscape. The role of the internet in Philippine politics will likewise be incorporated within the discussions in order to show that social media is contributory to the behavior of the Filipinos in society. This paper claims that R.A. 10175 deprives internet users of their freedom of expression. The issue therefore is to determine whether or not the deprivation of the freedom of expression brought by R.A. 10175 is a justified deprivation of the right and does not violate due process. This paper shall end with a conclusion together with an analysis on whether or not due process has been observed and that the enactment of R.A. 10175 is a valid deprivation of the right of freedom of expression. The tests of determining due process would be used in order to determine the validity of the R.A. 10175 as far as the deprivation of freedom of expression is concerned. II. Relevant Constitutional Provisions The 1987 Constitution provides for the recognition of the role of media in society. The Constitution likewise provides for the Constitutional Rights of every individual protected under Philippine laws. Since laws are presumed to be constitutional on the theory that both the executive and legislative have carefully studied the law prior and during its enactment and

2 Senator Teofisto Guingona. 3 Mynardo Macaraig et al, Protests as Philippine Cybercrime Law Takes Effect, GMA News Online, October 3, 2012, http://www.gmanetwork.com/news/story/276649/scitech/technology/protests-as-philippine-cybercrimelaw-takes-effect, (accessed October 26, 2012).

approval,4 it is important to take a look in to the constitutional provisions that have bearing on R.A. 10175. Article II Sec 24 of the Constitution provides as follows: Sec. 24. The State recognizes the vital role of communication and information in nation building Communication was used in the Constitution to mean any avenue intended to gather and disseminate information to the general public. This includes print and broadcast media.5 However, communication and information does not only revolve around print and broadcast media. The growth of the internet paved the way for social media to be included in the mass media. Information and communication is no longer limited to the traditional forms of information dissemination. People may now simply use the internet to gain information and participate on societal issues. It is through mass media that a more informed citizenry could be founded.6 Recognition of the role of communication and information in nation building7 entails that the evolution of mass media in society i.e. the development and utilization of the internet, is recognized as a necessary means in order to foster development in society. It is difficult to imagine a progressive country in a world of modern technology where its information and communication system are antique and obsolete. The Philippines must therefore be updated on the latest innovations on information and communication technology but at the same time be selective and discriminating to insure that only those suitable to the interests of the country are adapted.8 The internet no became an indispensable medium of communication and information. Information in broadcast and print media are also being made available in the internet. In this manner, subscribers of the old media and internet users may now access the desired information in the internet even if newspapers are no longer available in the market or missed news episodes. Therefore, the use of the internet in information dissemination further advanced the ideal of having a well-informed and active citizenry in the discourse of issues confronting the Philippines. Apart from the policy of the State, it is also important to look into the rights of

4 Noli C. Diaz, Statutory Construction, Third Edition, (Manila, Philippines: Rex Book Store Inc., 2007), 118. 5 Hector S. De Leon, Textbook on the Philippine Constitution, 2005 Edition, (Manila, Philippines: Rex Book Store Inc., 2005), 69. 6 Id. 7 Constitution (1987) Art. II, Sec. 24. 8 Supra note 5.

individuals as provided in the Constitution relevant to R.A. 10175. Article III Section 4 of the Constitution provides as follows: Sec. 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. Freedom of speech and expression is therefore a constitutional right and, as a general rule mere legislation may not tamper it. The Constitution aims to protect the right of any individual to utter and publish whatever one pleases without restraints. The Constitution guarantees free speech so a person may say anything he wants provided others are not harmed by any of such statements.9 Therefore, any law passed that abridges the freedom of expression is unconstitutional for tampering with a constitutional right. The right of freedom of expression has been granted to Filipinos not by mere legislation. The Constitution itself granted the right in order for a healthy democracy to manifest itself. Democracy may only manifest itself completely into society only when there is an informed citizenry participating in discourse as regards issues of national interest. The grant of the Constitution of the freedom of expression, free speech and free press are geared towards attaining such goals. However, like all any other rights, the freedom of expression is not an absolute right. Although the Constitution categorically grants the freedom of speech and expression, certain limitations have to observed in the exercise of this right. Such free expression of thought must not be abused to the point of harming others.10 The State may deprive such right if it poses harm to others upon observance of due process. This is the exception to the general rule that no law shall be passed abridging free speech11 The state may therefore impede such freedom if it injures others. To paraphrase John Stuart Mill12, the State may only exercise its power over the freedom of individuals if and only if the exercise of such freedom oversteps the rights of others.13 In relation to freedom of expression, the constitutional right may only therefor be deprived if the exercise of such right is going to harm other people such as to injure another person's character,

9 10 11 12 13

Id. Id. Constitution (1987) Art. III, Sec. 4. John Stuart Mill, On Liberty and Utilitarianism, (New York, New York: Bantam Dell, 2008), 12. Id. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

reputation or business.14 However, the deprivation of such right may only be justified upon proper observance of due process. Thus, Article III Section I of the Constitution provides: Sec. 1. No person shall be deprived of life, liberty and property without due process of law, nor shall any person be denied the equal protection of the laws. In this respect the observance of due process in depriving freedom of expression shall be considered15 before such deprivation be valid. Freedom of expression is a liberty right. A person may enjoy free speech however, he may not use it to initiate unlawful activities nor dishonor another person.16 Therefore, laws that tend to impose limits on the freedom of expression should always take due process into consideration in order for the deprivation of the right contained within the legislation would be considered valid. III. Other Relevant Statutes The downfall of President Marcos restored democracy in the Philippines. Along with the restoration of democracy is the enactment of a new Constitution democratic in character and other laws that would implement the essence of the Constitution and realize democracy in reality. In line with the revolutionary powers of President Aquino, she issued Executive Order No. 817 (E.O. No. 8 for brevity) Executive Order No. 29 (E.O. No. 29 for brevity) 18 and Executive Order No. 85 (E.O. No. 85 for brevity)19 which took effect in March 18, 1986, July 16, 1986 and January 1, 1987, respectively. E.O. No. 8 provides for the creation of a Presidential Commission on Human Rights primarily tasked to assist the President in the respecting and fostering human rights20. The Commission may conduct investigations21 on cases regarding victims of human rights violations and to propose for measures that would safeguard the rights of the public in general from abuse22 and promote social justice23. On the other hand, E.O. No. 29 was intended to repeal P.D. No. 33, the latter being a law

14 Supra. 15 Constitution (1987) Art. III, Sec. 1. 16 Supra note 5 at 88. 17 Creating the Presidential Committee on Human Rights (1986). 18 Repealing Presidential Decree No. 33 [entitled] "Penalizing the Printing, Possession, Distribution and Circulation of Certain Leaflets, Handbills and Propaganda Materials and the Inscribing or Designing of Graffiti" (1986). 19 Abolishing the Media Affairs and the Ministry of Human Settlements and for Other Purposes (1987). 20 E.O. No. 8 (1986), Sec. 3. 21 E.O. No. 8 (1986), Sec. 4 Par. (a). 22 E.O. No. 8 (1986), Sec. 4 Par. (c). 23 E.O. No. 8 (1986), Sec. 4 Par. (d).

abridging freedom of expression.24 With the fall of the Marcos dictatorship and the installation of a new government, democratic in nature, laws which contradict democratic principles are therefore inconsistent with the Constitution thus, President Aquino, through her powers in a revolutionary government, repealed P.D. No. 33 in line with her democratic ideals. Lastly, E.O. No. 85 provides for the abolition of the Office of Media Affairs for allegedly serving as a private and partisan machinery during the Marcos regime. The Office of Media Affairs has failed in its role as the information and media policy arm of the government. 25 The government of President Aquino seeks to promote transparency in a democratic government ergo, she removed the office which was inefficient during the previous regime in information dissemination to the people at large. Furthermore, failure to properly disseminate information may impede freedom of expression because citizens may only be able to properly participate in a democracy only if they are well aware of the whereabouts of the government. IV. Philippine Politics Through Time Throughout the course of history, Philippine politics has been characterized as a system where the elites are in power. Those in government are the same people who have managed to master the operation of all government mechanisms in order to stay in power. Such power of the political elites are not constrained by the limits on their terms of office. They either create dynasties in their respective constituencies or they circumnavigate the law by seeking positions in the government, though different from their former offices, are still appointed in such office since the appointing power also wants to please voters. Even the downfall of President Marcos did not change the political landscape of the Philippines. The democracy installed under the new government of Cory Aquino is not functioning for the benefit of the Filipino people, mostly from poor families. The democracy in the new government simply restored to power the political elites prior to the Marcos regime.26 These elites manage or return to power, as the case may be, by finding ways for them to be known. Although the electorate is partly at fault for having the same leaders time and again, these are the only people in society who have the capacity to reach to the masses. Part of such power is
24 E.O. No. 29 (1986). 25 E.O. No. 85 (1987). 26 Patricio N. Abinales et al, The Withering of Philippine Democracy, Academic Research Library, 2006.

the access of these political elites to mass media. It is through mass media that these elites make their platforms and policies for the country known. Print and broadcast media have been utilized by political figures in campaigning and helping spread their advocacy and policies. However, in the contemporary period of Philippine politics, politicians are starting to utilize the internet in placing their ads as part of their campaign strategy. This evolution in the utilization of mass media in Philippine politics was nowhere more evident than in the 2010 Presidential Elections. The political campaign ads of Presidential aspirants, as well as those running for lower positions e.g. Senators, Congressmen, Governors and City Mayors, are swarming in the internet. Some politicians even have like pages in Facebook or have themselves trend on Twitter in order for them to have large publicity and for voters to get to know them and what they can cater to the people at large. Eventually, it was the candidates who were eventually successful in their political aspirations. The utilization of all forms of media in contemporary Philippine politics largely influenced the decisions of many Filipino voters and eventually were persuaded by these politicians whom they know since these politicians are the ones who have access to mass media. However, the maxim with great power comes with great responsibility will always apply to any government who derives their mandate from the people because it is the power of the people in a democracy which vests power on the government to serve the public interest. The exercise of the freedom of expression does not stop in expressing the preferred candidate who shall be in power for a certain period of time in the country. It continues to the time that a candidate wins an election and assumes office as a person vested with powers and public authority. Voters will then start to watch the actions of the people that they elect. Voters will eventually want to see whether or not the people they elect are catering to their needs. Criticisms will flood all forms of media expressing the sentiments of people. The internet, being tool to access social media will continue to play its role in catering to the needs and wants of the people in publicizing their voices through the social network. Users freely access the internet in order for them to participate in public issues or simply, browse it. People will continue expressing their constitutional right of freedom of expression. A growing informed populace through widespread use of the internet and other media groups disseminating information in such avenue, people will

eventually want to participate in public affairs by engaging in discourse through all available media. Since the internet could be installed at just about any home that may avail of the services of an Internet Service Provider and , if not, may be accessed in internet cafes, the access to information by the people has been made easier and participation in the democratic decision making-process by exercising the freedom of expression has been more evident in society than before. V. Right to Freedom of Expression Freedom of expression implies the right to freely utter and publish whatever one pleases without previous restraint,27 and to be protected against any responsibility for so doing as long as it does not violate the law, or injure someone's character, reputation or business. Free speech and free press covers all forms of utterances whether orally or through actions28 for so long as expression of an idea is present and all forms of publications whether print or broadcast media. 29 The internet, being included in mass media, the exercise of the freedom of expression in such avenue is now covered and protected by the Constitution. This section shall define freedom of expression and its scope and limitations as applied to relevant jurisprudence both local and American. Freedom per se is liberty and freedom of expression is a freedom granted by the Constitution itself. Constitutional freedom is a liberty regulated by law, and liberty is immunity from arbitrary commands and capricious prohibitions, but not the absence of reasonable rules of protection of the community.30 Freedom of speech as cherished in democratic countries was unknown in the Philippine Islands before 1900. It was among the reforms insisted by the Filipino people. The Malolos Constitution, in its Bill of Rights, introduced and safeguarded this basic right31 towards the establishment of a republic. It is a right to a full discussion of public affairs.32 In a democracy, constitutional liberties must always be accorded supreme importance. It is the function of speech to free men from the bondage of irrational fear.33 In unequivocal language, the

27 28 29 30 31 32 33

Supra. Id. Id. Bowe v. Secretary of the Com., 69 N.E.2d 115, 129, 320 Mass. 230. U.S. v. Bustos, 37 Phil. 731, (1918). Id. David v. Macapagal-Arroyo, 489 SCRA 160, (2006)

Constitution prohibits an abridgment of free speech or a free press. Free speech is a preferred freedom calling for utmost respect especially when what may be curtailed is the dissemination of information34 substantial to public interest. It is recognized as a fundamental principle of every democratic government that stands on a higher level than substantive economic freedom or other liberties.35 It constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock or disturb.36 Freedom of expression has been the underlying principle of every existing democracy in society. It is the liberty to know, to utter and to argue freely according to consicence above all liberties.37 When the right has first been introduced to the Philippines, the exercise of such right became significant in shaping the Philippine political system and contributed largely to its development. When the framers of the Constitution gave freedom of expression as a preferred right, it is placed above other rights in terms of its importance. This is because any democracy will not be able to work if such right would be at the mercy of government officials. It is the sovereign will of the people, as manifested in the provisions of the Constitution that freedom of expression be exercised by all citizens and that no law should be passed that would tamper such right. The Constitution, along with supporting laws and Court decisions, are ruling in favor of the exercise of the freedom of expression. Not only is the freedom of expression a preferred right but also, it is the foundation of a democratic society. There could be no democratic society if people would not be allowed to voice themselves and participate in the decision-making process of the government. A grant of the right of freedom of expression is necessary to encourage people participation in governance. Not only does the exercise of the right contributes to the growth of a democracy as an abstract principle. It also gives an avenue for the leaders of a country to better serve the interests of the people for the better good since the people themselves would get involved in the current and recurrent issues being faced by society. Freedom of expression is a full and free discussion of all affairs of public interest. It includes complete liberty to comment

34 35 36 37

Mutuc v. Comelec, 36 SCRA 228 (1970). Chavez v. Gonzales, 545 SCRA 441, (2008). Ang Ladlad LGBT Party v. Comelec, 618 SCRA 32, (2010). Planas v. Gil, 67 Phil. 61 (1939).

upon the administration of government as well as the conduct of public men.38 Any system of prior restraints of expression comes to the Court bearing a heavy presumption against its constitutional validity.39 The burden of proof in showing that the deprivation of freedom of expression therefore rests upon the party that seeks to deprive the exercise of such right. The speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. However freedom of expression is not as absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained.40 The constitutional guaranty of freedom of speech does not guarantee a person who speaks immunity from the legal consequences of his verbal actions.41 Liberty of speech and of the press are not absolute rights, and their abuse is subject to punishment by the state.42 The right is not without limitations. The Constitution does not absolve one from punishment for unlawful nature and consequences of his speech.43 The Constitution simply gives the citizens the right to speech, not the right to unrestricted publicized speech.44 Although granted by the Constitution, freedom of expression, is not an absolute right. It may not be abridged by legislation not unless there is an abuse in the exercise of such right or it oversteps the rights of other people. While it is true that freedom of expression is an underlying principle of a democratic state, it may still be regulated by the State if public interest requires it. Any exercise of right is legitimate for so long as it does not injure others. However, if the exercise of a right resorts to the injury of others or depriving other from exercising their equal right, the State has the obligation to intervene and sanction the abuser of such right. In the same manner as applied to freedom of expression. People are free to express their sentiments and air their views in public through their access to mass media. However, they cannot simply write, post or voice anything as they please especially when there is an intent or even if there is no intent, to hurt other people.

38 39 40 41 42 43 44

U.S. v. Perfecto, 43 Phil. 58 (1922). Newsounds Broadcasting Network, Inc. v. Dy, 583 SCRA 333, (2009). Gonzales v. Comelec, 27 SCRA 835, (1969) National Labor Relations Board v. M.E. Blatt Co., C.C.A., 143 F.2d 268. State v. Klapprott, 22A.2d 877 N.J.L. 395. Chicago v. Terminiello, 79 N.E.2d 39 400 Ill. 23. Lejano v. People, 638 SCRA 104, (2010).

Laws are created in order to serve the best interests of the people. Part of these interests of the general public is for the State to afford them protection against people who tend to abuse their vested rights and use it to hurt others. The State may therefore regulate the right to freedom of expression to the extent that the exercise of such rights does not pose any threat to society and gives more benefits rather than evils to the general public. Ergo, a law passed regulating i.e. controlling the freedom of expression is considered valid if and only if such regulation observes due process and its deprivation will further serve the common good. VI. Merits of R.A. 10175 The declaration of policy45 of R.A. 10175 provides as follows: Sec. 2. Declaration of Policy. - The State recognizes the vital role of information and communications industries such as content production, telecommunications, broadcasting electronic commerce, and data processing, in the nation's overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of computer, computer and communications systems, networks, and databases, and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse and illegal access by making punishable under the law such conduct or conducts. In this light, the State shall adopt sufficient powers to effectively prevent and combat such offenses by facilitating their detection, investigation, and the prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation. R.A. 10175 is geared towards the utilization of information and communication technology as a contributory factor to national development. In line with the said purpose, the law seeks to secure, protect and safeguard computer data. It shall take measures to penalize individuals who are involved in the offenses provided for under the law.46 On the outset, R.A. 10175 seeks to curb crimes committed via the internet. It seeks to stop the influx of unlawful access to information of national security and interest where, if caught in the wrong hands, would compromise public good and public safety. It is in accordance with these goals that R.A. 10175 was enacted. R.A. 10175 provides for the crimes punishable under its scope. The crimes cover those offenses against the confidentiality, integrity and availability of computer data and systems,47

45 R.A. 10175, Sec. 2. 46 R.A. 10175, Sec. 2. 47 R.A. 10175, Sec. 4, Par. (a).

computer-related offenses,48 content-related offenses,49 other offenses50 and all crimes defined and penalized by the Revised Penal Code and special penal laws when committed with the use of information and communications technology.51 Offenses against the confidentiality , integrity and availability of computer data and systems include illegal access, 52 illegal interception,53 data interference,54 system interference,55 misuse of devices,56 and cyber-squatting.57 The contents in this provision aims to curb hacking, the illegal tapping, fabrication and destruction of computer data as well as the use, distribution and mere possession of gadgets created to commit the offenses defined. Computer related offenses include computer-related forgery,58 computer-related fraud,59 and computer-related identity theft.60 The contents of this provision aims to curb the spread of inauthentic and non-credible data in the internet. It aims to prevent unauthorized input, alteration or removal of any computer data that may cause damage later. This provision also seeks to curb identity theft done in the internet. Identity theft should be understood as the the intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, without right.61 This provision aims to prevent misinformation and misrepresentation of identity in the internet brought about by people identifying themselves as another person for purposes that may seem to prejudice the victims. Content-related offenses include cybersex,62 child pornography,63 unsolicited commercial communications64 and online libel.65 The contents of this provision aims to curb offenses where the substance of the internet data is offensive in nature. The likes of cybersex and child pornography are violative of basic human rights of protection and privacy to women and
48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 R.A. 10175, Sec. 4, Par. (b). R.A. 10175, Sec. 4, Par. (c). R.A. 10175, Sec. 5. R.A. 10175, Sec. 6. R.A. 10175, Sec. 4, Par (a.1). R.A. 10175, Sec. 4, Par (a.2). R.A. 10175, Sec. 4, Par (a.3). R.A. 10175, Sec. 4, Par (a.4). R.A. 10175, Sec. 4, Par (a.5). R.A. 10175, Sec. 4, Par (a.6). R.A. 10175, Sec. 4, Par (b.1). R.A. 10175, Sec. 4, Par (b.2). R.A. 10175, Sec. 4, Par (b.3). R.A. 10175, Sec. 4, Par (b.3). R.A. 10175, Sec. 4, Par (c.1). R.A. 10175, Sec. 4, Par (c.2). R.A. 10175, Sec. 4, Par (c.3). R.A. 10175, Sec. 4, Par (c.4).

children. Online businesses that are unsanctioned and are therefore illegal are likewise being addressed by this provision. Lastly, this provision aims to protect internet users, as well as the general public, against derogatory statements made online through posts, comments or blogs that would injure the integrity of other people. Other offenders that R.A. 10175 seeks to address are those who aids or attempts in the commission of a cybercrime.66 An offender participation in the commission of a cybercrime need not be that of a principal in order to be held liable under R.A. 10175. Any person who intentionally aids in the commission of a cybercrime, assuming the role of an accomplice, or simply attempting to commit any of the online offenses will be held liable under the law. R.A. 10175 also penalizes all crimes defined and penalized under the Revised Penal Code and special penal laws and the commission of the felonies online shall be penalized one degree higher.67 Internet as a venue for committing the crime will therefore be considered as an aggravating circumstance. VII. Issues and Controversies Surrounding R.A. 10175 It could be said that R.A. 10175 has the best intentions in preventing the spread of cybercrimes by providing for measures the are intended to fulfill the purpose. However, there have been certain issues and controversies that surrounded the act regarding its passage and enactment. Most noteworthy of which is the allegedly insertion of the libel provision under Sec. 4, Par. (c.4). What added to the controversy was that the approval of R.A. 10175 happened at the height of the controversy of Senator Sotto regarding plagiarism during the debates on the RH Bill. Sen. Sotto is allegedly the infamous legislator who plagiarized the works of bloggers and speeches alike. Posts and comments criticizing Sen. Sotto then became viral in the internet. At the height of the plagiarism controversy that he was facing, he issued a statement that he is now a victim of cyberbullying. Amidst the heat of the debates, President Aquino then signed into law R.A. 10175. This brought the rise of protests from different groups in society to the point of filing several petitions to the Supreme Court assailing the constitutionality of the said law. Libel has been defined as a public and malicious imputation of a crime, or of a vice or

66 R.A. 10175, Sec. 5. 67 R.A. 10175, Sec. 6.

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.68 Prior to the R.A. 10175, libel in print and broadcast media already incurs criminal liability.69 Under R.A. 10175, libel committed online is an aggravating circumstance. The use of internet as a medium to make libelous statements is not only punishable by arresto mayor to prision correccional70 as provided for in the Revised Penal Code. The penalty shall be one degree higher71 thus, penalty for online libel shall now range from prision correccional to prision mayor. The problem however in the insertion of the libel provision is that R.A. 10175 failed to qualify what will constitute as online libel. The internet is an avenue where hundreds of thousands of people post everyday and there is no way of checking the intent, manner and condition within which a particular user was in before or during posting anything in the internet. The problem with the libel provision is that it vests upon the authority to determine whether or not a particular internet post will qualify as a libelous post. It is in this score that R.A. 10175 violates the freedom of expression. While freedom of expression is not absolute, the limits on its exercise should be clearly defined by law in order for its validity not to be questioned. The libel provision in R.A. 10175 simply adapted the definition of libel as provided for in the Revised Penal Code.72 However, libel as defined in the Revised Penal Code only covers print and broadcast media.73 The difference between the internet i.e. the social media compared to the old media is that print and broadcast media, when released in public, take on a permanent nature. This means that articles in newspapers and motions pictures released in cinemas, once viewed by the general public will have its lasting effect for upon their release, not even minute details could be subject to change. Unlike in the internet, everything may be manipulated according to the pleasure of the internet user. A blog may simply be deleted or hidden by an internet user using the privacy settings in a social media account. Furthermore, once a person writes in the internet, these writer, more often than not, simply wants to socialize with other people and gain some degree of publicity such as having a topic trend in twitter using
68 69 70 71 72 73 Revised Penal Code, Art. 353. Revised Penal Code, Art. 355. Revised Penal Code, Art. 355-359. R.A. 10175, Sec. 6. R.A. 10175, Sec. 6. Revised Penal Code, Art. 355.

hashtags. Intent to injure other people may easily be denied and covered by other topics which may trend later or the thread may simply be removed by the blogger in his personal online space. Furthermore, the use of internet certainly posits risks. In the present times, a simple act of posting any subject matter may lead to its widespread posting. This is possible through the Share feature of Facebook, the trending feature of Twitter or mere connections of certain blo g sites or other online material to social networking sites such as that of Rappler. Since social media sites possess certain features that will spread any post, any internet user ought to know that whatever is posted in the internet has a large chance of being viral. Relating this to issues of public concern, take for example the case of Sen. Sotto when he was accused of plagiarism and the defenses he and his camp made when such issue became a public scandal. Several posts from the internet exposing such actions of the Senator became widespread. The problem here is how to determine who among those who liked, shared and commented on the posts be liable for online libel. It is simply impossible to determine who are liable because once a topic trends in social media, it often shows itself in the News Feeds or Updates and many internet users will become aware of it and have their personal thoughts about it. Now, when internet users have their personal thoughts on public issues and they decide to post it in the internet, will that not constitute as online libel? Will a criticism on any person, whether public or private, done online, constitute online libel? Will a negative commentary on any government official make an internet user raising his thoughts on issues of public concern incur criminal liability under R.A. 10175? The language of the law has to be more specific as to what kinds of posts will form online libel and who would be held liable in case online libel would be committed and proven beyond reasonable doubt. The implementation of the the penalty for online libel now brings the second controversy surrounding R.A. 10175. Section 7 of R.A. 10175 provides as follows: Sec. 7. Liability under Other Laws. - A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. The provision provides that the liability of any person under R.A. 10175 does not prejudice the liability under the Revised Penal Code. It would therefore seem that a person guilty of committing a cybercrime, take for example libel, is required to satisfy the liabilities under

R.A. 10175 and since the liability under the Revised Penal Code is not prejudiced, the guilty person is also obliged to satisfy the liability under the Revised Penal Code. Therefore, a guilty person would be serving sentence in jail for an offense under R.A. 10175, then serve another sentence in jail for the same offense to satisfy the Revised Penal Code. A person guilty of cybercrime is therefore obliged to serve two penalties for the same offense under the law. However, despite the presence of this provision under R.A. 10175, a person guilty of a cybercrime is not completely deprived of any legal remedies. On the event that a person guilty of a cybercrime also punishable under the Revised Penal Code faces double jeopardy, that person is at the mercy of the court in order to avoid excessive penalties brought about by the two sentences needed to be fulfilled. The Second Paragraph of Article 5 of the Revised Penal Code Provides as follows: Art.5. xxx In the same way the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense. This provision shows that a the court may address the Chief Executive, through the Department of Justice if a strict imposition of the provisions of the Revised Penal Code will result to excessive penalties.74 Applying this to R.A. 10175, conviction in a crime punishable both under R.A. 10175 and the Revised Penal Code will result in excessive penalties. Take for example libel which happens to be punishable under both laws. Under the Revised Penal Code, libel is punishable by prision correccional. Under R.A. 10175, libel is punished one degree higher than the penalty imposed under the Revised Penal Code so that would mean that the penalty for libel under R.A. 10175 would be prision mayor. And since Sec. 7 of R.A. 10171 provides that prosecution among any of the offenses under it shall not prejudice the liability for any violation of the Revised Penal Code, the person guilty of a cybercrime is hereby obliged to serve six months and one day to six years as prision correccional to satisfy the liability under the Revised Penal Code and another six years and one day to twelve years as prision mayor in order to satisfy the liability under R.A. 10175. This is a clear showing of excessive penalties because a convicted person will now be forced by law to serve two different sentences for the same offense
74 Revised Penal Code, Art. 5.

committed. With this being established, it may seem that guidelines and limitations in the imposition of the penalties contained in R.A. 10175 and the Revised Penal Code as far as online crimes are concerned should be made so as not to further prejudice the cybercrime delinquent. VIII. Observance of Due Process As a general rule, no person shall be deprived of life, liberty or property without due process of law.75 The Constitution does not provide for an exact definition of due process. It is upon the discretion of the courts depending on certain situations and upon the consideration of certain standards would determine whether due process has been observed. While there is no controlling and precise definition of due process, it furnishes an unavoidable standard to which government action must conform.76 It signifies freedom from arbitrariness and is the embodiment of the sporting idea of fair play.77 It is only upon the observance of due process will the deprivation of life, liberty and property be justified. The deprivation of freedom of expression may only then be justified if due process of law has been observed. The burden of proof in showing that due process has been observed in the deprivation of any right rests upon the party seeking to deprive it ergo, the State must present a clear showing that the aggrieved party has been heard before the actualization of such deprivation. This is because the observance of due process is the exception to the general rule that rights to life, liberty or property cannot be deprived. There are two aspects of due process procedural and substantive due process. Procedural due process relates to the procedure which government agencies must follow in the application and enforcement of the laws.78 It refers to a law which hears before it condemns.79 In observing procedural due process, the party seeking the deprivation of a right must provide an opportunity to the defendant to be heard in a fair and lawful trial before a court of law. 80 The essence of due process is simply an opportunity to be heard, or an opportunity to explain one's

75 76 77 78

Constitution, Art. III, Sec. 1. Eastern Broadcasting Corporation v. Dans Jr., 137 SCRA 628, (1985). Ermita-Malate Hotel and Motel Operators Association v. City Mayor, 20 SCRA 849, (1967). Luis V. Teodoro, Jr., Mass Media Laws and Regulations in the Philippines, 3 rd Edition, (Caloocan City, Philippines: Center for Research and Communication Foundation Inc. and Asian Media Information & Communication Centre, 2006). 79 Lopez v. Director of Lands, 47 Phil. 23, (1924). 80 Banco Espanol Filipino v. Palanca, 37 Phil. 921, (1918).

side.81 The aggrieved party must therefore be given the right to defend himself against the party seeking to deprive his right. The other aspect of due process is substantive due process. Substantive due process refers to the law itself which must be fair, reasonable, and just; the law must not be arbitrary. 82 The purpose of the law must be fair to all parties concerned and not a merely arbitrary exercise of government power. The law must provide for equal protection to all citizens in the spirit of fairness. Moreover, the means employed in achieving the purpose of the law should be by reasonable means. Substantive due process shall be used in assessing whether or not R.A. 10175 justifies the freedom of expression. IX. Standards for Justifying Penalties for the Exercise of Freedom of Expression It is now established that freedom of expression is not an absolute right. Laws may regulate the exercise of such right to the extent of depriving its exercise when the use of such right starts to injure others such as expression of obscenity, defamatory and seditious words. 83 The constitutional right of freedom of expression may still be regulated and penalized subject to the following standards: 1. the dangerous tendency rule; 2. the clear and present danger test, and; 3. the balancing of interests test. The dangerous tendency rule is a standard which seeks to determine whether or not a particular law is reasonable. This standard looks into the means employed, the evil to be suppressed and the means employed in suppressing the evil. However, clear showing of actual evil is not necessary for this standard to be followed. A mere tendency towards evil was enough.84 Applying the dangerous tendency rule in determining whether or not the deprivation of freedom of expression of R.A. 10175, the evils the law seeks to suppress should be looked upon. Crimes involving the internet is the evil it seeks to suppress and in doing so, it imposes criminal and civil liability to those who would be proven guilty of committing the offenses mentioned under Sec.4, Sec. 5 and Sec.6 of the law. The law considered the commission of a crime in the internet as an aggravating circumstance. The internet is a growing and continuously evolving
81 82 83 84 Vertudes v. Buenaflor, 478 SCRA 210, (2005). Supra. Supra. Id.

form of media where almost any person may access. The internet caters to the general public because of the massive information it contains in the different websites and servers. Moreover, the internet, through social media, features a system where files may be shared and transferred. The risk of hackers who would want to access important information or cause it non-credibility would risk the the knowledge of the people at large who have became dependent on the internet for access to information. Therefore, in line with the dangerous tendency rule, the penalties under R.A. 10175 is justified. The second standard in determining whether or not punishment for freedom of expression as contained in the penalties of R.A. 10175 is the clear and present danger test. The clear and present danger test is intended to determine the present evil in society which the law shall address. The test permitted punishment of expression when the words used are in circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the State has a right to prevent. It is a question of proximity and degree. 85 In Gonzales v. Comelec86 Supreme Court explained that the dangerous tendency test as applied to freedom of expression is justified by the danger of evil of a substantive character that the state has a right to prevent. The danger must not only be clear, but also present. The term clear seems to point to a causal connection with the danger of the substantive evil arising from the utterance questioned. Present refers to the time element. The danger must not only be probable but very likely inevitable. Applying the dangerous tendency test, the clear and present danger addressed by the law are defined in the penalties mentioned in R.A. 10175. The dangers the law seeks to address are the offenses against the confidentiality, integrity and availability of computer data and systems, computer-related offenses, content related offenses,87 other offenses88 and crimes defined and penalized under the Revised Penal Code.89 Such dangers are clear, present and very much likely to happen. In an era where hackers want to gain access to classified information, where cybersex and child pornography has been rampant in the internet, where the credibility of information

85 86 87 88 89

Schenk v. U.S., 249 U.S. 97, (1919) 27 SCRA 835, Supra. R.A. 10175, Sec. 4. R.A. 10175, Sec. 5. R.A. 10175, Sec. 6.

stored in websites may be highly questioned due to various writers simply releasing information without authentication and where online libel has been manifesting itself often through cyberbullying, the evils are clear and present in society and the government is bound by its duty to the people to suppress these evils. The increase in online crime incidents calls for government intervention to address these incidents. The deprivation of freedom of expression in R.A. 10175 by regulating the use of internet and providing penalties for violations of the law is a measure employed by the State as a necessary means to address the evils that plague the society through the internet. The last standard in determining the punishment of freedom of expression as contained in R.A. 101 75 is the balancing of interests test. The balancing of interests tests resolves the issue in the light of the peculiar circumstances obtaining in each particular case. When a particular conduct is regulated in the interest of public order and the regulation results in an indirect, conditional partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances present.90 Competing claims must be resolved in terms of weighing the relative importance of each claim in each case.91 The Supreme Court has likewise applied this test certain competing claims such as the right of privacy of the family versus the right of a writer to right about the deceased public figure92 and the right of the Comelec to regulate time and space in broadcast and print media, respectively versus the freedom of expression.93 Applying the balancing of interests test in R.A. 10175, the competing claims are the freedom of expression versus public welfare and common good. Different sectors of society believe that R.A. 10175 tampers with their freedom of expression and the Constitution categorically mandates that no law abridging the freedom of expression shall be passed.94 However, in a modern society where the internet has been playing significant roles in shaping the political landscape of the Philippines, the threats to public welfare and common good has also evolved in such a way that they began using the internet for their own personal gain e.g. hacking

90 91 92 93 94

Supra note 78. Bridges v. California, 314 U.S. 252, (1941). Lagunzad v. Soto Vda. De Gonzales, 92 SCRA 476, (1979). Unido v. Comelec, 104 SCRA 17, (1981). Constitution (1987) Art. III, Sec. 4.

and identity-theft and engaging in the unlawful businesses of pornography and cybersex. The law aims to curb these practices thus, freedom of expression needs to be sacrificed in this respect in order to better cater to public interest by promoting public welfare and serving the common good. The three standards used to determine the whether penalizing the exercise of the right of freedom of expression is aimed towards providing reasonable ground as to the intention of the law and the means it employ to achieve such purpose. The government created a law designed to address tendencies to clear and present danger of a substantive evil that would warrant the intervention of the State. In order to address such evils, certain rights have to be curtailed for the common good. As regards R.A. 10175, the law curtails the freedom of expression by limiting the access of users in the internet in order to address the evils that are now confronting the online world. Such deprivation of right however, has to first observe due process in order for the validity of the deprivation of the right made by the law be upheld. The constitutional right of freedom of expression is an express grant of the Constitution to the citizenry in order to develop a more informed citizenry that would participate in the decision-making process of the government and contribute to the social and economic development of the country. However, when public interest so requires, such rights may be tampered upon if public welfare and the common good would be protected. The intent of R.A. 10175 is to address the dangerous tendencies that the internet may bring to society. Incidents of internet crimes are increasing therefore, the government needs to grant protection to the people. Clear and present danger will likewise be addressed once the respective agencies are able to determine the real danger facing society. In order to prevent the dangers brought about by the crimes under R.A. 10175, safeguards should be created in order to deter the negative effects of internet crimes. Lastly, the balancing of rights should be considered. In questioning the validity of the deprivation of the freedom of expression by R.A. 10175, the right to freedom of expression and the public welfare are conflicting claims. As an exception to the general rule, any right may be deprived by the State for so long as due process is concerned and the interest of the common good is to be addressed. X. Assessing Due Process in R.A. 10175 The presence of substantive due process shall be used in determining the validity of the

regulation and limitation on the freedom of expression as contained in the provisions of R.A. 10175. The presence of procedural due process shall not be used to assess the validity of the deprivation on the freedom of expression in R.A. 10175 since there is no jurisprudence that would prove whether or not substantial due process is concerned. Assessment can therefore only be relied on the letters of the law to determine its validity. It has been discussed that substantive due process refers to the law itself which must be fair, reasonable, and just; the law must not be arbitrary. 95 The law must be fair and the means employed in attaining its purpose are reasonable. Observing the provisions of R.A. 10175, the law recognizes the role of information and communications technology in the framework of national development. It seeks to protect the integrity and credibility of computer systems, the information contained therein, its process of transfer as well as its users and the public in general from injurious information and comments that may be found in the internet. As a consequence, the law provided safeguards against these violations through its implementing agencies and penalties for those would be found guilty of committing these crimes. In terms on whether or not the means employed is reasonable in attaining the purpose of the law, the law is valid and the deprivation of freedom of expression in the internet is therefore justified. However, on whether or not the law is fair as regards to its implementation, the fairness of the law is somehow questionable. R.A. 10175 provides for liability under its provisions and such liability does not prejudice the liability under the Revised Penal Code and special laws. The tendency therefore is for an individual guilty for having committed an offense under R.A. 10175 also be liable for the same offense on other laws that provide for criminal and civil liability. The presence of two liabilities for the same offense is not fair. It implies that the accused would have to attend two hearing, would have to present the same evidences for the same charge twice and might even risk conflict in the resolution of a case. Although the purpose of the law is noble for adjusting itself to cope with the present rigors of Philippine society and the means employed, are reasonable and in one way or another, fulfill the intentions of the law, the law must be fair in its implementing mechanisms. Being punished twice for the same offense is not fair on the part of the accused nor the the ones found
95 Supra note 78.

guilty. Therefore, in line with determining whether or not R.A. 10175 observes substantive due process, the response would be on the negative. The law may have good intentions and the means employed are the necessary means in order to curb the evils that are present in Philippine society. However, penalizing an offender under the new law without prejudice to the other existing laws prior to its enactment would subject the offender in a punishment which will further project alienation in society instead of restoring and incorporating them back as new individuals who have learned from their errors of the past and are now ready to place themselves in a position where they can better serve their personal interests without compromising public good and public welfare. XI. Philippines in the Age of Modern Technology Technology continues to grow and evolve along with civilizations the helped create it, lived with it and died with it. The Philippine political landscape will grow over time and changes to the way people view their rights will eventually happen. The growth of technology will however, not be confined to its material objects. People in the society will continue to employ the use of these technology to cater to their needs and wants. It is upon the usage of the people of these technology that it will continue to be part of instruments used for information dissemination and communication in mass media. Media will further evolve to reach the masses that present day media cannot reach. People participation in the decision-making process of a country will continue to be enhanced as a result of the creation of a more informed citizenry through the help of mass media. The enactment of R.A. 10175 is only part of the initial steps that the government is taking in order to protect the interests of the general public while they access modern technology and take part in the information dissemination and communication in the country through discourse in mass media. The social networking sites have improved the means of connecting people. It allows people not only to be connected when they are personally together. The innovation that is the social media allows people to be connected even when they are miles apart or even in the unholy hours of the night. And it is because of social media that information may easily be disseminated because of the growing number of citizens having access to the internet and preferring the internet of over print and broadcast media because it is more updated and that old

information a user may want to access could be easily found by simply using keywords. The social media has therefore became one of the innovations that cemented itself in the contemporary Philippine political landscape. In as much as modern technology has had its benefits to society, the dangers brought about by criminals trying to use in the internet for personal gain are also adjusting to cope with the changing times. Since the internet can be accessed by almost anyone, it is therefore necessary to enact laws that would protect the internet users and the general public at large. Hacking, cyber-squatting, identity-theft, child pornography, cybersex, misuse of devices and the controversial provision on online libel are just among the problems R.A. 10175 seeks to address. The law is not perfect. It would seem good to think that the law still needs to undergo further amendments in order to cater to the needs of the general public without sacrificing the constitutional right on freedom of expression. However, the advent of the increasing number of computer-related crimes prompted the government to enact a law that shall protect the interests of the public against self-interested individuals who are willing to compromise the general welfare just to attain their personal goals. The Philippines is faced with recurring problems also evolving along with its political landscape and the technology being employed by media necessary for the communication and information dissemination in the country. It is therefore important to understand when some rights ought to be sacrificed in order to attain the greater good. The law is not simply enacted for the sake of enactment. The passage of bills into laws always undergo various hearings, public debates and protests. These are the mechanisms where the participation of the citizenry manifest itself to reality. In order for a complete and ideal democracy be able to manifest itself in society, citizens need to be informed and should be participative in governance. The enactment of R.A. 10175 is geared towards the protection of the information particularly intended only to its citizenry. The State presupposed that a problem is present in society and it is its sovereign duty to address it for the benefit of the common good. The influx of modern technology and internet users and their access to the internet made the country prone to internet crimes because perpetrators are now using the most common media where information and communications are made. With R.A. 10175, the government created a

mechanism directly intended to curb online crimes and ensure security among the people that information stored in the internet are secure and authenticated, their identities and reputations secured from abuse of freedom of speech and unlawful businesses are prevented from operating within the Philippine jurisdiction. XII. Conclusion The evolution of technology and the changes in mass media the incorporation of the social media or the internet into mainstream media apart from print and broadcast have created an avenue for citizens to further exercise their constitutional rights of freedom of expression. The exercise of such right is not solely confined to the democratic processes of election alone. It continues up to the time that an elected candidate assumes office and starts discharging their functions as leaders of their respective constituencies. Noteworthy among the candidates who get elected are those who have access to mass media. It is through mass media where leaders show their platforms, policies and plans when they assume office. These candidates are normally those who have mastered the system in the government that they are able to stay in power by reaching out to the masses through mass media. In contemporary Philippine politics, the role of the internet has been starting to play a large role in shaping the political landscape of the Philippines. People not only voice their opinions through print and broadcast media. Access to the internet has been made easier because of the numerous information stored within its servers and websites. However, along with the growth of the internet are issues and controversies that the State would need to address i.e. cybercrime offenses thus, R.A. 10175 was created. This law aims to curb cybercrime offenses and secure the integrity and credibility of the information stores in the internet, protect against abuse and penalize its offenders. The passage of R.A. 10175 has been surrounded by controversies including its approval amidst the height of cyberbullying to Sen. Sotto on his alleged acts of plagiarism, the inclusion of the libel provision and the double jeopardy a cybercrime offender would have to face. This paper has been working on the assertion that R.A. 10175 deprives internet users of the freedom of expression.

As a general rule, the Constitution expressly provides that no law abridging the freedom of expression shall be passed. However, such constitutional right may be deprived by the State if and only if there is an observance of due process. Since the Constitution does not provide for a definite definition of due process, standards were used in order to determine whether the punishment granted to the exercise of the freedom of expression in the internet is valid and whether substantive due process had been observed. The law has been shown that the purpose of preventing cybercrime offenses from happening could be attained by regulating internet access among the users and that public good is more important over the exercise of the freedom of expression. However, the presence of a double jeopardy provision i.e. being prosecuted and tried for the same offense is unfair thus, rendering R.A. 10175 invalid on that score. The continued evolution of technology and their evolving role in shaping the Philippine political landscape has been evident in society. However, along with the growth of politics and technology is also the increase of self-interested individuals who are willing to sacrifice the public good for personal affairs. The use of the internet the presence of such people more dangerous and the state is bound to address these evils. It is only therefore proper that the government will undertake certain measures that may sacrifice the rights of individuals but geared towards a better purpose of serving the public interest.