DISSENTING AND CONCURRING OPINION - LEONEN, J. : G.R. No. 203335, G.R. No. 203299, G.R. No. 203306, G.R. No. 203359, G.R. No. 203378, G.R. No. 203391, G.R. No. 203407, G.R. No. 203440, G.R. No. 203453, G.R. No. 203454, G.R. No. 203469, G.R. No. 203501, G.R. No. 203509, G.R. No. 203515, G.R. No. 203518, February 18, 2014 - JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL AND ERNESTO SONIDO, JR., Petitioners, v. THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE AND THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
EN BANC
G.R. No. 203335, February 18, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL AND ERNESTO SONIDO, JR., Petitioners, v. THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE AND THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
[G.R. No. 203299]
LOUIS “BAROK” C. BIRAOGO, Petitioner, v. NATIONAL BUREAU OF INVESTIGATION AND PHILIPPINE NATIONAL POLICE, Respondents.
[G.R. No. 203306]
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI “TOTO” CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners, v. OFFICE OF THE PRESIDENT, REPRESENTED BY PRESIDENT BENIGNO SIMEON AQUINO III, SENATE OF THE PHILIPPINES, AND HOUSE OF REPRESENTATIVES, Respondents.
[G.R. No. 203359]
SENATOR TEOFISTO DL GUINGONA III, Petitioner, v. EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, AND DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
[G.R. No. 203378]
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, AND GILBERT T. ANDRES, Petitioners, v. THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
[G.R. No. 203391]
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners, v. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY AND ALTER-EGO OF PRESIDENT BENIGNO SIMEON AQUINO III, LEILA DE LIMA IN HER CAPACITY AS SECRETARY OF JUSTICE, Respondents.
[G.R. No. 203407]
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., NATIONAL ARTIST BIENVENIDO L. LUMBERA, CHAIRPERSON OF CONCERNED ARTISTS OF THE PHILIPPINES, ELMER C. LABOG, CHAIRPERSON OF KILUSANG MAYO UNO, CRISTINA E. PALABAY, SECRETARY GENERAL OF KARAPATAN, FERDINAND R. GAITE, CHAIRPERSON OF COURAGE, JOEL B. MAGLUNSOD, VICE PRESIDENT OF ANAKPAWIS PARTY-LIST, LANA R. LINABAN, SECRETARY GENERAL GABRIELA WOMEN’S PARTY, ADOLFO ARES P. GUTIERREZ, AND JULIUS GARCIA MATIBAG, Petitioners, v. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY, SENATE OF THE PHILIPPINES, REPRESENTED BY SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, SECRETARY OF THE DEPARTMENT OF JUSTICE, LOUIS NAPOLEON C. CASAMBRE, EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, NONNATUS CAESAR R. ROJAS, DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, D/GEN. NICANOR A. BARTOLOME, CHIEF OF THE PHILIPPINE NATIONAL POLICE, MANUEL A. ROXAS II, SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, Respondents.
[G.R. No. 203440]
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, AND RYAN JEREMIAH D. QUAN (ALL OF THE ATENEO HUMAN RIGHTS CENTER), Petitioners, v. HONORABLE PAQUITO OCHOA IN HIS CAPACITY AS EXECUTIVE SECRETARY, HONORABLE LEILA DE LIMA IN HER CAPACITY AS SECRETARY OF JUSTICE, HONORABLE MANUEL ROXAS IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION (ALL OF THE EXECUTIVE DEPARTMENT OF GOVERNMENT), Respondents.
[G.R. No. 203453]
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE E-PETITION HTTP://WWW.NUJP.ORG/NO-TO-RA10175/, Petitioners, v. THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, Respondents.
[G.R. No. 203454]
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners, v. THE HON. SECRETARY OF JUSTICE, THE HON. SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, Respondents.
[G.R. No. 203469]
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; AND PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; PETITIONERS, VS. HIS EXCELLENCY BENIGNO S. AQUINO III, IN HIS CAPACITY AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; SENATE OF THE PHILIPPINES, REPRESENTED BY HON. JUAN PONCE ENRILE, IN HIS CAPACITY AS SENATE PRESIDENT; HOUSE OF REPRESENTATIVES, REPRESENTED BY FELICIANO R. BELMONTE, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES; HON. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY; HON. LEILA M. DE LIMA, IN HER CAPACITY AS SECRETARY OF JUSTICE; HON. LOUIS NAPOLEON C. CASAMBRE, IN HIS CAPACITY AS EXECUTIVE DIRECTOR, INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE; HON. NONNATUS CAESAR R. ROJAS, IN HIS CAPACITY AS DIRECTOR, NATIONAL BUREAU OF INVESTIGATION; AND P/DGEN. NICANOR A. BARTOLOME, IN HIS CAPACITY AS CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.
[G.R. No. 203501]
PHILIPPINE BAR ASSOCIATION, INC., Petitioner, v. HIS EXCELLENCY BENIGNO S. AQUINO III, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; HON. PAQUITO N. OCHOA, JR., IN HIS OFFICIAL CAPACITY AS EXECUTIVE SECRETARY; HON. LEILA M. DE LIMA, IN HER OFFICIAL CAPACITY AS SECRETARY OF JUSTICE; LOUIS NAPOLEON C. CASAMBRE, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR, INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE; NONNATUS CAESAR R. ROJAS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION; AND DIRECTOR GENERAL NICANOR A. BARTOLOME, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents.
[G.R. No. 203509]
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner, v. THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondents.
[G.R. No. 203515]
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. REPRESENTED BY BENNY D. ANTIPORDA IN HIS CAPACITY AS PRESIDENT AND IN HIS PERSONAL CAPACITY, Petitioner, v. OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.
[G.R. No. 203518]
PHILIPPINE INTERNET FREEDOM ALLIANCE, COMPOSED OF DAKILA-PHILIPPINE COLLECTIVE FOR MODERN HEROISM, REPRESENTED BY LENI VELASCO, PARTIDO LAKAS NG MASA, REPRESENTED BY CESAR S. MELENCIO, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA MORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners, v. THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, AND THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents
LEONEN, J.:
1. Justiciability
2. The Complexity of the Internet and the Context of the Law
3. The Doctrine of Overbreadth and the Internet
4. Take Down Clause
5. Libel Clauses
6. Cybersex Provisions
7. Speech Component in the Collection of Traffic Data
8. Commercial Speech
It is well-established in this jurisdiction that ”x x x for a court to exercise its power of adjudication, there must be an actual case or controversy -- one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. x x x [C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.” The controversy must be justiciable -- definite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other; that is, it must concern a real and not a merely theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.11 (Citations omitted, emphasis supplied)In Lozano v. Nograles,12 this court also dismissed the petitions to nullify House Resolution No. 1109 or “A Resolution Calling upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress.” In dismissing the petitions, this court held:chanRoblesVirtualawlibrary
It is well settled that it is the duty of the judiciary to say what the law is. The determination of the nature, scope and extent of the powers of government is the exclusive province of the judiciary, such that any mediation on the part of the latter for the allocation of constitutional boundaries would amount, not to its supremacy, but to its mere fulfillment of its ”solemn and sacred obligation” under the Constitution. This Court’s power of review may be awesome, but it is limited to actual cases and controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. The ”case-or-controversy” requirement bans this court from deciding ”abstract, hypothetical or contingent questions,”5 lest the court give opinions in the nature of advice concerning legislative or executive action.”(Emphasis supplied)13crallawlibraryThen, citing the classic words in Angara v. Electoral Commission:14crallawlibrary
Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.15 (Citations omitted)In Republic of the Philippines v. Herminio Harry Roque et al.,16 this court ruled in favor of the petitioner and dismissed the petitions for declaratory relief filed by respondents before the Quezon City Regional Trial Court against certain provisions of the Human Security Act. In that case, the court discussed the necessity of the requirement of an actual case or controversy:chanRoblesVirtualawlibrary
Pertinently, a justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory. Corollary thereto, by ”ripening seeds” it is meant, not that sufficient accrued facts may be dispensed with, but that a dispute may be tried at its inception before it has accumulated the asperity, distemper, animosity, passion, and violence of a full blown battle that looms ahead. The concept describes a state of facts indicating imminent and inevitable litigation provided that the issue is not settled and stabilized by tranquilizing declaration.Referring to Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council:18crallawlibrary
A perusal of private respondents’ petition for declaratory relief would show that they have failed to demonstrate how they are left to sustain or are in immediate danger to sustain some direct injury as a result of the enforcement of the assailed provisions of RA 9372. Not far removed from the factual milieu in the Southern Hemisphere cases, private respondents only assert general interests as citizens, and taxpayers and infractions which the government could prospectively commit if the enforcement of the said law would remain untrammeled. As their petition would disclose, private respondents’ fear of prosecution was solely based on remarks of certain government officials which were addressed to the general public. They, however, failed to show how these remarks tended towards any prosecutorial or governmental action geared towards the implementation of RA 9372 against them. In other words, there was no particular, real or imminent threat to any of them.”17 (Emphasis supplied)
Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by ”double contingency,” where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.None of the petitioners in this case have been charged of any offense arising from the law being challenged for having committed any act which they have committed or are about to commit. No private party or any agency of government has invoked any of the statutory provisions in question against any of the petitioners. The invocations of the various constitutional provisions cited in petitions are in the abstract. Generally, petitioners have ardently argued possible applications of statutory provisions to be invoked for future but theoretical state of facts.
The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused. Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable. (Emphasis supplied; citations omitted)19crallawlibrary
Global | Philippines | ||
Percentage of respondents who said they access the Internet many or several times a day | 89% | 78% | |
Percentage of respondents who used e-mail at least once a day | 87% | 79% | |
Percentage of respondents who used social media at least once a day | 60% | 72% | |
Percentage of respondents who used instant messaging at least once a day | 43% | 51% |
Percentage of respondents who agreed or agreed strongly (GLOBAL) | Percentage of respondents who agreed or agreed strongly (PHILIPPINES) | |||
The Internet does more to help society than it does to hurt it | 83% | 91% | ||
Their lives have improved due to using the Internet | 85% | 93% | ||
The Internet is essential to their knowledge and education | 89% | 96% | ||
The Internet can play a significant role in: | ||||
1. Increasing global trade and economic relationships among countries | 81% | 95% | ||
2. Achieving universal primary school education | 76% | 91% | ||
3. Promoting gender equality | 70% | 89% | ||
4. Protecting the environment | 74% | 92% | ||
5. Helping to combat serious diseases | 72% | 92% | ||
6. Eliminating extreme poverty and hunger | 61% | 75% | ||
7. Improving maternal health | 65% | 84% | ||
8. Reducing child mortality | 63% | 80% | ||
9. Improving emergency response and assistance during natural disasters | 77% | 92% | ||
10. Preventing the trafficking of women and children | 69% | 84% | ||
11. Improving the quality of education | 80% | 95% | ||
12. Improving social problems by increasing communication between and among various groups in society | 76% | 93% | ||
13. Reducing rural and remote community isolation | 80% | 96% | ||
14. Keeping local experts in or bringing experts back to their country because they can use technology to create business | 75% | 94% |
Percentage of respondents who agreed or agreed strongly (GLOBAL) | Percentage of respondents who agreed or agreed strongly (PHILIPPINES) | ||
The Internet should be considered a basic human right | 83% | 88% | |
Their respective governments have an obligation to ensure that they have the opportunity to access the Internet | 80% | 85% | |
Freedom of expression should be guaranteed on the Internet | 86% | 86% | |
Services such as social media enhance their right to peaceful assembly and association | 80% | 91% |
Research by the World Bank suggests that a 10% increase in broadband penetration could boost GDP by 1.38% in low- and middle-income countries.”54 More specifically, it cited that, in the Philippines, “[m]obile broadband adoption was found to contribute an annual 0.32% of GDP, [representing] 6.9% of all GDP growth for the economy during the past decade.55crallawlibrary
[Generative technologies] encourage mutations, branchings away from the status quo—some that are curious dead ends, others that spread like wild?re. They invite disruption—along with the good things and bad things that can come with such disruption.56crallawlibraryAddressing the implications of disruption, he adds:chanRoblesVirtualawlibrary
Disruption bene?ts some while others lose, and the power of the generative Internet, available to anyone with a modicum of knowledge and a broadband connection, can be turned to network-destroying ends. x x x [T]he Internet’s very generativity — combined with that of the PCs attached — sows the seeds for a “digital Pearl Harbor.”57crallawlibraryThe internet is an infrastructure that allows for a “network of networks.”58 It is also a means for several purposes. As with all other “means enhancing capabilities of human interaction,”59 it can be used to facilitate benefits as well as nefarious ends. The internet can be a means for criminal activity.
[The] development of information and communications technologies and the increasing use of the Internet create new opportunities for offenders and facilitate the growth of crime.60crallawlibraryAlso as observed elsewhere:chanRoblesVirtualawlibrary
Over the past few years, the global cyber crime landscape has changed dramatically, with criminals employing more sophisticated technology and greater knowledge of cyber security. Until recently, malware, spam emails, hacking into corporate sites and other attacks of this nature were mostly the work of computer ‘geniuses’ showcasing their talent. These attacks, which were rarely malicious, have gradually evolved into cyber crime syndicates siphoning off money through illegal cyber channels. By 2010, however, politically motivated cyber crime had penetrated global cyberspace. In fact, weaponry and command and control systems have also transitioned into the cyberspace to deploy and execute espionage and sabotage, as seen in the example of digital espionage attacks on computer networks at Lockheed Martin and NASA.61crallawlibraryComputer-related criminal activity is not peculiar to the 21st century.62 One of the first reported “major” instances of cybercrime was in 2000 when the mass-mailed “I Love You” Worm (which originated from Pandacan, Manila)63 “affected nearly 45 million computer users worldwide.”64 This entailed as much as US$ 15 billion to repair the damage. Cyber attacks have morphed into myriad forms. The following is just a summary of some of the known attacks:65crallawlibrary
Type of Attack | Details |
Viruses and worms | Viruses and worms are computer programs that affect the storage devices of a computer or network, which then replicate information without the knowledge of the user. |
Spam emails | Spam emails are unsolicited emails or junk newsgroup postings. Spam emails are sent without the consent of the receiver — potentially creating a wide range of problems if they are not filtered appropriately. |
Trojan | A Trojan is a program that appears legitimate. However, once run, it moves on to locate password information or makes the system more vulnerable to future entry. Or a Trojan may simply destroy programs or data on the hard disk. |
Denial-of-service (DoS) | DoS occurs when criminals attempt to bring down or cripple individual websites, computers or networks, often by flooding them with messages. |
Malware | Malware is a software that takes control of any individual’s computer to spread a bug to other people’s devices or social networking profiles. Such software can also be used to create a ‘botnet’ — a network of computers controlled remotely by hackers, known as ‘herders,’ — to spread spam or viruses. |
Scareware | Using fear tactics, some cyber criminals compel users to download certain software. While such software is usually presented as antivirus software, after some time, these programs start attacking the user’s system. The user then has to pay the criminals to remove such viruses. |
Phishing | Phishing attacks are designed to steal a person’s login and password. For instance, the phisher can access the victims’ bank accounts or assume control of their social network. |
Fiscal fraud | By targeting official online payment channels, cyber attackers can hamper processes such as tax collection or make fraudulent claims for benefits. |
State cyber attacks | Experts believe that some government agencies may also be using cyber attacks as a new means of warfare. One such attack occurred in 2010, when a computer virus called Stuxnet was used to carry out an invisible attack on Iran’s secret nuclear program. The virus was aimed at disabling Iran’s uranium enrichment centrifuges. |
Carders | Stealing bank or credit card details is another major cyber crime. Duplicate cards are then used to withdraw cash at ATMs or in shops. |
1. Costs in anticipation of cyber crime
- Security measures, such as antiviral software installation, cost of insurance and IT security standards maintenance.
2. Costs as a consequence of cyber crime
- Monetary losses to organizations, such as gaps in business continuity and losses due to IP theft.
3. Costs in response to cyber crime
- Paying regulatory fines and compensations to victims of identity theft, and cost associated with investigation of the crime.
4. Indirect costs associated with cyber crime
- Costs resulting from reputational damage to organizations and loss of confidence in cyber transactions.
Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.73crallawlibraryMany have considered the internet as “ungovernable,”74 having the ability to “undermine traditional forms of governance,”75 and “radically subvert[ing] a system of rule-making based on borders between physical spaces, at least with respect to the claim that cyberspace should naturally be governed by territorially defined rules.”76crallawlibrary
A significant proportion of internet infrastructure is owned and operated by the private sector. Internet access requires a “passive” infrastructure layer of trenches, ducts, optical fibre, mobile base stations, and satellite hardware. It also requires an ‘active’ infrastructure layer of electronic equipment, and a ‘service’ layer of content services and applications.As to the organizational framework of the internet, a professor writes:chanRoblesVirtualawlibrary
x x x x
As an infrastructure, the internet’s growth can be compared to the development of roads, railways, and electricity, which are dependent on private sector investment, construction and maintenance, but regulated and incentivized by national governments. At the same time, the internet is often regarded as more private-sector led.77crallawlibrary
As far as the organizational framework of the Internet is concerned, the present “system” is mainly designed by private bodies and organizations, i.e. a self-regulatory system applies in reality. Thereby, the key player is the Internet Corporation for Assigned Names and Numbers (ICANN), being in place since November 1998.78crallawlibraryThere are private bodies and organizations that exist for the purpose of regulation. There are commercial entities - vendors and service providers - that emerge as de facto regulators. A noted expert observes that an increasing response has been the creation of devices and services which rely on a continuing relationship with vendors and service providers who are then accountable for ensuring security and privacy.79 There is now a marked tendency to resort to “sterile appliances tethered to a network of control.”80 This may stunt the very “capacity to produce unanticipated change through unfiltered contributions from broad and varied audiences.”81 It is these unanticipated changes which facilitated the internet’s rise to ubiquity.
Legal measures play a key role in the prevention and combating of cybercrime. Law is [a] dynamic tool that enables the state to respond to new societal and security challenges, such as the appropriate balance between privacy and crime control, or the extent of liability of corporations that provide services. In addition to national laws, at the international level, the law of nations - international law - covers relations between states in all their myriad forms. Provisions in both national laws and international law are relevant to cybercrime.82crallawlibraryAt the normative level, legal measures address, if not negate, apprehensions of legitimacy, consent, and accountability. Functionally, legal measures are vital in:chanRoblesVirtualawlibrary
In performing these functions, legal measures must adapt to emerging exigencies. This includes the emergence of a virtual, rather than physical, field of governance. It also includes specific approaches for specific acts and specific technologies. Effective internet governance through law cannot be approached too generally or in the abstract:chanRoblesVirtualawlibrary
- Setting clear standards of behavior for the use of computer devices;
- Deterring perpetrators and protecting citizens;
- Enabling law enforcement investigations while protecting individual privacy;
- Providing fair and effective criminal justice procedures;
- Requiring minimum protection standards in areas such as data handling and retention; and
- Enabling cooperation between countries in criminal matters involving cybercrime and electronic evidence.83crallawlibrary
The technological developments associated with cybercrime mean that - while traditional laws can be applied to some extent - legislation must also grapple with new concepts and objects, not traditionally addressed by law. In many states, laws on technical developments date back to the 19th century. These laws were, and to a great extent, still are, focused on physical objects - around which the daily life of industrial society revolved. For this reason, many traditional general laws do not take into account the particularities of information and information technology that are associated with cybercrime and crimes generating electronic evidence. These acts are largely characterized by new intangible objects, such as data or information.
x x x x
This raises the question of whether cybercrime should be covered by general, existing criminal law provisions, or whether new, computer-specific offences are required. The question cannot be answered generally, but rather depends upon the nature of individual acts, and the scope and interpretation of national laws.84 (Emphasis provided)
Out of almost 200 items of national legislation cited by countries in response to the Study questionnaire, fewer than five per cent used the word “cybercrime” in the title or scope of legislative provisions. Rather, legislation more commonly referred to “computer crimes,” “electronic communications,” “information technologies,” or “high-tech crime.” In practice, many of these pieces of legislation created criminal offences that are included in the concept of cybercrime, such as unauthorized access to a computer system, or interference with a computer system or data. Where national legislation did specifically use cybercrime in the title of an act or section (such as “Cybercrime Act”), the definitional section of the legislation rarely included a definition for the word “cybercrime.” When the term “cybercrime” was included as a legal definition, a common approach was to define it simply as “the crimes referred to in this law.”87crallawlibraryInternational or regional legal instruments are also important for states because they articulate a consensus, established or emerging, among several jurisdictions. With respect to international or legal instruments however, the United Nations Office on Drugs and Crime notes the same lack of a conceptual consensus as to what makes cybercrimes:chanRoblesVirtualawlibrary
In a similar manner, very few international or regional legal instruments define cybercrime. Neither the Council of Europe Cybercrime Convention, the League of Arab States Convention, nor the Draft African Union Convention, for example, contains a definition of cybercrime for the purposes of the instrument. The Commonwealth of Independent States Agreement, without using the term “cybercrime,” defines an “offence relating to computer information” as a “criminal act of which the target is computer information.” Similarly, the Shanghai Cooperation Organization Agreement defines “information offences” as “the use of information resources and (or) the impact on them in the informational sphere for illegal purposes.”88crallawlibraryMore than defining the term “cybercrime,” international legal instruments list acts which may be considered as falling under the broad umbrella of cybercrimes. As surveyed in 'The Comprehensive Study on Cybercrime prepared by UNODC for the Intergovernmental Expert Group on Cybercrime, February 2013,' there are sixteen (16) international or regional instruments which exist with the objective of countering cybercrime. The UNODC notes that nine (9) of these instruments are binding,89 while seven (7) are non-binding.90 In all, these instruments include a total of eighty-two (82) countries which have signed and/or ratified them. Of these, it is the Council of Europe Cybercrime Convention which has the widest coverage: Forty-eight (48) countries,91 including five (5) non-member states of the Council of Europe, have ratified and/or acceded to it. Other instruments have significantly smaller scopes. For example, the League of Arab States Convention only included eighteen (18) countries or territories; the Commonwealth of Independent States Agreement, with ten (10) countries; and the Shanghai Cooperation Organization Agreement, with six (6) countries.92crallawlibrary
Criminalized Act | |
African Union93 | |
COMESA94 | |
The Commonwealth95 | |
Commonwealth of Independent States96 | |
Council of Europe (Budapest Convention)97 | |
Council of Europe (Lanzarote Convention)98 | |
ECOWAS99 | |
European Union (Framework Decision 2005/222/JHA)100 | |
European Union (Directive Proposal 2010/0273)101 | |
European Union (Directive Framewrok Decision 2001/413/JHA)102 | |
European Union (Directive 2011/92/EU and 2002/58/EC)103 | |
ITU / CARICOM / CTU (Model Legislative Texts104 | |
League of Arab States (Convention)105 | |
League of Arab States (Model Law)106 | |
Shanghai Cooperation Organization107 | |
United Nations (CRC OP)108 |
1 | Illegal access to a computer system | Art. III (15) III (16) | Art. 18 and 19 | Art. 5 and 7 | Art. 2 | Art. 2 and 3 | Art. 2(1) | Art. 3 | Art. 4 and 5 | Art. 6 | Art. 3, 5, 15 and 22 | ||||||
2 | Illegal access, interception or acquisition of computer data | Art. III (23) | Art. 19 and 21 | Art. 5 and 8 | Art. 3 (1) (a) | Art. 2 and 3 | Art. 6 | Art. 6 | Art. 6 and 8 | Art. 6, 7 and 18 | Art. 3 and 8 | ||||||
3 | Illegal intereference with computer data | Art. III (19), (20) and (24) | Art. 20 and 22(a) | Art. 6 | Art. 3 (1) (c) | Art. 4 | Art. 5 and 7 | Art. 4 | Art. 5 | Art. 3 | Art. 7 | Art. 8 | Art. 6 | ||||
4 | Illegal intereference with a computer system | Art. III (18) and (19) | Art. 22 (a) | Art. 7 | Art. 3 (1) (c) | Art. 5 | Art. 4 | Art. 3 | Art. 4 | Art. 3 | Art. 9 | Art. 6 | Art. 7 | ||||
5 | Computer misuse tools | Art. III (22) | Art. 22 (b) and (c) | Art. 9 | Art. 3 (1) (b) | Art. 6 | Art. 12 | Art. 5 | Art. 7 | Art. 4 | Art. 10 | Art. 9 | |||||
6 | Breach of privacy or data protection measures | Art. III (27) and (54) | Art. 3 | Art. 11 | Art. 15 (a) (1) | ||||||||||||
7 | Computer-related forgery | Art. III (24) and (25) | Art. 23 | Art. 7 | Art. 8 | Art. 2 and 4 | Art. 11 | Art. 10 and 18 | Art. 4 | ||||||||
8 | Computer-related fraud | Art. III (25), (26) and (41) | Art. 24 (a) and (b) | Art. 8 | Art. 9, 10 and 23 | Art. 2 and 4 | Art. 12 | Art. 11 | Art. 10, 11 and 12 | ||||||||
9 | Electronic payment tools offenses | Art. 2 | Art. 18 | Art. 11 | |||||||||||||
10 | Identity-related crime | Art. 14 | |||||||||||||||
11 | Computer-related copyright and trademark offenses | Art. 3 (1) (d) | Art. 10 | Art. 17 | Art. 14 | ||||||||||||
12 | Spam | Art. 19 (g) | Art. 13 (3) | Art. 15 | |||||||||||||
13 | Computer-related harassment, extortion or acts causing personal harm | Art. III (40) and (41) | Art. 25 | Art. 18 | Art. 9 | ||||||||||||
14 | Computer-related acts involving racism or xenophobia | Art. III (34), (35) and (36) | Art. 3, 4, 5 (OP) | Art. 18, 19 and 20 | |||||||||||||
15 | Computer-related denial or justification of genocide or crimes against humanity | Art. III (37) | Art. 6 (OP) | Art. 21 | |||||||||||||
16 | Computer-related production, distribution, or possession of child pornography | Art. III (29), (30), (31) and (32) | Art. 10 | Art. 9 | Art. 20 | Art, 14, 15, 16 and 17 | Art. 5 | Art. 13 | Art. 12 | Art. 3 | |||||||
17 | Computer-related solicitation or ‘grooming’ of children | Art. 23 | Art. 6 | ||||||||||||||
18 | Computer-related acts in support of terrorism | Art. III (40) | Art. 18, 19, 20 and 22 (a) | Art. 15 | Art. 21 | ||||||||||||
19 | Computer-related offenses involving money laundering | Art. 15 | Art. 19 | ||||||||||||||
20 | Computer-related offenses involving illicit trafficking | Art. 16 | Art. 17 and 18 | ||||||||||||||
21 | Computer-related offenses against public order, morality or security | Art. 14, 15, 16 and 17 | Art. 12, 13, 14 and 15 | Art. 13, 16 and 20 | |||||||||||||
22 | Law enforcement investigation-related offenses | Art. III (54) | Art. 13 and 21 | Art. 16 (3), 20 (3) and 21 (3) | Art. 16 and 17 | Art. 23 (3), 28 (3) and 29 (3) | |||||||||||
23 | Aggravating circumstances for conventional crime committed by means of a computer system | Art. III (40) | Art. 22 | Art. 21 | |||||||||||||
24 | Attempt and aiding or abetting | Art. 26 | Art. 11 and 7 (OP) | Art. 24 | Art. 8 | ||||||||||||
25 | Corporate liability | Art 27 | Art. 12 | Art. 26 |
Procedural Power | |
African Union118 | |
COMESA119 | |
The Commonwealth120 | |
Commonwealth of Independent States121 | |
Council of Europe | |
(Budapest Convention)122 | |
Council of Europe | |
(Lanzarote Convention)123 | |
ECOWAS124 | |
European Union (Framework Decision 2005/222/JHA)125 | |
European Union (Directive Proposal 2010/0273)126 | |
European Union (Directive Framewrok Decision 2001/413/JHA)127 | |
European Union (Directive 2011/92/EU and 2002/58/EC)128 | |
ITU / CARICOM / CTU (Model Legislative Texts129 | |
League of Arab States (Convention)130 | |
League of Arab States (Model Law)131 | |
Shanghai Cooperation Organization132 | |
United Nations (CRC OP)133 |
1 | Search for computer hardware or data | Art. III (50) | Art. 37 (a) and (b) | Art. 12 | Art. 19 (1) and (2) | Art. 33 | Art. 20 | Art. 26 | |||||||||
2 | Seizure of computer hardware or data | Art. III (51) | Art. 37 (c) | Art. 12 and 14 | Art. 19 (3) | Art. 33 | Art. 20 | Art. 27 (1) | |||||||||
3 | Order for stored computer date | Art. 36 (a) | Art. 15 | Art. 18 (1)(1) | Art. 22 (a) | Art. 25 (1) | |||||||||||
4 | Order for subscriber information | Art. 36 (b) | Art. 18 (1) (b) | Art. 22 (b) | Art. 25 (2) | ||||||||||||
5 | Order for stored traffic data | Art. 34 (a) (ii) | Art. 16 | Art. 17 (1) (b) | Art. 24 | Art. 24 | |||||||||||
6 | Real-time collection of traffic data | Art. 38 | Art. 19 | At. 20 | Art. 25 | Art. 28 | |||||||||||
7 | Real-time collection of content-data | Art. III (55) | Art. 39 | Art. 18 | Art. 21 | Art. 26 | Art. 29 | ||||||||||
8 | Expedited preservation of computer-data | Art. III (53) | Art. 33, 34 (a) (i) and 35 | Art. 17 | Art. 16, 17 (1) (a) | Art. 33 | Art. 23 | Art. 23 (2) | |||||||||
9 | Use of (remote) forensic tools | Art. 30 (5) | Art. 15 | Art. 27 | |||||||||||||
10 | Trans-border access to computer data | Art. 49 (b) | Art. 32 (b) | Art. 40 (2) | |||||||||||||
11 | Provision of assistance | Art. 37 (d) | Art. 13 | Art. 19 (4) | Art. 21 | Art. 27 (2) | |||||||||||
12 | Retention of computer data | Art. 29, 30 and 31 | Art. 3 and 6 |
SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:chanRoblesVirtualawlibrary
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:chanRoblesVirtualawlibrary
(1) Illegal Access. - The access to the whole or any part of a computer system without right.
(2) Illegal Interception. - The interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data.
(3) Data Interference. — The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.
(4) System Interference. — The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.
(5) Misuse of Devices.
(i) The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of:chanRoblesVirtualawlibrary
(aa) A device, including a computer program, designed or adapted primarily for the purpose of committing any of the offenses under this Act; or
(bb) A computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the purpose of committing any of the offenses under this Act.
(ii) The possession of an item referred to in paragraphs 5(i)(aa) or (bb) above with intent to use said devices for the purpose of committing any of the offenses under this section.
(6) Cyber-squatting. - The acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is:chanRoblesVirtualawlibrary
(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration:chanRoblesVirtualawlibrary
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
(b) Computer-related Offenses:chanRoblesVirtualawlibrary
(1) Computer-related Forgery. —
(i) The input, alteration, or deletion of any computer data without right resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible; or
(ii) The act of knowingly using computer data which is the product of computer-related forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design.
(2) Computer-related Fraud. — The unauthorized input, alteration, or deletion of computer data or program or interference in the functioning of a computer system, causing damage thereby with fraudulent intent: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.
(3) Computer-related Identity Theft. - The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.
(c) Content-related Offenses:chanRoblesVirtualawlibrary
(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.
(3) Unsolicited Commercial Communications. — The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited unless:chanRoblesVirtualawlibrary
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:chanRoblesVirtualawlibrary
(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and
(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.
SEC. 5. Other Offenses. — The following acts shall also constitute an offense:chanRoblesVirtualawlibrary
(a) Aiding or Abetting in the Commission of Cybercrime. - Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.
The only instance where a facial challenge to a statute is allowed is when it operates in the area of freedom of expression. In such instance, the overbreadth doctrine permits a party to challenge the validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to others not before the Court whose activities are constitutionally protected. Invalidation of the statute “on its face” rather than “as applied” is permitted in the interest of preventing a “chilling” effect on freedom of expression. But in other cases, even if it is found that a provision of a statute is unconstitutional, courts will decree only partial invalidity unless the invalid portion is so far inseparable from the rest of the statute that a declaration of partial invalidity is not possible.135 (Emphasis supplied)The doctrine was again revisited in the celebrated plunder case of former President Joseph Estrada, when Justice Mendoza, in his concurring opinion, explained at length when a facial challenge may be allowed:chanRoblesVirtualawlibrary
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible “chilling effect” upon protected speech. The theory is that “[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.” The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.The overbreadth doctrine in the context of a facial challenge was refined further in David v. Arroyo,137 where this court speaking through Justice Sandoval-Gutierrez disallowed petitioners from challenging Proclamation No. 1017 on its face for being overbroad. In doing so, it laid down the guidelines for when a facial challenge may be properly brought before this court, thus:chanRoblesVirtualawlibrary
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, “we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” In Broadrick v. Oklahoma, the Court ruled that “claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words” and, again, that “overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.” For this reason, it has been held that “a facial challenge to a legislative Act is … the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. “A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing “on their faces” statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” As has been pointed out, “vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] ‘as applied’ to a particular defendant.”Consequently, there is no basis for petitioner’s claim that this Court review the Anti-Plunder Law on its face and in its entirety.136crallawlibrary
First and foremost, the overbreadth doctrine is an analytical tool developed for testing “on their faces” statutes in free speech cases, also known under the American Law as First Amendment cases.The Mendoza opinion, however, found its way back into the legal spectrum when it was eventually adopted by this court in the cases of Romualdez v. Sandiganbayan139 and Romualdez v. Commission on Elections.140 Upon motion for reconsideration in Romualdez v. Commission on Elections,141 however, this court revised its earlier pronouncement that a facial challenge only applies to free speech cases, thereby expanding its scope and usage. It stated that:chanRoblesVirtualawlibrary
xxxx
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that “reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct.” x x x
x x x x
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only “spoken words” and again, that “overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.” Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as “manifestly strong medicine,” to be used “sparingly and only as a last resort,” and is “generally disfavored;” The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court. A writer and scholar in Constitutional Law explains further:chanRoblesVirtualawlibrary
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute “on its face,” not merely “as applied for” so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the “chilling;” deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad law’s “very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. In Younger v. Harris, it was held that:chanRoblesVirtualawlibrary
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists.138 (Emphasis originally provided)
x x x The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge.142crallawlibraryHowever, the latest pronouncement of this court on the doctrine was the case of Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council.143 In it, this court, while reiterating Justice Mendoza’s opinion as cited in the Romualdez cases, explained further the difference between a “facial” challenge and an “as applied” challenge.
Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.
Justice Mendoza accurately phrased the subtitle in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the “chilling effect” on protected speech, the exercise of which should not at all times be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an “in terrorem effect” in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.
The Court reiterated that there are “critical limitations by which a criminal statute may be challenged” and “underscored that an ‘on-its-face’ invalidation of penal statutes x x x may not be allowed.”
[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the State’s ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the State’s power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him.
It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.
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. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.
x x x x
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment, and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words. In Virginia v. Hicks, it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the “transcendent value to all society of constitutionally protected expression.”144 (Emphasis and underscoring originally supplied)
(1) In a democracy, the preservation and enhancement of the dignity and worth of the human personality is the central core as well as the cardinal article of faith of our civilization. The inviolable character of man as an individual must be ”protected to the largest possible extent in his thoughts and in his beliefs as the citadel of his person.”The right to freedom of expression is a primordial right because it is not only an affirmation but a positive execution of the basic nature of the state defined in Article II, Section 1 of the 1987 Constitution:chanRoblesVirtualawlibrary
(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security ”against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles.”
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw ”certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Laski proclaimed that ”the happiness of the individual, not the well-being of the State, was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits to the authority it was entitled to exercise.”
(3) The freedoms of expression and of assembly as well as the right to petition are included among the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to talk, but also to benefit the majority who refuse to listen. And as Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are not safe unless the liberties of all are protected.
(4) The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man’s enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. Because these freedoms are ”delicate and vulnerable, as well as supremely precious in our society” and the ”threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,” they ”need breathing space to survive,” permitting government regulation only ”with narrow specificity.”
Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of oligarchs — political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; and such priority ”gives these liberties the sanctity and the sanction not permitting dubious intrusions.”
The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purpose — that the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law which restricts or impairs property rights. On the other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent.146 (Citations omitted)
The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.The power of the State is derived from the authority and mandate given to it by the people, through their representatives elected in the legislative and executive branches of government. The sovereignty of the Filipino people is dependent on their ability to freely express themselves without fear of undue reprisal by the government. Government, too, is shaped by comments and criticisms of the various publics that it serves.
Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. When atrophied, the right becomes meaningless. The right belongs as well - if not more - to those who question, who do not conform, who differ. The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us.
The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution’s basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans, this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression. (Citations omitted) 148crallawlibrary
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.The facial challenge is different from an “as-applied” challenge or determination of a penal law. In an “as-applied” challenge, the court undertakes judicial review of the constitutionality of legislation “as applied” to particular facts, parties or defendants and on a case-to-case basis. In a challenge “as applied,” the violation also involves an abridgement of the due process clause. In such instances, the burden of the petitioner must be to show that the only reasonable interpretation is one that is arbitrary or unfair.
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected.149crallawlibrary
By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher’s relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers affects not only those who, like the appellants, are immediately before the Court. It has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.151crallawlibraryThe concept of a “chilling effect” was further elaborated in the landmark case of New York Times v. Sullivan:152crallawlibrary
We should be particularly careful, therefore, adequately to protect the liberties which are embodied in the First and Fourteenth Amendments. It may be urged that deliberately and maliciously false statements have no conceivable value as free speech. That argument, however, is not responsive to the real issue presented by this case, which is whether that freedom of speech which all agree is constitutionally protected can be effectively safeguarded by a rule allowing the imposition of liability upon a jury’s evaluation of the speaker’s state of mind. If individual citizens may be held liable in damages for strong words, which a jury finds false and maliciously motivated, there can be little doubt that public debate and advocacy will be constrained. And if newspapers, publishing advertisements dealing with public issues, thereby risk liability, there can also be little doubt that the ability of minority groups to secure publication of their views on public affairs and to seek support for their causes will be greatly diminished. Cf. Farmers Educational & Coop. Union v. WDAY, Inc., 360 U.S. 525, 530. The opinion of the Court conclusively demonstrates the chilling effect of the Alabama libel laws on First Amendment freedoms in the area of race relations. The American Colonists were not willing, nor should we be, to take the risk that ”[m]en who injure and oppress the people under their administration [and] provoke them to cry out and complain” will also be empowered to ”make that very complaint the foundation for new oppressions and prosecutions.” The Trial of John Peter Zenger, 17 Howell’s St. Tr. 675, 721-722 (1735) (argument of counsel to the jury). To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect ”the obsolete doctrine that the governed must not criticize their governors.” Cf. Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458.153crallawlibraryIn National Association for the Advancement of Colored People v. Button,154 the United States Supreme Court categorically qualified the concept of a “chilling effect”:chanRoblesVirtualawlibrary
Our concern is with the impact of enforcement of Chapter 33 upon First Amendment freedoms.Philippine jurisprudence has incorporated the concept of a “chilling effect,” but the definition has remained abstract. In Chavez v. Gonzales,156 this court stated that a “chilling effect” took place upon the issuance of a press release by the National Telecommunications Commission warning radio and television broadcasters from using taped conversations involving former President Gloria Macapagal-Arroyo and the allegations of fixing elections:chanRoblesVirtualawlibrary
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For, in appraising a statute’s inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar. Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98; Winters v. New York, supra,at 333 U. S. 518-520. Cf. Staub v. City of Baxley, 355 U. S. 313. It makes no difference that the instant case was not a criminal prosecution, and not based on a refusal to comply with a licensing requirement. The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. Marcus v. Search Warrant, 367 U. S. 717, 367 U. S. 733. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, supra, at 361 U. S. 151-154; Speiser v. Randall, 357 U. S. 513, 357 U. S. 526. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U. S. 296, 3 310 U. S. 11. (Emphasis supplied)155crallawlibrary
We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.Taking all these into consideration, as mentioned earlier, a facial attack of a provision can only succeed when the basis is freedom of expression, when there is a clear showing that there is an imminent possibility that its broad language will allow ordinary law enforcement to cause prior restraints of speech, and when the value of that speech is such that its absence will be socially irreparable.
This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press.
There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.157crallawlibrary
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.Among all the provisions, this is the sole provision that the Office of the Solicitor General agrees to be declared as unconstitutional.
Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.As worded, Section 19 provides an arbitrary standard by which the Department of Justice may exercise this power to restrict or block access. A prima facie finding is sui generis and cannot be accepted as basis to stop speech even before it is made. It does not provide for judicially determinable parameters. It, thus, ensures that all computer data will automatically be subject to the control and power of the Department of Justice. This provision is a looming threat that hampers the possibility of free speech and expression through the internet. The sheer possibility that the State has the ability to unilaterally decide whether data, ideas or thoughts constitute evidence of a prima facie commission of a cybercrime will limit the free exchange of ideas, criticism, and communication that is the bulwark of a free democracy.
Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid, and ”any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows,” it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against.
SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:chanRoblesVirtualawlibraryThe intent of this provision seems to be to prohibit the defense that libel committed through the use of a computer is not punishable. Respondents counter that, to date, libel has not been declared unconstitutional as a violation of the rights to free speech, freedom of expression, and of the press.
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(c) Content-related Offenses:chanRoblesVirtualawlibrary
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.
The ponencia claims that “libel is not a constitutionally protected speech” and “that government has an obligation to protect private individuals from defamation.”158crallawlibraryTitle Thirteen
CRIMES AGAINST HONOR
Chapter One
LIBEL
Section One. — Definitions, forms, and punishment of this crime.
Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:chanRoblesVirtualawlibrary
1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, 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.
In an action for libel suppose the defendant fails to prove that the injurious publication or communication was true. Can he relieve himself from liability by showing that it was published with ”justifiable motives” whether such publication was true or false or even malicious? There is no malice in law when ”justifiable motives” exist, and, in the absence of malice, there is no libel under the law. (U. S. vs. Lerma, supra.) But if there is malice in fact, justifiable motives can not exist. The law will not allow one person to injure another by an injurious publication, under the cloak of ”good ends” or ”justifiable motives,” when, as a matter of fact, the publication was made with a malicious intent. It is then a malicious defamation. The law punishes a malicious defamation and it was not intended to permit one to maliciously injure another under the garb of ”justifiable motives.” When malice in fact is shown to exist the publisher can not be relieved from liability by a pretense of ”justifiable motives.” Section 3 relieves the plaintiff from the necessity of proving malice simply when no justifiable motives are shown, but it does not relieve the defendant from liability under the guise of ”justifiable motives” when malice actually is proved. The defense of ”the truth” of the ”injurious publication” (sec. 4) and its character as a privileged communication (sec. 9) means nothing more than the truth in one instance and the occasion of making it in the other together with proof of justifiable motive, rebuts the prima facie inference of malice in law and throws upon the plaintiff or the State, the onus of proving malice in fact. The publication of a malicious defamation, whether it be true or not, is clearly an offense under Act No. 277.161 (Emphasis supplied)Actual malice as a requirement evolved further.
Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment.Ayer Productions Pty. Ltd and McElroy & McElroy Film Productions v. Hon. Ignacio M. Capulong,168 as affirmed in the case of Borjal v. Court of Appeals,169 adopted the doctrine in New York Times to “public figures.” In Ayer Productions:chanRoblesVirtualawlibrary
The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ”was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484.
The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.
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Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U.S. 252.This is true even though the utterance contains ”half-truths” and ”misinformation.” Pennekamp v. Florida, 328 U.S. 331, 342, 343, n. 5, 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. See also Craig v. Harney, 331 U.S. 367; Wood v. Georgia, 370 U.S. 375. If judges are to be treated as ”men of fortitude, able to thrive in a hardy climate,” Craig v. Harney, supra, 331 U.S. at 376, surely the same must be true of other government officials, such as elected city commissioners. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism, and hence diminishes their official reputations. Stromberg v. California, 283 U.S. 359, 369.167 (Emphasis supplied)
A limited intrusion into a person’s privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of a public character. Succinctly put, the right of privacy cannot be invoked resist publication and dissemination of matters of public interest. The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern.170crallawlibraryPublic figures were defined as:chanRoblesVirtualawlibrary
A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainment. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person.This doctrine was reiterated in Vasquez v. Court of Appeals.172 Petitioner was charged with libel for allegedly defaming his Barangay Chairperson in an article published in the newspaper, Ang Tinig ng Masa. Petitioner allegedly caused the dishonor and discredit of the Barangay Chairperson through the malicious imputation that the public officer landgrabbed and that he was involved in other illegal activities. In acquitting the petitioner:chanRoblesVirtualawlibrary
Such public figures were held to have lost, to some extent at least, their tight to privacy. Three reasons were given, more or less indiscriminately, in the decisions” that they had sought publicity and consented to it, and so could not complaint when they received it; that their personalities and their affairs has already public, and could no longer be regarded as their own private business; and that the press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was held that there was no liability when they were given additional publicity, as to matters legitimately within the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of public interest, was held to arise out of the desire and the right of the public to know what is going on in the world, and the freedom of the press and other agencies of information to tell it. ”News” includes all events and items of information which are out of the ordinary hum-drum routine, and which have 'that indefinable quality of information which arouses public attention.' To a very great extent the press, with its experience or instinct as to what its readers will want, has succeeded in making its own definition of news, as a glance at any morning newspaper will sufficiently indicate. It includes homicide and other crimes, arrests and police raids, suicides, marriages and divorces, accidents, a death from the use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the reappearance of one supposed to have been murdered years ago, and undoubtedly many other similar matters of genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to the dissemination of news in the scene of current events. It extended also to information or education, or even entertainment and amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of human activity in general, as well as the reproduction of the public scene in newsreels and travelogues. In determining where to draw the line, the courts were invited to exercise a species of censorship over what the public may be permitted to read; and they were understandably liberal in allowing the benefit of the doubt.171 (Emphasis supplied)
The question is whether from the fact that the statements were defamatory, malice can be presumed so that it was incumbent upon petitioner to overcome such presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not prove that the imputation was published with good motives and for justifiable ends.Guingguing v. Court of Appeals174 involved the publication of information on private complainant’s criminal cases including photographs of him being arrested. This court again reiterated:chanRoblesVirtualawlibrary
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In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic duty to see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent. The recognition of this right and duty of every citizen in a democracy is inconsistent with any requirement placing on him the burden of proving that he acted with good motives and for justifiable ends.
For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this Court has cited with approval in several of its own decisions. This is the rule of “actual malice.”
A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as members of a self-governing community. Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandeis has said, “public discussion is a political duty” and the “greatest menace to freedom is an inert people.”173 (Emphasis supplied)
[Article 354 of the Revised Penal Code], as applied to public figures complaining of criminal libel, must be construed in light of the constitutional guarantee of free expression, and this Court’s precedents upholding the standard of actual malice with the necessary implication that a statement regarding a public figure if true is not libelous. The provision itself allows for such leeway, accepting as a defense “good intention and justifiable motive.” The exercise of free expression, and its concordant assurance of commentary on public affairs and public figures, certainly qualify as “justifiable motive,” if not “good intention.”In Villanueva v. Philippine Daily Inquirer, Inc.,176 despite the respondents’ false reporting, this court continued to apply the actual malice doctrine that evolved from Ayer Productions. Hence:chanRoblesVirtualawlibrary
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As adverted earlier, the guarantee of free speech was enacted to protect not only polite speech, but even expression in its most unsophisticated form. Criminal libel stands as a necessary qualification to any absolutist interpretation of the free speech clause, if only because it prevents the proliferation of untruths which if unrefuted, would gain an undue influence in the public discourse. But in order to safeguard against fears that the public debate might be muted due to the reckless enforcement of libel laws, truth has been sanctioned as a defense, much more in the case when the statements in question address public issues or involve public figures.175 (Emphasis supplied)
A newspaper, especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for malice or damages, i.e. libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community.177crallawlibrary
x x x public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. (Emphasis supplied)Social media allows users to create various groups of various sizes. Some of these sites are for specific purposes. Others are only open to a select group of “friends” or “followers”. The ponencia’s distinction between the author and those who share (or simply express their approval) of the posted message oversimplifies the phenomenon of exchanges through these sites.
Form A: “@marvicleonen: RT @somebody: Juan is a liar, a thief and an idiot” #thetruthBoth are posts from a user with the handle @marvicleonen. RT means that the following message was only reposted (retweeted), and the hashtag #thetruth is simply a way of categorizing one’s messages. The hashtag itself may also contain speech elements.
Form B: “@marvicleonen: This! RT @somebody: Juan is a liar, a thief and an idiot” #thetruth
Originally, the truth of a defamatory imputation was not considered a defense in the prosecution for libel. In the landmark opinion of England’s Star Chamber in the Libelis Famosis case in 1603, two major propositions in the prosecution of defamatory remarks were established: first, that libel against a public person is a greater offense than one directed against an ordinary man, and second, that it is immaterial that the libel be true. These propositions were due to the fact that the law of defamatory libel was developed under the common law to help government protect itself from criticism and to provide an outlet for individuals to defend their honor and reputation so they would not resort to taking the law into their own hands.It was in that case where the court noted the history of early American media that focused on a “mad dog rhetoric” approach. This, in turn, led the court to conclude that “[t]hese observations are important in light of the misconception that freedom of expression extends only to polite, temperate, or reasoned expression. x x x Evidently, the First Amendment was designed to protect expression even at its most rambunctious and vitriolic form as it had prevalently taken during the time the clause was enacted.”197crallawlibrary
Our understanding of criminal libel changed in 1735 with the trial and acquittal of John Peter Zenger for seditious libel in the then English colony of New York. Zenger, the publisher of the New-York Weekly Journal, had been charged with seditious libel, for his paper’s consistent attacks against Colonel William Cosby, the Royal Governor of New York. In his defense, Zenger’s counsel, Andrew Hamilton, argued that the criticisms against Governor Cosby were “the right of every free-born subject to make when the matters so published can be supported with truth.” The jury, by acquitting Zenger, acknowledged albeit unofficially the defense of truth in a libel action. The Zenger case also laid to rest the idea that public officials were immune from criticism.
The Zenger case is crucial, not only to the evolution of the doctrine of criminal libel, but also to the emergence of the American democratic ideal. It has been characterized as the first landmark in the tradition of a free press, then a somewhat radical notion that eventually evolved into the First Amendment in the American Bill of Rights and also proved an essential weapon in the war of words that led into the American War for Independence.
Yet even in the young American state, the government paid less than ideal fealty to the proposition that Congress shall pass no law abridging the freedom of speech. The notorious Alien and Sedition Acts of 1798 made it a crime for any person who, by writing, speaking or printing, should threaten an officer of the government with damage to his character, person, or estate. The law was passed at the insistence of President John Adams, whose Federalist Party had held a majority in Congress, and who had faced persistent criticism from political opponents belonging to the Jeffersonian Republican Party. As a result, at least twenty-five people, mostly Jeffersonian Republican editors, were arrested under the law. The Acts were never challenged before the U.S. Supreme Court, but they were not subsequently renewed upon their expiration.
The massive unpopularity of the Alien and Sedition Acts contributed to the electoral defeat of President Adams in 1800. In his stead was elected Thomas Jefferson, a man who once famously opined, “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”196crallawlibrary
The use of criminal libel to regulate speech - especially speech critical of foreign rule or advocating Philippine independence - was a feature of both the Spanish and American colonial regimes. The Spanish Penal Code and the Penal Code of the Philippines made insult and calumny a crime. In the early 1900s, the Philippine Commission (whose members were all appointed by the President of the United States) punished both civil and criminal libel under Act No. 277, one of its earliest laws.202crallawlibraryDuring the American occupation, Governor-General William Howard Taft explained how “libel was made into a criminal offense in the Philippines because ‘the limitations of free speech are not very well understood’ unlike in the US’”203 Then came the case of U.S. v. Ocampo,204 where Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes, and Faustino Aguilar were charged with libel in connection with the publication of the article “Birds of Prey” in the newspaper El Renacimiento. The article allegedly defamed Philippine Commission member and Interior Secretary Mr. Dean C. Worcester. This court affirmed the conviction of Ocampo and Kalaw stating that there were no justifiable motives found in the publication of the article.
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.This court previously discussed the nature and applicability of Articles 19 to 21 of the Civil Code, stating that:chanRoblesVirtualawlibrary
Article 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.
Article 21. Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.
[Article 19], known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which must be observed not only in the exercise of one’s rights but also in the performance of one’s duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. But while Article 19 lays down a rule of conduct for the government of human relations and for the maintenance of social order, it does not provide a remedy for its violation. Generally, an action for damages under either Article 20 or Article 21 would be proper.In affirming award of damages under Article 19 of the Civil Code, this court has said that “[t]he legitimate state interest underlying the law of libel is the compensation of the individuals for the harm inflicted upon them by defamatory falsehood. After all, the individual’s right to protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being - a concept at the root of any decent system of ordered liberty.’”219crallawlibrary
Article 20, which pertains to damage arising from a violation of law, provides that:chanRoblesVirtualawlibrary
Art. 20. Every person who contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.
x x x Article 21 of the Civil Code provides that:chanRoblesVirtualawlibrary
Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.
This article, adopted to remedy the ”countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury” [Id.] should ”vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to provide for specifically in the statutes” [Id. it p. 40; See also PNB v. CA, G.R. No. L-27155, May 18, 1978, 83 SCRA 237, 247].
In determining whether or not the principle of abuse of rights may be invoked, there is no rigid test which can be applied. While the Court has not hesitated to apply Article 19 whether the legal and factual circumstances called for its application [See for e.g., Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186 (1956); PNB v. CA, supra; Grand Union Supermarket, Inc. v. Espino, Jr., G.R. No. L-48250, December 28, 1979, 94 SCRA 953; PAL v. CA, G.R. No. L-46558, July 31, 1981,106 SCRA 391; United General Industries, Inc, v. Paler G.R. No. L-30205, March 15,1982,112 SCRA 404; Rubio v. CA, G.R. No. 50911, August 21, 1987, 153 SCRA 183] the question of whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 or other applicable provision of law, depends on the circumstances of each case. x x x.218crallawlibrary
SEC. 4. Cybercrime Offenses. —The following acts constitute the offense of cybercrime punishable under this Act:chanRoblesVirtualawlibraryThe ponencia invites us to go beyond the plain and ordinary text of the law and replace it with the deliberations in committees that prepared the provision. Thus, it claims: “(t)he Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This includes interactive prostitution and pornography, i.e. by webcam.”220crallawlibrary
(c) Content-related Offenses:chanRoblesVirtualawlibrary
(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.
There is persuasiveness to the approach followed in Roth: ‘The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin 1968 LR 3 QB 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards to withstand the charge of constitutional infirmity.”228 (Emphasis supplied)Thus, at present, we follow Miller v. California,229 a United States case, as the latest authority on the guidelines in characterizing obscenity.230 The guidelines, which already integrated the Roth standard on prurient interest, are as follows:chanRoblesVirtualawlibrary
a. Whether the ‘average person, applying contemporary standards’ would find the work, taken as a whole, appeals to the prurient interest x x x;The guidelines in Miller were adopted in Pita v. Court of Appeals232 and Fernando v. Court of Appeals.233 It was also cited in the 2009 case of Soriano v. Laguardia234 wherein we stated:chanRoblesVirtualawlibrary
b. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
c. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.231crallawlibrary
Following the contextual lessons of the cited case of Miller v. California a patently offensive utterance would come within the pale of the term obscenity should it appeal to the prurient interest of an average listener applying contemporary standards.235crallawlibraryThe tests or guidelines cited above were created and applied as demarcations between protected expression or speech and obscene expressions. The distinction is crucial because censorship or prohibition beyond these guidelines is a possible danger to the protected freedom. For this reason, the courts, as “guard[ians] against any impermissible infringement on the freedom of x x x expression,” “should be mindful that no violation of such is freedom is allowable.”236crallawlibrary
However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g. in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.242crallawlibraryThis court adopted these views in Gonzales v. Kalaw-Katigbak.243crallawlibrary
Even expression that is received less as argument than “masturbation material”, becomes a part of a cultural or behavioral “debate” about sexuality, about the nature of human relations, and about pleasure and morality, as well as about the roles of men and women. Historically, puritanical attempts to suppress sexually explicit materials appear largely designed to shut down this cultural contestation in favor of a traditional practice of keeping women in the private sphere. Opening up this cultural debate has in the past, and can in the future, contribute to progressive change.260crallawlibraryBaker also points out that MacKinnon disregards that receivers of communicated expressions are presumably autonomous agents who bear the responsibility for their actions and are capable of moral choice.261crallawlibrary
Part of the reason to protect speech, or, more broadly, to protect liberty, is a commitment to the view that people should be able to participate in constructing their world, or to the belief that this popular participation provides the best way to move toward a better world. The guarantee of liberty represents a deep faith in people and in democracy.265crallawlibraryPunishing or even threatening to punish “lascivious exhibition of sexual organs or sexual activity” through “the aid of a computer system” for “favor or consideration” does nothing to alleviate the subordination of women. Rather, it facilitates the patriarchy. It will allow control of what a woman does with her body in a society that will be dominated by men or by the ideas that facilitate men’s hegemony.
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.In my view, this provision should survive constitutional challenge. Furthermore, it is not raised in this case. The explicit reference to the Anti-Pornography Law or Republic Act No. 9775 constitutes sufficient standard within which to base the application of the law and which will allow it to survive a facial challenge for now.
Real-Time Collection of Traffic Data — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.
Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing:chanRoblesVirtualawlibrary
(1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed:chanRoblesVirtualawlibrary
(2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and
(3) that there are no other means readily available for obtaining such evidence.
Most broadly, freedom from random governmental monitoring—of both public spaces and recorded transactions—might be an essential predicate for self definition and development of the viewpoints that make democracy vibrant. This reason to be concerned about virtual searches, while somewhat amorphous, is important enough to have been remarked on by two Supreme Court justices. The first wrote, ‘walking and strolling and wandering…have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right to dissent and have honoured the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed suffocating silence.’ The second justice wrote:chanRoblesVirtualawlibraryIt will be different if it will be in the context of a warrant from a court of law. Its duration, scope, and targets can be more defined. The methods and technologies that will be used can be more limited. There will thus be an assurance that the surveillance will be reasonably surgical and provided on the basis of probable cause. Surveillance under warrant, therefore, will not cause a chilling effect on internet expression.
Suppose that the local police in a particular jurisdiction were to decide to station a police car at the entrance to the parking lot of a well-patronised bar from 5:30 p.m. to 7:30 p.m. every day…I would guess that the great majority of people…would say that this is not a proper police function…There would be an uneasiness, and I think a justified uneasiness, if those who patronised the bar felt that their names were being taken down and filed for future reference…This ought not to be governmental function when the facts are as extreme as I put them.266crallawlibrary
A statute is considered void for overbreadth when ”it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” (Zwickler v. Koota, 19 L ed 2d 444 1967).Section 12 of Rep. Act No. 10175 broadly authorizes law enforcement authorities “with due cause” to intercept traffic data in real time. “Due cause” is a uniquely broad standard different from the “probable cause” requirement in the constitution or the parameters of “reasonable searches” in our jurisprudence.
In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.
In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is asserted, ”the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions,” 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that ”[c]onduct remains subject to regulation for the protection of society,” but pointed out that in each case ”the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.” (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]268crallawlibrary
Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.As worded, the collection, aggregation, analysis, storage and dissemination of these types of data may implicate both the originator’s and the recipient’s rights to privacy.
Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a ”constitutional right” and ”the right most valued by civilized men,” but also from our adherence to the Universal Declaration of Human Rights which mandates that, ”no one shall be subjected to arbitrary interference with his privacy” and ”everyone has the right to the protection of the law against such interference or attacks.”“Reasonable expectations of privacy,” however, may not be the only criterion that may be useful in situations arising from internet use. Some have suggested that in view of the infrastructure or the permeability of the networks created virtually and its cosmopolitarian or cross-cultural character, it may be difficult to identify what may be the normative understanding of all the participants with respect to privacy.271 It has been suggested that privacy may best be understood in its phases, i.e., a core inalienable category where personal information is within the control of the individual, the right to initial disclosure, and the right for further dissemination.272crallawlibrary
Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person’s ”right to be let alone” or the ”right to determine what, how much, to whom and when information about himself shall be disclosed.” Section 2 guarantees ”the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose.” Section 3 renders inviolable the ”privacy of communication and correspondence” and further cautions that ”any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”
In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.270crallawlibrary
Enshrined in the Constitution is the inviolable right to privacy of home and person. It explicitly ordains that people have the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. Inseparable, and not merely corollary or incidental to said right and equally hallowed in and by the Constitution, is the exclusionary principle which decrees that any evidence obtained in violation of said right is inadmissible for any purpose in any proceeding.In the more recent case of Valeroso v. People,275 this court held that:chanRoblesVirtualawlibrary
The Constitutional proscription against unreasonable searches and seizures does not, of course, forestall reasonable searches and seizure. What constitutes a reasonable or even an unreasonable search in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. Verily, the rule is, the Constitution bars State intrusions to a person’s body, personal effects or residence except if conducted by virtue of a valid search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in the Rules of Court; “otherwise such search and seizure become ‘unreasonable’ within the meaning of the aforementioned constitutional provision.”274crallawlibrary
Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary for public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for no enforcement of any statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of an individual in the name of order. Order is too high a price to pay for the loss of liberty.276crallawlibraryVery little consideration, if any, has been taken of the speed of information transfers and the ephemeral character of information exchanged in the internet.
For a valid search warrant to issue, there must be probable cause, which is to be determined personally by the judge, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The probable cause must be in connection with one specific offense and the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and any witness he may produce, on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.However, not all searches without a warrant are per se invalid. Jurisprudence is replete with the exceptions to the general rule.
The ’probable cause’ for a valid search warrant, has been defined ’as such facts and circumstances which would lead a reasonably discreet arid prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched.’ This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay.278 (Citations omitted)
As provided in the present Constitution, a search, to be valid, must generally be authorized by a search warrant duly issued by the proper government authority. True, in some instances, this Court has allowed government authorities to conduct searches and seizures even without a search warrant. Thus, when the owner of the premises waives his right against such incursion; when the search is incidental to a lawful arrest; when it is made on vessels and aircraft for violation of customs laws; when it is made on automobiles for the purpose of preventing violations of smuggling or immigration laws; when it involves prohibited articles in plain view; or in cases of inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations, a search may be validly made even without a search warrant.280 (Citations omitted)In specific instances involving computer data, there may be analogies with searches of moving or movable vehicles. People v. Bagista281 is one of many that explains this exception:chanRoblesVirtualawlibrary
The constitutional proscription against warrantless searches and seizures admits of certain exceptions. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of a moving vehicle, and the seizure of evidence in plain view.Then again in People v. Balingan,283 this court held that there was a valid search and seizure, even if done in a moving vehicle. It gave the rationale for this holding:chanRoblesVirtualawlibrary
With regard to the search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the warrant must be sought.
This in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched.282 (Citations omitted)
We also find no merit in appellant’s argument that the marijuana flowering tops should be excluded as evidence, they being the products of an alleged illegal warrantless search. The search and seizure in the case at bench happened in a moving, public vehicle. In the recent case of People vs. Lo Ho Wing, 193 SCRA 122 (1991), this Court gave its approval to a warrantless search done on a taxicab which yielded the illegal drug commonly known as shabu. In that case, we raciocinated:chanRoblesVirtualawlibraryAnother instance of a reasonable and valid warrantless search which can be used analogously for facts arising from internet or computer use would be in instances where the existence of the crime has been categorically acknowledged. People v. De Gracia,285 explains:chanRoblesVirtualawlibrary
x x x x
The contentions are without writ. As correctly averred by appellee, that search and seizure must be supported by a valid warrant is not an absolute rule. There are at least three (3) well-recognized exceptions thereto. As set forth in the case of Manipon, Jr. vs. Sandiganbayan, these are: 1 a search incidental to an arrest, 2a search of a moving vehicle, and 3 seizure of evidence in plain view (emphasis supplied). The circumstances of the case clearly show that the search in question was made as regards a moving vehicle. Therefore, a valid warrant was not necessary to effect the search on appellant and his co-accused.
In this connection, We cite with approval the averment of the Solicitor General, as contained in the appellee’s brief, that the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge — a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that ’it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’284crallawlibrary
“(3) Unsolicited Commercial Communications. - The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale product and services are prohibited unless:chanRoblesVirtualawlibraryOn the origins of this provision, the Senate Journal’s reference to the deliberations on the Cybercrime Law288 states:chanRoblesVirtualawlibrary
“(i) there is prior affirmative consent from the recipient; or
“(ii) the primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or
“(iii) the following conditions are present:chanRoblesVirtualawlibrary
“(aa) the commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (opt out) from the same source;
“(bb) the commercial electronic communication does not purposely disguise the source of the electronic message; and
“(cc) the commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.”
Unsolicited Commercial Communications in Section 4(C)(3)
This offense is not included in the Budapest Convention. Although there is an ongoing concern against receiving spams or unsolicited commercial e-mails sent in bulk through the computer or telecommunication network, Section 4(C)(3) is too general in the sense it can include a simple email from one person to another person, wherein the sender offers to sell his house or car to the receiver. Therefore, to avoid such acts of injustice, Section 4(C)(3) should be narrowed.
Senator Angara accepted the recommendation as he clarified that what the bill covers is unsolicited emails in bulk.289crallawlibrary
The advertising and promotion of breastmilk substitutes properly falls within the ambit of the term commercial speech-that is, speech that proposes an economic transaction. This is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection.In his separate concurring opinion in Chavez v. Gonzales,295 Justice Antonio Carpio, citing Pharmaceutical and Health Care Association of the Philippines, stated that “false or misleading advertisement” is among the instances in which “expression may be subject to prior restraint,”296 thus:chanRoblesVirtualawlibrary
A look at the development of jurisprudence on the subject would show us that initially and for many years, the United States Supreme Court took the view that commercial speech is not protected by the First Amendment. It fastened itself to the view that the broad powers of government to regulate commerce reasonably includes the power to regulate speech concerning articles of commerce.
This view started to melt down in the 1970s. In Virginia Pharmacy Board v. Virginia Citizens Consumer Council, the U.S. Supreme court struck down a law prohibiting the advertising of prices for prescription drugs. It held that price information was important to consumers, and that the First Amendment protects the ’right to receive information’ as well as the right to speak. It ruled that consumers have a strong First Amendment interest in the free flow of information about goods and services available in the marketplace and that any state regulation must support a substantial interest.
Central Hudson Gas & Electric v. Public Service Commission is the watershed case that established the primary test for evaluating the constitutionality of commercial speech regulations. In this landmark decision, the U.S. Supreme Court held that the regulation issued by the Public Service Commission of the State of New York, which reaches all promotional advertising regardless of the impact of the touted service on overall energy use, is more extensive than necessary to further the state’s interest in energy conservation. In addition, it ruled that there must be a showing that a more limited restriction on the content of promotional advertising would not adequately serve the interest of the State. In applying the First Amendment, the U.S. Court rejected the highly paternalistic view that the government has complete power to suppress or regulate commercial speech.
Central Hudson provides a four-part analysis for evaluating the validity of regulations of commercial speech. To begin with, the commercial speech must ’concern lawful activity and not be misleading’ if it is to be protected under the First Amendment. Next, the asserted governmental interest must be substantial. If both of these requirements are met, it must next be determined whether the state regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.294 (Citations omitted)
The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression, namely: pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security. All other expression is not subject to prior restraint. As stated in Turner Broadcasting System v. Federal Communication Commission, “[T]he First Amendment (Free Speech Clause), subject only to narrow and well understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals.”297 (Citations omitted)Further in his separate concurring opinion, Justice Carpio reiterates this point. Making reference to the norm in the United States, he states that “false or deceptive commercial speech is categorized as unprotected expression that may be subject to prior restraint”.298 Conformably, he also cited Pharmaceutical and Health Care Association of the Philippines and its having “upheld the constitutionality of Section 6 of the Milk Code requiring the submission to a government screening committee of advertising materials for infant formula milk to prevent false or deceptive claims to the public.”
Another fundamental ground for regulating false or misleading advertisement is Section 11(2), Article XVI of the Constitution which states : “The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.”299crallawlibraryAs acknowledged by the majority, “[c]ommercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection.”300crallawlibrary
Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible [447 U.S. 557, 562] dissemination of information. In applying the First Amendment to this area, we have rejected the ’highly paternalistic’ view that government has complete power to suppress or regulate commercial speech. ’[P]eople will perceive their own best interest if only they are well enough informed, and . . . the best means to that end is to open the channels of communication, rather than to close them. . . .’ Id., at 770; see Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 92 (1977). Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all. Bates v. State Bar of Arizona, supra, at 374.302crallawlibrarySince it is valuable only to the extent of its ability to inform, advertising is not at par with other forms of expression such as political or religious speech. The other forms of speech are indispensable to the democratic and republican mooring of the state whereby the sovereignty residing in the people is best and most effectively exercised through free expression. Business organizations are not among the sovereign people. While business organizations, as juridical persons, are granted by law a capacity for rights and obligations, they do not count themselves as among those upon whom human rights are vested.
In concluding that commercial speech enjoys First Amendment protection, we have not held that it is wholly undifferentiable from other forms. There are commonsense differences between speech that does ’no more than propose a commercial transaction,’ Pittsburgh Press Co., v. Human Relations Comm'n, 413 U.S., at 385, and other varieties. Even if the differences do not justify the conclusion that commercial speech is valueless, and thus subject to complete suppression by the State, they nonetheless suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired. The truth of commercial speech, for example, may be more easily verifiable by its disseminator than, let us say, news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else. Also, commercial speech may be more durable than other kinds. Since advertising is the sine qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and forgone entirely.It follows, therefore, that the state may validly suppress commercial speech that fails to express truthful and accurate information. As emphasized in Central Hudson:305crallawlibrary
Attributes such as these, the greater objectivity and hardiness of commercial speech, may make it less necessary to tolerate inaccurate statements for fear of silencing the speaker. Compare New York Times Co. v. Sullivan, 376 U.S. 254 (1964), with Dun & Bradstreet, Inc. v. Grove, 404 U.S. 898 (1971). They may also make it appropriate to require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive. Compare Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), with Banzhaf v. FCC, 132 U.S. App. D.C. 14, 405 F.2d 1082 (1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969). Cf. United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924) (’It is not difficult to choose statements, designs and devices which will not deceive’). They may also make inapplicable the prohibition against prior restraints. Compare New York Times Co. v. United States, 403 U.S. 713 (1971), with Donaldson v. Read Magazine, 333 U.S. 178, 189-191 (1948); FTC v. Standard Education Society, 302 U.S. 112 (1937); E. F. Drew & Co. v. FTC, 235 F.2d 735, 739-740 (CA2 1956), cert. denied, 352 U.S. 969 (1957).304 (Emphasis supplied)
The First Amendment’s concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, Friedman v. Rogers, supra, at 13, 15-16; Ohralik v. Ohio State Bar Assn., supra, at 464-465, or [447 U.S. 557, 564] commercial speech related to illegal activity, Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388 (1973).Section 4(c) (3) of the Rep. Act No. 10175 refers only to commercial speech since it regulates communication that advertises or sells products or services. These communications, in turn, proposes only commercial or economic transactions. Thus, the parameters for the regulation of commercial speech as articulated in the preceding discussions are squarely applicable.
If the communication is neither misleading nor related to unlawful activity, the government’s power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State’s goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.306crallawlibrary
The term “spam,” as applied to unsolicited commercial email and related undesirable online communication, is derived from a popular Python sketch set in a cafe that includes the canned meat product SPAM in almost every dish. As the waitress describes the menu with increasing usage of the word “spam,” a group of Vikings in the cafe start singing, “Spam, spam, spam, spam, spam,” drowning out all other communication with their irrelevant repetitive song.307crallawlibrarySpam is typified by its being unsolicited and repetitive as well as by its tendency to drown out other communication. Compared with other forms of advertising, spam has been distinguished as a negative externality. This means that it imposes upon a party a cost despite such party’s not having chosen to engage in any activity that engenders such cost. Thus:chanRoblesVirtualawlibrary
How does spam differ from legitimate advertising? If you enjoy watching network television, using a social networking site, or checking stock quotes online, you know that you will be subjected to advertisements, many of which you may find relevant or even annoying. Google, Yahoo!, Microsoft, Facebook, and others provide valuable consumer services, such as search, news, and email, supported entirely by advertising revenue. While people may resent advertising, most consumers accept that advertising is a price they pay for access to content and services that they value. By contrast, unsolicited commercial email imposes a negative externality on consumers without any market-mediated benefit, and without the opportunity to opt-out.308crallawlibraryThe noxious effects of spam are clearly demonstrable. Any email user knows the annoyance of having to sift through several spam messages in a seemingly never ending quest to weed them out. Moreover, while certain spam messages are readily identifiable, a significant number are designed (or disguised) in such a way as to make a user think that they contain legitimate content.
Blacklists gradually made it impossible for spammers to use their own servers (or others’ open relay servers) with fixed IP addresses. Spammers responded with a “Whack-a-Mole” strategy, popping up with a new computer IP address every time the old one got shut down. This strategy was observed and named as early as 1996, and eventually became considerably cheaper with another major innovation in spam: the botnet.Spam’s capacity to deceive recipients through false and misleading headers, content, and senders likewise makes it a viable means for phishing and identity theft, thereby enabling spammers to gain control of user accounts (e.g., online banking, social networking). This is demonstrated by the case of Jeffrey Brett Goodin, the first person to be convicted under the United States’ Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (more briefly and popularly known as the CAN-SPAM Act). Goodin was found guilty of sending emails to users of America Online (AOL). Posing as someone from AOL’s billing department, his emails directed users to go to websites operated by Goodin himself. On the pretense that information was necessary to prevent the termination of their AOL services, these websites prompted users to supply personal and credit card information. This, in turn, enabled Goodin to engage in fraudulent transactions.313crallawlibrary
A botnet is a network of “zombie” computers infected by a piece of malicious software (or “malware”) designed to enslave them to a master computer. The malware gets installed in a variety of ways, such as when a user clicks on an ad promising “free ringtones.” The infected computers are organized in a militaristic hierarchy, where early zombies try to infect additional downstream computers and become middle managers who transmit commands from the central “command and control” servers down to the frontline computers
The first spamming botnets appeared in 2003. Static blacklists are powerless against botnets. In a botnet, spam emails originate from tens of thousands of IP addresses that are constantly changing because most individual consumers have their IP addresses dynamically allocated by Dynamic Host Control Protocol (DHCP). Dynamic blacklisting approaches have since been developed; Stone-Gross, Holz, Stringhini, and Vigna (2011) document that 90 percent of zombie computers are blacklisted before the end of each day. However, if the cable company assignsa zombie computer a new IP address each day, that computer gets a fresh start and can once again successfully send out spam.312crallawlibrary
“Section 4. No law shall be passed abridging the freedom of speech, of expression or of the press x x x”Rather than act with tempered but decisive vigilance for the protection of these rights, we have precariously perched the freedoms of our people on faith that those who are powerful and influential will not use the overly broad provisions that prohibit libel, cyber libel, and cybersex against their interests. We have exposed those that rely on our succor to the perils of retaliation because we stayed our hand in declaring libel provisions as unconstitutional. By diminishing the carefully drawn jurisprudential boundaries of what is obscene and what is not, we have allowed the state to unleash the dominant patriarchal notions of “lascivious” to police sexual expression.
(a) | The entire Section 19 or the “take down” provision; |
(b) | The entire Section 4(c)(4) on cyber libel as well as Articles 353, 354, and 355 on libel of the Revised Penal Code; |
(c) | The entire Section 4(c)(1) on cybersex; |
(d) | Section 5 as it relates to Sections 4(c)(1) and 4(c)(4); |
(e) | Section 6 as it increases the penalties to Sections 4(c)(1) and 4(c)(4); |
(f) | Section 7 as it allows impermissibly countless prosecution of Sections 4(c)(1) and 4(c)(4); and |
(g) | Section 12 on warrantless real-time traffic data surveillance. |
Endnotes:
1 Rep. Act No. 10175, sec. 1. The law was the product of Senate Bill No. 2796 and House Bill No. 5808.
2 Consti., art. VIII, sec. 1 which provides the following:chanRoblesVirtualawlibrary
Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of Government.
3 Consti., art. VIII, sec. 1.
4 Consti., art. VIII, sec. 1.
5Tanada v. Cuenco, G.R. No. L-10520, 100 Phil. 1101 (1957) [Per J. Concepcion, En Banc].
6Philippine Association of Colleges and Universities v. Secretary of Education, 97 Phil. 806, 809 (1955) [Per J. Bengzon, En Banc].
7Levy Macasiano v. National Housing Authority, G.R. No. 107921, July 1, 1993, 224 SCRA 236, 242 [Per CJ Davide, Jr., En Banc].
8Angara v. Electoral Commission, 63 Phil. 139, 158 (1936) [Per J. Laurel, En Banc].
9Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010, 632 SCRA 146, 176 [Per J. Carpio-Morales, En Banc], citing Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91 (2007) [Per J. Tinga, Second Division].
10 499 Phil. 281 (2005) [Per C.J. Panganiban, En Banc].
11 Id. at 304-305.
12 G.R. No. 187883, June 16, 2009, 589 SCRA 356 [Per C.J. Puno, En Banc].
13 Id. at 357-358.
14 63 Phil. 139 (1936) [Per J. Laurel, En Banc].
15 Id. at 158.
16 G.R. No. 204603, September 24, 2013 [Per J. Perlas-Bernabe, En Banc].
17 Id.
18Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010, 632 SCRA 146, 176 [Per J. Carpio-Morales, En Banc].
19 Id. at 179.
20 D. MACLEAN, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About Internet Governance’, Background Paper for the ITU Workshop on Internet Governance, Geneva, February 26-27, 2004, 8 <http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-internet-governance-background.pdf> (visited October 16, 2013).
21 ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet> (visited October 16, 2013).
22 'Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, <http://www.unodc.org/documents/commissions/CCPCJ_session22/13 80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).
23 Id.
24 ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet> (visited October 16, 2013).
25 Id.cralawred
26 Id. at 3.
27 Id.
28 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 282 <http://www.unodc.org/documents/commissions/CCPCJ_session22/13-80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).
29 ‘Brief History of the Internet’, p. 4 <http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet> (visited October 16, 2013).
30 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 278 <http://www.unodc.org/documents/commissions/CCPCJ_session22/13-80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).
31 Id.
32 Id. at 279.
33 Id.
34 Id. Government or state-run.
35 Id.
36 Id.
37 Id. at 282.
38 Id. at 280.
39 Some call this “generativity”, i.e. “a system’s capacity to produce unanticipated change through unfiltered contributions from broad and varied audiences.” J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 70 (2008).
40 J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT (2008).
41 ‘Brief History of the Internet’ <http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet> (visited October 16, 2013).
42 D. Maclean, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About Internet Governance’, Background Paper for the ITU Workshop on Internet Governance, Geneva, February 26-27, 2004, 8 <http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-internet-governance-background.pdf> (visited October 16, 2013).
43 ‘‘Measuring the Information Society 2012’, International Telecommunication Union, 2012, Geneva, Switzerland, 6-7 <http://www.itu.int/en/ITU-D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf> (visited October 16, 2013). The International Telecommunication Union (ITU) is the United Nations’ specialized agency for information and communication technologies (ICTs).
44 Id. at 10.
45 “In the ‘Internet of things,’ objects such as household appliances, vehicles, power and water meters, medicines or even personal belongings such as clothes, will be capable of being assigned an IP address, and of identifying themselves and communicating using technology such as RFID and NFC.” ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 2 <http://www.unodc.org/documents/commissions/CCPCJ_session22/13-80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).
46 Id.
47 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG International 2014, 2 <http://www.kpmg.com/Global/en/IssuesAndInsights/ArticlesPublications/Documents/cyber-crime.pdf> (visited October 16, 2013).
48 The Global Internet User Survey is “[a] worldwide survey of more than 10,000 Internet users in 20 countries conducted by the Internet Society revealed attitudes towards the Internet and user behavior online. The Global Internet User Survey is one of the broadest surveys of Internet user attitudes on key issues facing the Internet. This year’s survey covered areas such as how users manage personal information online, attitudes toward the Internet and human rights, censorship, and the potential for the Internet to address issues such as economic development and education.” The results are available at <https://www.Internetsociety.org/news/global-Internet-user-survey-reveals-attitudes-usage-and-behavior> (visited October 16, 2013). See also ‘Global Internet User Survey 2012’ <https://www.Internetsociety.org/sites/default/files/GIUS2012-GlobalData-Table-20121120_0.pdf> (visited October 16, 2013).
49 ‘Measuring the Information Society 2012’, International Telecommunication Union, 2012, Geneva, Switzerland, 7 <http://www.itu.int/en/ITU-D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf> (visited October 16, 2013).
50 Id.
51 Id. at 10.
52 ‘Global Internet User Survey 2012’ <https://www.Internetsociety.org/sites/default/files/GIUS2012-GlobalData-Table-20121120_0.pdf> (visited October 16, 2013).
53 Id.
54 ‘The State of Broadband 2012: Achieving Digital Inclusion for All’, Report prepared by the Broadband Commission for Digital Development, September 2012, 23 <http://www.broadbandcommission.org/documents/bb-annualreport2012.pdf> (visited October 16, 2013).
55 As cited by the Broadband Commission for Digital Development in ‘The State of Broadband 2012: Achieving Digital Inclusion for All’. The Broadband Commission was set up by the ITU and the United Nations Educational, Scientific and Cultural Organization (UNESCO) pursuant to the Millennium Development Goals (MDGs), 78 <http://www.broadbandcommission.org/documents/bb-annualreport2012.pdf> (visited October 16, 2013).
56 J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 96-97 (2008).
57 “The term is said to have been coined in 1991 by D. James Bidzos, the then-president of RSA Data Security, when he said that the government’s digital signature standard provided ‘no assurance that foreign governments cannot break the system, running the risk of a digital Pearl Harbor.’ x x x The term has since become prominent in public debate, being employed most notably by former member of the National Security Council Richard A. Clarke.” J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 97 and 275 (2008).
58 D. Maclean, ‘Herding Schrödinger’s Cats: Some Conceptual Tools For Thinking About Internet Governance’, Background Paper for the ITU Workshop on Internet Governance, Geneva, February 26-27, 2004, 8 <http://www.itu.int/osg/spu/forum/intgov04/contributions/itu-workshop-feb-04-internet-governance-background.pdf> (visited October 16, 2013).
59 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 5 <http://www.unodc.org/documents/commissions/CCPCJ_session22/13-80699_Ebook_2013_study_CRP5.pdf> (visited October 16, 2013).
60 Id. at 6-7.
61 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG International 2014, 3 (visited October 16, 2013), citing National insecurity, Information Age, January 26, 2011 and Stuxnet was about what happened next, FT.com, February 16, 2011.
62 “In 1994, the United Nations Manual on the Prevention and Control of Computer Related Crime noted that fraud by computer manipulation; computer forgery; damage to or modifications of computer data or programs; unauthorized access to computer systems and service; and unauthorized reproduction of legally protected computer programs were common types of computer crime.” ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 5 (visited October 16, 2013).
63 ‘Love bug hacker is Pandacan man, 23’ <http://www.philstar.com/networks/83717/love-bug-hacker-pandacan-man-23> (visited October 16, 2013).
64 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG International 2014, 2 (visited October 16, 2013).
65 Id. at 2, citing Cyber attacks: from Facebook to nuclear weapons, The Telegraph, February 4, 2011; A Good Decade for Cybercrime, McAfee, 2010; Spamhaus on March 10, 2011; PCMeg.com on March 10, 2011; and The cost of cybercrime, Detica, February 2011.
66 ‘McAfee Q4 Threat Report Identifies New Attacks on Mobile Devices; Malware Growth at All-Time High’ <http://www.mcafee.com/mx/about/news/2011/q1/20110208-01.aspx> (visited October 16, 2013).
67 Id.
68 ‘Issues Monitor: Cyber Crime--A Growing Challenge for Governments’, KPMG International 2014, 6 (visited October 16, 2013)
69 Id., citing The cost of cybercrime, Detica, February 2011.
70 Id., citing Cybercrime in Germany on the rise, DW World, September 7, 2010.
71 Id., citing The cost of cybercrime, Cabinet Office (UK), February 2011.
72 M. Ziewitz and I. Brown, A Prehistory of Internet Governance, in RESEARCH HANDBOOK ON GOVERNANCE OF THE INTERNET 27 (2013). Available at <http://ssrn.com/abstract=1844720 (visited October 16, 2013).
73 Id.
74 Id.
75 Id.
76 Johnson, D. R. and D. Post (1995), 'Law and borders: The rise of law in cyberspace', Stan. L. Rev.,48, 1367, cited in M. Ziewitz and I. Brown, A Prehistory of Internet Governance, in RESEARCH HANDBOOK ON GOVERNANCE OF THE INTERNET 27 (2013). Available at <http://ssrn.com/abstract=1844720 (visited October 16, 2013).
77 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 3-4 (visited October 16, 2013).
78 R. H. Weber, ‘Accountability in Internet Governance’, University of Zurich Professor, 154 <http://ijclp.net/files/ijclp_web-doc_8-13-2009.pdf> (visited October 16, 2013).
79 J. L. ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT (2008).
80 Id. at 3.
81 Id. at 70.
82 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 51 (visited October 16, 2013).
83 Id. at 52.
84 Id. at 51-52.
85 Id. at 51.
86 Id. at 53.
87 Id. at 11-12.
88 Id. at 12.
89 Id. at 64.
90 Id.
91 Id. at 67.
92 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 64 (visited October 16, 2013).
93 African Union, 2012. Draft Convention on the Establishment of a Legal Framework Conducive to Cybersecurity in Africa.
94 Common Market for Eastern and Southern Africa (COMESA), 2011. Cybersecurity Draft Model Bill.
95 The Commonwealth, 2002. (i) Computer and Computer Related Crimes Bill and (ii) Model Law on Electronic Evidence.
96 Commonwealth of Independent States, 2001. Agreement on Cooperation in Combating Offences related to Computer Information.
97 Council of Europe, 2001. Convention on Cybercrime and Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.
98 Council of Europe, 2007. Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.
99 Economic Community of West African States (ECOWAS), 2009. Draft Directive on Fighting Cybercrime within ECOWAS.
100 European Union, 2005. Council Framework Decision 2002/222/JHA on attacks against information systems.
101 European Union, 2010. Proposal COM (2010) 517 final for a Directive of the European Parliament and of the Council on attacks against information systems and repealing Council Framework Decision 2005/222/JHA.
102 European Union, 2001. Council Framework Decision 2001/413/JHA combating fraud and counterfeiting of non-cash means of payment.
103 European Union, 2011. Directive 2011/92/EU of the European Parliament and of the Council on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA and European Union, 2002. Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector.
104 International Telecommunication Union (ITU)/Caribbean Community (CARICOM)/Caribbean Telecommunications Union (CTU), 2010. (i) Model Legislative Texts on Cybercrime/e-Crimes and (ii) Electronic Evidence.
105 League of Arab States, 2010. Arab Convention on Combating Information Technology Offences.
106 League of Arab States, 2004. Model Arab Law on Combating Offences related to Information Technology Systems.
107 Shanghai Cooperation Organization, 2010. Agreement on Cooperation in the Field of International Information Security.
108 United Nations, 2000. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography.
109 ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 12 (visited October 16, 2013).
110 The United Nations Convention Against Corruption “does not define ‘corruption’, but rather obliges States Parties to criminalize a specific set of conduct which can be more effectively described.” ‘Comprehensive Study on Cybercrime’ prepared by United Nations Office on Drugs and Crime for the Intergovernmental Expert Group on Cybercrime, February 2013, 12 (visited October 16, 2013).
111 Id.
112 Id. at 16.
113 Id.
114 Id.
115 Id.
116 Id. at 70.
117 Id.
118 African Union, 2012. Draft Convention on the Establishment of a Legal Framework Conducive to Cybersecurity in Africa.
119 Common Market for Eastern and Southern Africa (COMESA), 2011. Cybersecurity Draft Model Bill.
120 The Commonwealth, 2002. (i) Computer and Computer Related Crimes Bill and (ii) Model Law on Electronic Evidence.
121 Commonwealth of Independent States, 2001. Agreement on Cooperation in Combating Offences related to Computer Information.
122 Council of Europe, 2001. Convention on Cybercrime and Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.
123 Council of Europe, 2007. Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.
124 Economic Community of West African States (ECOWAS), 2009. Draft Directive on Fighting Cybercrime within ECOWAS.
125 European Union, 2005. Council Framework Decision 2002/222/JHA on attacks against information systems.
126 European Union, 2010. Proposal COM (2010) 517 final for a Directive of the European Parliament and of the Council on attacks against information systems and repealing Council Framework Decision 2005/222/JHA.
127 European Union, 2001. Council Framework Decision 2001/413/JHA combating fraud and counterfeiting of non-cash means of payment.
128 European Union, 2011. Directive 2011/92/EU of the European Parliament and of the Council on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA and European Union, 2002. Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector.
129 International Telecommunication Union (ITU)/Caribbean Community (CARICOM)/Caribbean Telecommunications Union (CTU), 2010. (i) Model Legislative Texts on Cybercrime/e-Crimes and (ii) Electronic Evidence.
130 League of Arab States, 2010. Arab Convention on Combating Information Technology Offences.
131 League of Arab States, 2004. Model Arab Law on Combating Offences related to Information Technology Systems.
132 Shanghai Cooperation Organization, 2010. Agreement on Cooperation in the Field of International Information Security.
133 United Nations, 2000. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography.
134 400 Phil. 904 (2002) [Per Curiam, En Banc].
135See the Separate Opinion of Justice Mendoza in Cruz v. Secretary of Environment and Natural Resources, 400 Phil. 904,1092 (2002) [Per Curiam, En Banc].
136See the Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, 421 Phil. 290, 430-432 (2001) [Per J. Bellosillo, En Banc] citing Gooding v. Wilson, 405 U.S. 518, 521, 31 L.Ed.2d 408, 413 (1972); United States v. Salerno, 481 U.S. 739, 745, 95 L.Ed.2d 697, 707 (1987); People v. De la Piedra, 403 Phil. 31 (2001); Broadrick v. Oklahoma, 413 U.S. 601, 612-613, 37 L. Ed. 2d 830, 840-841 (1973); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L.Ed.2d 362, 369 (1982); United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529 (1960); Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193 (1912).
137 522 Phil. 705 (2006) [Per J. Sandoval-Gutierrez, En Banc].
138David v. Arroyo, 522 Phil. 705 (2006) [Per J. Sandoval-Gutierrez, En Banc] citing the Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, 421 Phil. 290, 430-432 (2001) [Per J. Bellosillo, En Banc]; Broadrick v. Oklahoma, 413 U.S. 601 (1973); Younger v. Harris, 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971); United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989).
139 479 Phil. 265 (2004) [Per J. Panganiban, En Banc].
140 576 Phil. 357 (2008) [Per J. Chico-Nazario, En Banc].
141 573 SCRA 639 (2008) [Per J. Chico-Nazario, En Banc].
142Romualdez v. Commission on Elections, G.R. No. 167011, December 11, 2008, 573 SCRA 639, 645 [Per J. Chico-Nazario, En Banc].
143 G.R. No. 178552, October 5, 2010, 632 SCRA 146 [Per J. Carpio-Morales, En Banc].
144Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010, 632 SCRA 146, 186-189 [Per J. Carpio-Morales, En Banc], citing David v. Macapagal-Arroyo, 489 SCRA 160, 239 (2006) [Per J. Sandoval-Gutierrez, En Banc]; Romualdez v. Commission on Elections, 573 SCRA 639 (2008) [Per J. Chico-Nazario, En Banc]; Estrada v. Sandiganbayan, Phil. 290 (2001) [Per J. Bellosillo, En Banc]; Consti., art. III, sec. 4; People v. Siton, 600 SCRA 476, 485 (2009) [Per J. Ynares-Santiago, En Banc]; Virginia v. Hicks, 539 U.S. 113, 156 L. Ed. 2d 148 (2003); Gooding v. Wilson, 405 U.S. 518, 31 L. Ed 2d 408 (1972).
145 151-A Phil. 656 (1973) [Per J. Makasiar, En Banc].
146Philippine Blooming Mills Employment Organization et al v. Philippine Blooming Mills, Co. Inc., 151-A Phil. 656, 674-676 (1973) [Per J. Makasiar, En Banc].
147 569 Phil. 155 (2008) [Per C.J. Puno, En Banc].
148Chavez v. Gonzales, 569 Phil. 155, 197-198 (2008) [Per C.J. Puno, En Banc].
149Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010, 632 SCRA 146, 185 [Per J. Carpio-Morales, En Banc].
150 344 U.S. 183 (1952).
151Wieman v. Updegraff, 344 U.S. 183, 195 (1952).
152 376 U.S. 254 (1964).
153New York Times v. Sullivan, 376 U.S. 254, 300-301(1964).
154 371 U.S. 415 (1963).
155National Association for the Advancement of Colored People v. Button, 371 U.S. 415, 431-433 (1963).
156 569 Phil. 155 (2008) [Per C.J. Puno, En Banc].
157Chavez v. Gonzales, 569 Phil. 155, 219-221 (2008) [Per C.J. Puno, En Banc].
158 Ponencia, J. Abad, p. 24.
159 13 Phil. 690 (1918) [Per J. Johnson].
160 “An Act defining the law of libel and threats to publish a libel, making libel and threats to publish a libel misdemeanors, giving a right of civil action therefor, and making obscene or indecent publications misdemeanors.” This was repealed by the Revised Penal Code via Article 367, Repealing Clause.
161U.S. v. Bustos, 13 Phil. 690, 698 (1918) [Per J. Johnson].
162New York Times v. Sullivan, 376 U.S. 254 (1964).
163See Lopez v. Court of Appeals, 145 Phil. 219 (1970) [Per J. Fernando, En Banc]; Mercado v. Court of First Instance, 201 Phil. 565 (1982) [Per J. Fernando, Second Division]; and Adiong vs. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712 [Per J. Gutierrez, En Banc].
164 Actual malice may mean that it was with the “knowledge that it was false or with reckless disregard of whether it was false or not.” See New York Times v. Sullivan, 376 U.S. 254, 268 (1964).
165New York Times v. Sullivan, 376 U.S. 254, 268 (1964).
166 Id. at 281-282.
167 Id. at 269-273.
168 243 Phil. 1007 (1988) [Per J. Feliciano, En Banc].
169 361 Phil. 1 (1999) [Per J. Bellosillo, Second Division].
170Ayer Productions Pty. Ltd and McElroy & McElroy Film Productions v. Hon. Ignacio M. Capulong, 243 Phil. 1007, 1018-1019 (1988) [Per J. Feliciano, En Banc].
171 Id. at 1023-1024, citing Professors William Lloyd Prosser and W. Page Keeton, Prosser and Keeton on Torts, 5th ed. at 859-861 (1984).
172 373 Phil. 238 (1999) [Per J. Mendoza, En Banc].
173 Id. at 250-255.
174 508 Phil. 193 (2005) [Per J. Tinga, Second Division].
175 Id. at 221-222.
176 G.R. No. 164437, May 15, 2009, 588 SCRA 1 [Per J. Quisumbing, Second Division].
177Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, May 15, 2009, 588 SCRA 1, 15 [Per J. Quisumbing, Second Division].
178Estrada v. Sandiganbayan, 421 Phil. 290, 353 (2001) [Per J. Bellosillo, En Banc] citing NAACP v. Alabama, 377 U.S. 288, 307, 12 L.Ed.2d 325, 338 (1958); Shelton v. Tucker, 364 U.S. 479, 5 L.Ed.2d 231 (1960).
179 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.
180 Revised Penal Code, Art. 353.
181 Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.
182 Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.
183 Art. 21. Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.
184 Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:chanRoblesVirtualawlibrary
(1) Prying into the privacy of another’s residence;
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.
See also Justice Carpio’s dissenting opinion in MVRS Publications, Inc., v. Islamic Da’wah Council of the Philippines, Inc., 444 Phil. 230 (2004) [Per J. Bellosillo, En Banc]. Justice Carpio was of the view that the defamatory article published in the case fell under Article 26 of the Civil Code.
185See Tucker, C. and A. Matthews, Social Networks, Advertising and Antitrust, in GEORGE MASON LAW REVIEW, 19 Geo. Mason L. Rev. 1211, 1214.
186See <http://www2.uncp.edu/home/acurtis/NewMedia/SocialMedia/SocialMediaHistory.html> (visited February 19, 2014).
187See <http://im.about.com/od/imbasics/a/imhistory_3.htm> (visited February 19, 2014).
188See <http://www.friendsreunited.com/About> (visited February 19, 2014).
189 D. Garcia, P. Mavrodiev, and F. Schweitzer, Social Resilience in Online Communities: The Autopsy of Friendster. Available at <http://arxiv.org/pdf/1302.6109v1.pdf> (visited February 19, 2014).
190See <http://www.huffingtonpost.com/2011/06/29/myspace-history-timeline_n_887059.html#s299557&title=July_2006_Number> (visited February 19, 2014).
191See S. Davis, STUDENT COMMENT: Social Media Activity & the Workplace: Updating the Status of Social Media, 39 Ohio N.U.L. Rev. 359, 361.
192See <http://venturebeat.com/2013/09/16/how-twitter-plans-to-make-its-750m-users-like-its-250m-real-users/> (visited February 19, 2014).
193See <http://abcnews.go.com/Business/twitter-ipo-filing-reveals-500-million-tweets-day/story?id=20460493> (visited February 19, 2014).
194See <http://sourcedigit.com/4023-instagram-timeline-history/> (visited February 19, 2014).
195 Guingguing v. Court of Appeals, 508 Phil. 193 (2005) [Per J. Tinga, Second Division].
196 Guingguing v. Court of Appeals, 508 Phil. 193, 204-206 (2005) [Per J. Tinga, Second Division], citing New York Times v. Sullivan, 376 U.S. 254, 300-301(1964).
197 Id. at 207.
198 376 U.S. 254 (1964).
199 New York Times v. Sullivan, 376 U.S. 254, 281-282 (1964).
200 See Guingguing v. Court of Appeals, 508 Phil. 193, 209-211 (2005) [Per J. Tinga, Second Division], citing Garrison v. Louisiana, 379 U.S. 64 (1964) and Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-164 (1967), CJ Warren, concurring.
201 D. G. K. Carreon, A Long History, in LIBEL AS POLITICS 70 (2008).
202 J. M. I. Diokno, A Human Rights Perspective, in LIBEL AS POLITICS 17-18 (2008).
203 D. G. K. Carreon, A Long History, in LIBEL AS POLITICS 71 (2008).
204 18 Phil. 1 (1910) [Per J. Johnson].
205 J. M. I. Diokno, A Human Rights Perspective, in LIBEL AS POLITICS 18 (2008) citing People v. Del Rosario, 86 Phil. 163 (1950).
206 These include cases that resolved the issue of guilt for the offense as well as cases that tackled procedural or jurisdictional issues and remanded the main issue to the trial court.
207 See Magno v. People, 516 Phil. 72 (2006) [Per J. Garcia, Second Division]; See also MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, Inc., 444 Phil. 230 (2004) [Per J. Bellosillo, En Banc]; Villamar-Sandoval v. Cailipan, G.R. No. 200727, March 4, 2013, 692 SCRA 339 (2013) [Per J. Perlas-Bernabe, Second Division].
208 R. Pangalangan, Libel as Politics, in Libel as Politics 11 (2008). Note, however, our ruling in Crespo v. Mogul, 235 Phil. 465 (1987), where we said that, “it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. x x x The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court.”
209 See Brillante v. Court of Appeals, 483 Phil. 568 (2004) [Per J. Tinga, Second Division]; Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437, May 15, 2009, 588 SCRA 1 [Per J. Quisumbing, Second Division].
210 See Yuchengco v. Manila Chronicle Publishing Corporation, G.R. No. 184315, November 25, 2009, 605 SCRA 684 [Per J. Chico-Nazario, Third Division]; Bonifacio v. Regional Trial Court of Makati, Branch 149, G.R. No. 184800, May 5, 2010, 620 SCRA 268 [Per J. Carpio-Morales, First Division]. This case involved allegedly libelous articles published in websites.
211 See Buatis v. People, 520 Phil. 149 (2006) [Per J. Austria-Martinez, First Division]; See also Tulfo v. People, 587 Phil. 64 (2008) [Per J. Velasco, Jr., Second Division]; and Fortun v. Quinsayas, G.R. No. 194578, February 13, 2013, 690 SCRA 623 [Per J. Carpio, Second Division]. This case originated as a special civil action for contempt involving Atty. Sigfrid A. Fortun and several media outfits. However, this court expanded the concept of public figures to lawyers, stating that lawyers of high-profile cases involving public concern become public figures.
212 See Fermin v. People, G.R. No. 157643, March 28, 2008, 550 SCRA 132 [Per J. Nachura, Third Division]; Bautista v. Cuneta-Pangilinan, G.R. No. 189754, October 24, 2012, 684 SCRA 521 [Per J. Peralta, Third Division].
213 See Banal III v. Panganiban, 511 Phil. 605 (2005) [Per J. Ynares-Santiago, First Division]. See also Insular Life Assurance Company, Limited v. Serrano, 552 Phil. 469 (2007) [Per C.J. Puno, First Division].
214 See Lagaya v. People, G.R. No. 176251, July 25, 2012, 677 SCRA 478 [Per J. Del Castillo, First Division]; Lopez v. People, G.R. No. 172203, February 14, 2011 642 SCRA 668 [Per J. Del Castillo, First Division]; Binay v. Secretary of Justice, 532 Phil. 742 (2006) [Per J. Ynares-Santiago, First Division]; See also Jalandoni v. Drilon, 383 Phil. 855 (2000) [Per J. Buena, Second Division]; Macasaet v. Co, Jr., G.R. No. 156759, June 5, 2013, 697 SCRA 187; Tulfo v. People, 587 Phil. 64 (2008) [Per J. Velasco, Jr., Second Division].
215 See Yambot v. Tuquero, G.R. No. 169895, March 23, 2011, 646 SCRA 249 [Per J. Leonardo-De Castro, First Division].
216Guingguing v. Court of Appeals, 508 Phil. 193, 214 (2005), citing Garrison, 379 U.S. 64 (1964). This court in Guingguing said that:chanRoblesVirtualawlibraryLest the impression be laid that criminal libel law was rendered extinct in regards to public officials, the Court made this important qualification in Garrison:chanRoblesVirtualawlibrary217See also Justice Carpio’s dissenting opinion in MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, Inc. 444 Phil. 230 (2004) [Per J. Bellosillo, En Banc] where he opined that the defamatory article published in the case falls under Article 26 of the Civil Code.
The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once with odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.
Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:chanRoblesVirtualawlibrary
(1) Prying into the privacy of another’s residence;
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.
218 Globe Mackay Cable and Radio Corp. v. Court of Appeals, 257 Phil. 783, 783-785 (1989) [Per J. Cortes, Third Division].
219 Philippine Journalists, Inc. (People’s Journal) v. Thoenen, 513 Phil. 607, 625 (2005) [Per J. Chico-Nazario, Second Division], citing Garrison v. Louisiana, 379 US 64 (1964), which in turn cited Justice Stewart’s concurring opinion in Rosenblatt v. Baer, 383 US 75 (1966).
220 Ponencia, J. Abad, 17-18. Citations omitted.
221 Id. at 18.
222Pita v. Court of Appeals, 258-A Phil. 134, 146 (1989) [Per J. Sarmiento, En Banc], cited in Fernando v. Court of Appeals, 539 Phil. 407, 416 (2006) [Per J. Quisumbing, Third Division].
223Id., citing Kingsley Pictures v. N.Y. Regents, 360 US 684 (1959). The case involved the movie version in Lady Chatterley’s Lover.
224 Id. at 146.
225 Id. at 147.
226 Gonzales v. Kalaw-Katigbak, 222 Phil. 225 (1985) [Per C.J. Fernando, En Banc].
227 354 US 476, 487 (1957).
228 Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 232 (1985).
229 413 US 15 (1973).
230 Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc], cited in Fernando v. Court of Appeals, 539 Phil. 407, 417 (2006) [Per J. Quisumbing, Third Division].
231 Id., cited in Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) and cited in Fernando v. Court of Appeals, 539 Phil. 407, 417 (2006).
232 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc].
233 539 Phil. 407, 417 [Per J. Quisumbing, Third Division].
234 G.R. No. 164785 and G.R. No. 165636, April 29, 2009, 587 SCRA 79 [Per J. Velasco, En Banc].
235 Id. at 101.
236 Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 232 (1985) [Per C.J. Fernando, En Banc].
237 Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc],
238 Rep. Act No. 10175, sec. 4(c)(1).
239 Pita v. Court of Appeals, 258-A Phil. 134, 145 (1989) [Per J. Sarmiento, En Banc],
240 Rep. Act No. 10175, sec. 4(c)(1).
241 354 US 476 (1957).
242 Id.
243 Gonzales v. Kalaw-Katigbak, 222 Phil. 225, 233 (1985) [Per C.J. Fernando, En Banc].
244See C. MacKinnon, ONLY WORDS (1993).
245 Id. at 14.
246 Id. at 14-15, 89-90.
247 Id. at 14-15, 88-91. Catharine MacKinnon and Andrea Dworkin proposed a law that defines pornography as “graphic sexually explicit materials that subordinate women through pictures or words,” p. 22.
248 Id. at 9.
249 Id. at 87-88.
250 Id at 87. See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in DOING ETHICS 303 (2009).
251See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in Doing Ethics 301.
252See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in Doing Ethics 309.
253See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in Doing Ethics.
254See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in Doing Ethics 300-302.
255See C. MacKinnon, ONLY WORDS (1993); See also C. MacKinnon, From Pornography, Civil Rights, and Speech, in Doing Ethics 301-302, 307.
256 Baker, E. C. REVIEW: Of Course, More Than Words. Only Words. Catharine A. MacKinnon. 61 U. Chi. L. Rev. 1181 (1994) 1197.
257 Id.
258 Id.
259 Id.
260 Id. at 1194.
261 Id. at 1197-1211.
262 Id. at 1199.
263 Id. at 1203.
264 Id. at 1204.
265 Id.
266 C. Slobogin, Is the Fourth Amendment Relevant in a Technological Age?, in J. Rosen and B. Wittes, eds., Constitution 3.0, 23 (2011), citing Justice Douglas in Papachristou v Jacksonville, 405 U.S. 156, 164 (1972) and W. H. Rehnquist, Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement?; or Privacy, You’ve Come a Long Way, Baby, 23 Kansas Law Review 1, 9 (1974).
267 G.R. No. 103956, March 31, 1992, 207 SCRA 712.
268 Id. at 719-720.
269 535 Phil. 687 (2006).
270 Id. at 714-715.
271See for instance J. Rosen et al., CONSTITUTION 3.0 FREEDOM AND TECHNOLOGICAL CHANGE (2011).
272See E.C. Baker, ‘Autonomy and Informational Privacy, or Gossip: The Central Meaning of the First Amendment’, (visited February 21, 2014).
273 367 Phil. 703 (1999).
274 Id. at 715.
275 G.R. No. 164815, September 3, 2009, 598 SCRA 41.
276 Id. at 59.
277 259 Phil. 541 (1989).
278 Id. at 549.
279 G.R. No. 95902, February 4, 1992, 205 SCRA 791.
280 Id. at 798.
281 G.R. No. 86218, September 18, 1992, 214 SCRA 63.
282 Id. at 68-69.
283 G.R. No. 105834, February 13, 1995, 241 SCRA 277.
284 Id. at 283-284.
285 G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716.
286 Id. at 728-729.
287 Rep. Act No. 10173, otherwise known as the “Data Privacy Act of 2012.?
288 Session No. 17, September 12, 2011, Fifteenth Congress, Second Regular Session
289 Id. at 279.
290 328 Phil. 893 (1996) [Per J. Puno, En Banc].
291 Id. at 933. “Presently in the United States, the clear and present danger test is not applied to protect low value speeches such as obscene speech, commercial speech and defamation.”
292 561 Phil. 386 (2007) [En Banc].
293 Id. at 449.
294 Id. at 449-450.
295 569 Phil. 155 (2008) [En Banc].
296 Id. at 237.
297 Id.
298 Id. at 244.
299 Id.
300 Page 14 of Justice Roberto Abad’s February 7, 2014 draft.
301Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980) <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=447&invol=557> (visited February 13, 2014).
302 Id.
303Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976) <http://caselaw.lp.findlaw.com/cgi bin/getcase.pl?friend=llrx&navby=volpage&court=us&vol=425&page=765> (visited February 21, 2014).
304 Id.
305Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980) <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=447&invol=557> (visited February 13, 2014).
306 Id. There are contrary opinions, but their reasoning is not as cogent. As explained by Justice Clarence Thomas in his concurring opinion in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996): I do not see a philosophical or historical basis for asserting that ’commercial’ speech is of ’lower value’ than ’noncommercial’ speech. Indeed, some historical materials suggest the contrary.
As noted by Aaron A. Scmoll, referring to the United States Supreme Court Decision in 44 Liquormart,: “While Stevens and several other Justices seemed willing to apply strict scrutiny to regulations on truthful advertising, a majority seemed content to continue down the path Central Hudson created. The strongest reading drawn from 44 Liquormart may be that as to complete bans on commercial speech, the Court will strictly apply Central Hudson so that in those cases, the analysis resembles strict scrutiny.” Schmoll, Aaron A. (1998) ’Sobriety Test: The Court Walks the Central Hudson Line Once Again in 44 Liquormart, but Passes on a New First Amendment Review, ’Federal Communications Law Journal: Vol. 50: Iss. 3, Article 11.
307 Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC PERSPECTIVES, 26(3): 87-110 (2012).
308 Id.
309 ‘The Bad Guys from Outside: Malware’, http://www.ciscopress.com/articles/article.asp?p=1579061&seqNum=4 (visited February 14, 2014).
310 ‘Spam: The Silent ROI Killer’, < http://www.spamhelp.org/articles/d59.pdf> (visited February 14, 2014).
311 Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC PERSPECTIVES, 26(3): 87-110 (2012).
312 Rao, J. M. and D. H. Reiley, The Economics of Spam, JOURNAL OF ECONOMIC PERSPECTIVES, 26(3): 87-110 (2012).
313 ‘California Man Guilty of Defrauding AOL Subscribers, U.S. Says’, (visited February 14, 2014). On spam laws, < http://www.spamlaws.com/aol-phishing.html> (visited February 14, 2014).
314 Rep. Act No. 10175, sec. 4 (c) (3).
315 Rep. Act No. 10175, sec. 4 (c) (3).