THE PROBLEM WITH RA 10175

September 26, 2012

Too much law books made me forget about the news. It was only last night when I learned that RA 10175 or the CyberCrime Prevention Act of 2012 has been passed into law. I have been hearing about it and thought that it was only a bill. But mistaken I was, for it is now a law. And dura lex sed lex.

But Article 7 of the Civil Code provides that a law must conform to the Constitution else it could be nullified.

So many writers are questioning the validity of this law. I for one blogged earlier that the measure ought to be unconstitutional because there is a fundamental prohibition to any law that would violate freedom of speech and expression. True enough, there are now petitions calling for its unconstitutionality. From what I have read in one petition, RA 10175 makes the convict liable for libel both as a cybercrime and as a felony (as punished by the Revised Penal Code). There is definitely something wrong with that given our rule regarding double jeopardy. This is aside from the fact that the 1987 Constitution as explicated in the case of Chavez v. Gonzales provides for a two-fold rule when it comes to Freedom of Speech and Expression. Namely, there must be: 1.) Freedom from prior restraint, and 2.) Freedom from subsequent punishment.

And I learned that Sen. Guingona was the lone dissenter, invoking the above doctrine.

In my limited knowledge of the law, I know that with the RPC provision on libel notwithstanding, there is always an allowance for the so-called “Doctrine of Fair Comment.” Well-placed and well-constructed criticism is always welcome in a democratic society. The law on libel is there, perhaps just to discourage people from bringing the law into their own hands by verbally maligning those who have wronged them. It then prods people to use the machinery of the legal system to attain justice.

The more important issue now is what constitutes “prior restraint”? In the Chavez case, it was the Justice Secretary and the NTC’s warnings to the media that continued airing of the scandalous “Hello Garci” tape shall be a violation of the Anti-Wiretapping Act, hence a ground for closure and arrest. Would a duly enacted law on cybercrime or electronic libel constitute “prior restraint”?

But in the Chavez case the Supreme Court ruled that not every violation of the law will justify straitjacketing the exercise of freedom of speech and of the press. The government must prove “clear and present danger”. And there was no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State. Hence the DOJ and NTC warnings constituted “prior restraint” as they were delivered as part of official government function. The act does not have to be converted to a formal order or official circular to be considered a breach of press freedom.

Is a possible commission of electronic libel enough to restrain bloggers and social networkers from printing strongly-worded statements on issues they care about? Is there “clear and present danger” that the government would collapse because of it? In the case of Chavez, it was a mere order and yet it was shot down. In the case of RA 10175, it is not just an order, but a law, for that matter. Definitely, it comes under the purview of official government function and inherent State power which is law-making or police power. And Article Three of the Constitution or the Bill of Rights is addressed to the State and its agents. It is a provision that would safeguard the people from possible government overstep on private rights.

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