SC tempers Anti-Cybercrime Act, but Internet libel a go

By Ira Pedrasa,

Posted at Feb 18 2014 01:38 PM | Updated as of Feb 19 2014 03:29 AM

MANILA (UPDATED) - The Supreme Court has declared constitutional Internet libel, but made unconstitutional the all-encompassing power of the Department of Justice to just take down computer data.

In a press conference, SC spokesman Theodore Te said section 4 (c) (4) of the Anti-Cybercime Act, or the provision penalizing libel – is constitutional “with respect to the original author of the post.”

The SC did not allow, however, a penalty for those “who simply receive, post, react to the [message].”

The same decision, penned by Associate Justice Roberto Abad, also declares constitutional section 5, or the aiding and abetting of the commission of cybercrime, in relation to the commission of: Illegal Access, Illegal Interception, Data Interference; System Interference; Misuse of Devices; Cyber-squatting; Computer-related Offenses such as Computer-related Forgery and Computer-related Identity Theft; and Cybersex.

It, however, declared unconstitutional section 5 only in relation to the offenses punished by child pornography, unsolicited commercial communications and libel.

The high court also ruled as unconstitutional section 7 – or the liability under the laws – “as far as it authorizes the prosecution of an offender under both section 4-c-4 (online libel) and Article 353 of the Revised Penal Code.” The latter defines libel as the “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.”

Section 7 is also unconstitutional if it pertains to section 4-c-2 of the law, or the offense of child pornography “for being in violation of the constitutional prohibition of double jeopardy.”

Take-down clause

Section 19 – or the take-down clause – was also declared unconstitutional.

The provision reads: “When a computer data is prima facie found to be in violation of the provisions of this Act, the [Department of Justice] shall issue an order to restrict or block access to such computer data.”

The provision, described by some sectors as the most disturbing, does not require probable cause. It allows the Department of Justice to act as an online censor, with the Justice secretary becoming the most powerful person on the Philippine internet, internet law expert Atty. JJ Disini earlier said.

Spamming won't be penalized?

The SC also slayed section 12, or the “Real-Time Collection of Traffic Data” whereby the “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.”

However, the SC also struck down the punishment against "unsolicited commercial communications" as provided in section 4-c-3 -- or the "transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services."

Te also explained that the earlier temporary restraining order (TRO) issued is already functus officio – or has fulfilled its purpose. As such, “as far as the provisions not declared unconstitutional, the presumption is they’re already enforceable.”