Beware the Cybercrime Law’s Section 19 – the ‘Takedown Clause’

Article 7 (10) (2) of the 1935 Constitution provides that, the President” may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law” in the event “of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires it.”

Suspension of the privilege of the writ of habeas corpus or placing the Philippines or any part thereof under Martial Law was a very scary prospect to the fundamental freedoms of the citizenry.

Presidents Roxas, Quirino, Magsaysay, Garcia, and Macapagal never used Article 7 (10) (2) on the entire Philippines. During their time, it was a “sleeping” provision. On September 21, 1972, Article 7 (10) (2) was activated. Pursuant thereto, President Marcos, who cannot anymore be constitutionally re-elected to the presidency in 1972, issued Proclamation No. 1081 and declared the whole Philippines under Martial Law and suspended the privilege of the writ of habeas corpus. He remained as President up to 1986. The rest is history.

On September 21, 2012, we recalled the 40th anniversary of the infamous utilization of Article 7 (10) (2) of the 1935 Constitution that paved the way for blatant violations of our countrymen’s constitutional rights and freedoms. We must learn from the history of repression during Martial Law.

Although not as grand as Article 7(10) (2) of the 1935 Philippine Constitution, Section 19 of the New Cybercrime Law is also a “sleeping” provision seriously endangering the freedom of expression and right to privacy of Filipinos. It is just waiting for that moment to be activated by a short-sighted, bullying , arrogant, unintelligent , vindictive or ill-advised Secretary of Justice or President. Section 19 provides 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.” appropriately called it the “TAKEDOWN CLAUSE”. One only has to read “Takedown Clause in Cybercrime Law Very Dangerous, Lawyers Say” on to see the criticisms of certain sectors of the legal community regarding this awesome power possessed by the executive department of government under Section 19.

Why is Section 19 dangerous? Consider the following:

You are an ordinary citizen enjoying the interactive power of your computer and the social media. You share an article in Facebook posted by somebody strongly criticizing a high public official. You share it everyday for one week so that, in case, some of your contacts miss it, there will always be an opportunity to immediately find and read it. The article included some unpleasant remarks directed toward the criticized public official.

Then the criticized-public official reads the article in your Facebook page.

He then approaches the Secretary of Justice. He shows the messages to the Secretary who agrees that there appears to be prima facie evidence (not even proof beyond reasonable doubt) of a libelous statement in the article which is punishable under Section 4 (4) of the new Cybercrime Law. The Secretary, using his or her Section 19-power under the Cybercrime Law, issues an ORDER blocking access to your computer data. Immediately, without any warning, your right to communicate was abated and the opportunity to accesss and see your stored-information snuffed.

Worse, the public official obtains a search warrant requiring the National Bureau of Investigation (NBI) or the Philippine National Police (PNP), the primary government agencies charged with the law’s implemention ( Section 10 of Cybercrime Law), to intercept your communications. Your computer data and other files have been searched and read. You are stunned. Without even the being heard in a court of law, you have been deprived of the use of your computer.

You then receive a subpoena for the crime of libel on the basis of Section 4 (4) of the Cybercrime law which adopted the said offense provided under our 80-year old Revised Penal Code. The spectre of imprisonment stares you in the face. Even more frightening, if convicted after court hearing, you can be put to jail for more than the number of years of imprisonment provided under the Revised Penal Code for libel (Section 6 of the Cybercrime law). Imprisonment may go way beyond 4 years and 2 months.

To further harass you, the NBI or the PNP files ANOTHER case of libel under the Revised Penal Code because Section 7 of the Cybercrime Law states that the filing of the same libelous crime punishable under the Cybercrime law is “without prejudice” to filing the same case under the Revised Penal Code. In short, you will be placed twice in jeopardy for essentially the same act. The possibility of again being sentenced to another set of penalties involving incarceration looms.

Those are the dangers and they are all there because of the Cybercrime law.

Some people, in defending the Cybercrime Law, argue that amending or partially repealing the law is not the solution. Rather, it is the users act of personally refraining from making libelous statements, or sharing them. Moreover, they argue that we have to repose full faith and confidence in the prudence and uprightness of our public officials who are charged with the implementation of the law. But these arguments miss the point.

The point is, through Section 19, Congress and the President have given the Secretary of Justice and indeed the President of the Philippines (as the former is merely the alter ego of the latter) the tool to “legally” be abusive.

In fact, Section 19 is a gem of a provision for a dictator or one who desires to become one. It can be used to control and instill fear on the millions of computer users, commentators, bloggers, repliers, sharers, twitters, and re-twitters. It is , in effect, a GAG law potentially capable of shaping people’s mind and way of thinking. Under the threat of government intrusion, users will be forced to toe the government’s line if only to make use of or access (or to again make use of or access) their computers.

This environment will create a “Big Brother” effect, borrowing the words of US Justice William Douglas, where there will be an “increasing power of government” interfering into the private lives of people under the pretext of “national security, law and order, scientific advancement and the like.” (Justice William Douglas Points of Rebellion, 1969). It can insidiously encroach on the users’ well-kept computer-stored-secrets. The chilling-effect of the implementation of Section 19 is a limitless suppression of the freedom of expression and an undue interference into the privacy of people. It may not only take down your computer system. It can also take you down as a person.

Without doubt, the power granted to the Department of Justice (DOJ) under Section 19 fundamentally violates the due process clause of the Constitution. Section 1 of Article III of the Bill of Rights of the 1987 Constitution provides that “no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.”

The DOJ is the prosecutorial arm of the government. When a crime is committed, the DOJ’s power is initially limited to investigation via the normal preliminary investigation or inquest proceeding. Once the DOJ finds prima facie case that a crime has been committed, the only thing it can do is to file the case in court. Once filed, it becomes a criminal case.

It is the court which shall decide and issue an order whether or not certain liberties of the accused as protected by the Constitution can be legitimately curtailed during the pendency of the case. Hence, if there is clear evidence that the accused is a flight-risk, the court may legally curtail the accused’s liberty to travel by issuing a hold departure order.

Section 19 is extraordinarily different. The DOJ is granted not merely the power to determine the existence of a prima facie case for purposes of filing a criminal case in court. Unprecedentedly, it is expressly given the power to ISSUE AN ORDER merely on a prima facie level restricting or blocking access to one’s computer data at a time when a person may not yet be an accused in a criminal case. Such ORDER intrudes into a person’s constitutional right to privacy and his or her freedom of expression.

Consequently, the DOJ is not only the prosecutor which is the victim’s adversary in court. The DOJ is also the “judge” that , first, determines on a prima facie level whether or not an intrusion on his or her liberties can be ordered and , second, ultimately ORDERS such intrusion even before a court can listen to the victim’s defense. How can one contend with a prosecutor who likewise is granted the power of a “judge”? This blatantly violates the procedural due process clause which “guarantees procedural fairness.” (Fr. Joaquin Bernas, The 1987 Philippine Constitution, A comprehensive Reviewer, Page 28, 2006 edition).

Again, we must learn from our history of repression under Martial Law. We often hear the adage saying that “those who do not learn from history are bound to repeat it.” Our freedom of expression and our right to privacy are so fundamentally vital to our existence. They should not be curtailed or even slightly placed in danger of being curtailed at anytime on any day in any event. The takedown clause in Section 19 must itself be taken down. It is unconstitutional. Let us not repeat history.

As Justice Louis D. Brandeis said “experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficient. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

Mag-ingat, mga Netizens, at baka ma-Section 19 kayo!


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