REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES,

- versus -

Petitioners,

G.R. No. __________________ For: Certiorari, Prohibition and Injunction with Prayer for Temporary Restraining Order

THE EXECUTIVE SECRETARY PAQUITO OCHOA,

Respondents, x---------------------------------------------x

P E T I T I O N
Petitioners, through counsel, respectfully state:

PREFATORY STATEMENT
Article 142. Inciting to sedition. - The penalty of prision correccional in its maximum period xxx shall be imposed xxx upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the (Government of the United States or the Government of the Commonwealth of the Philippines) or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest xxx rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices.

It must be noted that the Cybercrime Prevention Act 0f 2012 penalizes the violation of the archaic law above with imprisonment with a range of six years and one day to twelve years if committed with the use of the internet or iPhone, for circulating messages which tend to stir up the people against lawful authorities such as encouraging hackers to attack government websites.

If the cybercrime statute existed during Edsa I or Edsa II, those who circulate message categorized as scurrilous libels against the government will also merit a possible 12 years imprisonment. We wish to exaggerate if only to emphasize the monstrosity of the threat. Under RA 10175 there would not have been an EDSA I, there would not have been an EDSA II and there will never be an EDSA III.

I. NATURE OF THE PETITION

1.

This is a Special Civil Action for Certiorari and Prohibition under Rule

65 of the Revised Rules of Court seeking to declare the following provisions, inter

alia, of the Republic Act No. 10175, otherwise known as the Cybercrime
Prevention Act of 2012 (Cybercrime Statute), unconstitutional on the grounds that these provisions violate the freedom of expression, due process, equal protection, the right to privacy and correspondence, and the right against unreasonable searches and seizures within the meaning of constitutional doctrine: Section 4(C)(4) (e-Libel) Sections 5(a) (aiding or abetting) Section 5(b) (attempt) Section 6 Section 7 Section 8, 7 (penalties corresponding to Section 5) Section 11 (duties of law enforcement authorities) Section 12 (real-time collection of traffic data) Section 13 (preservation of computer data) Section 15 (search, seizure and examination of computer data) Section 17 (destruction of computer data) Section 19 (restricting or blocking access to computer data) Section 20 (noncompliance) Section 21 (jurisdiction) Section 22 (international cooperation)

2.

To prevent manifest injustice and inequality, Petitioner also prays for

the issuance of a Temporary Restraining Order to enjoin the implementation and enforcement of the foregoing sections of the Cybercrime Statute until final judgment. 3. Section 5 (1)(2)(a), Article VIII of the Constitution provides that the Honorable Court shall have the power to rule on the constitutionality or validity of a law, namely, All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. 4. The subject of the Petition is of transcendental importance which has overreaching significance to society and paramount public interest, considering its impact on the public and social media. 5. There is no other plain, speedy and adequate remedy in the ordinary course of law available to Petitioners for the reason that the Cybercrime Statute is in full force and effect. 6. The exercise of the Honorable Courts power of judicial review requires the concurrence of the following requisites, all of which are present in the instant Petition, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case. 7. Herein Petitioner, suing as citizen, taxpayer, and Member of the House of Representatives, possesses locus standi, which is defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The implementation of RA 10175 involves the illegal disbursement of public funds since Section 27 (Appropriations) thereof provides that, The amount of Fifty million pesos (PhP50,000,000.00) shall be appropriated annually for the implementation of this Act. Thus petitioner has legal standing as taxpayer. Moreover, the Honorable Court ought to exercise judicial review over the Cybercrime Statute, because the statute is a matter of transcendental importance, of overarching significance to society, and of paramount public interest.

II. THE PARTIES 3

8.

Petitioner NERI J. COLMENARES is a duly-elected Representative

of the House of Representatives, Philippine Congress. As a duly elected legislator, Petitioner holds legal standing to see to it that the prerogative, powers and privileges vested by the Constitution in his office remain inviolate. Thus, he is allowed to question the validity of any official action which infringes on his prerogatives as legislator.1 He may be served with court notices and other process through the undersigned counsel. 9. Respondent is a public officer tasked with the enforcement and implementation of the Cybercrime Statute. Respondent Executive Secretary, SEC. PAQUITO OCHOA is the alter ego of the President of the Philippines. He may be served with summons and other process at the Office of the Executive Secretary, Malacanang, JP Laurel St., San Miguel Manila;

III. PROCEDURAL ANTECEDENTS

10.

On July 27, 2010, House Bill No. 85 entitled An Act Defining

Cybercrime, Providing for the Prevention, Investigation, Suppression, and the Imposition of Penalties Therefor and for Other Purposes was filed. H.B. 85 was later consolidated with all bills dealing with cybercrime. The consolidation resulted to H.B. 5808. 11. 12. 13. On May 9, 2012, H.B. 5808 was approved on second reading. Following amendments, H.B. 5808 was approved on third reading on On the side of the Senate, Senate Bill No. 2796 entitled An Act

May 21, 2012. It was transmitted to the Senate on May 23, 2012. Defining Cybercrime, Providing for Prevention, Investigation and Imposition of Penalties Therefor and for Other Purposes, was filed on May 3, 2011, 14. 15. 16. On 24 January 24, 2012, amendments were introduced and on the S.B. 2796, on third reading, was approved on January 30, 2012. H.B. 5808 and S.B. 2796 were reformulated as Republic Act No. same day, S.B. 2796 was approved on second reading.

101751, as passed otherwise known as Cybercrime Prevention Act of 2012.2

Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506, 520; Biraogo vs. The Philippine Truth Commission of 2010, G.R. No. 192935, G.R. No. 2 Attached is a copy of the law downloaded from the internet in the official websites of the Official Gazette, http://www.gov.ph/2012/09/12/republic-act-no-10175/
1

17.

The bicameral report inserted two provisions which were not

provided in Senate Bill 2796 and House Bill 5808, and which subsequently found its way into RA 101751 namely: (i) Section 19 of RA 101751 which granted the Justice Department the power to block access to computer data, and (ii) the proviso in Section 6 of RA 101751 which provides for a one degree increase in penalty for violations of the Revised Penal Code using computer technology. A copy of the said bills on 3rd reading is attached as Annex A for the Senate version and Annex B for the House version respectively3. 18. On September 12, 2012, the President of the Philippines approved Republic Act No. 10175, and this took effect fifteen (15) days after the completion of its publication in the Official Gazette and at least two (2) newspapers of general circulation.

IV. ISSUES A. WHETHER THE CYBERCRIME PREVENTION ACT OF 2012 OUGHT TO INCORPORATE MULTITIERED PROPORTIONALITY ANALYSIS FOR FREE SPEECH CASES, ESPECIALLY E-LIBEL, FOR IT TO MEET THE SUFFICIENCY OF STANDARDS TEST AND COMPLETENESS TEST IN ASSISTING ANY TRIER OF FACT. B. WHETHER THE INTERPRETATION AND ADMINISTRATION OF THE STATUTE WILL RESULT TO ROVING COMMISSIONS AND ROVING WARRANTS. C. WHETHER THE STATUTE IS CONTRARY TO EQUAL PROTECTION, UNDULY DELEGATES LEGISLATIVE AND POLICY MAKING FUNCTIONS,
3

Copies of said Bills from the Congressional Commission on Science, Technology and Engineering http://www.comste.gov.ph/legislation/cybercrime-prevention-act

VIOLATES THE RIGHT OF PRIVACY OF COMMUNICATION AND CORRESPONDENCE, IS VOID FOR BEING VAGUE, IS VOID FOR OVERBREADTH, THEREBY VIOLATING THE BASIC CONSTITUTIONAL REQUIREMENT FOR A VALID LAW.

V. ARGUMENT

A. A FACIAL READING OF THE STATUTE WILL LEAD THE HONORABLE COURT TO CONCLUDE THAT THE STATUTE DOES NOT INCORPORATE THE MULTI-TIERED PROPORTIONALITY ANALYSIS THAT OUGHT TO BE DEPLOYED IN FREE SPEECH, ESPECIALLY E-SPEECH, NAMELY, PROPORTIONALITY ANALYSIS AND PROBABILITY ANALYSIS. 19. As of date, an internet firestorm is raging on about the recent

enactment of the Cybercrime Statute. A reading of the substance of the text points to espionage of e-databases and e-resources. It does attempt to flag down a number of criminal offenses as content-related, such as cybersex, child pornography, and email spamming of unsolicited commercial communications. 20. There is a whole debate about creating distinctions between content-related speech and content-neutral speech in constitutional law under the Philippine Bill of Rights and allied doctrinal considerations under the First Amendment of the United States Constitution. 21. In short, content-based laws and regulation (e.g., laws punishing religious hate speech) come under higher pressure and higher scrutiny for it to pass constitutional muster under any court of law. 22. But whether content-based or content-neutral, there is no question that the Cybercrime Statute will reduce the sum total of internet speech and opinion among internet users great and small in the Philippines. 23. At this time Petitioner may be unable to list the breadth and depth of the statutes potential coverage, but Petitioner does say that everything from home-grown blogs to tweets on Twitter to the website of a countrys central bank can be put to prosecutorial scrutiny.

24.

Petitioner is of the view that the aforequoted provisions of the

Cybercrime Statute, as they now stand, ought to be declared unconstitutional for infringing the fundamental right of free speech, for the reason that a facial reading of the law will lead the Honorable Court to conclude that the statute, in present form, does not incorporate the multi-tiered proportionality analysis in free speech doctrine, what more for rapidly emerging doctrine on internet speech or e-speech. 25. At the top of the internet firestorm debate of the Cybercrime Statute is an apparent rider on libel, or what Petitioner may refer to as e-Libel. This appears to be under the heading content-related offenses under Section 4(c)(4). 26. The Cybercrime Statute perfunctorily defines e-Libel as 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. 27. Referring to the Penal Codes Article 355, the Cybercrime Statute incorporates the old definition of libel: 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, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

There is no question that the Cybercrime Prevention Law will reduce the sum total of internet speech and opinion among internet users great and small in the Philippines and beyond, because its Sections, read in their entirety, raise the constitutional price of an essential political good today. 28. It ought to be asked whether the Cybercrime Statute

advances the conditions of freedom compared to conditions status quo ante, or conditions prior to the passage of the act. 4 This is part of the overall moving proportionality analysis that should have been considered in the writing of the Statute in the first place.
Cf. Kent Greenawalt, Free Speech Justifications, 89 COLUM. L. REV., 119, 135-136 (1989) (The critical question is now how well truth will advance absolutely in conditions of freedom, but how well it will advance in conditions of freedom as compared with some alternative set of conditions.)
4

29. 30.

The answer to that question, is that the constitutional price of Specifically on e-Libel, Petitioner asks how might ordinary courts of

the Cybercrime Statute is too high. law, from the municipal trial courts in provinces to the regional trial courts in cities, proceed to apply the provisions of e-Libel to, say, a Twitter follower of someone who may have felt maligned by a malicious imputation in a 140-character Tweet? 31. Whether the aggrieved party is a public figure or not, Petitioner argues that a mere facial analysis of the provisions corresponding to e-Libel will show that those provisions are unconstitutional, because routine trial court decision-making may not readily have the know-how to deploy the sundry proportionality tests that go into any libel case, what more for e-Libel. Going by our social demography and if only to over-emphasize to highlight the absurdity of the law, a Mac user can be hailed to court before a judge who can barely send SMS. This question also implicates a question of administrability, which 32. All libel charges implicate a proportionality analysis a balancing Petitioner will discuss further below. act weighing at least three zones of interest, namely, a bundle of societal interests, the interests of the aggrieved person (who felt insulted by the Tweet), and the interests of the accused, before conviction could proceed. 33. Consider the sample of proportionality principles:

Should the malicious imputation subject of the e-Libel case be brought under content-based restriction or a content-neutral restriction? Upon hurdling this threshold question only then can the judge proceed to apply lower or higher standards of scrutiny, such as the clear-and-present danger test (for content-based speech) or the bundle of tests pertaining to time, manner, and place regulation (for content-neutral cases). Are there instances when content-neutral analysis (which requires a lower threshold than clear and present danger) can be wrongfully applied by the trier of fact? A case in point is the selective targeting of websites that broadcast one message, and one message only (e.g., religious hate speech) and then the site visitor overloads that site with traffic as to result to blocking out the site or rendering it inaccessible by others. This is symbolic speech in action, and thus the aggrieved party the owner or administrator of the website or blog including a government website will argue for the application of a

content neutral test (which is a lower litmus test), where conviction can be had against the offender more easily, when in fact content-based analysis ought to have been the case. Thus there can be instances when certain acts that are apparently content-neutral will implicate content-based analysis. Should the trier of fact consider the communicative impact of the speakers message, or should he stay within the four corners of, say, the 140 characters of a Tweet message? Assessing communicative impact is a debate in and of itself in libel jurisprudence because it requires the judge to go outside his (limited) personal understanding of norms outside courtroom records and dive into prevailing social practices. For instance, a judge ought to consider whether the one insulted by the Tweet has only 5 followers, as opposed to, say, 5 million followers. On the communicative impact, should the judge consider how other people reacted to what the speaker said? Or is there such a thing as an intrinsically harmful e-speech? Does the malicious imputation carry any significant social benefit to public dialogue which would outweigh the harm done to the aggrieved party? Can a plea that the malicious imputation could have been carried out in another venue beyond the internet, be a valid reposite by the prosecution against the defense? On free speech methodology tied to time and place, what test should the judge deploy? Should she use the clear-and-present-danger test (in times and regions of social peace) or the dangerous tendency rule (in times and regions of social unrest, usually deployed in seditious libel)? (Are these valid tests for e-Libel under todays circumstances?) Was the malicious imputation uttered in a public forum, a semi-public forum, or a private forum? (Do these legal fictions and legal categories even apply to ephemeral and electronic media?) 34. If one cannot expect the ordinary trier of fact to readily come to terms with these tests, not only will there be a dissonance in constitutional method and constitutional analysis, triers of fact, being legal factories, will be unduly burdened by the Cybercrime Statute and operationally reverse the presumption of innocence to a presumption of guilt. Legislative policy ought to be mindful that trial courts are legal factories which issue hundreds, if not

thousands of judgments in any given day. Legislators ought to consider this demography, which will likely stay remain in the medium term.

On its face, the Cybercrime Statute is unconstitutional, because it does not incorporate possible defenses to the charge of e-Libel as part of the statutory text, thus effectively passing a prohibitive burden to the defense attorney, if not the poor judge who works under an archaic analogue system, to make the proportionality analysis himself. 35. 36. Case law requires this finding. The heightened burden created by the Cybercrime Statute can

effectively reverse the presumption of innocence to a presumption of guilt. The dangers which the Cybercrime Prevention Law pose to free speech are readily apparent, and proponents of this statute ought to have figured into the text the various nuances and tiers, tagged under a broader corpus of free speech proportionality analysis, as easy textual references to possible defenses, no doubt complex as they already are in electronic speech. 37. For proportionality analysis is not easy. How serious must the harm be before e-speech may be suppressed? How likely must the harm be? How imminent must it be? Should it matter whether the speaker intended to cause the harm?5 38. The codification of proportionality and probability tests should inform not just e-Libel, but pretty much all other provisions of the cybercrime law. It is one thing to name the criminal activity which the State ought to punish, and quite another to operationalize the law-in-the-books in the entire justice system. If on its face a statute fails to consider the-law-in-action, a constitutional question will surely be raised. 39. In Southern Hemisphere Engagement Network v. Anti-Terrorism

Council, the Honorable Court en banc held that a facial invalidation of a statute is
allowed in free speech cases, wherein certain rules of constitutional litigation are rightly excepted.6 It is settled that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial
5
6

Cf. GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 19 (2008) (citations omitted). See Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010 (en banc).

10

challenge, applicable only to free speech cases.7 By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation.8

The Congress must obviously decide, in the first instance, whether a danger exists which calls for a particular protective measure. But where a statute is valid only in case certain conditions exist, the enactment of the statute cannot alone establish the facts which are essential to its validity. These facts are absent. 40. 41. Case law requires this finding. There is also no doubt that every presumption is to be indulged in

favor of the validity of the statute.9 Indeed Section 2 (Declaration of Policy) of the Cybercrime Statute can be laudatory and much wisdom can lie in legislative declarations. 42. But while legislative declaration can satisfy the requirement of the Constitution concerning emergency legislation,10 it does not preclude inquiry into the question whether, at the time and under the circumstances, such special conditions existed which are essential to validity under the Constitution. As a statute, even if not void on its face, may be challenged because invalid as applied,11 the result of such an inquiry may depend upon the specific facts of the particular case. Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to challenge and to present the issue whether there actually did exist at the time a clear danger, whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the Legislature. The legislative declaration, like the fact that the statute was passed and was

See Id. See Id. 9 Lawyers Against Monopoly And Poverty (LAMP) v. Secretary of Budget and Management, G.R. No. 164987, April 24, 2012 (en banc). See also Mulger v. Kansas, 123 U.S. 623, 661. 10 See, e.g., In re McDermott, 180 Cal. 783, 183 P. 437. 11 See Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S. Ct. 106.
7 8

11

sustained by the highest court of the State, creates merely a rebuttable presumption that these conditions have been satisfied. 12 43. In Lawyers Against Monopoly And Poverty (LAMP) v. Secretary of

Budget and Management,13 the Court en banc reiterated the rule that every
presumption should be indulged in favor of the constitutionality and the burden of proof is on the party alleging that there is a clear and unequivocal breach of the Constitution. This presumption of constitutionality, said the Court, can be overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down.14 44. Petitioner has discharged this burden. On the face of the statute there are no special conditions that would require a permissible statutory infringement of electronic speech within the meaning of LAMP. For having failed to incorporate proportionality and probability analysis in free speech, especially the rapidly emerging area of e-speech, the Cybercrime Statute is unconstitutional for failing the sufficiency of standards test and the completeness test. Thus the effect of the Cybercrime Statute is the undue delegation of too wide a legislative and policy making function to both the trier of fact and the law enforcer. 45. 46. Case law requires this finding. A facial analysis of the Cybercrime Statute will lead the Honorable

Court to conclude that it does not provide sufficient standards within the meaning of Free Telephone Workers Union v. Minister of Labor 15 as to sufficiently constraint the discretion of administrative agencies and law enforcement agencies engaged in prosecutorial functions. 47. Under the sufficiency of standards test, a statute must not only define a fundamental legislative policy, mark its limits and boundaries, and specify the public agency to exercise the legislative power. It must also indicate the circumstances under which the legislative command is to be effected. To avoid the taint of unlawful delegation, there must be a standard, which implies
See Whitney v. California, 274 U.S. 357, 374, 378-379 (1927). Lawyers Against Monopoly And Poverty (LAMP) v. Secretary of Budget and Management, G.R. No. 164987, April 24, 2012 (en banc). 14 Id. 15 G.R. No. L-58184, October 30, 1981.
12 13

12

at the very least that the legislature itself determines matters of principle and lays down fundamental policy.16 48. Under the completeness test, a law must be complete in all its terms and provisions when it leaves the legislature that nothing is left to the judgment of the delegate. The legislature does not abdicate its functions when it describes what job must be done, who is to do it, and what is the scope of his authority. However, a delegation of power to make the laws which necessarily involves a discretion as to what it shall be may not constitutionally be done.17 49. For failing to incorporate multi-tiered proportionality standards, the statute lacks manageable standards for both the trier of fact and for law enforcement, and thus the statute ought to fail for lacking complete, sufficient standards within the meaning of substantive due process. The effect of any lack of sufficient standards is the undue delegation of too wide a legislative and policy making function to both the trier of fact and the law enforcer. THE APPARENT RIDER ON E-LIBEL APPEARS TO BE UNDER THE HEADING CONTENT-RELATED OFFENSES IN SECTION 4(C), BUT THIS HEADING DOES NOT ALERT THE TRIER OF FACT TO THE TERM OF ART CONTENT- BASED WITHIN THE MEANING OF THE BILL OF RIGHTS, RATHER IT IS A CAPTION MEANT TO DISTINGUISH E-LIBEL FROM THE NOMENCLATURE OF PREVIOUSLY LISTED OFFENSES SUCH E-ESPIONAGE AND COMPUTER-RELATED OFFENSES. 50. The Cybercrime Statute ought to have implicated jurisprudence

about the meaningful distinction between content-related speech and contentneutral speech in constitutional law under the Philippine Bill of Rights and the First Amendment. 51. Certainly the traditional conception of libel, whether civil law or common law, is usually subject to content-based restriction (which requires heightened scrutiny and carries the presumption of constitutional infirmity where the burden shifts to the government). As discussed, there can be instances when certain acts that are apparently content-neutral will implicate content-based analysis, e.g., blocking out a website that broadcasts only one message. 52. Content-neutral restrictions range from laws prohibiting noisy speeches near the hospitals, banning billboards in residential communities, to even requiring the disclosure of the names of all leaflets (which Section 14 of the Cybercrime Statute purports to require). The Court generally

16 17

Id. E.g., Edu v. Ericta, G.R. No. L-32096, October 24, 1970

13

employed different standards to test the constitutionality of these two types of restrictions.18 53. In Newsounds Broadcasting Network Inc. v. Dy, the Court held that content-neutral regulation is one merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; and a content-based restraint or censorship is one where the restriction is based on the subject matter of the utterance or speech. Contentbased laws are generally treated as more suspect than content-neutral laws because of judicial concern with discrimination in the regulation of expression. Content-neutral regulations of speech or of conduct that may amount to speech, are subject to lesser but still heightened scrutiny.19 54. Even if the trier of fact would choose to apply the clear and present danger test in content-based restrictions, still much debate is occurring on what constitutes clear and present, and even the original proponents of these tests such as Holmes and Brandeis were not consistent. Petitioner points this out not to refute the propriety and constitutional entrenchment of the clear and present danger test in Philippine jurisprudence but to point out that

a fortiori even greater complex issues will be implicated when the

trier of fact is called to decide upon the criminality of ephermeral communication and electronic messages online.

On its face the Cybercrime Statute fails to incorporate reasonably sufficient standards that would aid the trier of fact to distinguish between e-speech in ordinary times and places and e-speech made in extraordinary times and places; in fact no such attempt can be made because espeech is by nature not spatially constrained, nor can the speaker, endorser, actor, and receiver of such speech be conveniently located in time and place by the trier of fact. 55. Free speech doctrine makes a distinction speech uttered in ordinary times and places, and speech uttered in extraordinary times and places. There is no question that circumstances of peace and order throughout Philippine society

See Newsounds Broadcasting Network Inc. v. Dy, G.R. Nos. 170270 &179411, April 2, 2009; see also GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 17 (2008) 19 See Newsounds Broadcasting Network Inc. v. Dy, G.R. Nos. 170270 &179411, April 2, 2009.
18

14

are not homogenous. A case in point is that the statute fails to consider whether the e-speech uttered is in a conflict zone or in a peace zone. 56. In Cabansag v. Fernandez,20 the Court en banc, speaking through Justice Bautista Angelo, incorporated the Holmes-Brandeis clear and present danger formula: The question in every case, according to Justice Holmes, is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree (citing Schenck vs. U. S., 249 U.S. 47 (1919)). 57.

Cabansag turns to the leading case of Schenck, where Justice

Holmes, speaking for a unanimous Court, stated: The question in every case is whether the words used are used in such 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 United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.21 (emphasis supplied) 58. Thus in ordinary times a speaker uttering e-speech may be within

her constitutional rights at one place and time, but may be held liable for e-Libel under the Cybercrime Statute at another place and time. If, say, a 140-character Tweet is uttered in Manila but retweeted or otherwise endorsed by a second speaker over social media in conflict zones in Mindanao or Basilan, which standard ought to apply? (In fact, the dissenting opinion of Justice Carpio in MVRS

Publications v. Islamic DaWah Council22 made special mention of the Special

Circumstance of Muslim Secession in the South in free speech (vs. tort) analysis.) Will the clear and present danger test (in times of relative peace, as in Manila) or perhaps even the dangerous or bad tendency rule (in times of existential crisis, as in Basilan) apply? And, if the trier of fact allows the joinder of both defendants, can the court apply different tests to different defendants? 59. There is certainly no question that any free speech inquiry But especially if the speech implicates the e-Libel provision of the Cybercrime Statute would require a case-by-case inquiry within the meaning of case law.
20 21 22

G.R. No. L-8974, October 18, 1957. Id. at 52. G.R. No. 135306, January 28, 2003

15

precisely the Petitioner is concerned when different defendants from different places and circumstances are hailed by a trier of fact owing to a malicious imputation which associates all of them in cyberspace and then that trier of fact proceeds to apply a constitutional test that is tied to spatiality. 60. If the Court nay, it ought to have been the Legislature in this case decides to pursue a uniform standard regardless of war or peace, perhaps to pursue the spirit of the 1987 Constitution in the aftermath of Martial Law then should e-speech be intrinsically considered within the four corners of a 140 character tweet? Is there such a thing as an intrinsically libelous remark that can be abstracted from social circumstance? Petitioner raises these questions not for the Honorable Court to answer them, but because the Cybercrime Statute does not answer them. 61. The greater question, to the Petitioner, is that in order to protect the rights of innocent dissenters, the proponents of the Cybercrime Statute should have set forth manageably objective standards that would assist the trier of fact in adjudicating over ephemeral communications that are not tied to time and place. 62. It ought to be considered, then, whether it is not the speaker of the e-speech, but it ought to be the actor of the speech, who ultimately brings the harm. Here, the government should thus direct its punishment and deterrence towards actors, not speakers. But precisely the Cybercrime Statute makes no attempt to set objective standards. Without manageable standards set forth in the Cybercrime Law in the name of proportionality and probability analysis that can meet the dynamic nature of e-speech, the modest provisions of the e-Libel provision will operate as essentially open-ended restrictions of expression. As a matter of fact, history would show that the Cybercrime Statute contains a similar rider on libel, recast in contemporary society as e-Libel in Section 4(C)4, and may thus face a similar fate to the US Espionage Act of 1917 and Sedition Act of 1918. 63. As a matter of jurisprudential behavior, it has been observed that

the relatively modest provisions of the US Espionage Act of 1917 were thus

16

converted

into

essentially

open

ended

restrictions

of

seditious

expression. 23

B. IF THE INTERPRETATION OF THE E-LIBEL PROVISION OF THE CYBERCRIME STATUTE IS IN DANGER OF OPEN-ENDED INTERPRETATION BY THE TRIER OF FACT OR LAW ENFORCER, THEN NO MATTER HOW SPECIAL THE CYBERCRIME COURT OR SPECIALLY TRAINED THEIR JUDGES CAN BE, THERE CAN BE NO AVOIDANCE TO THE RESULT THAT THE E-LIBEL WILL ALLOW FOR ROVING COMMISSIONS IF NOT ROVING WARRANTS IN IMPLEMENTATION. 64. 65. Case law supports this finding. In the case of Salazar v. Achacoso, the Honorable Court en banc,

speaking through Justice Sarmiento, referred to Stanford v. State of Texas24 when it cautioned the Secretary of Labor from issuing warrants that amounted to roving commissions to search as pleased.25 In particular, no sufficient standard can be found in the cybercrime statute to assist the trier of fact whether to consider joint, cumulative action among 'netizens' in dynamic social media. 66. As intimated, should the judge consider the communicative impact of

the speakers message, or should he stay within the four corners of, say, the 140 characters of a Tweet message? Assessing communicative impact is a debate in and of itself in libel jurisprudence because it requires the judge to go outside his (limited) personal understanding of norms outside the courtroom records and dive into prevailing social practices. For instance, a judge ought to consider whether the one insulted by the Tweet has only 5 followers, as opposed to, say, 5 million followers. 67. Wigmore is of the view that the legislature should be permitted to consider the cumulative danger posed by many individually harmless speakers in deciding whether there is sufficient danger to warrant suppression of speech.26 In
23

See GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 26 (2008), citing, e.g., G. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME 135-234 (2004); Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 36-108 (1941); Rabban, The Emergence of Modern First Amendment Theory, 50 U. CHI. L. REV. 1205 (1983). 24 379 U.S. 476 (1965). 25 G.R. No. 81510, March 14, 1990. 26 See GEOFFREY R. STONE, ET AL., CONSTITUTIONAL LAW 1083 (2005), citing Wigmore, Abrams v. United States: Freedom of Speech and Freedom of Thuggery in War-Time and Peace-Time, 14 ILL. L. REV. 539, 549-550 (1920).

17

Whitney v. California,27 the US Court held that the essence of the offense
denounced by the Act is the combining with others in an association for the accomplishment of the desired ends through the advocacy and use of criminal and unlawful methods.

Whitney considered whether united and joint action

involves even greater danger to the public peace and security than the isolated utterances and acts of individuals.28 But while condonation (by someone else) of a breach enhances probability under the broad clear and present danger test, and while expressions of approval (such as clicking Like or retweeting) add to such probability, still these signs of approval, endorsement, if not personal incorporation are categories that are misplaced in social media and e-speech. 68. Thus, suffice it to say that there remain serious republication issues of e-speech and ephemeral statements over internet social media which the Cybercrime Statute omits to resolve. Given the enormous changes in media and politics since the adoption of the free speech doctrine on traditional libel, to what extent, if any, should the corpus of constitutional doctrine on traditional libel apply to e-speech?29 For instance, in social media, the line between public The fact of the matter is that The blurring of the private and the speech and private speech is blurred. statue fails to consider this dynamic. question of e-Libel. C.

there are public aspects in every utterance made online, and the public was observed in traditional libel cases,30 what more for the emerging

WHETHER THE STATUTE IS CONTRARY TO EQUAL PROTECTION, UNDULY DELEGATES LEGISLATIVE AND POLICY MAKING FUNCTIONS, VIOLATES THE RIGHT OF PRIVACY OF COMMUNICATION AND CORRESPONDENCE, IS VOID FOR BEING VAGUE, IS VOID FOR OVERBREADTH THEREBY VIOLATING THE BASIC CONSTITUTIONAL REQUIRMENTS FOR A VALID LAW.
69. The various petitions filed before this Honorable Court touched on all

the above issues in this argument, and Petitioner believes it has been more than adequately discussed by these petitions. Without vacating our position that indeed
27

28
29 30

274 U.S. 357 (1927) Id. at 371-372 Cf. GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 7 (2008). See, e.g., Chafee, Book Review, 62 HARV. L. REV. 891, 899-900 (1949).

18

the law is unconstitutional for having violated the constitutional tenets required for a valid law, herein petition will only discuss certain aspects of this argument to amplify the presence of said infirmities in RA 10175. 70. RA 10175 inserts a proviso under Section 6, that was not contained in the bills approved on third reading by both Houses of Congress:

Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.
71. This is not only invalid because the bicameral committee has no

jurisdiction or power to add a provision, especially as it creates a new penalty for the crime, but also because it violates equal protection doctrine. 72. Indeed the internet is not evil per se, but the statute in question views cyberspace as inherently evil and treats those who use it in violation of a rule with unjust discrimination by providing a penalty higher than an act committed without the use of an internet. explain. 73. Ordinary crimes under the Revised Penal Code such as those in Article 154 (Unlawful use of means of publication and unlawful utterances), What standards distinguish internet users from other ordinary criminals the law does not

Article 282 (Grave Threats), Article 283 (Light Threats) Article 178 (Using fictitious name and concealing true name) are penalized with penalties
beyond fourteen years. Surely, the mind of a violator using the internet could not be more evil than that violating the Revised Penal Code. 74. By way of example, we cite an excerpt in the Legal Memorandum of Rep. Neri Javier Colmenares, dated October 6, 2012, on the

Constitutional and Legal Implications of the Cybercrime Preventions Act of 2012:

We cite the implication of RA 10175 on those violating Article 154 of the RPC through the use of the internet. Many internet users including the media could go to prison for at least 6 months for unlawful utterance or posting false news under Article 154 which: Art. 154. Unlawful use of means of publication and unlawful utterances. The penalty of arresto mayor and a fine ranging from P200 to P1,000 pesos shall be imposed upon: 1. Any person who by means of printing, lithography, or any other means of publication shall publish or

19

cause to be published as news any false news which x x x cause damage to the interest or credit of the State; 2. Any person who by the same means, or by words, utterances or speeches shall encourage disobedience to the law or to the constituted authorities or justify, praise xxx any act punished by law; 3. Any person who shall maliciously publish or cause to be published any official resolution or document xxx before they have been published officially; or 4. Any person who shall xxx publish, or distribute or cause to be printed, published, or distributed books, pamphlets, periodicals, or leaflets which do not bear the real printer's name, or which are classified as anonymous. One should not be lulled by the innocuous one degree mentioned in the law, because one degree means a lot of years in prison in the Revised Penal Code. The penalty for arresto mayor is one month and one day to six months. The next higher degree is prision correccional with a very serious penalty of more than six months to six years. This is a lot of time for anyone who mistakenly publishes through his facebook a false news which may damage the credit of the government or a public official. What is false news in the first place ? And why penalize the content of free speech ? Bloggers could go to prison for praising or merely justifying the act of protesters in hacking into government websites to protest the passage of the cybercrime law. You have to be very careful that the document you post in your website has been officially published or you and those who re-post your document may end up in jail for years. Notice paragraph 4 in Article 154, which could be interpreted to mean punishment for those posting a periodical, leaflet or pamphlet without naming the printer or the author (anonymous). Would a public official who plagiarized an excerpt from a book or a periodical or even an internet blog site of another, go to prison for six years if he posts his speech in the internet without naming the printer or the author? It is indeed a distinct possibility because the mala in se nature of the crime under the Revised Penal Code has been transposed into a mala prohibita under the special law called the Cybercrime Prevention Act. Additionally, using RA 10175 in relation to Article 154 of the RPC, could violate the privilege rule for online media, with

20

regards the secrecy of their sources. prohibits using anonymous sources.

After all, the law

Little did the authors of the bicameral committee report realize, that by transposing the entire Revised Penal Code circa 1932, wholesale, into a law that regulates the modern technology in cyber space, they will be opening a pandoras box that would create so much havoc on constitutional rights as we know it. (emphasis supplied) If only for this, the cybercrime law must be struck down. 75. There are many other provisions in the Revised Penal Code that

suddenly leaps into an absurdly draconian measure because it was applied in an act using cyberspace technology. 76. Worse, the accused under the cybercrime law is not just vulnerable but is actually a victim of double jeopardy especially if he is charged under a special law (such as violation of the Omnibus Election Code) and under another special law in RA 10175. 77. What is more, RA 10175 inserted Section 19, which is not found in both the bills passed on third reading by the two Houses of Congress, to wit: 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. 78. This is another violation of due process and equal protection. A

state prosecutor in an ordinary complaint before it cannot curtail the rights of a respondent even after a finding probable cause against that respondent. Under RA 10175, the prosecutor can immediately block access and curtail a host of rights of a person, who may not even be an accused, merely on the basis of prima facie findings. Worse, there is no requirement that an appropriate information be filed in court from such prima facie finding, thus the governments restriction of access has no limitation in scope and duration. 79. The Cybercrime Statute is also another example of an ultra vires act by the bicameral committee. There are only two Houses in Congress, not three, and the bicameral committee cannot invent a right-restricting provision on its own. Each House of Congress empowered their representatives to the bicameral committee to assert the version of its respective House. They did not grant their

21

representatives at the bicameral level the power to invent additional provisions, especially those that curtail rights and increase penal sanctions, into their deliberation. For acting without jurisdiction, these insertions have to be struck down. 80. The above, and a host of other provisions in RA 10175, practically runs roughshod over generations of Supreme Court decisions that strike down laws that are vague, overbroad, or violate the constitutional principles protecting the right to privacy. 81. These draconian measures have no place except in the dustbin of repressive and unconstitutional laws.

VI. TEMPORARY RESTRAINING ORDER

82. In view of the fact that Republic Act 10175 is in full force and effect,

pending action by the Honorable Court Petitioner prays for the issuance of a temporary restraining order enjoining respondents from implementing the aforequoted sections of the Cybercrime Prevention Act of 2012. Unless the implementation of the statute is enjoined, Petitioner, if not Philippine society at large will suffer grave and irreparable injury.

VII. RESERVATION
83. Petitioner respectfully manifests his reservation to file supplemental

pleadings and briefs to further develop his theory of the case, including but not limited to the issues concerning the constitutionality of the following sections: Section 5(b) (attempt) Section 6 Section 7 Section 8, 7 (penalties corresponding to Section 5) Section 11 (duties of law enforcement authorities) Section 12 (real-time collection of traffic data) Section 13 (preservation of computer data)

22

Section 15 (search, seizure and examination of computer data) Section 17 (destruction of computer data) Section 19 (restricting or blocking access to computer data) Section 20 (noncompliance) Section 21 (jurisdiction) Section 22 (international cooperation) 84. The foregoing sections implicate, among other serious constitutional

questions, the right to privacy, equal protection, confiscatory taking and regulatory taking, applicability and enforceability of international law to the Cybercrime Statute, enforcement of long arm statutes within the meaning of substantive due process, exertion of criminal jurisdiction under international law, roving warrants, overbreadth, and lingering administrabilty issues.

PRAYER

WHEREFORE, in view of the foregoing, Petitioner respectfully prays that the Honorable Court: 1. Issue a temporary restraining order to immediately enjoin the Respondent/s from implementing the Cybercrime Prevention Act of 2012 pending resolution of this case; 2. 3. 4. Set the case for oral argument; Declare the provisions of the Cybercrime Prevention Act of 2012 as Issue such other reliefs as may be deemed just and equitable.

null and void for being unconstitutional; and

Quezon City for Manila. 8 October 2012.

23

By:

A. EDSEL F. TUPAZ Counsel for Petitioner 41 N. Romualdez Street BF Homes Subdivision, Quezon City 1120 [e] aet@TupazLaw.com | T. +63 2 368 5775 | F. +63 2 368 5656 PTR No. 6456913 - 03/02/2012 Quezon City IBP No. 874024 - 12/19/2011 Pasig City Roll of Attorneys No. 49482 MCLE Exemption No. III-001797

Copy furnished: THE EXECUTIVE SECRETARY Malacanang Palace, Manila

EXPLANATION FOR SERVICE BY REGISTERED MAIL

This Petition was served on the respondent/s by registered mail because of time, personnel and geographical concerns and constraints; the distance involved as well as lack of manpower to cause service by personal delivery constrained counsel to cause service by registered mail.

A. EDSEL F. TUPAZ

24