Rest of iceberg

Much of the online outrage that came in the wake of the Supreme Court decision in the landmark case of Disini v. Secretary of Justice was directed at the portion of the ruling upholding the constitutionality of Section 4(c)4 of the Cybercrime Prevention Act (Republic Act No. 10175)—the “cyberlibel” provision.

Even the three dissenting members of the court—Chief Justice Maria Lourdes Sereno, and Justices Antonio Carpio and Marvic Leonen—all focused their dissents mainly on the question of cyberlibel and the related libel provision in the Revised Penal Code.

But while the cyberlibel question is indisputably significant, it is not the only concern in relation to free speech in the cybercrime law.

More insidious threat

The seemingly innocuous Section 6, which transplants provisions of the Revised Penal Code into the law, so long as they are committed “by, through and with the use of communication and information technologies (ICT),” is potentially an even more insidious threat to online speech than cyberlibel. Yet, thus far, it has sailed largely unscathed through the storms of protest that came in the wake of the law’s enactment and its “ratification” by the Supreme Court in Disini.

The decision in Disini devotes a single, somewhat dismissive, paragraph to discussing Section 6, saying that the provision “merely makes the commission of existing crimes through the Internet a qualifying circumstance.”

Section 6 is phrased simply enough: All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, that the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

ICT undefined

To my mind, there are at least two problems with Section 6 that were not substantially taken up either in the main decision, or in the dissenting opinions.

The first is that by treating the use of “information and communications technologies”—a term that is not even defined in the law itself—as a qualifying circumstance to all crimes defined and penalized under the Revised Penal Code, it opens the floodgates to a slew of prosecutions that have nothing to do with cyberspace.

‘Cyberestafa’

For instance, using a cell phone to send threatening text messages, mislead strangers into thinking that they’ve “won” a cash prize, or inform your fellow burglars that the guards by the backdoor of the warehouse are gone, can now all be potentially penalized as “cyberthreats,” “cyberestafa,” and “cyberrobbery,” respectively.

And as we come to rely more on our mobile phones, laptops, tablets, Google glasses and—who knows, eventually—surgically implanted chips, at some point, it is conceivable that all crimes will be “cybercrimes” due to the phrasing of Section 6.

The second problem is more specific and relates to other provisions of the Revised Penal Code that have been “imported” into the cybercrime law, again through Section 6.

The most glaring example here is Article 142 of the Revised Penal Code, which defines the crime of inciting to sedition. This punishes any person—x x x who shall utter seditious words or speeches, write, publish or circulate scurrilous libels against the Government of the Philippines, or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government x x x

Adopted from sedition law

This provision is adopted from the 1901 Sedition Law promulgated by the US colonial government to deter uprisings by Filipinos. It has persisted in our statute books. It was used by presidents, such as Ferdinand Marcos and, more recently, Gloria Macapagal-Arroyo, to crack down on their critics and political opponents.

It has been given a new, more potent existence through Section 6.

Tweeting that the government is “dirty,” a “dictatorship,” or “shameful” will likely subject the hapless netizen to prosecution for “cybersedition” as these are all invectives that the Supreme Court, in the 1951 case of Espuelas v. People, has deemed seditious.

In fact, according to the same case, unless the criticism is “specific and therefore constructive, reasoned or tempered,” it is punishable.

Feelings of the faithful

Another is Article 133, used to convict Carlos Celdran. This provision penalizes “anyone who x x x shall perform acts notoriously offensive to the feelings of the faithful.”

The phrase “notoriously offensive to the feelings of the faithful” has tremendous potential for taking to task for “cyberblasphemy” all those people with proreproductive health (RH) posts who clutter our online spaces.

I have a friend who makes a habit of debating RH opponents online and I suppose I have to warn him that he is now potentially opening himself up to criminal prosecution.

Finally, there is Article 287, which penalizes “unjust vexation” with imprisonment of up to 30 days. While seemingly trivial, this provision becomes potent when fused with Section 6 since a person can now face up to six months imprisonment for any vexing, irritating or annoying statements posted online. And really, on a regular day, how many annoying posts do you see on your news feed?

6 months for cybervexing

Post an acerbic comment about all those selfies your friend uploads, and, thanks to Section 6, you may be looking at six months in Bilibid for “cybervexing.”

Ultimately, the problem with Section 6 is that it transplants wholesale hundreds of crimes from an 82-year-old law—many of which were in turn adopted from laws enacted centuries earlier—and attempts to adopt them to the completely new, completely different terrain of cyberspace.

And cyberlibel is, very much, just the tip of a very large, very heavy iceberg.

(Ibarra “Barry” M. Gutierrez III is a former director of the University of the Philippines Institute of Human Rights and former Criminal Law professor at the UP College of Law. He is also an Akbayan party-list representative.)