Cybercrime law: To junk or amend?
MANILA, Philippines – The "Takedown Clause" of the Cybercrime Prevention Act of 2012 is seen as the law's most dangerous provision.
While many of the petitioners against the law want the Supreme Court to junk it, one of them has a different position.
"I take a different view. I take the position that only certain provisions are bad and the rest can stay," University of the Philippines professor JJ Disini, an expert in technology law who is among 16 petitioners questioning the cybercrime law, told Rappler's #TalkThursday.
The Office of the Soliticitor General has taken a similar position, saying that the law is valid except for Section 19 or the controversial takedown clause, which gives the Department of Justice (DOJ) the right to issue an order asking service providers to block access to content based on prima facie evidence.
"The court is now grappling with that, whether they're going for a full facial invalidity, meaning it's invalid in its face, or are they going to go for surgical incision," Disini said.
Most of the petitioners have slammed Sec 19 of the cybercrime law for being too broad. The provision states:
"Restricting or Blocking Access to Computer Data. – When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data."
Disini said the problem with Sec 19 is it provides an "all purpose solution" for situations. However, he said it also has the potential of being beneficial if proper limitations are put in place.
"Sec 19 might actually be beneficial. It's a time out, right? People are just going crazy, let's say, time out. So, let's give them 48 hrs, maybe 3 to 4 days so people can calm down and then you open it up again and you watch," he said.
Other contentious provisions
Disini said the cybercrime law also imposes double liabilities on those found guilty of committing online libel. Not only does it increase the penalties in the penal code, it also allows perpetrators to be prosecuted based on the original law and the new law.
While Article 355 of the penal code states that libel is punishable with 6 months to 4 years of imprisonment, the cybercrime act increases the penalty by one degree. Those who committed libel using information communications technology may be sentenced to 6 months and 12 years in jail under this law.
Law enforcement agencies will also be allowed to monitor all information on communication activities, including calls, SMS and web surfing activities.
"The problem with the cybercrime law is that it has no nuance," Disini said.
"My daughter likes to break into my phone. She constantly wants to figure out what my password is. She's failed so many times. Without the cybercrime law, I can't charge you because that's an attempted invasion of my device. But with the cybercrime law, those kinds are included, attempts are included. You don't have to have a consummated crime before you can charge somebody," he said.
Striking a balance
Why does the cybercrime law focus too much on libel?
Disini said law enforcement authorities have told him that 60-70% of cases filed at their desks involve online libel, such as people posting derogatory comments about other people on social media sites.
"They realized that the Internet moves so quickly and in a sense they wanted to strike a balance between what law enforment can do to protect the dignity of individuals," he said.
Disini acknowledged that victims of online fraud, hacking or cyberbullying – as justices have pointed out – also need a way to find "remedies" for the crime.
"The point of cybercrime petitioners is that we may not know what the correct answers are for these types of problems but we do know that the way Congress enacted this law is not the way to do it," Disini said.
Not just about e-libel
Political and economic rights are also at stake if this law is enforced, Disini said.
For instance, under the cybercrime law, a business such as the National Bookstore can ask the DOJ to take down amazon.com for engaging in retail in the Philippines without a license.
The government can also invoke the law to prevent a valid exercise of political rights on the streets, not just online.
"If EDSA Dos had happened with Sec 19 in place then the DOJ would issue an order to cellphone companies and say, 'Shutdown all cell sites within a 10km radius from EDSA so no one can send an SMS to anyone to coordinate what they're doing out there,'" Disini said.
What's the next step for the SC?
With the temporary restraining order (TRO) on the cybercrime Act expiring on February 6, Disini said he believes the Supreme Court will issue another TRO.
But as to how long it would be remains to be seen.
"I think [now SC spokesperson] Ted Te was correct that the time period was a signal to Congress: 'We're going to give you 4 months to take care of this. If you're not going to do it then we're going to act.' The problem is that period is about to end, and Congress is not in the position right now to [act on the law]," he said.
The TRO expires on February 6. Congress only has 9 session days left beginning on Monday, January 21 before it goes on a long break for the campaign season. Lawmakers will only report back for work in June to close the 15th Congress.
The Supreme Court could make a decision within this time frame, either in May or June, Disini said. – Rappler.com