JOSE JESUS M. DISINI, JR., ET AL. v.
THE SECRETARY OF sanctions against double jeopardy, undue delegation of
JUSTICE, ET AL.,
G.R. No. 203335, FEBRUARY 18, 2014
Constitutional law; Unsolicited commercial communications,
also known as “spam” is entitled to protection under freedom of
expression. To prohibit the transmission of unsolicited ads would deny
a person the right to read his emails, even unsolicited commercial ads
addressed to him. Commercial speech is a separate category of
speech which is not accorded the same level of protection as that
given to other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection. The State cannot rob him of this
right without violating the constitutionally guaranteed freedom of
expression. Unsolicited advertisements are legitimate forms of
expression.
Criminal law; Cyberlibel under Section 4(c)(4) of the
Cybercrime Law is constitutional. The Court agrees with the Solicitor
General that libel is not a constitutionally protected speech and that
the government has an obligation to protect private individuals from
defamation. Indeed, cyberlibel is actually not a new crime since Article
353, in relation to Article 355 of the Penal Code, already punishes it.
In effect, Section 4(c)(4) above merely affirms that online defamation
constitutes “similar means” for committing libel. But the Court’s
acquiescence goes only insofar as the cybercrime law penalizes the
author of the libelous statement or article. Cyberlibel brings with it
certain intricacies, unheard of when the Penal Code provisions on libel
were enacted. The culture associated with internet media is distinct
from that of print.
Criminal law; Section 5 of the Cybercrime Law that punishes
“aiding or abetting” libel on the cyberspace is a nullity. The terms
“aiding or abetting” constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts,
comments, and other messages. Its vagueness raises apprehension on
the part of internet users because of its obvious chilling effect on the
freedom of expression, especially since the crime of aiding or abetting
ensnares all the actors in the cyberspace front in a fuzzy way. What is
more, as the petitioners point out, formal crimes such as libel are not
punishable unless consummated. In the absence of legislation tracing
the interaction of netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section 4(c)(4) on Libel,
Section 4(c)(3) on Unsolicited Commercial Communications, and
Section 4(c)(2) on Child Pornography, cannot stand scrutiny.
FACTS:
Petitioners Jose Jesus M. Disini, Jr., Rowena S. Disini, Lianne
Ivy P. Medina, Janette Toral and Ernesto Sonido, Jr., as taxpayers, file
a Petition for Certiorari and Prohibition under Rule 65 of the 1997
Rules of Civil Procedure, the petitioners seek to 1) nullify Sections
4(c)(4), 6, 7, 12 and 19 of RA 10175, otherwise known as the
“Cybercrime Prevention Act of 2012” for violating the fundamental
rights protected under the Constitution; and 2) prohibit the
Respondents, singly and collectively, from enforcing the afore-
mentioned provisions of the Cybercrime Act.
Named as Respondents are the Secretary of Justice, the
Secretary of the Interior and Local Government, the Executive Director
of the Information Communications Technology Office, the Chief of the
Philippine National Police, and the Director of the National Bureau of
Investigation.
ISSUES/GROUNDS:
1. Sections 4(c)(4), 6, 7, 12 and 19 of The Cybercrime Act
violate the petitioners’ constitutionally protected rights to
freedom of expression, due process, equal protection,
privacy of communications, as well as the Constitutional
legislative authority and the right against unreasonable
searches and seizure;
o • Sections 6 and 7 of the Cybercrime
Act more than doubles the liability for
imprisonment for any violation of existing penal
laws are in violation of the petitioners’ right
against Double Jeopardy;
o • Section 12 of the Cybercrime Act,
which permits the NBI and the PNP “with due
cause” to engage in real time collection of traffic
data without the benefit of the intervention of a
judge, violates the Petitioners’ Constitutionally-
protected right to be free from unreasonable
searches and seizure as well as the right to the
privacy of communications;
o • Section 19 of the Cybercrime Act, which
authorizes the Respondent Secretary of DOJ to
block or restrict access to any content upon
a prima facie finding that the same violates the
law, contains an undue delegation of legislative
authority, infringes upon the judicial power of the
judiciary, and violates the Petitioners’
Constitutionally-protected right to due
process and freedom of expression; and
o • Section 4(c)(4) defines libel as a cybercrime and
in relation to Section 6 of the law increased the
penalty from 6 months to 4 years and 2 months
to the greater period of 6 years to 10 years,
infringes upon the right to freedom of expression
and also restricts the freedom of the press. Under
Section 12, a prima facie finding by the Secretary
of DOJ can trigger an order directed at service
providers to block access to the said material
without the benefit of a trial or a conviction. Thus,
RA 10175 infringes upon the right to freedom of
expression and also restricts the freedom of the
press. The increased penalties, plus the ease by
which allegedly libelous materials can be removed
from access, work together as a “chilling effect”
upon protected speech.
2. No other plain, speedy, or adequate remedy in the court of
law, and that this Petition is therefore cognizable by the SC’s
judicial power under Article VIII, Section 1 par. 2 of the
Constitution and pursuant to Rule 65, Sec. 1 of the 1997
Rules of Civil Procedure, as amended.
ARGUMENTS/DISCUSSIONS:
1. The Cybercrime Act Violates Free Speech:
o • imposes heavier penalties for online libel than
paper-based libel; single act of online libel will
result in two convictions penalized separately
under the RP and the Cybercrime Act;
o online libel under the Cybercrime Act will ensure
the imprisonment of the accused and for a much
longer period. Such changes will result in a chilling
effect upon the freedom of speech;
o • with the passage of the Cybercrime Act, Senator
Vicente Sotto III’s earlier threat to criminally
prosecute all bloggers and internet users who
were critical of his alleged plagiarism of online
materials for use in his speech against the
Reproductive Health Bill became real; threat of
criminal prosecution under RA 10175 will work to
 preclude people such as Petitioners from posting
social commentaries online, thus creating a
“chilling effect” upon the freedom of expression;
o • gives the DOJ Secretary blanket authority to
restrain and block access to content whether
authored by private citizens or the organized press
sans any hearing of any kind but merely upon a
mere prima facie showing that a particular
Internet article constitutes online libel;
o • respondents must demonstrate how the
Cybercrime Act will fare under strict scrutiny
2. Sections 6 and 7 of the Cybercrime Act violate the Double
Jeopardy and Equal Protection Clauses of the Constitution:
o • Persons who commit crimes using information
and communication technologies (ICTs) face the
possibility of being imprisoned more than double
the imprisonment laid down in the RPC or special
law, simply by the passage of the Cybercrime Act;
o • the cybercrimes defined and punished under
Section 6 of the Act are absolutely identical to the
crimes defined in the RPC and special laws which
raises the possibility that an accused will be
punished twice for the same offense in violation of
the Constitution;
o • Congress created a class of offenders who
commit crimes “by, through or with the use” of
ICTs in violation of the equal protection clause
3. The Real Time Collection of Traffic Date Violate the Right
to Privacy and the Right Against Unreasonable
Searches and Seizure:
o • No compelling state interest that justifies real
time collection of data; the authority vested on the
Philippine National Police and the National Bureau
of Investigation to collect data is not bounded by
any reasonable standard except “due cause”
which presumably, the PNP and NBI will determine
for itself;
o • While the privacy of suspected terrorists,
through the Human Security Act, are protected by
the intervention of the Court of Appeals
before surveillance operations are conducted,
the privacy of all citizens may be infringed without
judicial participation in the Cybercrime Act;
o • Neither the PNP nor the NBI is required to justify
the incursion into the right to privacy;
o No limits imposed upon the PNP or the NBI since
they can lawfully collect traffic data at all times
without interruption;
o • No stated justification for this warrant-free
unlimited incursion into the privacy of citizens
4. The Respondent DOJ Secretary’s Take Down Authority under
Section 19 of the Cybercrime Act violates Due Process and
is an Undue Delegation of Legislative Authority
o • The DOJ Secretary’s overwhelming powers to
order the restriction or blocking of access to
certain content upon a mere prima facie finding
without any need for a judicial determination is in
clear violation of petitioners’ Constitutionally
protected right to due process;
o • The Cybercrime Act contemplates that the
respondent DOJ Secretary will be “judge, jury and
executioner” of all cybercrime-related complaints;
o To consider that all penal provisions in all specials
laws are cybercrimes under Section 6, it • follows
that:
1. Complaints filed by intellectual property
rights owners may be acted upon the
Respondent DOJ Secretary to block
access to websites and content upon a
mere prima facie showing of an
infringement;
2. Foreign sites (e.g. Amazon.com)
offering goods on retail to Philippine
citizens may be blocked for violating the
Retail Trade Law;
3. Foreign service providers such
as Skype may be blocked from offering
voice services without securing a license
from the National Telecommunications
Communication;
4. YouTube video may be blocked for
presumably violating the IP Code.
o • The Cybercrime Act fails the two tests laid down
by the Court in Abakada Guro Party List v.
Purisima (GR No. 166715) to determine the
validity of delegation of legislative power: (1) the
completeness test and (2) the sufficient standard
test
1. Nowhere in the Cybercrime Act’s
declaration of policy does it lay down
the legislative policy with respect to the
blocking of content. No limits upon the
takedown power of the respondent DOJ
Secretary;
2. Prima facie standard is not enough to
prevent the DOJ Secretary from
exercising infinite discretion and
becoming the supreme authority in the
Philippine Internet landscape.
PRAYER:
1. Declare null and void, for being unconstitutional, Sections
4(c)(4), 6, 7, 12 and 19 of RA 10175;
2. Prohibit all Respondents from implementing Sections 4(c)(4),
6, 7, 12 and 19 of RA 10175;
3. Issue a TRO enjoining the Respondents from implementing
Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175; and
4. Issue other reliefs, just and equitable in the premises.
5. The Supreme Court on Tuesday, February 18, upheld as
constitutional most provisions of Republic Act 10175 or the
Cybercrime Law, including online libel – subject to one
condition.
6. The High Court also struck down a provision of the law that
gives the state the power to take down online content
without a court warrant.
7. Seeking to strike a balance between fundamental freedoms
and government control, the High Court decided on the
constitutionality of Republic Act 10175 a little over a year
afteroral arguments were heard on Jan 15, 2013.
8. Among the hotly-debated issues during the oral arguments
was the law's provision on online libel. (READ: 'Libel gone is
best-case scenario for SC cybercime ruling')
9. The Supreme Court decision, penned by Justice Roberto
Abad, ruled online libel to be constitutional but with an
exception – that is, in cases where it covers persons other
than the original author. Recipients of, and netizens who
 react to a potentially defamatory post, will not be covered by
online libel.

Unconstitutional provisions
Three provisions were voted down as categorically unconstitutional:
 Section 4 (c)(3) which pertains to unsolicited commercial
communications
 Section 12 which pertains to real-time collection of traffic
data
 Section 19 which pertains to restricting or blocking access to
computer data
The SC decided that Section 19 – granting power to the
Department of Justice (DOJ) to restrict computer data on the basis
of prima facie or initially observed evidence – was not in keeping with
the Constitution. The said automatic take-down clause is found in
Section 19 of the cybercrime law.
Even the SOLICITOR General, in his defense of RA 10175,
admitted before the SC that Section 19 is "constitutionally
impermissible, because it permits a form of final restraint on speech
without prior judicial determination."
Section 12 would have allowed law enforcement authorities with due
cause to collect or record by technical or electronic means "traffic
data" in real time.
Section 4 (c)(3) of the law says that "the transmission of
commercial electronic communication with the use of computer system
which seek to advertise, sell, or offer for sale products and services are
prohibited" unless certain conditions – such as prior affirmative
consent from the recipient – are met. This was ruled unconstitutional.
A separability clause contained in Section 29, Chapter VIII of the law
allows the rest of the law to "remain in full force and effect" even if
certain provisions are held invalid.

Nuances in other provisions

 Three other provisions were not struck down and remain in
the law, but they will not apply in certain cases as decided
by the SC. Among these provisions is online libel, which is
constitutional as far as the original author is concerned.
 Section 5, which pertains to aiding or abetting the
commission of a cybercrime and to the attempt to commit a
cybercrime, was declared unconstitutional only in the
following cases: child pornography, unsolicited commercial
communications (or spam), and online libel. Section 5 will
apply to all other cybercrimes outlined in the law.
 National Bureau of Investigation (NBI) Cybercrime Division
Chief Ronald Aguto explained to Rappler that it will also be
hard for both law enforcement and the prosecution to prove
the "attempt to commit a cybercrime."
 Aiding a nd abetting the commission of a cybercrime, he
added, might unduly cover certain players in the online
industry.
 Section 7, which pertains to liability of a cyber criminal under
other laws, was declared unconstitutional only in the
following cases: online libel and child pornography.
 The SC cited the guarantee against double jeopardy or being
punished more than once for the same offense – a
guarantee outlined in the Constitution – in deciding on
Section 7.
 Libel is punishable by Article 353 of the Revised Penal Code,
while child pornography is punishable by RA 9775 or the
Anti-Child Pornography Act
 A person convicted of libel or child pornography can only be
punished once, under the coverage of a single law.