The three wise monkeys, Mizaru,
(sees no evil), Kikazaru, (hears
no evil) and Iwazaru (speaks no
evil) have decided to add a fourth member when they come to perform in the
Philippines, Noliberu (types in computer keyboard no evil).
Why I use monkeys as a
reference is because we might become the funniest country in the world with
regard to free speech next to North Korea (which has no internet). The passage
of the Cybercrime Prevention Act (R.A. 10175) has garnered the most profile
picture changes since 2010 (when the San Francisco Giants won the World Series).
For one, I pity those who live in the corner of 5th Ave and East 44th
Street in New York. Our infamous law is also their zip code.
Most laws have good
intentions and then some laws should have never been passed. My view is that
the Cybercrime Law is needed for actual crimes committed while using the
computer such as hacking or child pornography. Also, I applaud the Cyber squatting provision. Intellectual Property stakeholders can now sleep a
little easier knowing my country took a step in the right direction.
Where the fork in the
road bent the wrong way is in the inclusion of a libel provision. Admissions by
both sides of the legislature claim that the free speech derailment wasn’t in
the “original” version. It was “inserted” in the bicameral conference committee
hearings. While there are at least eight (8) petitions against the law filed in
the Supreme Court (as of this posting), I will try to analyze the law in my
most obvious and overt humble way.
First, the soon to be famous
Section 4 (c) (4) of the law just includes libel in a “copy and paste” format.
Read here:
(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.
This “insertion” is
both vague and contradictory. It is vague because Article 355 of the Revised
Penal Code DOES NOT define libel. The aforesaid provision only LISTS the prohibited
acts of Libel by WRITING. It is contradictory because most those acts listed in
Article 355 CANNOT be performed THROUGH a computer system. Here are the acts as
listed in Article 355:
1. Writing;
2. Printing;
3. Lithography;
4. Engraving;
5. Radio;
6. Photograph;
7. Painting;
8. Theatrical exhibition;
9. Cinematographic exhibition; or
10. Any similar means.
In criminal law,
statutory and constitutional construction demand that all penal laws should be
construed in favor of the accused. Also, when a penal law enumerates a list,
anything NOT in the list is really NOT in the list. To side with a devil’s
advocate, the Cybercrime Act probably expanded the “Any similar means”. But I
believe nothing in that list is similar to the Internet.
There are two more
things wrong with the law on the libel inclusion.
The Cybercrime law
INCREASED (Section 6) the penalty of Libel as defined in the Revised Penal Code
by one degree. Since 1932, the punishment that can be imposed for a conviction
of libel is Prision Correcctional in its minimum to medium period. Translated
(here is where my meter starts running), possible imprisonment is a minimum of
six (6) months to a maximum of four (4) years and two (2) months. Raising it to
one degree higher means that the imprisonment is now Prision Mayor in its
minimum and medium period. Translated again (tick, tock), the new jail time is
a minimum of SIX (6) years to a maximum of TEN (10) years. Look at it this way, the old maximum time is
now SHORTER than the new minimum time (four years, 2 months versus six years). That
means, if you call me a lousy lawyer, I can have you jailed for at least a full
senatorial term. But there has been no change in the fines. It’s still a maximum
of 6,000 pesos (a full tank of a Senator’s Ford Expedition).
On a more legalese side,
libel as a cybercrime has now become mala prohibita. Simply put, (tick, tock),
it means libel is now a crime under a special law. If libel, in its original form,
is committed under the provisions of the Revised Penal Code, the crime is mala
in se. The latter form allows a defense of “lack of criminal intent”.
Cybercrime libel denies that type of defense. Thus, intent or motive is not an
element. Any good intention on a sharp criticism cannot be given as a excuse
when that critique will be deemed defamatory by the offended party.
On the issue of “Sharing”
or “Retweeting”, we all have something to fear. Under Article 360 of the
Revised Penal Code, any person who shall publish,
exhibit, or cause the publication or
exhibition of any defamation in writing or by
similar means, shall be responsible for the same. The law may be twisted to
include the aforementioned acts as the same as if you did the posting in the
first place. Sharing and retweeting republishes or re-exhibits the same
allegedly defamatory remark. The “Sharerer” or “Retweeter” is in the same cabin
(boat is so old fashioned) as the original poster and will receive the same
punishment if charged together with the original poster.
For the issues on “Like”
or the “Favorite”, I submit that doing these acts in Facebook and Twitter respectively,
are NOT punishable under the Cybercrime Law. For more information, please pay
my standard hourly fee with a three hour minimum.
Just kidding… Liking a
post in Facebook or marking a tweet as a favorite is NOT an act listed in
Article 355. A mouse click on for a thumbs up sign is definitely NOT writing
and neither any of the other acts listed many paragraphs above. Again, if the law does
not list the act as a crime, it cannot be punished as a crime.
I will now watch “V for
Vendetta” for inspiration on how to protest this new law, and also “Escape to
Victory” for training and escape strategies if caught.
——————————-
Rod Vera is an attorney practicing intellectual property law. You may contact him at Phone: +63.917.884.8372; FAX: +63.2.820.1193; E-Mail: rpv@vera-iplaw.com
No comments:
Post a Comment