Philippines Mulls Suspended Cybercrime Law Restricting Communication

Manila, Philippines – The Philippine Supreme Court has begun to hear and weigh the arguments on the constitutionality of a controversial law listing punishable activities on the internet. Its implementation was suspended last year amid mounting criticism that, among other things, the law curtails freedom of speech and harks the country back to the almost a decade of repressive martial rule in the 1970s.

The oral hearing on the law that was signed in September last year, Republic Act No. 10175, began on 15 January. The second oral hearing was initially scheduled for 22 January, for the government through its Solicitor General to present counter arguments, but at the last minute was moved to 29 January due to the unavailability of the official. The Philippines on the same day announced it would bring a territorial dispute with China over the West Philippine Sea or South China Sea to an international tribunal.

At the first session, the high court heard arguments from representatives of the individuals and civil society groups who filed the 15 petitions against the law. The filing of these petitions prompted the court to issue a 120-day temporary restraining order (TRO) on the law’s implementation on 9 October. The law could take effect after 6 February unless the court extends the suspension or makes a decision on the constitutionality of the law or some of its provisions.

The Supreme Court agreed to discuss with the petitioners the constitutionality of at least five contentious topics in the law for the time being, according to a Supreme Court advisory [pdf].

The first item in the list concerns cyber libel and cyber sex, defined respectively as the “defamation by written words committed using a computer system” and the “willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organ or sexual activity, with the aid of a computer system, for favor or consideration.” The other issues are: the higher penalty imposed for online violations as compared to their offline equivalents; restricting or blocking access to computer data; the collection of traffic data in real time; and punishing internet users for “aiding or abetting” a cybercrime offence.

This moment of legal reflection comes at a time when the use of the internet, particularly social media, is becoming more prevalent in developing countries such as the Philippines and at this time when the United Nations has already upheld the online rights of an individual through the recent UN Human Rights Council resolution on the promotion, protection and enjoyment of human rights on the internet.

Furthermore, the debate also touches on the liability of the users of online intermediaries such as social media platforms Facebook and Twitter whose users very often are not the original creators of content but only assisting the dissemination of those online content.

Lawyer Harry Roque, one of the counsels who argued against the law at the oral hearing, described the law’s provisions on libel and cybersex as both “overbreadth” and “void for vagueness.” He asked the court whether retweets on Twitter and the likes on Facebook could make social media users liable for libel and on whether libelous remarks of readers who commented on blog posts could make the blog owners liable for libel. Roque’s blog account of the oral hearing is here http://harryroque.com/.

The debate also highlights the general liability of online intermediaries, a topic which has long been regarded as controversial worldwide. In the United States, for instance, in the 1998 defamation case of Blumenthal v. Drudge and AOL, the court held that AOL, the internet service provider that hosted and paid for the column of online blogger Matt Drudge, was immune from liability under section 230 of the Communications Decency Act.

Roque said that under the current provisions in the law it is hard to ascertain whether internet service providers, telecommunications and social networking companies could be liable for cybercrime offenses, particularly for libel.

“The Philippines has moved from having the least regulated internet to amongst the most draconian. We have unfortunately opted to join the other oppressive regimes in ASEAN,” Roque told Intellectual Property Watch.

In Southeast Asia, according to tentative results of a survey done by the Association of Southeast Asian Nations (ASEAN) and the United Nations Conference on Trade and Development, only Cambodia, Laos and Malaysia have no cybercrime regulations in the 10 member states of ASEAN.