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Wednesday, October 3, 2012

Black as the Night

Solid Black.  Picture of protest for Republic Act No. 10175 (or the Philippine Cybercrime Prevention Act of 2012 dubbed by protesters as the Cybercrime e-Martial Law)
Today is quite grim.   Not only are we experiencing dark clouds and rain from Typhoon Marce from the Philippine West Sea, we are also seeing some websites, Facebook and Twitter profiles in solid black.  Despite protests and numerous court petitions against the Cybercrime Prevention Act of 2012, the government still went on to implement the controversial law.  Just how controversial?  Let me count the ways…

PASSED AT A LIGHTNING SPEED.

I really do not know when the bill started in congress.  What I do know is that the FREEDOM OF INFORMATION (FOI) bill, a more important bill seeking transparency in government, started in Congress more than a decade ago.  How come a lesser important bill took priority?  How is it that when a bill is about exposing crooks and holding government officials accountable, it hibernates on the desks of legislators?

PASS TODAY, AMEND TOMORROW.

12 senators voted to pass the bill and only one senator, Sen. Guingona, went against it.  Now, you will read twits, articles, and Facebook posts about proposals of senators to amend the law.  What???  There's one thing that bothers me from this kind of behavior of our legislators:  that our legislators vote for the passing of a bill into law without even completely reading (or understanding) the bill.  Why did I say that?  One senator said that he will propose to amend the bill by taking out the "online libel" provision.  Another senator said that he will submit an amendment to the law that will require a "court order" before the Department of Justice takes down any website.

I thought they discussed the bill?  I thought they understood what the bill is about?  How come that only now do we hear these senators (who approved of the bill) trying to amend the law?  They should have done their jobs and ironed out everything before passing the bill.  I am disgusted and disappointed on the only conclusion I can come up with such obvious remission of duty - that some legislators did not even care to "test" nor verify the ramifications of each provision.

BULLIES OR JUST CRITICS?
ONLINE LIBEL.  SEVERE PUNISHMENT.  MIDNIGHT INSERTION.

Sen. Sotto who has been the topic of controversy, and the prominent subject in the blogosphere when it comes to plagiarism, copyright infringement, and proper attribution, admitted to have inserted the "online libel" provision in the Cybercrime Prevention Act of 2012 (Republic Act No. 10175).  The provision goes:

"(4) Libel.  - The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future."

The punishment for "ordinary" libel as provided for by the Revised Penal Code is imprisonment from 6 moths to 6 years.  The punishment for "online" libel however, is more severe - "prison mayor", that is imprisonment for 6 to 12 years (or a fine of at least 200,000 PHP up to a maximum amount commensurate to t he damage incurred; or both imprisonment and fine).

The senator (who is also a TV and film comedian of which I wished he is only joking with all of these brouhaha) claimed that the libel provision has been inserted in the bill months before his head-on collision with netizens.  If so, it wasn't a "midnight insertion" nor a vendetta against his cyberspace bullies.

Well, there are "bullies" and there are "critics".  There's a big difference between bullying and criticizing.  Bullies harm people for no apparent reason.  Bullies are bad, deranged, and perhaps mentally ill!  Plain and simple.  Critics on the other hand, tender their opinions (good or bad) based on their subject's actions.  Critics have reasons to say what they say.  What happened to Sen. Sotto (and the rest of the Filipino celebrities he mentioned like actress Rhian Ramos who "allegedly" had an abortion in Singapore, in discussing his insertion in the Senate) was not "bullying".  They were not victims of cyberspace bullying.  They were subjects of cyberspace criticisms.

They say that the "truth hurts"!  And often, critics are spot on with their truths.  So, one shouldn't cry foul when one has behaved so poorly!  

Some netizens criticize through posts (especially as comments for articles, and in forums) using anonymous identifications.   Let's say you have the power, would you stifle their right to express their opinions, and consider their act of online posting illegal?  Wouldn't that violate the person's right to freedom of speech as guaranteed by the Philippine Constitution?

WHAT CONSTITUTE A LIBELOUS ONLINE POST?

So, what does constitute an online libelous post?  Let's see the legal definition for libel first:  

"Under Article 353 of the Revised Penal Code of the Philippines, libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.  [Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191 SCRA 61, 67]"

I got the definition from a very well-written article entitled "Libel Laws in the Philippines" in www.abogadomo.com.  Learn more about libel in that article.  (See, this is proper attribution.  How hard could this be?)

Anyway, let us say that an online  post is indeed libelous because it has satisfied all of the elements (a to d in the above definition) of libel.  What if another person "liked" the post in Facebook, retweeted in Twitter, or "shared" the post in social bookmarking sites such as google+, stumbleupon, or reedit?  Would those persons also be held accountable?  I commend and agree with Sen. Guingona when he said that the online libel provision is "vague"The danger here lies in the interpretation!

I can guess that from now on, "blind items" will abound in the blogosphere.  Netizens of course, will probably find ways to circumvent this law, as in the approach of posting "blind items".  But it wouldn't be much fun, would it?

BLOCKING ACCESS TO COMPUTER DATA.

This has been the subject of many court petitions and parodies in Facebook.  Section 19 under Chapter IV Enforcement and Implementation of the Cybercrime Prevention Act of 2012 states that "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.".

Where is due process?  Shouldn't there be first a court order?  The Secretary of the Department of Justice (DOJ) mentioned in a news report that DOJ is still to prepare implementing rules and guidelines.  Instead of a face-off between the Supreme Court and the DOJ that harbors on "constitutional crisis" (i.e., remember the last time the Supreme Court ordered a temporary restraining order against the DOJ's hold departure order of former President Arroyo?), why not amend this Cybercrime Prevention Act of 2012 to address its lack of adherence to the Bill of Rights?

THE BUCK STOPS AT THE PRESIDENT.

I was 14 years old when the People Power at EDSA erupted.  My family and friends went to EDSA and marched one with the people.   When the second EDSA People Power erupted, I was also there together with my coworkers.  Again, we marched one with the people.  Ninoy Aquino and former president Cory Aquino, icons of freedom and democracy, have always been shining examples of patriotism to simple folks, myself included.  

I can't help but feel betrayed by Ninoy and Cory's son, now President Noy, when he approved the Cybercrime Prevention Act.  The bill, now a law, obviously needs some changes… changes  that could have been identified earlier that could have averted these needless commotion.

I am one with the people in saying that the law should be amended!  NO to the Cybercrime Prevention Act!  NO to censorship!  YES to Freedom of Speech and Expression!

Black as the night.  Those who have been long gone... those who have defended our freedom and democracy are turning in their graves.  It's a long night... a long night, indeed! 

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