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ARTS. 4C(4) and 4 C(1) OF THE CYBERCRIMES PREVENTION ACT OF 2012 ARE UNCONSTITUTIONAL

ARTS. 4C(4) and 4 C(1) OF THE CYBERCRIMES PREVENTION ACT OF 2012 ARE UNCONSTITUTIONAL. PROF. H. HARRY L. ROQUE COUNSEL FOR PETITIONER Adonis et. al. v . Executive Secretary et. al GR NO. 203378. Frank La Rue: What is at stake here?.

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ARTS. 4C(4) and 4 C(1) OF THE CYBERCRIMES PREVENTION ACT OF 2012 ARE UNCONSTITUTIONAL

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  1. ARTS. 4C(4) and 4 C(1) OF THE CYBERCRIMES PREVENTION ACT OF 2012 ARE UNCONSTITUTIONAL PROF. H. HARRY L. ROQUE COUNSEL FOR PETITIONER Adonis et. al. v. Executive Secretary et. al GR NO. 203378

  2. Frank La Rue: What is at stake here?

  3. What exactly is the Internet: Physically, a global network of cables and computers • The 1950s: Terminals connect to a mainframe, where all data in a given network is housed. • The 1960s: The Internet , “an interconnection of computer networks,” a US defense experiment to test the survivability of the American military’s communication systems in the event of a nuclear strike. (Advanced Research Project Agency Network, ARPANET) • The 1970’s: Development of Transmission Control Protocol and Internet Protocol (TCP/IP) allowed for different networks to communicate with each other.

  4. SOURCE: http://netforbeginners.about.com/od/i/f/What-Is-The-Internet.htm

  5. Internet: Is It akin to broadcast? • RENO v. ACLU: NO • A) Requires a series of affirmative steps more deliberate and directed than turning a dial; • B) Not as invasive as broadcast. Users seldom encounter content by accident

  6. Reno v. ACLU • Hence: Entitled to highest protection

  7. UNCONSTITUTIONAL • 1. SECTIONS 4(C)4 AND 4(C)1 ARE VOID ON ITS FACE FOR BEING SO BROAD AS TO ENCOMPASS EVEN CONSTITUTIONALLY PROTECTED SPEECH • 2. BOTH SECTIONS ARE VOID FOR BEING VAGUE • 3.VOID FOR BEING CONTRARY TO PACTA SUNDT SERVANDA, A GENERALLY ACCEPTED PRINCLE OF INTERNATIOANL LAW

  8. Overbreadth (Estrada v. Sandiganbayan) • “[w]hen statutes regulate or proscribe speech and x x x the transcendent value to all society of constitutionally protected expression x x x justify allowing attacks on overly broad statutes (Broadrick v. Oklahoma)

  9. overbreadth • “In considering whether a statute suffers from overbreadth, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. • x x x those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid.”

  10. 4C(4)Libel • The unlawful or prohibited acts of libel as defined in Article355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means xxx

  11. Overbreadth because: • 1. Since internet is a new technology, 4 c (4) could penalize protected speech; • 2. Art. 355 of RPC penalizes protected speech: the truth as a defense and and false statements without knowledge that it is false or without utter disregard of its falsity

  12. Who is author of a libelous statement on the internet? • Twitter: Are retweets liable for libel?

  13. Who is author of a libelous statement on the internet? • Facebook: Are likes and reposting of “libelous” materials liable for libel?

  14. Who is author of a libelous statement on the internet? • Blogs and on-line publications with “comments” space: Are the blog owners liable for libelous statements in these statements?

  15. Who is author of a libelous statement on the internet? • Is reposting a link actionable?

  16. Who may be liable? • “Art. 360. Persons responsible. — 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. xxx” • Are ISP’s liable? Are the owners of social networking liable? Are Google and Yahoo liable? Are Telcos liable? Are cybercafe owners liable?

  17. RPC Art. 355 Why void: New York Times vs. Sullivan • civil sanctions could not be imposed based upon defamatory statements made concerning a public official unless the statements were false and made with "actual malice.” • The Court defined "actual malice" as making a statement "with knowledge that [the statement] was false or with reckless disregard of whether it was false or not." _Id._

  18. Ratio of NYT v. Sullivan: • "debate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

  19. Ratio of Garrison v. Louisiana: • “ xxx "erroneous statement is inevitable in free debate xxx it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive' . . . ,”

  20. Curtis Publishing v. Butts: Test of actual malice or utter disregard applied to public figures

  21. Other States that have Declared Criminal Libel Unconstitutional for Overbreadth under Sullivan and Garrison: 1.Utah: IMA vs. Utah 2.Alaska: Gottschalk v. Alaska 3.Arkansas: Weston v. Arkansas 4.California: Eberle v. Municipal Court of LA 5.Montana: Montana v. Richard 6.Kentucky: Ashton v. Kentucky 7.Pennsylvania : Pennsylvania v. Armao 8.South Carolina: Fitts v. Calb

  22. WHY OVERBREATH: Over Broad Definition of Malice The plain language of RPC statute does not comport with the requirements laid down Sullivan :The statute does not punish only "actual malice" when the statement concerns public officials.

  23. We have adopted Sullivan Doctrine • Vazquez vs. CA; Borajalv. CA and in Guinguin v. CA: “even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice.”

  24. BUT: Diaz v. People and Fermin v. People (post Guinguin): • The statute punishes all statements made "maliciously," The common law definition of "malice" is quite different from the "actual malice" contemplated by the United States Supreme. Malice in law includes “ hatred, ill-will and contempt • IMA v. Utah: We have noted that "malice" and"actual malice" are not interchangeable.

  25. Truth is not an absolute defense • Second, the statute provides no immunity for truthful statements: “Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown x x x

  26. Why Overbroad • RPC infringes upon a substantial amount of constitutionally protected speech: • (1) false statements regarding public figures made without knowledge or recklessness outside of fair and true report of any act performed by public officials in the exercise of their functions, and • (2) true statements regarding public figures not covered by qualified privilege.

  27. Sec. 4(C)1on Cybersex is also unconstitutional under overbreadth • (c) Content-related Offenses:(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

  28. Strict Scrutiny • Chavez v. Gonzales: Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality.  • The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague.[74]  

  29. Are the following slides Lascivious?

  30. Marina Abamovich MOMA

  31. “Made in heaven” Jeff Koons, Tate Gallery

  32. Nude Art Installation, Sydney opera House

  33. Overbreadth • “Favor or consideration”: what about schools, museums, research tools (lexis/Nexis, JSTOR, SSRN)

  34. Void for vagueness • What is defamatory? • Who is liable for libel? • What are justifiable motives? • What are good intentions? • What is lascivious?

  35. Void for violating pactasundtservanda • Article II, Section 3 of the Constitution provides: “the Philippines adopts the generally accepted principles of international law as part of the law of the land”. • Pactasundtservanda as a generally accepted principle that forms part of the laws of the land (Secretary v. Lantion,Tanadav. Angara, Kuroda v. Jalandoni, IS Alliance of Educators v. Quisumbing)

  36. ICCPR (and all other treaties ratified by the Philippines) is part of Municipal Law Republic vs.Sandiganbayan: “Nevertheless, even during the interregnum (Freedom Constitution) the Filipino people continued to enjoy, under the Covenant (ICCPR) and the Declaration (UDHR), almost the same rights found in the Bill of Rights of the 1973 Constitution.” (Italics supplied)

  37. UN Human Rights Committee • “The Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its State parties. • First Optional Protocol to the Covenant gives the Committee competence to examine individual complaints with regard to alleged violations of the Covenant by States parties to the Protocol.

  38. Binding nature of ‘Views” issued by the Human Rights Committee • International Court of Justice (Guinea v. DRC): x x x ascribe great weight to the interpretation adopted by ( the Committee) (because) it was established specifically to supervise the application of that treaty.

  39. UNHRC: HELD Adonis v. RP • “Sanction of imprisonment imposed on the author was incompatible with Art. 19, Paragraph 3 of this Covenant” • “Pursuant to Article 2, paragraph 3(a) of the Covenant, the Committee considers the state party to be under obligation to provide the author with an effective remedy, including adequate compensation for time spent in prison. The state party is also under an obligation to take steps to prevent similar violations from occurring in the future, including by reviewing the relevant libel legislation”

  40. Court must hence declare that both Art 355 of the RPC, Art 4(c)4 and Art 4(c)1 of the CyberCrime Prevention Act as void on its face; and additionally art. 4(C)4 for violating pactasundtservanda

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