How the Supreme Court voted on the Cybercrime Law

The Supreme Court ruling on the validity of the Cybercrime Prevention Act of 2012 (Republic Act 10175) will be studied as a landmark case dealing with modern everyday information and communication technologies (ICTs) such as the Internet, cellular phones, and social media.

The 50-page majority opinion – or ponencia – was penned by SC Associate Justice Roberto Abad, who is set to retire this year on May 22. Five justices, including the chief justice, were in the minority who disagreed with some legal points in Abad’s ponencia – in particular, the treatment of cyberlibel, cybersex, and unsolicited commercial communications or “spam.”

The high court promulgated its ruling a week ago on Tuesday, February 11—which, incidentally, was marked worldwide as the Global Day against Mass Surveillance and Safer Internet Day.

The ruling, however, was made public just a day before the weekend.

The ruling made no mention about the high court lifting the temporary restraining order it had imposed indefinitely to prevent RA 10175 from taking effect. But SC Public Information Office chief Theodore O. Te said that online contents posted prior to the issuance of the SC ruling, including the period of the temporary restraining order (TRO), are not yet covered by the law.

Majority opinion, plus 4 ‘separate opinions’

Only 13 out of the 15 justices sitting on the high bench took part in the voting, with SC Associate Justices Presbitero Velasco having inhibited from the case in 2012 and Estela Perlas-Bernabe taking no part in the deliberation.

Seven SC justices fully agreed with Abad’s ponencia, either as to the results – striking down some provisions while upholding other provisions – as well as the reasoning behind these results, or both. But five SC justices decided differently.

Four justices wrote their own separate “concurring and dissenting” opinions. This means they disagreed with some of the results and reasonings in the ponencia, which they did not reject entirely.

Chief Justice Ma. Lourdes Aranal Sereno’s 43-page opinion focused on invalidating only two provisions in RA 10175. As for the rest of the assailed provisions of the law, she said there was yet “no actual case or controversy” to warrant their review by the high court.

SC Senior Associate Justice Antonio Carpio’s separate opinion was the shortest at 32 pages. The youngest SC Associate Justice, Marvic Leonen, wrote the longest at 99 pages.

Associate Justice Brion’s 35-page separate opinion was “joined in” by Associate Justice Jose Catral Mendoza – which meant Mendoza agreed with all of Brion’s positions in this case.

Vote tally on cyberlibel, ‘regular’ libel

The Supreme Court ruling modified the Cybercrime Prevention Act by striking down provisions found “repugnant” to the Constitution. But some justices sought to reach out and declare void also some provisions in the Revised Penal Code (RPC).

During the oral arguments last year, Carpio pointed out to Atty. Harry Roque that the infirmity of cyberlibel in section 4(c)(4) of RA10175 was rooted in the infirmity of “regular” libel itself found in the 83-year old penal code of the Philippines. With leave of court, Roque amended his petition to ask that the crime of libel in the RPC also be stricken down as unconstitutional.

However, the majority ruled to retain unscathed the RPC provisions on libel, while clarifying that cyberlibel under RA10175 would apply only to “original authors” of blog-posts, social media status-posts, and tweets, but not to those who merely share, comment, or like those posts or tweets.

Leonen sought to invalidate entirely cyberlibel in RA10175 and “regular” libel in the RPC.

On the other hand, Carpio sought to invalidate the RPC provisions on libel, but only insofar as to libel complaints filed by public officers and public figures against ordinary private citizens. He explained that RPC libel provisions on “presumption of malice” run afoul with the Free Speech clause of the Constitution.

Brion and Mendoza voted to join Carpio in this regard.

Notably, Carpio’s separate opinion virtually “passed over” ruling on cyberlibel, but indicating that modifying the RPC libel provisions would necessarily result in also modifying cyberlibel because “Section 4(c)(4) of RA 10175 impliedly re-adopts Article 354 without qualification” (emphasis in the original text of Carpio’s opinion).

The chief justice voted with Brion, Mendoza and Leonen to declare unconstitutional the provision raising the penalty for cyberlibel.

Vote tally on cybersex, ‘spam’

Carpio and Leonen both voted to strike down section 4(c)(1) prohibiting cybersex.

Carpio lamented that upholding the cybersex provision “turns back the clock of free expression protection to the late 1960s and beyond when prevailing mores of morality are incongruous to 21st century realities.”

Leonen went further and said “it seems that we, as a society, are being thrown back to the dark ages” with RA 10175’s cybersex prohibition.

Leonen was the sole justice who wanted to uphold RA 10175 section 4(c)(3) on “unsolicited commercial communications” which is commonly refered to as “spam” – a provision that the majority has ruled to be unconstitutional.

Vote tally on cyber surveillance, ‘take down’

As expected, the ballyhooed “take down” clause – which would have allowed authorities to restrict or block access to websites upon mere “due cause” without a court-issued warrant – was stricken down as unconstitutional by a unanimous vote. Solicitor General Francis Jardeleza had conceded early on that the take down provision found in section 19 of RA 10175 was invalid and his office even declined to defend it.

Likewise unanimously stricken down was section 12 of RA 10175, on the real-time collection of traffic data. Although agreeing with the result – the junking of the traffic data provision – Carpio, Brion, Mendoza and Leonen cited different reasons to arrive at that same conclusion. — TJD, GMA News