Case Digest: Disini v. Secretary of Justice (2014)

 

Disini v. Secretary of Justice (2014)

Facts.

1. The government has the duty to and the right to prevent cybercrimes from happening and punish their perpetrators, hence the Cybercrime Prevention Act. 
2. But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities violate certain of their constitutional rights. Petitioners challenge the constitutionality of the 21 provisions of the cybercrime law that regard certain acts as crimes and impose penalties for their commission as well as provisions that would enable the government to track down and penalize violators.
3. Pending hearing and adjudication of the issues presented in these cases, on February 5 2013, the Court extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9 2012, enjoining respondent government agencies from implementing the cybercrime law until further orders.  

Issue.

Whether or not the provisions of R.A. No. 10175, Cybercrime Prevention Act of 2012, are constitutional and void

 

 

Petitioners’ claims	Court’s answer	Respondent’s claims
Section 4(a) (1) Illegal access Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with the fundamental rights and should be struck down.	Nothing in Section 4(a)(1) that calls for the application of the strict scrutiny standard since no fundamental freedom is involved in punishing what is essentially a condemnable act - accessing the computer system of another without right.
(3) Data interference Section 4(a)(3) suffers an overbreadth in that, while it seeks to discourage data interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these guaranteed freedoms.	Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a form of vandalism. It clearly describes the evil that it seeks to punish and creates no tendency to intimidate the free exercise of rights.
(6) Cybersquatting Section 4(a)(6) violates the equal protection clause, in that, not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take the name of another in satire, parody, etc. Law should recognize the difference.	The challenge to the constitutionality of  Section 4(a)(6) is baseless, for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation or deprive others who are not ill-motivated of the rightful opportunity of registering the same.
(b)(3) Computer-related identity theft Section 4(b)(3) violates the constitutional rights to due process and to privacy and correspondence, and transgresses the freedom of the press.	The specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what the section regulates are the acquisition, use, misuse and deletion of another’s personal data. Moreover, acquiring and disseminating information  made public by the user cannot be regarded as theft.
(c)(1) Cybersex It violates FOE, such that private communication between two consenting adults would now be regarded as a crime when done for favor in cyberspace.	Not unconstitutional since it is applied only to  persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system. Also subject to Art. 201 of the RPC, and Anti-trafficking in Persons Act of 2003
(c)(2) Child pornography ACPA provision clearly relates to the prosecution of persons who aid and abet the core offenses that ACPA seeks to punish.	Constitutionality is not successfully challenged.
	Government presents no basis for that holding. Commercial speech is a separate category of speech but nonetheless is entitled to protection. Unsolicited ads are legit FOE.	(c)(3) unsolicited commercial communications Spams are a nuisance. Its transmission amounts to trespass to one’s privacy. Moreover, commercial speech enjoys less protection in law.
Articles 353, 354, and 355 of Penal Code; and Section 4 4(c)(4). Libel Libel provisions of the Penal Code and of the cybercrime law carry with them the requirement of “presumed malice” as basis for conviction. Inferring “presumed malice” from accused’s defamatory statement by Art. 354 infringes on FOE. Actual malice can easily be overturned as in Fermin v. People… and that it violates country’s obligations in iCCPR	If offended party is private individual, no need to prove for presence of malice. Art. 361 recognizes truth as a defense but under conditions that the accused has been prompted vn making statement in good motives and justifiable ends. Besides, UNCHR did not enjoin PHL; simply suggested that defamation laws be crafted with care. Cyberlibel is not a new crime; already punished under Art. 353 in relation to Art. 355, and in effect, Section 4(c)(4) affirms it.
Section 5 of the Cybercrime Law Section 5 suffers from overbreadth.	Section 5 of the Cybercrime law is a nullity because the terms “aiding or abetting” constitutes a broad sweep that generates a chilling effect on those who express themselves through cyber posts, comments and others.	Current body on jurisprudence and laws on aiding and abetting sufficiently protects FOE.
	Section 6 merely makes commission of existing crimes through the internet as qualifying circumstance.	There exists a substantial distinction between crimes committed through the use of information and communications technology and similar crimes committed using other means.
	With the exception of the crimes of online libel and online child pornography, the Court would rather leave the determination of the correct application of the correct application of Sec. 7 to other cases. Charging the offender of libel under both laws (Section 4(c)(4) and Art. 353) is a blatant violation of the proscription under double jeopardy. Likewise, Section 4(c)(2) merely expands ACPA’s scope.	Section 7. Liability under other laws. Section 7 merely expresses the settled doctrine that a single set of acts may be prosecuted and penalized simultaneously under two laws, a special law and RPC. When two different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both offenses arise from the same fact, if each crime involves some important act which is not an essential element of the other.
	Section 8. Penalties Fixing penalties is a legislative prerogative. Judges and magistrates can only interpret or apply but have no authority to modify them.
It curtails civil liberties or provides opportunities for official abuse.  Provision is too broad. The phrase “due cause” has no precedent in law.   Section 12 violative of the void-for-vagueness doctrine and overbreadth doctrine.	Section 12. Real-time collection of traffic data. This section empowers law enforcement agencies to collect such data. But it does not permit law enforcement agencies to look into the contents of the messages and uncover the identities of the sender and the recipient. These doctrines were held to apply only to free speech cases. Section 12 neither regulates nor punishes any type of speech.	Section 12 needs realtime collection of data because it is not possible to get a court warrant that would authorize the search. Still admits that Sec. 12 provides minimal protection.
	Section 13. Preservation of Computer Data By virtue of Section 13, law requires providers to keep traffic data and subscriber info relating to comm. services for at least six months from transaction data and content data-related for at least six months from receipt of the order.	S-G correctly points out that data that service providers preserve on orders of law enforcement are not made inaccessible to users by reason of the issuance of orders.
As process is likened to subpoena, they argue that subpoenas are a judicial function (but no, not right).	Section 14. Disclosure of Computer Data Merely the enforcement of a duly issued court warrant. Procedure for disclosure would not constitute an unlawful search or seizure nor it would violate privacy.
It will supplant established search and seizure procedures.	Section 15. Search, seizure, and examination of data. But it merely enumerates the duties of law enforcement authorities that would ensure the proper collection, preservation and use of data that have been seized by virtue of a court warrant. Merely supplements, does not pose threat on rights.
Violates the user’s right against deprivation of property w/o due process of law.	Section 17.	Justifies that destroying data upon the lapse of prescribed period is necessary to clear up systems and prevent overload. also ensure probes are quickly concluded.
Stifles FOE and violates right against unreasonable searches and seizures.	Section 19. Restricting or blocking access to data. Section 19 indeed violates those. Precludes judicial intervention and disregards guidelines on validity of restrictions on speech.	Concedes that it may be unconstitutional.
It is a bill of attainder.	Section 20. Noncompliance. Act of non-compliance must be done “knowingly or willfully”. Valid insofar as it applies to the provisions of Chapter 4 w/c were not struck down.
Congress invalidly delegated power when it gave cicc power to formulate a nat’l cybersecurity plan w/o sufficient standards it can follow.	Section 24 (cicc) and 26 (powers and functions).  Both valid bc cybersecurity plan is consistent with policy of law.

 

Held.

Three out of 21 provisions were held unconstitutional. Section 4(c)(3), Section 12 and Section 19 of the Act were unconstitutional.

Section 4(c)(3) restricted FOE by prohibiting unsolicited transmission of commercial communications such as spam. Section 12 was declared in violation of the right to privacy because it lacked sufficient specificity and definiteness in collecting real-time computer data. Section 19 was found to violate the rights against unreasonable searches and seizures, which gave the government the authority to restrict or block access to computer data without a judicial warrant.

 

Ruling.

1. VOID for being UNCONSTITUTIONAL: a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial communications; b. Section 12 that authorizes the collection or recording of traffic data in real-time; and c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to suspected Computer Data.

 

2. VALID and CONSTITUTIONAL: a. Section 4(a)(1) that penalizes accessing a computer system without right; b. Section 4(a)(3) that penalizes data interference, including transmission of viruses; c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad faith to the prejudice of others; d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information belonging to another; e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual activity for favor or consideration; f. Section 4(c)(2) that penalizes the production of child pornography; g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal Code are committed with the use of information and communications technologies; h. Section 8 that prescribes the penalties for cybercrimes; i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic data and subscriber information as well as specified content data for six months; j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant; k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-issued warrant; l. Section 17 that authorizes the destruction of previously preserved computer data after the expiration of the prescribed holding periods; m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations; n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC); o. Section 26(a) that defines the CICC’s Powers and Functions; and p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

 

Legal terms.

1. Overbreadth -  provides that a regulation of speech can sweep too broadly and prohibit protected as well as non-protected speech. A regulation of speech is unconstitutionally overbroad if it regulates a substantial amount of constitutionally protected expression.
2. In terrorem - Latin for "into/about fear", is a legal threat, usually one given in hope of compelling someone to act without resorting to a lawsuit or criminal prosecution.
3. Presumed malice - Malice in law is malice that does not need to be proven in court. It is malice automatically presumed for every defamatory statement, and applies when complainants are private persons.
4. Actual malice - In contrast, malice in fact is malice that needs to be proven in court.
5. Gross negligence - the extreme indifference to or reckless disregard for the safety of others. Gross negligence is more than simple carelessness or failure to act. It is willful behavior done with extreme disregard for the health and safety of others. It is conduct likely to cause foreseeable harm.
6. Ad infinitum - again and again in the same way; forever
7. Aiding and abetting - To assist someone in committing or encourage someone to commit a crime. Generally, an aider and abettor is criminally liable to the same extent as the principal. Also called "aid or abet" and "counsel and procure."
8. Reclusion temporal - 12 years and 1 day to 20 years
9. Arresto mayor - 1 month and 1 day to 6 months
10. Subpoena - a writ ordering a person to attend a court.
11. Bill of attainder -  A bill of attainder is an act of a legislature declaring a person, or a group of persons, guilty of some crime, and punishing them, often without a trial.