(New York) – A new Philippine “cybercrime” law drastically increases punishments for criminal libel and gives authorities excessive and unchecked powers to shut down websites and monitor online information, Human Rights Watch said today. President Benigno Aquino III signed the Cybercrime Prevention Act of 2012 into law on September 12, 2012.
The law’s criminal penalties for online libel and other restrictions are a serious threat to free expression in the Philippines. Several legal cases have been filed in the Philippines Supreme Court, including for the law to be declared unconstitutional because it violates guarantees to free expression contained in the Philippines constitution and human rights treaties ratified by the Philippines.
“The cybercrime law needs to be repealed or replaced,” said Brad Adams, Asia director. “It violates Filipinos’ rights to free expression and it is wholly incompatible with the Philippine government’s obligations under international law.”
The new law defines several new acts of “cybercrime.” Among the acts prohibited are “cybersex,” online child pornography, illegal access to computer systems or hacking, online identity theft, and spamming.
A section on libel specifies that criminal libel, already detailed in article 355 of the Philippines Revised Penal Code, will now apply to acts “committed through a computer system or any other similar means which may be devised in the future.” The new law drastically increases the penalty for computer-related libel, with the minimum punishment raised twelve-fold, from six months to six years. The maximum punishment is doubled from six to twelve years in prison.
“Anybody using popular social networks or who publishes online is now at risk of a long prison term should a reader – including government officials – bring a libel charge,” Adams said. “Allegedly libelous speech, online or offline, should be handled as a private civil matter, not a crime.”
Human Rights Watch called on the Philippines government to repeal its existing criminal libel law. The Aquino administration has shown little inclination to support legislation pending in the Philippine Congress to decriminalize libel.
Aside from the section on libel, the new law has a provision that grants new powers to the Department of Justice, which on its own and without a warrant, can order the shutdown of any website it finds violating the law. It also authorizes police to collect computer data in real time without a court order or warrant.
The use of criminal defamation laws also has a chilling effect on the speech of others, particularly those involved with similar issues.
When citizens face prison time for complaining about official performance, corruption, or abusive business practices, other people take notice and are less likely to draw attention to such problems themselves, undermining effective governance and civil society.
Several journalists in the Philippines have been imprisoned for libel in recent years, leaving a blot on the country’s record on press freedom. In the case of Davao City radio journalist Alexander Adonis, who was convicted in 2007 of libel and spent two years in prison, the United Nations Human Rights Committee determined that the Philippine government violated article 19 on the right to freedom of expression and opinion of the International Covenant on Civil and Political Rights. The committee called on the Philippine government to decriminalize libel.
“So long as it stands, the new cybercrime law will have a chilling effect over the entire Philippine online community,” Adams said.
The Philippine Cybercrime Prevention Act of 2012 also provides procedural measures to be undertaken by law enforcement authorities mandated by the law to enforce and implement its provisions. To ensure that the technical nature of cybercrime and its prevention is given focus and the procedures involved for international cooperation considered, law enforcement authorities specifically the computer or technology crime divisions responsible for the investigation of cybercrimes are required to submit timely and regular reports, including pre-operation, post-operation and investigation results and such other documents, as may be required, to the Department of Justice (DOJ) for review and monitoring.
The Supreme Court promulgated Administrative Matter (A.M.) No. 17-11-03-SC or the Rule on Cybercrime Warrants (RCW) to respond to the technical requirements of cybercrime prosecution and aid cybercrime courts in the exercise of their special jurisdiction. It sets forth the procedure for the application and grant of warrants and related orders involving the preservation, disclosure, interception, search, seizure, and/or examination, as well as the custody, and destruction of computer data, as provided under R.A. No. 10175.[1]
In other words, the RCW is a tool afforded to law enforcers and prosecutors to assist them in obtaining electronic evidence necessary to prove their cases. It provides for the following warrants:
- Warrant to Disclose Computer Data (WDCD) [2];
- Warrant to Intercept Computer Data (WICD) [3];
- Warrant to Search, Seize, and Examine Computer Data (WSSECD) [4];
- Warrant to Examine Computer Data (WECD) [5].
[1] Section 1.2, Rule on Cybercrime Warrants (RCW).
[2] Section 4.2, Ibid. A Warrant to Disclose Computer Data (WDCD) is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of LEAs, authorizing the latter to issue an order to disclose and accordingly, require any person or service provider to disclose or submit computer data in his/her possession or control.
[3] Section 5.2, Ibid. A Warrant to Intercept Computer Data (WICD) is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of LEAs, authorizing the latter to carry out any or all of the following activities: (a) listening to; (b) recording; (c) monitoring; or (d) surveillance of the content of communications.
This includes the procuring of the content of the computer data at the same time that the communication is occurring, either:
a. Directly, through access and use of a computer system; or
b. Indirectly, through the use of electronic eavesdropping or tapping devices.
[4] Section 6.1, Ibid. A Warrant to Search, Seize, and Examine Computer Data (WSSECD) is an order in writing issued in the name of the People of the Philippines, signed by a judge, upon application of LEAs, authorizing the latter to search the particular place for items to be seized and/or examined. The interception of communications and computer data may be conducted during the implementation of the WSSECD.
[5] Section 6.9, Ibid. A Warrant to Examine Computer Data (WECD) is a warrant authorizing the LEA who have acquired possession of computer device or computer system via a lawful warrantless arrest, or by any other method to conduct forensic examination on the computer data contained therein. Interception of communications and computer data may likewise be conducted during the implementation of the WECD.
The recent passage of the Philippine Cybercrime Prevention Act of 2012 (or the Republic Act 10175) has elicited strong negative reactions from various stakeholders. Civil society organizations (CSOs), academe, journalists, bloggers, and Filipino netizens have expressed great concern over certain provisions of the law that impinged their constitutional right to freedom of expression. To date, there are ten petitions filed before the Supreme Court, seeking an order to restrain the implementation of the law and/or assailing the constitutionality of the law. This law is said to be the most opposed law in the history of the Philippines.
Foundation for Media Alternatives (FMA), one of the core group members of (the recently formed) Philippine Internet Freedom Alliance# (PIFA), has joined efforts in sending the message across all stakeholders that this law violates Privacy, Freedom of Expression, and Human Rights. Last Tuesday, Oct 2, PIFA held #BlackTuesday to protest what is dubbed as “Cyber Martial Law” for the law’s provisions curtail freedoms that should be protected by the Philippine Constitution. This protest was held offline and online. The offline protest was held at the Supreme Court to ask the courts to act on the petitions filed and issue a temporary restraining order (TRO) on the implementation of the law. Thousands of Filipino netizens participated both online and offline. The #NotoCybercrimeLaw protest even goes viral as the government continue to defend the correctness of R.A. 10175.
FTX on Cybercrime
As the struggle against the Cybercrime Prevention Law continues, several roundtable discussions and forums are being held, as capacity-building efforts to educate the people what this Cybercrime Prevention Law means, and how it would impact stakeholders’ lives/rights. FMA, in partnership with Women’s Legal and Human Rights Bureau (WLB), recently held a Feminist Technology Exchange on the Cybercrime Prevention Act of 2012 to strengthen advocacy on tech-related VAW, and to gain better understanding on the impacts of the law to women, and to craft urgent actions. The FTX, attended by 30 women leaders, specifically revolved around the “Cybersex” provision on Sec 4-c1, that can endanger women’s rights. This cybersex provision was included to content-related offenses under RA10175, under Chapter II Section 4, “Cybercrime Offenses”. The provision states:
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.
Elements of the crime is not well-defined, and too vague and overboard, that it poses harm to women. It also so endangers women’s sexual rights. WLB Executive Director Jelen Paclarin said “if the intent of the law is to suppress the business of cybersex, the measure may be futile as it fails to consider the transnational nature of cybersex where site owners or operators are beyond the jurisdiction of the Philippines. Often, women found in local cybersex dens are the ones arrested and put behind bars.”
Injecting Feminist Lens to the discourse
Since there are many contentious provisions on the law, FMA tried to re-assess its possible contributions to the discourse, and identified the lack of reiteration of women’s rights. Most of the questions raised on the law focused on cyber-libel and freedom of speech, and only a few considered the cybersex provision problematic as well.
The Take Back The Tech Philippines network, convened by FMA, that has been working to address technology-related VAW can lead in making the public (and the Government) understand the very nature of ICT, not just a platform for VAW, but as a tool for empowerment. We should reiterate that careful analysis of technology-related VAW cases is in order to make sure that government mechanisms will be effective in upholding women’s rights. R.A. 10175 is blind to the real state of ICT-related VAW and must be questioned.
The Take Back The Tech Philippines network also see a good opportunity to advocate internet rights as framework for the movement pushing for internet freedom. The recently formed PIFA has been active in campaigning questionable provisions on RA10175, with internet freedom as its banner call. Though PIFA is just new, it has gained momentum in the campaign to oppose the Cybercrime law. A lot of organized groups have also expressed intent in joining/supporting PIFA and we see that has a great potential to be in the forefront of internet rights advocacy in the Philippines.