On the Cybercrime Law

A lot has been said about RA 10175 (the Cybercrime Law) in online media, and how it threatens the freedom of expression in the internet. Other blogs have discussed this problem extensively, but here will also take a closer look at the law itself.

Positive
It is good that the law clearly prohibits (and specifies penalties for) a range of cyber crimes. This include:
– illegally accessing computer data and systems, either directly or by interception;
– data interference;
– theft of passwords and access codes;
– computer forgery and fraud;
– identity theft
– child pornography;

It is a good thing that the law finally deals with such questions. Previously, it was difficult to prosecute some cyber criminals because their crimes were not properly defined in Philippine law. Also, when foreign police agencies trace a cyber criminal to the Philippines; Philippine police would have a hard time apprehending, much less extraditing, them.

Take for example the case of internet spammers. When they are identified by foreign agencies, they could not be prosecuted under Philippine law. Or, identity theft in the internet would either be properly prosecuted as theft or fraud; but if these cases are tried as such, there is a good possibility that it would result in dropping the case, acquittal, or extremely low penalties.

Libel
Section 4 (c)(4) of the law is on Libel. It extends the provisions from Article 355 of the Revised Penal Code on libel to the cyber sphere. Nothing really new up to this point. However, Section 6 specifies that penalties in the Revised Penal Code would be raised by one step. Thus, while the RPC defines penalties of as low as 200 pesos; with the new Cyber Crime Law, libel could result in a much higher penalty (up to 12 years imprisonment, in some cases).
The Revised Penal Code gives an equivalent punishment to the editor and publisher of the libelous statement. With the increased penalties for such ‘crimes’, the ISP or website owner (thus, e.g. Facebook , Twitter or Google) would be punished; which means that these sites may be forced to censor entries for fear of being sued.

In practice, however, most cyber-libel suits would get stranded in court because it is difficult to prove that the imputations were made with a malicious intent. This is still open to abuse, since rich or powerful people could file suits merely to harass their critics, and not necessarily to win them. On the other hand, the police and prosecutors may simply refuse to pursue such cases because of unclarity regarding: the public nature of the imputation, the identity of the accused (since many people use handles and not their real names), or even the ‘floating’ nature of the web (as in, it is easy to erase the offending blogpost).

Case of Ella Ganda
In 2009, Former DSWD Secretary Cabral filed a suit against Ella Ganda for a blog post complaining about the DSWD’s handling of Typhoon Ondoy relief (Hands off Ella and her Blog ). The NBI looked into the complaint and dropped it for lack of merit (they also had difficulty finding Ella). [ see Ella’s blogpost:Aanhin pa ang Damo kung Patay na ang Kabayo ]
Most cyber-libel suits will follow the same pattern: government official sues critic for a blog post (or FB update, or Tweet); the NBI looks into the matter and then drops the case (for lack of merit, or other problems). The police and NBI have other, more important, crimes to solve, and would have limited patience with rich and powerful people harassing whoever criticizes them.

I believe that Senator Sotto or other government officials would have difficulty if they file cyber-libel suits against their critics. Critics basically discuss policy, and perhaps their disgust at how lawmakers discuss policy, but few (if any) will talk about the character of the lawmakers themselves. If they accuse Sotto of plagiarism, that is just a description of his behaviour, and not a ‘smear’ on his reputation (as defined in libel law). Of course, if someone says something like “Sotto is a psychopath”, then that will be something else entirely.
Another reason why officials will hesitate to file harassment suits is that if they do so, the offending text would become more widely distributed as a result. For example, I would have never come across Ella Ganda’s blogpost if Secretary Cabral didn’t sue her. I’m sure that Sec Cabral’s reputation has suffered more because of the suit, than by anything Ella wrote.

Improvement Needed
The Cybercrime law is a law that is needed at this time, in order to cope with crimes that occur under the new media. It is a pity that it has been accompanied by the libel provision, which actually seeks to limit online freedoms of ordinary citizens.  I believe that this provision will be taken out: either by the Supreme Court, by clarifications from the Executive branch, or by amendments in Congress.  The proper protection and regulation of online behavior of ordinary citizens is more properly the topic for an ‘Internet Bill of Rights’ (and Responsibilities) that still needs to be drafted.

At the same time, it is rather clear that the Cybercrime Law was written without fully considering the specific conditions and dynamics of the cyber world. For example, what does the law refer to when it talks about the ‘publisher’? Does it refer to the site owner (e.g. Google, Yahoo, YouTube, etc)? the ISP? or merely the account holder? And why does the law not specify the simple removal of offending texts as one option the court could decide on?
In Section 16 (re Custody of Computer Data), the law specifies that the offending data is to be deposited with the court in a sealed package, and that any duplicates or copies are included in the package?! (are they talking punch cards or data tapes here?)
Then, the law does not adequately deal with spam – giving it a gaping hole which spammers would exploit; nor does it deal with phishing (but rather only what happens after the identity had been stolen).

The law should be reviewed, and amended, and it should be specific regarding the various forms of social media it aims to regulate. It should be reformulated in a way that fosters citizen participation in democratic discussion, AND promotes responsibility among users.