On the recent decision of the Supreme Court on the Cybercrime Law
Long before the Cybercrime Law was presented to the Supreme Court, I already predicted that some of its provisions would be declared unconstitutional and particularly the provision on libel on the internet. In my view therefore, although the decision is a half-victory for some and a half-victory for others because it just picks out certain provisions as unconstitutional; nonetheless, we still have remedies available. Number one, there can still be a motion for reconsideration of the libel provision and number two the Senate can still rapidly on this new Cybercrime Law that I have filed. I am going to redouble my efforts in view of this decision by the Supreme Court, which I think is unfortunate in some respects. Let me explain.
Under our Constitution, freedom of speech occupies the highest ranking in the hierarchy of values of the bill of rights. So that must stand for something. It’s the very first provision. It says, no law shall be passed abridging the freedom of speech, the freedom of press, and the cognate rights of individuals and groups within our society. This means, therefore, that number one, ordinarily, a law enjoys the presumption of constitutionality. When you question a law before the courts, the courts must start with the presumption that the law is constitutional. But, because of the priority given by the bill of rights to the freedom of speech, plus the language of the law itself inside the Constitution, which states, no law shall be passed abridging freedom of speech although the courts have allowed libel laws under those provisions. Nonetheless, for me, the meaning of the way that provision is worded and is position as first in the hierarchy of civil and political rights of the citizen is that contrary to the common presumption in favor of laws in general, any law against freedom of speech should be presumed unconstitutional, otherwise, there’s no meaning to that constitutional provision, isn’t that so?
Now, in more technical terms, online libel, as it is presently worded, where the court says, well, if you put it online, it is just like libel in any of the traditional forms of media, makes a gross mistake in the identity of the traditional media against that of the social media. These are two completely different universes. They are not operating within the same universe as traditional media: radio, TV, and print. In TV, radio, and print, once you are maligned, it is extremely difficult to get your side aired. Because, for example, if your enemy is political in nature, the political enemy that you have made could be a crook and he would have much more money than you do, because, precisely, he is a crook. He steals money from the government. So, if he publicizes a libelous article against you, it is very difficult for you to receive equal space and equal time for your time, because the illicit fortune of your enemy makes him so rich that he is virtually outside the rich of our judicial system. But that doesn’t apply on the internet. On the internet, if someone posts a blog [entry] or a tweet, or some comment against you, you have the full right to answer him in kind and you don’t have to pay anything. That is the main difference between [the] internet and traditional media with respect to the crime of libel. It is a wide-open universe unlike the restricted universes of traditional media. To make it more technical, let me just say that the criminal libel provision of the present internet law violates at least two widely accepted principles of constitutional law. The first is the void for vagueness doctrine. As presently worded, the provision on online libel is so vague that you hardly know who are covered by it. Although the Supreme Court has said that it is only the sender who is liable not the person who is commenting or receiving. But what do these words mean? Who is the sender? Is it the service provider, the individual netizen, or if they are a group, how do we identify them? Even worse, if they are not using their true identities, how are you going to go beyond what they professed to be their identities on the internet? That is the main problem today. Identity theft is common on the internet. We’ve never heard of this crime before. So, these emphasize how different the internet is from traditional forms of media. The Supreme Court is treating social media as if it were just a scion or successor or just another classification of traditional media—it is not! Here we have a case that unfortunately, appears to be jurisprudence trailing after technology because of lack of information of how the internet operates in society. That is the first objection: the void for vagueness doctrine. The language of the law that has been passed upon by the Supreme Court is so vague that it becomes illegal since it is a very significant constraint on the preferred freedom of the entire bill of rights—the freedom of expression or the freedom of free speech.
The second objection in constitutional law terms is overbreadth. Sinasakop na niya ang lahat, kaya hindi mo maiintindihan ngayon this law. The basic principle should be that the law should be confined within very strict limits. Only a certain group of persons are liable under this provision. But this law plus the interpretation of the Constitution makes this field so wide open. It is virtually almost like the void for vagueness doctrine that you no longer have any clear voice or signals on where the line ends or begins. So for these two reasons, the void for vagueness doctrine and the overbreadth doctrine, I humbly submit that the Supreme Court ruling on these particular provisions is erroneous and I call on all netizens to magnify all our efforts and to speed it up as soon as possible so we can either file a motion for reconsideration with respect to this particular libel provision or we can speed it up here in the Senate on the new law that I have filed from crowdsourcing (Senate Bill No. 53, The Magna Carta for Philippine Internet Freedom). It was not me who crafted this law, but all the netizens coming from different professions, naturally, from lawyers, but also from civil engineers, etc.