Cyber Libel

Is the place of access
the proper venue to

file an Internet libel
case?
The recently enacted Cybercrime Prevention Act of 2012
(Republic Act No. 10175) punishes the crime of libel committed
through the use of the Internet, in this manner:
“Sec. 4(c)(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.”
The new law does not change the definition of the crime of libel
under the Revised Penal Code. However, it does two things.
First, it adds a new element—the crime must be committed

through a computer system or any other similar means that may
be devised in the future. Second, the crime of “Internet libel” is
punishable by a penalty one degree higher than that provided for
by the Revised Penal Code.
Under the new law, the penalty is imprisonment for a minimum

period of four years and one day to a maximum of eight years,
per offense.
Of course, the inclusion of this provision, which was not found
in the version submitted by the House, has engendered some
controversy. But that is not the concern of this column for the
moment.
While the Regional Trial Court (RTC) has been expressly
granted criminal jurisdiction over violations of the law, the
Cybercrime Act does not provide for the place (venue) where
the criminal case should be filed. Consequently, there is
uncertainty as to where the proper venue should be laid for
purposes of instituting criminal actions for Internet libel.
So the question is: Where is the venue for Internet libel under
the new law? Can the offended party file the criminal case for
libel in the place where he gained access to the libelous article
published over the Internet?
The answer to the latter question is, no.
The case of Bonifacio vs. RTC of Makati, G.R. No. 184800, 5
May 2010, may enlighten us on the matter. In this case,
Bonifacio and the other respondents were members of the
Parents Enabling Parents Coalition, Inc. (PEPCI).
PEPCI was formed by a group of dissatisfied planholders of the
Pacific Plans Inc. (PPI), a company belonging to the Yuchengco
Group of Companies. The planholders purchased traditional pre-
need educational plans, but were unable to collect the benefits
after PPI filed for corporate rehabilitation before the RTC of
Makati.
As a result, PEPCI created and thereafter maintained a website

(www.pepcoalition.com) that served as a forum for the
planholders to air their grievances. The website was easily
accessible anywhere by anyone with Internet connection.
Claiming that the website contained defamatory and libelous
statements, the Yuchengco Group, through a certain John
Gimenez, filed 13 counts of criminal cases for libel in Makati.
The Amended Information alleged that the defamatory article
“was first published and accessed by the private complainant in
Makati City.”
Bonifacio and his co-accused moved to dismiss the criminal
cases, claiming that Makati City is not the proper venue since
that is only where the victim accessed the defamatory material.
The Supreme Court sustained the contention of Bonifacio and
dismissed the cases for improper venue. The Court reiterated
that the venue of libel cases, where the complainant or offended
party is a private individual, is limited only to either of two
places: 1) where the complainant actually resides at the time of
the commission of the offense; or 2) where the alleged
defamatory article was printed and first published.”
In the case, the Court found that the Amended Information did
not allege that the complainant resided in Makati where the libel
cases were filed. The Amended Information likewise did not
state that the defamatory article was printed and first published
in Makati City. What it alleged was that the defamatory article
“was first published and accessed by the private complainant in
Makati City.”
The Supreme Court ruled that the place where the article is
“accessed” is not synonymous to the place where it is “first
published,” for purposes of vesting jurisdiction on the RTC of
Makati.
In support of its ruling, the Supreme Court noted that R.A. 4363
amended Article 360 of the Revised Penal Code by laying down
new rules on venue to prevent the “indiscriminate or arbitrary
laying of the venue in libel cases in distant, isolated or far-flung
areas, meant to accomplish nothing more than harass or
intimidate an accused.”
According to the Court, “to hold that the Amended Information
sufficiently vested jurisdiction in the courts of Makati simply
because the defamatory article was accessed therein would open
the floodgates to the libel suit being filed in all other locations
where the pepcoalition website is likewise accessed or capable
of being accessed.”
It “would spawn the very ills that the amendment sought to
discourage and prevent. It hardly requires much imagination to
see the chaos that would ensue if the website’s creator or writer,
a blogger, or anyone who posts messages and comments therein
could be sued for libel anywhere in the Philippines where the
victim or complainant allegedly accessed the offending
website.”
Following the principles laid down in the case of Bonifacio, the
rules on venue of criminal actions for Internet libel are as
follows: (I) If the offended party is a private individual, the
criminal case can only be filed in either of two places, namely:
(a) where the complainant or offended party actually resides at
the time of the commission of the offense; or (b) where the
alleged defamatory article was printed and first published. (II) If
the offended party is a public official, the criminal case can only
be filed in either of two places, namely: (a) in the place (whether
in or outside Manila) where he holds office at the time of the
commission of the crime; or (b) where the alleged defamatory
article was printed and first published.
New rules for Internet libel?
The new law further provides that jurisdiction lies where any of
the elements was committed in the Philippines. The new law
seems to be saying that venue can be laid anywhere in the
country for Internet libel or other cybercrimes.
The Supreme Court may come up with new rules on venue
taking into account this provision under the new law and the
nature of cybercrimes (which include Internet libel), in the
exercise of its constitutional prerogative to prescribe rules of
procedure. Until this happens, however, it may be prudent to
follow the existing rules under the Revised Penal Code, which
are simplified and listed above.
Read more: http://business.inquirer.net/84102/is-the-place-of-access-the-

proper-venue-to-file-an-internet-libel-case#ixzz5DBC7opat
[ GR No. 208146, Jun 08, 2016 ]

VIRGINIA DIO v. PEOPLE & TIMOTHY DESMOND +
RESOLUTION
LEONEN, J.:
When a motion to quash an information is based on a
defect that may be cured by amendment, courts must
provide the prosecution with the opportunity to amend
the information.
This resolves a Petition for Review on Certiorari[1]

assailing the Court of Appeals Decision[2] dated
January 8, 2013 and Resolution[3] dated July 10, 2013.
The Court of Appeals reversed and set aside the
Regional Trial Court Order that quashed the
Informations charging petitioner Virginia Dio (Dio)
with libel because these Informations failed to allege
publication.[4]
Private respondent Timothy Desmond (Desmond) is

the Chair and Chief Executive Officer of Subic Bay
Marine Exploratorium, of which Dio is Treasurer and
Member of the Board of Directors.[5]
On December 9, 2002, Desmond filed a complaint

against Dio for libel.[6] Two (2) separate Informations,
both dated February 26, 2003, were filed and docketed
as Criminal Case Nos. 9108 and 9109.[7] The
Information in Criminal Case No. 9108 reads:
That on or about July 6, 2002 in Morong, Bataan,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused with malicious
intent to besmirch the honor, integrity and reputation
of Timothy Desmond, Chairman and Chief Executive
Office of Subic Bay Marine Exploratorium, did then and
there willfully, unlawfully, and feloniously send
electronic messages to the offended party and to other
persons namely: Atty. Winston Ginez, John Corcoran,
and Terry Nichoson which read as follows:
'NOW THAT WE ARE SET TO BUILD THE HOTEL SO

THAT YOU COULD SURVIVED, (sic) YOU SHOULD
STOP YOUR NONSENSE THREAT BECAUSE YOU
COULD NOT EVEN FEED YOUR OWN SELF UNLESS
WE PAY YOUR EXHORBITANT (sic) SALARY,
HOUSE YOU ADN (sic) SUPPORT ALL YOUR
PERSONAL NEEDS. YOU SHOULD BE ASHAMED IN
DOING THIS. AS FAR AS WE ARE CONCERNED,
YOU ARE NOTHING EXCEPT A PERSON WHO IS
TRYING TO SURVIVED (sic) AT THE PRETEXT OF
ENVIRONMENTAL AND ANIMAL PROTECTOR [sic].
YOU ARE PADI (sic) TO THE LAST CENTS ON ALL
YOUR WORK IN THE WORK (sic). AT THE SAME
TIME, YOU BLOATED THE PRICE OF EACH ANIMAL
YOU BROUGHT TO THE PHILIPPINES from
US$500,000.00 to US$750,000.00 each so that you
could owned (sic) more shares that you should. Please
look into this deeply.
IF YOU INSISTS (sic) TO BE CALLED AN

ENVIRONMENTAL AND ANIMAL PROTECTOR IN
OUR COUNTRY, THEN YOU AND YOUR WIFE
SHOULD STOP BLEEDING THE COMPANY WITH
YOUR MONTHLY PAYROLL OF ALMOST P1
MILLION A MONTH.'
The above-quoted electronic message being defamatory

or constituting an act causing or tending to cause
dishonor, discredit or contempt against the person of
the said Timothy Desmond, to the damage and
prejudice of the said offended party.
CONTRARY TO LAW.[8]
The Information in Criminal Case No. 9109 reads:
That on or about July 13, 2002 in Morong, Bataan,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, with malicious
intent to besmirch the honor, integrity and reputation
of Timothy Desmond, Chairman and Chief Executive
Office of Subic Bay Marine Exploratorium, did then and
there willfully, unlawfully, and feloniously send
electronic messages to the [sic] Atty. Winston Ginez
and Fatima Paglicawan, to the offended party, Timothy
Desmond and to other persons namely: Hon. Felicito
Payumo, SBMA Chariman [sic], Terry Nichoson, John
Corcoran, and Gail Laule which read as follows:
'Dear Winston and Fatima:
UNDER THE LEADERSHIP OF TIM DESMOND AS

CHAIRMAN AND CHIEF EXECUTIVE OFFICER OF
SBME, AS OF THIS DATE THE COMPANY HAD
INCURRED A LOSS OF MORE THAN ONE
HUNDRED MILLION. A BALANCE SHEET
SUBMITTED TODAY BY THEIR ACCOUNTANT
JULIET REFLECT AND (sic) ASSETS OF MORE
THAN THREE HUNDRED MILLION PESOS, 50% OF
WHICH IS OVERVALUED AND NON-EXISTENT.
TIM DESMOND AND FAMILY HAD ACCUMULATED
A (sic) SHARES OF MORE THAN 70% OF THE
RECORDED PAID UP CAPITAL BY OVERVALUING
OF THE ASSETS CONTRIBUTION, PAYMENT TO
THEIR OWN COMPANY IN THE USA, ETC. AT THE
SAME TIME, TIM DESMOND AND FAMILY BLEED
THE COMPANY FROM DATE OF INCORPORATION
TO PRESENT FOR AN AVERAGE OF ONE MILLION
PER MONTH FOR THEIR PERSONAL GAIN, LIKE
SALARY, CAR, ET, [sic] ETC.'
The above-quoted electronic message being defamatory
or constituting an act causing or tending to cause
dishonor, discredit or contempt against the person of
the said Timothy Desmond, to the damage and
prejudice of the said offended party.
CONTRARY TO LAW.[9]
On April 22, 2003, Dio filed a Petition to suspend the
criminal proceedings,[10] but it was denied in the
Order dated February 6, 2004.[11]
Dio moved for reconsideration of the February 6, 2004

Order.[12] She also moved to quash the Informations,
arguing that the "facts charged do not constitute an
offense."[13] In its Order[14] dated July 13, 2004, the
trial court denied both Motions. The dispositive portion
of the Order reads:
Premises considered, the Motion For Reconsideration
of the Order dated February 6, 2004 and the Motion To
Quash, both filed for accused, as well as the Motion For
Issuance of a Hold Departure Order filed by the
Prosecution, are hereby DENIED.
Arraignment will proceed as previously set on July 20,

2005 at 9:00 a.m.
SO ORDERED.[15]
Dio moved for partial reconsideration of the July 13,
2004 Order, but the Motion was denied in the trial
court's Order dated September 13, 2005.[16]
On October 11, 2005, Dio filed a Motion for leave of

court to file a second motion for reconsideration.[17]
She also filed an Omnibus Motion to quash the
Informations for failure to allege publication and lack
of jurisdiction, and for second reconsideration with
leave of court.[18]
The trial court's Order dated February 7, 2006 denied

both Motions and scheduled Dio's arraignment on
March 9, 2006.[19] Dio moved for partial
reconsideration.[20]
The trial court granted Dio's Motion for Partial

Reconsideration in its February 12, 2009 Order,[21] the
dispositive portion of which reads:
WHEREFORE, the Motion For Partial Reconsideration
filed by the accused in Criminal Cases (sic) Nos. 9108
and 9109, on the ground that the Informations in the
said cases fail (sic) to allege publication, is GRANTED
and, accordingly, the Informations filed against the
accused are thereby QUASHED and DISMISSED.
No finding as to costs.
SO ORDERED.[22]
After filing a Notice of Appeal on March 5, 2009,[23]
Desmond raised before the Court of Appeals the
following issues:
I
WHETHER OR NOT THE LOWER COURT ERRED IN

UPHOLDING THE ACCUSED'S ARGUMENT THAT
THE PRESENT CHARGES SHOULD BE QUASHED
FOR FAILURE OF THE INFORMATIONS TO ALLEGE
PUBLICATION.
II
WHETHER OR NOT THE LOWER COURT ERRED IN

DISMISSING THE CASE AND QUASHING THE
INFORMATIONS WITHOUT GIVING THE
PROSECUTOR THE OPPORTUNITY TO AMEND THE
INFORMATIONS.[24]
In its January 8, 2013 Decision, the Court of Appeals
sustained that the Informations did not substantially
constitute the offense charged.[25] It found that the
Informations did not contain any allegation that the
emails allegedly sent by Dio to Desmond had been
accessed.[26] However, it found that the trial court
erred in quashing the Informations without giving the
prosecution a chance to amend them pursuant to Rule
117, Section 4 of the Rules of Court:
Although we agree with the trial court that the facts
alleged in the Informations do not substantially
constitute the offense charged, the most prudent thing
to do for the trial court is to give the prosecution the
opportunity to amend it and make the necessary
corrections. Indeed, an Information may be defective
because the facts charged do not constitute an offense,
however, the dismissal of the case will not necessarily
follow. The Rules specifically require that the
prosecution should be given a chance to correct the
defect; the court can order the dismissal only upon the
prosecution's failure to do so. The trial court's failure to
provide the prosecution with this opportunity
constitutes an arbitrary exercise of power.[27]
The dispositive portion reads:
WHEREFORE, premises considered, the appeal is
GRANTED. The order of the Regional Trial Court of
Balanga City, Branch 3 dated February 12, 2009 in
Criminal Case Nos. 9108 and 9109 is REVERSED AND
SET ASIDE. The case is remanded to the trial court and
the Public Prosecutor of Balanga City is hereby
DIRECTED to amend the Informations.
SO ORDERED.[28]
Dio moved for reconsideration,[29] but the Court of
Appeals denied the Motion in its July 10, 2013
Resolution.[30]
Hence, this Petition was filed.
Desmond and the Office of the Solicitor General filed

their Comments,[31] to which Dio filed her Reply.[32]
On April 2, 2014, this Court gave due course to the
Petition and required the parties to submit their
respective memoranda.[33]
The Office of the Solicitor General filed on June 11,

2014 a Manifestation and Motion[34] adopting its
Comment. Desmond and Dio filed their memoranda on
June 19, 2014[35] and July 10, 2014,[36] respectively.
Dio stresses that "venue is jurisdictional in criminal

cases."[37] Considering that libel is limited as to the
venue of the case, failure to allege "where the libelous
article was printed and first published"[38] or "where
the offended party actually resided at the time of the
commission of the offense"[39] is a jurisdictional
defect. She argues that jurisdictional defects in an
Information are not curable by amendment, even
before arraignment. To support this position, she cites
Agustin v. Pamintuan:[40]
We do not agree with the ruling of the CA that the
defects in the Informations are merely formal. Indeed,
the absence of any allegations in the Informations that
the offended party was actually residing in Baguio City,
where the crimes charged were allegedly committed, is
a substantial defect. Indeed, the amendments of the
Informations to vest jurisdiction upon the court cannot
be allowed.[41] (Citations omitted)
Dio also cites Leviste v. Hon. Alameda,[42] where this
Court has stated that not all defects in an Information
are curable by amendment prior to arraignment:
It must be clarified though that not all defects in an
information are curable by amendment prior to entry of
plea. An information which is void ab initio cannot be
amended to obviate a ground for quashal. An
amendment which operates to vest jurisdiction upon
the trial court is likewise impermissible.[43] (Citations
omitted)
Dio argues that the Informations were void as the
prosecutor of Morong, Bataan had no authority to
conduct the preliminary investigation of the offenses
charged.[44] The complaint filed before the prosecutor
did not allege that the emails were printed and first
published in Morong Bataan, or that Desmond resided
in Morong, Bataan at the time of the offense.[45] In the
absence of these allegations, the prosecutor did not
have the authority to conduct the preliminary
investigation or to file the information.[46]
Dio further argues that publication, one of the elements

of libel, was not present in the case. She asserts that
emailing does not constitute publication under Article
355 of the Revised Penal Code. As there was no
allegation in the Informations that the emails were
received, accessed, and read by third persons other
than Desmond, there could be no publication.[47]
Further, emails are not covered under Article 355 of the
Revised Penal Code. Thus, at the time the allegedly
libelous emails were sent, there was no law punishing
this act.[48]
Finally, Dio argues that she sent the emails as private

communication to the officers of the corporation, who
were in the position to act on her grievances.[49] The
emails were sent in good faith, with justifiable ends,
and in the performance of a legal duty.[50]
The primordial issue for resolution is whether an

information's failure to establish venue is a defect that
can be cured by amendment before arraignment.
The Petition is denied.
If a motion to quash is based on a defect in the

information that can be cured by amendment, the court
shall order that an amendment be made. Rule 117,
Section 4 of the Rules of Court states:
SEC. 4. Amendment of complaint or information. - If
the motion to quash is based on an alleged defect of the
complaint or information which can be cured by
amendment, the court shall order that an amendment
be made.
If it is based on the ground that the facts charged do not

constitute an offense, the prosecution shall be given by
the court an opportunity to correct the defect by
amendment. The motion shall be granted if the
prosecution fails to make the amendment, or the
complaint or information still suffers from the same
defect despite the amendment.
This Court has held that failure to provide the
prosecution with the opportunity to amend is an
arbitrary exercise of power.[51] In People v.
Sandiganbayan:[52]
When a motion to quash is filed challenging the validity
and sufficiency of an Information, and the defect may
be cured by amendment, courts must deny the motion
to quash and order the prosecution to file an amended
Information. Generally, a defect pertaining to the
failure of an Information to charge facts constituting an
offense is one that may be corrected by an amendment.
In such instances, courts are mandated not to
automatically quash the Information; rather, it should
grant the prosecution the opportunity to cure the defect
through an amendment. This rule allows a case to
proceed without undue delay. By allowing the defect to
be cured by simple amendment, unnecessary appeals
based on technical grounds, which only result to
prolonging the proceedings, are avoided.
More than this practical consideration, however, is the

due process underpinnings of this rule. As explained by
this Court in People v. Andrade, the State, just like any
other litigant, is entitled to its day in court. Thus, a
court's refusal to grant the prosecution the opportunity
to amend an Information, where such right is expressly
granted under the Rules of Court and affirmed time and
again in a string of Supreme Court decisions, effectively
curtails the State's right to due process.[53]
In this case, petitioner Virginia Dio has not yet been
arraigned; thus, Rule 117, Section 4 of the Rules of
Court applies. If the information is defective, the
prosecution must be given the opportunity to amend it
before it may be quashed.
Petitioner claims that Rule 117, Section 4 of the Rules of
Court applies only to informations that can be cured by
amendment. She argues that before a court orders that
an amendment be made, or otherwise gives the
prosecution an opportunity to amend an information, it
must first establish that the defective information can
be cured by amendment.
Petitioner relies on Agustin to argue the proscription of

an amendment of an information in order to vest
jurisdiction in the court. This is misplaced.
In Agustin, the accused in the criminal case was already

arraigned under a defective information that failed to
establish venue.[54] The Court of Appeals held that the
defect in the information was merely formal and,
consequently, could be amended even after plea, with
leave of court. Thus, this Court held:
We do not agree with the ruling of the CA that the
defects in the Informations are merely formal. Indeed,
the absence of any allegations in the Informations that
the offended party was actually residing in Baguio City,
where the crimes charged were allegedly committed, is
a substantial defect. Indeed, the amendments of the
Informations to vest jurisdiction upon the court cannot
be allowed.[55]
In turn, Agustin cited Agbayani v. Sayo.[56] However,
Agbayani does not involve the amendment of a
defective information before or after arraignment.
Subsequent cases have cited Agustin as basis that
amendment of an information to vest jurisdiction in the
trial court is impermissible. Thus, in Leviste, this Court
cited Agustin and stated that certain amendments are
impermissible even before arraignment:
It must be clarified though that not all defects in an
information are curable by amendment prior to entry of
plea. An information which is void ab initio cannot be
amended to obviate a ground for quashal. An
amendment which operates to vest jurisdiction upon
the trial court is likewise impermissible.[57]
It may appear that Leviste supports petitioner's
contention that an amendment operating to vest
jurisdiction in the trial court is impermissible.
However, the statement in Leviste was obiter dictum. It
cites only Agustin, which did not involve the
amendment of an information before arraignment.
Aside from obiter dictum in jurisprudence, petitioner

provides no legal basis to reverse the Court of Appeals'
determination that the defective informations may be
amended before arraignment. Although the cases
petitioner cited involved defective informations that
failed to establish the jurisdiction of the court over the
libel charges, none involved the amendment of an
information before arraignment. Thus, these cannot be
controlling over the facts of this case.
II
A defect in the complaint filed before the fiscal is not a

ground to quash an information. In Sasot v.
People:[58]
Section 3, Rule 117 of the 1985 Rules of Criminal
Procedure, which was then in force at the time the
alleged criminal acts were committed, enumerates the
grounds for quashing an information, to wit:
a) That the facts charged do not constitute an offense;
That the court trying the case has no jurisdiction over th

b)
charged or the person of the accused;
c) That the officer who filed the information had no authority to
d) That it does not conform substantially to the prescribed form
That more than one offense is charged except in those cases

e)
existing laws prescribe a single punishment for various offens
f) That the criminal action or liability has been extinguished;

That it contains averments which, if true, would constitu
g)
excuse or justification; and
That the accused has been previously convicted or in jeopard

h)
convicted, or acquitted of the offense charged.
Nowhere in the foregoing provision is there any mention
of the defect in the complaint filed before the fiscal and
the complainant's capacity to sue as grounds for a
motion to quash.[59]
On the other hand, lack of authority to file an
information is a proper ground. In Cudia v. Court of
Appeals:[60]
With respect to the second requisite, however, it is
plainly apparent that the City Prosecutor of Angeles
City had no authority to file the first information, the
offense having been committed in the Municipality of
Mabalacat, which is beyond his jurisdiction.
Presidential Decree No. 1275, in relation to Section 9 of
the Administrative Code of 1987, pertinently provides
that:
"Section 11. The provincial or the city fiscal shall:

....
(b) Investigate and/or cause to be investigated all

charges of crimes, misdemeanors and violations of all
penal laws and ordinances within their respective
jurisdictions and have the necessary information or
complaint prepared or made against the persons
accused. In the conduct of such investigations he or his
assistants shall receive the sworn statements or take
oral evidence of witnesses summoned by subpoena for
the purpose.
....
It is thus the Provincial Prosecutor of Pampanga, not
the City Prosecutor, who should prepare informations
for offenses committed within Pampanga but outside of
Angeles City. An information, when required to be filed
by a public prosecuting officer, cannot be filed by
another. It must be exhibited or presented by the
prosecuting attorney or someone authorized by law. If
not, the court does not acquire jurisdiction.
Petitioner, however, insists that his failure to assert the

lack of authority of the City Prosecutor in filing the
information in question is deemed a waiver thereof. As
correctly pointed out by the Court of Appeals,
petitioner's plea to an information before he filed a
motion to quash may be a waiver of all objections to it
insofar as formal objections to the pleadings are
concerned. But by clear implication, if not by express
provision of the Rules of Court, and by a long line of
uniform decisions, questions relating to want of
jurisdiction may be raised at any stage of the
proceeding. It is a valid information signed by a
competent officer which, among other requisites,
confers jurisdiction on the court over the person of the
accused (herein petitioner) and the subject matter of
the accusation. In consonance with this view, an
infirmity in the information, such as lack of authority of
the officer signing it, cannot be cured by silence,
acquiescence, or even by express consent.
In fine, there must have been a valid and sufficient

complaint or information in the former prosecution. If,
therefore, the complaint or information was insufficient
because it was so defective in form or substance that
the conviction upon it could not have been sustained,
its dismissal without the consent of the accused cannot
be pleaded. As the fiscal had no authority to file the
information, the dismissal of the first information
would not be a bar to petitioner's subsequent
prosecution. Jeopardy does not attach where a
defendant pleads guilty to a defective indictment that is
voluntarily dismissed by the prosecution.
Petitioner next claims that the lack of authority of the

City Prosecutor was the error of the investigating panel
and the same should not be used to prejudice and
penalize him. It is an all too familiar maxim that the
State is not bound or estopped by the mistakes or
inadvertence of its officials and employees. To rule
otherwise could very well result in setting felons free,
deny proper protection to the community, and give rise
to the possibility of connivance between the prosecutor
and the accused.
Finally, petitioner avers that an amendment of the first

information, and not its dismissal, should have been
the remedy sought by the prosecution. Suffice it to say
that this Court, in Galvez vs. Court of Appeals has
ruled that even if amendment is proper, pursuant to
Section 14 of Rule 110, it is also quite plausible under
the same provision that, instead of an amendment, an
information may be dismissed to give way to the filing
of a new information.[61] (Emphasis in the original,
citations omitted)
However, for quashal of an information to be sustained,
the defect of the information must be evident on its
face. In Santos v. People:[62]
First, a motion to quash should be based on a defect in
the information which is evident on its face. The same
cannot be said herein. The Information against
petitioner appears valid on its face; and that it was filed
in violation of her constitutional rights to due process
and equal protection of the laws is not evident on the
face thereof. As pointed out by the CTA First Division in
its 11 May 2006 Resolution, the more appropriate
recourse petitioner should have taken, given the
dismissal of similar charges against Velasquez, was to
appeal the Resolution dated 21 October 2005 of the
Office of the State Prosecutor recommending the filing
of an information against her with the DOJ
Secretary.[63]
For an information to be quashed based on the
prosecutor's lack of authority to file it, the lack of the
authority must be evident on the face of the
information.
The Informations here do not allege that the venue of
the offense was other than Morong, Bataan. Thus, it is
not apparent on the face of the Informations that the
prosecutor did not have the authority to file them.
The proper remedy is to give the prosecution the

opportunity to amend the Informations. If the proper
venue appears not to be Morong, Bataan after the
Informations have been amended, then the trial court
may dismiss the case due to lack of jurisdiction, as well
as lack of authority of the prosecutor to file the
information.
III
Article 355 of the Revised Penal Code provides:

Article 355. Libel by means of writings or similar
means. - A libel committed by means of writing,
printing, lithography, engraving, radio, phonograph,
painting, theatrical exhibition, cinematographic
exhibition, or any similar means, shall be punished by
prision correccional in its minimum and medium
periods or a fine ranging from 200 to 6,000 pesos, or
both, in addition to civil action which may be brought
by the offended party.
Petitioner argues that at the time of the offense, emails
were not covered under Article 355 of the Revised Penal
Code. Petitioner claims this is bolstered by the
enactment of Republic Act No. 10175, otherwise known
as the Anti-Cybercrime Law, which widened the scope
of libel to include libel committed through email,
among others.[64]
Whether emailing or, as in this case, sending emails to

the persons named in the Informations—who appear to
be officials of Subic Bay Metropolitan Authority where
Subic Bay Marine Exploratorium is found—is
sufficiently "public," as required by Articles 353 and
355 of the Revised Penal Code and by the Anti-
Cybercrime Law, is a matter of defense that should be
properly raised during trial.
Passionate and emphatic grievance, channelled through

proper public authorities, partakes of a degree of
protected freedom of expression.[65]
Certainly, if we remain faithful to the dictum that

public office is a public trust,[66] some leeway should
be given to the public to express disgust. The scope and
extent of that protection cannot be grounded in
abstractions. The facts of this case need to be proven by
evidence; otherwise, this Court exercises barren
abstractions that may wander into situations only
imagined, not real.
IV
Good faith is not among the grounds for quashing an

information as enumerated in Rule 117, Section 3 of the
Rules of Court. It is not apparent on the face of the
Informations, and what is not apparent cannot be the
basis for quashing them. In Danguilan-Vitug v. Court
of Appeals:[67]
We find no reason to depart from said conclusion.
Section 3, Rule 117 of the Revised Rules of Court
enumerates the grounds for quashing an information.
Specifically, paragraph (g) of said provision states that
the accused may move to quash the complaint or
information where it contains averments which, if true,
would constitute a legal excuse or justification. Hence,
for the alleged privilege to be a ground for quashing the
information, the same should have been averred in the
information itself and secondly, the privilege should be
absolute, not only qualified. Where, however, these
circumstances are not alleged in the information,
quashal is not proper as they should be raised and
proved as defenses. With more reason is it true in the
case of merely qualifiedly privileged communications
because such cases remain actionable since the
defamatory communication is simply presumed to be
not malicious, thereby relieving the defendant of the
burden of proving good intention and justifiable
motive. The burden is on the prosecution to prove
malice. Thus, even if the qualifiedly privileged nature of
the communication is alleged in the information, it
cannot be quashed especially where prosecution
opposes the same so as not to deprive the latter of its
day in court, but prosecution can only prove its case
after trial on the merits. In People v. Gomez we held,
inter alia:
"The claim of the accused . . . that the letter is
privileged communication is not a ground for a motion
to quash. It is a matter of defense which must be proved
after trial of the case on the merits."[68] (Citations
omitted)
Thus, the Court of Appeals did not err in disregarding
petitioner's purported good faith. This should be a
matter of defense properly raised during trial.
WHEREFORE, the Petition for Review on Certiorari

dated July 29, 2013 is DENIED. The Court of Appeals
Decision dated January 8, 2013 and Resolution dated
July 10, 2013 are AFFIRMED.
SO ORDERED.
Carpio, (Chairperson), Del Castillo, and Mendoza, JJ.,

concur.
Brion, J., on official leave.
[1] Rollo, pp. 3-22. The Petition was filed under Rule 45
of the Rules of Court.
[2] Id. at 24-32. The Decision, docketed as CA-G.R. CR

No. 32514, was penned by Associate Justice Amelita G.
Tolentino and concurred in by Associate Justices Ramon
R. Garcia and Danton Q. Bueser of the Fourth Division,
Court of Appeals, Manila.
[3] Id. at 34-35. The Resolution was penned by Associate
Justice Amelita G. Tolentino and concurred in by
Associate Justices Ramon R. Garcia and Danton Q.
Bueser of the Fourth Division, Court of Appeals, Manila.
[4] Id. at 31.
[5] Id. at 24.
[6] Id.
[7] Id.
[8] Id. at 28.
[9] Id. at 28-29.
[10] Id. at 25.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id. at 26.
[22] Id.
[23] Id.
[24] Id. at 26-27.
[25] Id. at 27-28.
[26] Id. at 29.
[27] Id. at 30-31.
[28] Id. at 31.
[29] Id. at 36-44.
[30] Id. at 34-35.
[31] Id. at 57-70, Desmond's Comment, and 76-87,

Office of the Solicitor General's Comment.
[32] Id. at 90-97.
[33] Id. at 99.
[34] Id. at 100.
[33] Id. at 104-116.
[36] Id. at 130-151.
[37] Id. at 139.
[38] Id. at 140.
[39] Id.
[40] 505 Phil. 103 (2005) [Per J. Callejo, Sr., Second

Division].
[41] Id. at 113.
[42] 640 Phil. 620 (2010) [Per J. Carpio Morales, Third

Division].
[43] Id. at 640.
[44] Rollo , pp. 15-16, Petition.
[45] Id.
[46] Id.
[47] Id. at 147.
[48] Id. at 145.
[49] Id. at 147.
[50] Id.
[51] Go v. Bangko Sentral ng Pilipinas, 619 Phil. 306,

321 (2009) [Per J. Brion, Second Division].
[52] G.R. No. 160619, September 9, 2015 <<ax

xx"http://http://scjudiciary.gov.ph/pdf/web/viewer.ht
ml?file=/jurisprudence/2015/september2015/160619.p
df">http://scjudiciary.gov.ph/pdf/web/viewer.html?fil
e=/jurisprudence/2015/september2015/160619.pdf>
[Per J. Jardeleza, Third Division].
[53] Id. at 10, citing People v. Andrade, G.R. No.

187000, November 24, 2014 <<ax
xx"http://http://sc.judiciary.gov.ph/pdf/web/viewer.h
tml?file=/jurisprudence/2014/november2014/187000.
pdf">http://sc.judiciary.gov.ph/pdf/web/viewer.html?f
ile=/jurisprudence/2014/november2014/187000.pdf>
[Per J. Peralta, Third Division].
[54] Id. at 112.
[55] Id. at 113.
[56] 178 Phil. 574 (1979) [Per J. Aquino, Second

Division].
[57] Id. at 640.
[58] 500 Phil. 527 (2005) [Per J. Austria-Martinez,

Second Division].
[59] Id. at 536.
[60] 348 Phil. 190 (1998) [Per J. Romero, Third

Division].
[61] Id. at 199-202.
[62] 585 Phil. 337 (2008) [Per J. Chico-Nazario, Third

Division].
[63] Id. at 361, citing Gozos v. Hon. Tac-An, 360 Phil.

453,464 (1998) [Per J. Mendoza, Second Division].
[64] Rollo, p. 145, Memorandum.
[65] See J. Leonen, Dissenting and Concurring Opinion

in Disini v. Secretary of Justice, G.R. No. 203335,
February 18, 2014, 716 SCRA 237, 602-621 [Per J. Abad,
En Bane], which proffered the view that continued
criminalization of libel, especially in platforms using the
internet unqualifiedly produces a "chilling effect" that
stifles freedom of expression:
"The crime of libel in its 1930 version in the Revised

Penal Code was again reenacted through the
Cybercrime Prevention Act of 2012. It simply added the
use of the internet as one of the means to commit the
criminal acts. The reenactment of these archaic
provisions is unconstitutional for many reasons. At
minimum, it failed to take into consideration
refinements in the interpretation of the old law through
decades of jurisprudence. It now stands starkly in
contrast with the required constitutional protection of
freedom of expression.
....
With the definite evolution of jurisprudence to

accommodate free speech values, it is clear that the
reenactment of the old text of libel is now
unconstitutional. Articles 353, 354, and 355 of the
Revised Penal Code — and by reference, Section 4(c)4
of the law in question — are now overbroad as it
prescribes a definition and presumption that have been
repeatedly struck down by this court for several
decades.
....
The effect on speech of the dangerously broad

provisions of the current law on libel is even more
palpable in the internet.
....
The broad and simplistic formulation now in Article

353 of the Revised Penal Code essential for the
punishment of cyber libel can only cope with these
variations produced by the technologies in the Internet
by giving law enforcers wide latitude to determine
which acts are defamatory. There are no judicially
determinable standards. The approach will allow
subjective case-by-case ad hoc determination. There
will be no real notice to the speaker or writer. The
speaker or writer will calibrate speech not on the basis
of what the law provides but on who enforces it.
This is quintessentially the chilling effect of this law.
The threat of being prosecuted for libel stifles the

dynamism of the conversations that take place in
cyberspace. These conversations can be loose yet full of
emotion. These can be analytical and the product of
painstaking deliberation. Other conversations can just
be exponential combinations of these forms that
provide canisters to evolving ideas as people from
different communities with varied identities and
cultures come together to test their messages.
Certainly, there will be a mix of the public and the

private; the serious and the not so serious. But, this
might be the kind of democratic spaces needed by our
society: a mishmash of emotion and logic that may
creatively spring solutions to grave public issues in
better and more entertaining ways than a symposium of
scholars. Libel with its broad bright lines, thus, is an
anachronistic tool that may have had its uses in older
societies: a monkey wrench that will steal inspiration
from the democratic mob" (Id. at 50-62).
[66] CONST., art. XI, sec. 1.
[67] G.R. No. 103618, May 20, 1994, 232 SCRA 460 [Per
J. Romero, Third Division].
[68] Id. at 467-468.

G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P.
MEDINA, JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE
EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL
POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN
MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING,
HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E.
RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL.,
Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno
Simeon Aquino III, SENATE OF THE PHILIPPINES, and HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE,
and DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-
CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and
GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND
MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT
OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL
BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE,
AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY,
Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI
CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL.,
Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and
alter-ego of President Benigno Simeon Aquino III, LEILA DE LIMA in
her capacity as Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL
RENATO M. REYES, JR., National Artist BIENVENIDO L. LUMBERA,
Chairperson of Concerned Artists of the Philippines, ELMER C.
LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY,
Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of
COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-
List, LANA R. LINABAN, Secretary General Gabriela Women's Party,
ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA MATIBAG,
Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the
Philippines, PAQUITO N. OCHOA, JR., Executive Secretary, SENATE
OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN
PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by
SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of
the Department of Justice, LOUIS NAPOLEON C. CASAMBRE,
Executive Director of the Information and Communications Technology
Office, NONNATUS CAESAR R. ROJAS, Director of the National Bureau
of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the
Philippine National Police, MANUEL A. ROXAS II, Secretary of the
Department of the Interior and Local Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA
STA. MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and
RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights Center),
Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary,
HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice,
HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the
Philippine National Police, The DIRECTOR of the National Bureau of
Investigation (all of the Executive Department of Government),
Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP),
PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM
AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO
AND THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES
AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS
ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN
RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175,
Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL
A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER
RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN
P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;
BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY
S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT
RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President
of the Republic of the Philippines; SENATE OF THE PHILIPPINES,
represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO
R. BELMONTE, JR., in his capacity as Speaker of the House of
Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as
Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his
capacity as Executive Director, Information and Communications
Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his
capacity as Director, National Bureau of Investigation; and P/DGEN.
NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as
President of the Republic of the Philippines; HON. PAQUITO N.
OCHOA, JR., in his official capacity as Executive Secretary; HON.
LEILA M. DE LIMA, in her official capacity as Secretary of Justice;
LOUIS NAPOLEON C. CASAMBRE, in his official capacity as Executive
Director, Information and Communications Technology Office;
NONNATUS CAESAR R. ROJAS, in his official capacity as Director of
the National Bureau of Investigation; and DIRECTOR GENERAL
NICANOR A. BARTOLOME, in his official capacity as Chief of the
Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by
BENNY D. ANTIPORDA in his capacity as President and in his personal
capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU
OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT
AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE
HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC
ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-
PHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by
Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-
DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE,
JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE
CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO,
ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA
ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ
OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF THE
CYBERCRIME INVESTIGATION AND COORDINATING CENTER,
Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic
Act (R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional
and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace.
Using his laptop or computer, a person can connect to the internet, a
system that links him to other computers and enable him, among other
things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that
he needs for research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos,
for the general public or for special audiences like associates, classmates,
or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and
payments;
4. Inquire and do business with institutional entities like government
agencies, banks, stock exchanges, trade houses, credit card companies,
public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail
address or telephone.
This is cyberspace, a system that accommodates millions and billions of
simultaneous and ongoing individual accesses to and uses of the internet.
The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to
use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of
another or bully the latter by posting defamatory statements against him
that people can read.
And because linking with the internet opens up a user to communications
from others, the ill-motivated can use the cyberspace for committing theft
by hacking into or surreptitiously accessing his bank account or credit card
or defrauding him through false representations. The wicked can use the
cyberspace, too, for illicit trafficking in sex or for exposing to pornography
guileless children who have access to the internet. For this reason, the
government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or
cause havoc to the computer systems and networks of indispensable or
highly useful institutions as well as to the laptop or computer programs and
memories of innocent individuals. They accomplish this by sending
electronic viruses or virtual dynamites that destroy those computer
systems, networks, programs, and memories. The government certainly
has the duty and the right to prevent these tomfooleries from happening
and punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their
constitutional rights. The government of course asserts that the law merely
seeks to reasonably put order into cyberspace activities, punish
wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases,
on February 5, 2013 the Court extended the original 120-day temporary
restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law
until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the
cybercrime law that regard certain acts as crimes and impose penalties for
their commission as well as provisions that would enable the government to
track down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of
Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC)
and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC);
and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354,
361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense
of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
(1) Illegal Access. – The access to the whole or any part of a computer
system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny
standard required of laws that interfere with the fundamental rights of the
people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct,1 useful in determining the constitutionality of laws
that tend to target a class of things or persons. According to this standard,
a legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a
suspect class is presumed unconstitutional. The burden is on the
government to prove that the classification is necessary to achieve a
compelling state interest and that it is the least restrictive means to protect
such interest.2 Later, the strict scrutiny standard was used to assess the
validity of laws dealing with the regulation of speech, gender, or race as
well as other fundamental rights, as expansion from its earlier applications
to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls
for the application of the strict scrutiny standard since no fundamental
freedom, like speech, is involved in punishing what is essentially a
condemnable act – accessing the computer system of another without
right. It is a universally condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical
hackers, professionals who employ tools and techniques used by criminal
hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target system’s security and report back to the
owners the vulnerabilities they found in it and give instructions for how
these can be remedied. Ethical hackers are the equivalent of independent
auditors who come into an organization to verify its bookkeeping records.5
Besides, a client’s engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and
the systems to be tested. This is referred to as the "get out of jail free
card."6 Since the ethical hacker does his job with prior permission from the
client, such permission would insulate him from the coverage of Section
4(a)(1).
Section 4(a)(3) of the Cybercrime Law
xxxx
(3) Data Interference. – The intentional or reckless alteration, damaging,
deletion or deterioration of computer data, electronic document, or
electronic data message, without right, including the introduction or
transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while
it seeks to discourage data interference, it intrudes into the area of
protected speech and expression, creating a chilling and deterrent effect on
these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly, thereby invading the area of
protected freedoms.7 But Section 4(a)(3) does not encroach on these
freedoms at all. It simply punishes what essentially is a form of vandalism,8
the act of willfully destroying without right the things that belong to others,
in this case their computer data, electronic document, or electronic data
message. Such act has no connection to guaranteed freedoms. There is no
freedom to destroy other people’s computer systems and private
documents.
All penal laws, like the cybercrime law, have of course an inherent chilling
effect, an in terrorem effect9 or the fear of possible prosecution that hangs
on the heads of citizens who are minded to step beyond the boundaries of
what is proper. But to prevent the State from legislating criminal laws
because they instill such kind of fear is to render the state powerless in
addressing and penalizing socially harmful conduct.10 Here, the chilling
effect that results in paralysis is an illusion since Section 4(a)(3) clearly
describes the evil that it seeks to punish and creates no tendency to
intimidate the free exercise of one’s constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden
of proving that under no set of circumstances will Section 4(a)(3) be valid.11
Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
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(6) Cyber-squatting. – The acquisition of domain name over the internet in
bad faith to profit, mislead, destroy the reputation, and deprive others from
registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of the
domain name registration;
(ii) Identical or in any way similar with the name of a person other than the
registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal
protection clause12 in that, not being narrowly tailored, it will cause a user
using his real name to suffer the same fate as those who use aliases or
take the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist
named "Julio Gandolfo," the law would punish for cyber-squatting both the
person who registers such name because he claims it to be his pseudo-
name and another who registers the name because it happens to be his
real name. Petitioners claim that, considering the substantial distinction
between the two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which
happens to be his real name or use it as a pseudo-name for it is the evil
purpose for which he uses the name that the law condemns. The law is
reasonable in penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-
motivated of the rightful opportunity of registering the same. The challenge
to the constitutionality of Section 4(a)(6) on ground of denial of equal
protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition, use,
misuse, transfer, possession, alteration, or deletion of identifying
information belonging to another, whether natural or juridical, without right:
Provided: that if no damage has yet been caused, the penalty imposable
shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due
process and to privacy and correspondence, and transgresses the freedom
of the press.
The right to privacy, or the right to be let alone, was institutionalized in the
1987 Constitution as a facet of the right protected by the guarantee against
unreasonable searches and seizures.13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to
privacy exists independently of its identification with liberty; it is in itself fully
deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as
the "Zones of Privacy." The Court explained in "In the Matter of the Petition
for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the
relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these
zones, any form of intrusion is impermissible unless excused by law and in
accordance with customary legal process. The meticulous regard we
accord to these zones arises not only from our conviction that the right to
privacy is a "constitutional right" and "the right most valued by civilized
men," but also from our adherence to the Universal Declaration of Human
Rights which mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the right to the protection
of the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right
against unreasonable searches16 and seizures, which is the basis of the
right to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has
impermissibly intruded into these zones of privacy, a court must determine
whether a person has exhibited a reasonable expectation of privacy and, if
so, whether that expectation has been violated by unreasonable
government intrusion.18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and date
of birth, the name of his spouse if any, his occupation, and similar data. 19
The law punishes those who acquire or use such identifying information
without right, implicitly to cause damage. Petitioners simply fail to show
how government effort to curb computer-related identity theft violates the
right to privacy and correspondence as well as the right to due process of
law.
Also, the charge of invalidity of this section based on the overbreadth
doctrine will not hold water since the specific conducts proscribed do not
intrude into guaranteed freedoms like speech. Clearly, what this section
regulates are specific actions: the acquisition, use, misuse or deletion of
personal identifying data of another. There is no fundamental right to
acquire another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the
press in that journalists would be hindered from accessing the unrestricted
user account of a person in the news to secure information about him that
could be published. But this is not the essence of identity theft that the law
seeks to prohibit and punish. Evidently, the theft of identity information
must be intended for an illegitimate purpose. Moreover, acquiring and
disseminating information made public by the user himself cannot be
regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be
established through the overt acts of the offender, and it may be presumed
from the furtive taking of useful property pertaining to another, unless
special circumstances reveal a different intent on the part of the
perpetrator.20 As such, the press, whether in quest of news reporting or
social investigation, has nothing to fear since a special circumstance is
present to negate intent to gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(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.
Petitioners claim that the above violates the freedom of expression clause
of the Constitution.21 They express fear that private communications of
sexual character between husband and wife or consenting adults, which
are not regarded as crimes under the penal code, would now be regarded
as crimes when done "for favor" in cyberspace. In common usage, the term
"favor" includes "gracious kindness," "a special privilege or right granted or
conceded," or "a token of love (as a ribbon) usually worn conspicuously."22
This meaning given to the term "favor" embraces socially tolerated trysts.
The law as written would invite law enforcement agencies into the
bedrooms of married couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this
section of the Cybercrime Prevention Act give a proper perspective on the
issue. These deliberations show a lack of intent to penalize a "private
showing x x x between and among two private persons x x x although that
may be a form of obscenity to some."23 The understanding of those who
drew up the cybercrime law is that the element of "engaging in a business"
is necessary to constitute the illegal cybersex.24 The Act actually seeks to
punish cyber prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e.,
by webcam.25
The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or
sexual activity—is not novel. Article 201 of the RPC punishes "obscene
publications and exhibitions and indecent shows." The Anti-Trafficking in
Persons Act of 2003 penalizes those who "maintain or hire a person to
engage in prostitution or pornography."26 The law defines prostitution as any
act, transaction, scheme, or design involving the use of a person by
another, for sexual intercourse or lascivious conduct in exchange for
money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can
regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise,
engaging in sexual acts privately through internet connection, perceived by
some as a right, has to be balanced with the mandate of the State to
eradicate white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of
jurisprudence delineating the bounds of obscenity.30 The Court will not
declare Section 4(c)(1) unconstitutional where it stands a construction that
makes it apply only to persons engaged in the business of maintaining,
controlling, or operating, directly or indirectly, the lascivious exhibition of
sexual organs or sexual activity with the aid of a computer system as
Congress has intended.
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of
xxxx
xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined and
punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of
2009, committed through a computer system: Provided, That the penalty to
be imposed shall be (1) one degree higher than that provided for in
Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 200931 (ACPA) to cover identical activities in
cyberspace. In theory, nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child pornography using a
computer system. Actually, ACPA’s definition of child pornography already
embraces the use of "electronic, mechanical, digital, optical, magnetic or
any other means." Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime
is committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for
such higher penalty.32 The potential for uncontrolled proliferation of a
particular piece of child pornography when uploaded in the cyberspace is
incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for
any person to "produce, direct, manufacture or create any form of child
pornography"33 clearly relates to the prosecution of persons who aid and
abet the core offenses that ACPA seeks to punish.34 Petitioners are wary
that a person who merely doodles on paper and imagines a sexual abuse
of a 16-year-old is not criminally liable for producing child pornography but
one who formulates the idea on his laptop would be. Further, if the author
bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it
will be discussed elsewhere below. For now the Court must hold that the
constitutionality of Section 4(c)(2) is not successfully challenged.
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of
xxxx
xxxx
(3) Unsolicited Commercial Communications. – The transmission of
commercial electronic communication with the use of computer system
which seeks to advertise, sell, or offer for sale products and services are
prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or
administrative announcements from the sender to its existing users,
subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid,
and reliable way for the recipient to reject receipt of further commercial
electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely disguise
the source of the electronic message; and
(cc) The commercial electronic communication does not purposely include
misleading information in any part of the message in order to induce the
recipients to read the message.
The above penalizes the transmission of unsolicited commercial
communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the
same sentence or comment was said to be making a "spam." The term
referred to a Monty Python’s Flying Circus scene in which actors would
keep saying "Spam, Spam, Spam, and Spam" when reading options from a
menu.35
The Government, represented by the Solicitor General, points out that
unsolicited commercial communications or spams are a nuisance that
wastes the storage and network capacities of internet service providers,
reduces the efficiency of commerce and technology, and interferes with the
owner’s peaceful enjoyment of his property. Transmitting spams amounts
to trespass to one’s privacy since the person sending out spams enters the
recipient’s domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people,
before the arrival of the age of computers, have already been receiving
such unsolicited ads by mail. These have never been outlawed as nuisance
since people might have interest in such ads. What matters is that the
recipient has the option of not opening or reading these mail ads. That is
true with spams. Their recipients always have the option to delete or not to
read them.
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.36
The State cannot rob him of this right without violating the constitutionally
guaranteed freedom of expression. Unsolicited advertisements are
legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on
libel as well as Section 4(c)(4) of the Cybercrime Prevention Act on
cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause the dishonor, discredit,
or contempt of a natural or juridical person, or to blacken the memory of
one who is dead.
Art. 354. Requirement for publicity. — 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, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are
not of confidential nature, or of any statement, report or speech delivered in
said proceedings, or of any other act performed by public officers in the
exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel committed by
means of writing, printing, lithography, engraving, radio, phonograph,
painting, theatrical exhibition, cinematographic exhibition, or any similar
means, shall be punished by prision correccional in its minimum and
medium periods or a fine ranging from 200 to 6,000 pesos, or both, in
addition to the civil action which may be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely
incorporates to form part of it the provisions of the RPC on libel. Thus
Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense
xxxx
xxxx
(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.
Petitioners lament that libel provisions of the penal code37 and, in effect, the
libel provisions of the cybercrime law carry with them the requirement of
"presumed malice" even when the latest jurisprudence already replaces it
with the higher standard of "actual malice" as a basis for conviction. 38
Petitioners argue that inferring "presumed malice" from the accused’s
defamatory statement by virtue of Article 354 of the penal code infringes on
his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be
stricken down as unconstitutional for otherwise good jurisprudence
requiring "actual malice" could easily be overturned as the Court has done
in Fermin v. People39 even where the offended parties happened to be
public figures.
The elements of libel are: (a) the allegation of a discreditable act or
condition concerning another; (b) publication of the charge; (c) identity of
the person defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not.42 The reckless disregard standard
used here requires a high degree of awareness of probable falsity. There
must be sufficient evidence to permit the conclusion that the accused in
fact entertained serious doubts as to the truth of the statement he
published. Gross or even extreme negligence is not sufficient to establish
actual malice.43
The prosecution bears the burden of proving the presence of actual malice
in instances where such element is required to establish guilt. The defense
of absence of actual malice, even when the statement turns out to be false,
is available where the offended party is a public official or a public figure, as
in the cases of Vasquez (a barangay official) and Borjal (the Executive
Director, First National Conference on Land Transportation). Since the
penal code and implicitly, the cybercrime law, mainly target libel against
private persons, the Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a defamatory statement where
the offended party is a public figure. Society’s interest and the maintenance
of good government demand a full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in
Fermin disregarded the higher standard of actual malice or malice in fact
when it found Cristinelli Fermin guilty of committing libel against
complainants who were public figures. Actually, the Court found the
presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by
simply making a general denial, convince us that there was no malice on
her part. Verily, not only was there malice in law, the article being malicious
in itself, but there was also malice in fact, as there was motive to talk ill
against complainants during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to
utterances against public figures in the above case, cinema and television
personalities, when it modified the penalty of imprisonment to just a fine of
₱6,000.00.
But, where the offended party is a private individual, the prosecution need
not prove the presence of malice. The law explicitly presumes its existence
(malice in law) from the defamatory character of the assailed statement.45
For his defense, the accused must show that he has a justifiable reason for
the defamatory statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime
Prevention Act violate the country’s obligations under the International
Covenant of Civil and Political Rights (ICCPR). They point out that in
Adonis v. Republic of the Philippines,47 the United Nations Human Rights
Committee (UNHRC) cited its General Comment 34 to the effect that penal
defamation laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory
statement should constitute an all-encompassing defense. As it happens,
Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and
for justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the
truth may be given in evidence to the court and if it appears that the matter
charged as libelous is true, and, moreover, that it was published with good
motives and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a
crime shall not be admitted, unless the imputation shall have been made
against Government employees with respect to facts related to the
discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made by
him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners
urge, to decriminalize libel. It simply suggested that defamation laws be
crafted with care to ensure that they do not stifle freedom of expression.48
Indeed, the ICCPR states that although everyone should enjoy freedom of
expression, its exercise carries with it special duties and responsibilities.
Free speech is not absolute. It is subject to certain restrictions, as may be
necessary and as may be provided by law.49
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.
The internet is characterized as encouraging a freewheeling, anything-goes
writing style.50 In a sense, they are a world apart in terms of quickness of
the reader’s reaction to defamatory statements posted in cyberspace,
facilitated by one-click reply options offered by the networking site as well
as by the speed with which such reactions are disseminated down the line
to other internet users. Whether these reactions to defamatory statement
posted on the internet constitute aiding and abetting libel, acts that Section
5 of the cybercrime law punishes, is another matter that the Court will deal
with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute an
offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who
willfully abets or aids in the commission of any of the offenses enumerated
in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully
attempts to commit any of the offenses enumerated in this Act shall be held
liable.
Petitioners assail the constitutionality of Section 5 that renders criminally
liable any person who willfully abets or aids in the commission or attempts
to commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected
expression.
The Solicitor General contends, however, that the current body of
jurisprudence and laws on aiding and abetting sufficiently protects the
freedom of expression of "netizens," the multitude that avail themselves of
the services of the internet. He points out that existing laws and
jurisprudence sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues that plain,
ordinary, and common usage is at times sufficient to guide law enforcement
agencies in enforcing the law.51 The legislature is not required to define
every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in
existing laws. When a person aids or abets another in destroying a forest,52
smuggling merchandise into the country,53 or interfering in the peaceful
picketing of laborers,54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These forms of
aiding or abetting lend themselves to the tests of common sense and
human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the
line of sight is somewhat blurred. The idea of "aiding or abetting"
wrongdoings online threatens the heretofore popular and unchallenged
dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of
Filipinos have accessed the internet within a year, translating to about 31
million users.55 Based on a recent survey, the Philippines ranks 6th in the
top 10 most engaged countries for social networking.56 Social networking
sites build social relations among people who, for example, share interests,
activities, backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late
2012, 1.2 billion people with shared interests use Facebook to get in
touch.58 Users register at this site, create a personal profile or an open book
of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile.59 A user can
post a statement, a photo, or a video on Facebook, which can be made
visible to anyone, depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone and not
only to his friends, anyone on Facebook can react to the posting, clicking
any of several buttons of preferences on the program’s screen such as
"Like," "Comment," or "Share." "Like" signifies that the reader likes the
posting while "Comment" enables him to post online his feelings or views
about the same, such as "This is great!" When a Facebook user "Shares" a
posting, the original "posting" will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and
microblogging service that enables its users to send and read short text-
based messages of up to 140 characters. These are known as "Tweets."
Microblogging is the practice of posting small pieces of digital content—
which could be in the form of text, pictures, links, short videos, or other
media—on the internet. Instead of friends, a Twitter user has "Followers,"
those who subscribe to this particular user’s posts, enabling them to read
the same, and "Following," those whom this particular user is subscribed
to, enabling him to read their posts. Like Facebook, a Twitter user can
make his tweets available only to his Followers, or to the general public. If a
post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another person’s tweet
without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet café that
may have provided the computer used for posting the blog; e) the person
who makes a favorable comment on the blog; and f) the person who posts
a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access
her blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain
married public official has an illicit affair with a movie star. Linda, one of
Maria’s friends who sees this post, comments online, "Yes, this is so true!
They are so immoral." Maria’s original post is then multiplied by her friends
and the latter’s friends, and down the line to friends of friends almost ad
infinitum. Nena, who is a stranger to both Maria and Linda, comes across
this blog, finds it interesting and so shares the link to this apparently
defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet"
the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of
Nena’s original tweet and posts this on her Facebook account.
Immediately, Pamela’s Facebook Friends start Liking and making
Comments on the assailed posting. A lot of them even press the Share
button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded
as "aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I
like this!," that could not be libel since he did not author the poster. If
Arthur, passing by and noticing the poster, writes on it, "Correct!," would
that be libel? No, for he merely expresses agreement with the statement on
the poster. He still is not its author. Besides, it is not clear if aiding or
abetting libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social
networking site. Would a reader and his Friends or Followers, availing
themselves of any of the "Like," "Comment," and "Share" reactions, be
guilty of aiding or abetting libel? And, in the complex world of cyberspace
expressions of thoughts, when will one be liable for aiding or abetting
cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who
pressed Like, Comment and Share) are essentially knee-jerk sentiments of
readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding
"Friends" or "Followers" in the criminal charge to be filed in court, who will
make a choice as to who should go to jail for the outbreak of the challenged
posting?
The old parameters for enforcing the traditional form of libel would be a
square peg in a round hole when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into account its unique
circumstances and culture, such law will tend to create a chilling effect on
the millions that use this new medium of communication in violation of their
constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v.
American Civil Liberties Union,61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of
age; and (2) the knowing use of an interactive computer service to send to
a specific person or persons under 18 years of age or to display in a
manner available to a person under 18 years of age communications that,
in context, depict or describe, in terms "patently offensive" as measured by
contemporary community standards, sexual or excretory activities or
organs.
Those who challenged the Act claim that the law violated the First
Amendment’s guarantee of freedom of speech for being overbroad. The
U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47
U.S.C.S. §223, is a matter of special concern for two reasons. First, the
CDA is a content-based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns because of its
obvious chilling effect on free speech. Second, the CDA is a criminal
statute. In addition to the opprobrium and stigma of a criminal conviction,
the CDA threatens violators with penalties including up to two years in
prison for each act of violation. The severity of criminal sanctions may well
cause speakers to remain silent rather than communicate even arguably
unlawful words, ideas, and images. As a practical matter, this increased
deterrent effect, coupled with the risk of discriminatory enforcement of
vague regulations, poses greater U.S. Const. amend. I concerns than those
implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223,
presents a great threat of censoring speech that, in fact, falls outside the
statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be
entitled to constitutional protection. That danger provides further reason for
insisting that the statute not be overly broad. The CDA’s burden on
protected speech cannot be justified if it could be avoided by a more
carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with just one
click of the mouse. Scurrilous statements can spread and travel fast across
the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking
from mild to disastrous reactions. Still, a governmental purpose, which
seeks to regulate the use of this cyberspace communication technology to
protect a person’s reputation and peace of mind, cannot adopt means that
will unnecessarily and broadly sweep, invading the area of protected
freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister
predicaments await internet users will suppress otherwise robust
discussion of public issues. Democracy will be threatened and with it, all
liberties. Penal laws should provide reasonably clear guidelines for law
enforcement officials and triers of facts to prevent arbitrary and
discriminatory enforcement.63 The terms "aiding or abetting" constitute
broad sweep that generates chilling effect on those who express
themselves through cyberspace posts, comments, and other messages.64
Hence, Section 5 of the cybercrime law that punishes "aiding or abetting"
libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial
challenge grounded on the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As Justice
Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the
inapplicability of the overbreadth and vagueness doctrines to penal statutes
as appropriate only insofar as these doctrines are used to mount ‘facial’
challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground – absence of due
process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if
he asserts a violation of his own rights. It prohibits one from assailing the
constitutionality of the statute based solely on the violation of the rights of
third persons not before the court. This rule is also known as the prohibition
against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute where it involves free
speech on grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on
protected speech that comes from statutes violating free speech. A person
who does not know whether his speech constitutes a crime under an
overbroad or vague law may simply restrain himself from speaking in order
to avoid being charged of a crime. The overbroad or vague law thus chills
him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium
of communication. It is inevitable that any government threat of punishment
regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that
use it. In this case, the particularly complex web of interaction on social
media websites would give law enforcers such latitude that they could
arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a
posting on the internet by liking it? Netizens are not given "fair notice" or
warning as to what is criminal conduct and what is lawful conduct. When a
case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting
but creates an altogether new defamatory story against Armand like "He
beats his wife and children," then that should be considered an original
posting published on the internet. Both the penal code and the cybercrime
law clearly punish authors of defamatory publications. Make no mistake,
libel destroys reputations that society values. Allowed to cascade in the
internet, it will destroy relationships and, under certain circumstances, will
generate enmity and tension between social or economic groups, races, or
religions, exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google
procures, stores, and indexes child pornography and facilitates the
completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in
the commission of child pornography crimes?68 Byars highlights a feature in
the American law on child pornography that the Cybercrimes law lacks—
the exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as
the publisher or speaker of any information provided by another information
content provider and cannot be held civilly liable for any action voluntarily
taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is
constitutionally protected.69
When a person replies to a Tweet containing child pornography, he
effectively republishes it whether wittingly or unwittingly. Does this make
him a willing accomplice to the distribution of child pornography? When a
user downloads the Facebook mobile application, the user may give
consent to Facebook to access his contact details. In this way, certain
information is forwarded to third parties and unsolicited commercial
communication could be disseminated on the basis of this information.70 As
the source of this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to relieve
users of annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. 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.71 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.
But the crime of aiding or abetting the commission of cybercrimes under
Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of
Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on Computer-related Fraud, Section
4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex. None of these offenses borders on the exercise of the freedom
of expression.
The crime of willfully attempting to commit any of these offenses is for the
same reason not objectionable. A hacker may for instance have done all
that is necessary to illegally access another party’s computer system but
the security employed by the system’s lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and
passwords of others but fail to use these because the system supervisor is
alerted.72 If Section 5 that punishes any person who willfully attempts to
commit this specific offense is not upheld, the owner of the username and
password could not file a complaint against him for attempted hacking. But
this is not right. The hacker should not be freed from liability simply
because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could
cover the innocent.73 While this may be true with respect to cybercrimes
that tend to sneak past the area of free expression, any attempt to commit
the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section
4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding
and abetting the commission of such acts can be identified with some
reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as
amended, and special laws, if committed by, through and with the use of
information and communications technologies shall be covered by the
relevant provisions of this Act: Provided, That the penalty to be imposed
shall be one (1) degree higher than that provided for by the Revised Penal
Code, as amended, and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through the internet
a qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed
using other means. In using the technology in question, the offender often
evades identification and is able to reach far more victims or cause greater
harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be
without prejudice to any liability for violation of any provision of the Revised
Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled
doctrine that a single set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and the Revised Penal Code.
When two different laws define two crimes, prior jeopardy as to one does
not bar prosecution of the other although both offenses arise from the same
fact, if each crime involves some important act which is not an essential
element of the other.74 With the exception of the crimes of online libel and
online child pornography, the Court would rather leave the determination of
the correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published
material on print, said to be libelous, is again posted online or vice versa,
that identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the
same elements and are in fact one and the same offense. Indeed, the OSG
itself claims that online libel under Section 4(c)(4) is not a new crime but is
one already punished under Article 353. Section 4(c)(4) merely establishes
the computer system as another means of publication.75 Charging the
offender under both laws would be a blatant violation of the proscription
against double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2)
merely expands the ACPA’s scope so as to include identical activities in
cyberspace. As previously discussed, ACPA’s definition of child
pornography in fact already covers the use of "electronic, mechanical,
digital, optical, magnetic or any other means." Thus, charging the offender
under both Section 4(c)(2) and ACPA would likewise be tantamount to a
violation of the constitutional prohibition against double jeopardy.
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts
enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand
pesos (Ph₱200,000.00) up to a maximum amount commensurate to the
damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be
punished with imprisonment of prision mayor or a fine of not more than Five
hundred thousand pesos (Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical
infrastructure, the penalty of reclusion temporal or a fine of at least Five
hundred thousand pesos (Ph₱500,000.00) up to maximum amount
commensurate to the damage incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in
Section 4(c)(1) of this Act shall be punished with imprisonment of prision
mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00)
but not exceeding One million pesos (Ph₱1,000,000.00) or both.
Section 4(c)(2) of this Act shall be punished with the penalties as
enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of
2009:" Provided, That the penalty to be imposed shall be one (1) degree
higher than that provided for in Republic Act No. 9775, if committed through
a computer system.
Section 4(c)(3) shall be punished with imprisonment of arresto mayor or a
fine of at least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two
hundred fifty thousand pesos (Ph₱250,000.00) or both.
Section 5 shall be punished with imprisonment one (1) degree lower than
that of the prescribed penalty for the offense or a fine of at least One
hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred
thousand pesos (Ph₱500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a)
on Offenses Against the Confidentiality, Integrity and Availability of
Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5)
on Misuse of Devices; when the crime punishable under 4(a) is committed
against critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child
Pornography; 4(c)(3) on Unsolicited Commercial Communications; and
Section 5 on Aiding or Abetting, and Attempt in the Commission of
Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a
legislative prerogative. Here the legislature prescribed a measure of severe
penalties for what it regards as deleterious cybercrimes. They appear
proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because
at some prior time the act or omission was but an element of another
offense or might just have been connected with another crime.77 Judges
and magistrates can only interpret and apply them and have no authority to
modify or revise their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking
body.78
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement
authorities, with due cause, shall be authorized to collect or record by
technical or electronic means traffic data in real-time associated with
specified communications transmitted by means of a computer system.
Traffic data refer only to the communication’s origin, destination, route,
time, date, size, duration, or type of underlying service, but not content, nor
identities.
All other data to be collected or seized or disclosed will require a court
warrant.
Service providers are required to cooperate and assist law enforcement
authorities in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or
granted upon written application and the examination under oath or
affirmation of the applicant and the witnesses he may produce and the
showing: (1) that there are reasonable grounds to believe that any of the
crimes enumerated hereinabove has been committed, or is being
committed, or is about to be committed; (2) that there are reasonable
grounds to believe that evidence that will be obtained is essential to the
conviction of any person for, or to the solution of, or to the prevention of,
any such crimes; and (3) that there are no other means readily available for
obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to
collect or record traffic data in real time as tending to curtail civil liberties or
provide opportunities for official abuse. They claim that data showing where
digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they
are to be protected. Petitioners invoke the right of every individual to
privacy and to be protected from government snooping into the messages
or information that they send to one another.
The first question is whether or not Section 12 has a proper governmental
purpose since a law may require the disclosure of matters normally
considered private but then only upon showing that such requirement has a
rational relation to the purpose of the law,79 that there is a compelling State
interest behind the law, and that the provision itself is narrowly drawn.80 In
assessing regulations affecting privacy rights, courts should balance the
legitimate concerns of the State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the
cybercrime law for there is a need to put order to the tremendous activities
in cyberspace for public good.82 To do this, it is within the realm of reason
that the government should be able to monitor traffic data to enhance its
ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of
traffic data is a part, aims to provide law enforcement authorities with the
power they need for spotting, preventing, and investigating crimes
committed in cyberspace. Crime-fighting is a state business. Indeed, as
Chief Justice Sereno points out, the Budapest Convention on Cybercrimes
requires signatory countries to adopt legislative measures to empower
state authorities to collect or record "traffic data, in real time, associated
with specified communications."83 And this is precisely what Section 12
does. It empowers law enforcement agencies in this country to collect or
record such data.
But is not evidence of yesterday’s traffic data, like the scene of the crime
after it has been committed, adequate for fighting cybercrimes and,
therefore, real-time data is superfluous for that purpose? Evidently, it is not.
Those who commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual
activity for favor or consideration;86 and producing child pornography87 could
easily evade detection and prosecution by simply moving the physical
location of their computers or laptops from day to day. In this digital age,
the wicked can commit cybercrimes from virtually anywhere: from internet
cafés, from kindred places that provide free internet services, and from
unregistered mobile internet connectors. Criminals using cellphones under
pre-paid arrangements and with unregistered SIM cards do not have listed
addresses and can neither be located nor identified. There are many ways
the cyber criminals can quickly erase their tracks. Those who peddle child
pornography could use relays of computers to mislead law enforcement
authorities regarding their places of operations. Evidently, it is only real-
time traffic data collection or recording and a subsequent recourse to court-
issued search and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too
broad and do not provide ample safeguards against crossing legal
boundaries and invading the people’s right to privacy. The concern is
understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that
certain constitutional guarantees work together to create zones of privacy
wherein governmental powers may not intrude, and that there exists an
independent constitutional right of privacy. Such right to be left alone has
been regarded as the beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States
Supreme Court classified privacy into two categories: decisional privacy
and informational privacy. Decisional privacy involves the right to
independence in making certain important decisions, while informational
privacy refers to the interest in avoiding disclosure of personal matters. It is
the latter right—the right to informational privacy—that those who oppose
government collection or recording of traffic data in real-time seek to
protect.
Informational privacy has two aspects: the right not to have private
information disclosed, and the right to live freely without surveillance and
intrusion.91 In determining whether or not a matter is entitled to the right to
privacy, this Court has laid down a two-fold test. The first is a subjective
test, where one claiming the right must have an actual or legitimate
expectation of privacy over a certain matter. The second is an objective
test, where his or her expectation of privacy must be one society is
prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation
to its application to a particular person or group, petitioners’ challenge to
Section 12 applies to all information and communications technology (ICT)
users, meaning the large segment of the population who use all sorts of
electronic devices to communicate with one another. Consequently, the
expectation of privacy is to be measured from the general public’s point of
view. Without reasonable expectation of privacy, the right to it would have
no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to
the latter, a third person, the traffic data needed for connecting him to the
recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his
cellphone number and the cellphone number of his recipient,
accompanying the message sent. It is this information that creates the
traffic data. Transmitting communications is akin to putting a letter in an
envelope properly addressed, sealing it closed, and sending it through the
postal service. Those who post letters have no expectations that no one will
read the information appearing outside the envelope.
Computer data—messages of all kinds—travel across the internet in
packets and in a way that may be likened to parcels of letters or things that
are sent through the posts. When data is sent from any one source, the
content is broken up into packets and around each of these packets is a
wrapper or header. This header contains the traffic data: information that
tells computers where the packet originated, what kind of data is in the
packet (SMS, voice call, video, internet chat messages, email, online
browsing data, etc.), where the packet is going, and how the packet fits
together with other packets.93 The difference is that traffic data sent through
the internet at times across the ocean do not disclose the actual names
and addresses (residential or office) of the sender and the recipient, only
their coded internet protocol (IP) addresses. The packets travel from one
computer system to another where their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the
contents of the messages and uncover the identities of the sender and the
recipient.
For example, when one calls to speak to another through his cellphone, the
service provider’s communication’s system will put his voice message into
packets and send them to the other person’s cellphone where they are
refitted together and heard. The latter’s spoken reply is sent to the caller in
the same way. To be connected by the service provider, the sender reveals
his cellphone number to the service provider when he puts his call through.
He also reveals the cellphone number to the person he calls. The other
ways of communicating electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States
Supreme Court reasoned that telephone users in the ‘70s must realize that
they necessarily convey phone numbers to the telephone company in order
to complete a call. That Court ruled that even if there is an expectation that
phone numbers one dials should remain private, such expectation is not
one that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot
communicate or exchange data with one another over cyberspace except
through some service providers to whom they must submit certain traffic
data that are needed for a successful cyberspace communication. The
conveyance of this data takes them out of the private sphere, making the
expectation to privacy in regard to them an expectation that society is not
prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when
seemingly random bits of traffic data are gathered in bulk, pooled together,
and analyzed, they reveal patterns of activities which can then be used to
create profiles of the persons under surveillance. With enough traffic data,
analysts may be able to determine a person’s close associations, religious
views, political affiliations, even sexual preferences. Such information is
likely beyond what the public may expect to be disclosed, and clearly falls
within matters protected by the right to privacy. But has the procedure that
Section 12 of the law provides been drawn narrowly enough to protect
individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to
collect or record by technical or electronic means traffic data in real-time.
Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the
discretion of the police. Replying to this, the Solicitor General asserts that
Congress is not required to define the meaning of every word it uses in
drafting the law.
Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to
hint at the meaning it intends for the phrase "due cause." The Solicitor
General suggests that "due cause" should mean "just reason or motive"
and "adherence to a lawful procedure." But the Court cannot draw this
meaning since Section 12 does not even bother to relate the collection of
data to the probable commission of a particular crime. It just says, "with due
cause," thus justifying a general gathering of data. It is akin to the use of a
general search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection
will be used. Will the law enforcement agencies use the traffic data to
identify the perpetrator of a cyber attack? Or will it be used to build up a
case against an identified suspect? Can the data be used to prevent
cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too
sweeping and lacks restraint. While it says that traffic data collection should
not disclose identities or content data, such restraint is but an illusion.
Admittedly, nothing can prevent law enforcement agencies holding these
data in their hands from looking into the identity of their sender or receiver
and what the data contains. This will unnecessarily expose the citizenry to
leaked information or, worse, to extortion from certain bad elements in
these agencies.
Section 12, of course, limits the collection of traffic data to those
"associated with specified communications." But this supposed limitation is
no limitation at all since, evidently, it is the law enforcement agencies that
would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition,"
choosing whatever specified communication they want. This evidently
threatens the right of individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize
collection of traffic data "in real time" because it is not possible to get a
court warrant that would authorize the search of what is akin to a "moving
vehicle." But warrantless search is associated with a police officer’s
determination of probable cause that a crime has been committed, that
there is no opportunity for getting a warrant, and that unless the search is
immediately carried out, the thing to be searched stands to be removed.
These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides
minimal protection to internet users and that the procedure envisioned by
the law could be better served by providing for more robust safeguards. His
bare assurance that law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough. The grant of the power to
track cyberspace communications in real time and determine their sources
and destinations must be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative
of the void-for-vagueness doctrine and the overbreadth doctrine. These
doctrines however, have been consistently held by this Court to apply only
to free speech cases. But Section 12 on its own neither regulates nor
punishes any type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government
and kindred institutions to monitor individuals and place them under
surveillance in ways that have previously been impractical or even
impossible. "All the forces of a technological age x x x operate to narrow
the area of privacy and facilitate intrusions into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society."96 The Court
must ensure that laws seeking to take advantage of these technologies be
written with specificity and definiteness as to ensure respect for the rights
that the Constitution guarantees.
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and
subscriber information relating to communication services provided by a
service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved
for six (6) months from the date of receipt of the order from law
enforcement authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another
six (6) months: Provided, That once computer data preserved, transmitted
or stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office
of the Prosecutor shall be deemed a notification to preserve the computer
data until the termination of the case.
The service provider ordered to preserve computer data shall keep
confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue
deprivation of the right to property. They liken the data preservation order
that law enforcement authorities are to issue as a form of garnishment of
personal property in civil forfeiture proceedings. Such order prevents
internet users from accessing and disposing of traffic data that essentially
belong to them.
No doubt, the contents of materials sent or received through the internet
belong to their authors or recipients and are to be considered private
communications. But it is not clear that a service provider has an obligation
to indefinitely keep a copy of the same as they pass its system for the
benefit of users. By virtue of Section 13, however, the law now requires
service providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the
transaction and those relating to content data for at least six months from
receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed
his computer if he was so minded. The service provider has never
assumed responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that
service providers preserve on orders of law enforcement authorities are not
made inaccessible to users by reason of the issuance of such orders. The
process of preserving data will not unduly hamper the normal transmission
or use of the same.
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities,
upon securing a court warrant, shall issue an order requiring any person or
service provider to disclose or submit subscriber’s information, traffic data
or relevant data in his/its possession or control within seventy-two (72)
hours from receipt of the order in relation to a valid complaint officially
docketed and assigned for investigation and the disclosure is necessary
and relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a
subpoena. Petitioners’ objection is that the issuance of subpoenas is a
judicial function. But it is well-settled that the power to issue subpoenas is
not exclusively a judicial function. Executive agencies have the power to
issue subpoena as an adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly
issued court warrant, a function usually lodged in the hands of law
enforcers to enable them to carry out their executive functions. The
prescribed procedure for disclosure would not constitute an unlawful search
or seizure nor would it violate the privacy of communications and
correspondence. Disclosure can be made only after judicial intervention.
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a
search and seizure warrant is properly issued, the law enforcement
authorities shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as
defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data
storage medium; and
(e) To render inaccessible or remove those computer data in the accessed
computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person
who has knowledge about the functioning of the computer system and the
measures to protect and preserve the computer data therein to provide, as
is reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.
Law enforcement authorities may request for an extension of time to
complete the examination of the computer data storage medium and to
make a return thereon but in no case for a period longer than thirty (30)
days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant
established search and seizure procedures. On its face, however, Section
15 merely enumerates the duties of law enforcement authorities that would
ensure the proper collection, preservation, and use of computer system or
data that have been seized by virtue of a court warrant. The exercise of
these duties do not pose any threat on the rights of the person from whom
they were taken. Section 15 does not appear to supersede existing search
and seizure rules but merely supplements them.
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods
as provided in Sections 13 and 15, service providers and law enforcement
authorities, as the case may be, shall immediately and completely destroy
the computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation
or examination, destroyed or deleted upon the lapse of the prescribed
period. The Solicitor General justifies this as necessary to clear up the
service provider’s storage systems and prevent overload. It would also
ensure that investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the user’s right against deprivation of
property without due process of law. But, as already stated, it is unclear
that the user has a demandable right to require the service provider to have
that copy of the data saved indefinitely for him in its storage system. If he
wanted them preserved, he should have saved them in his computer when
he generated the data or received it. He could also request the service
provider for a copy before it is deleted.
Section 19 empowers the Department of Justice to restrict or block access
to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.— 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 data.
Petitioners contest Section 19 in that it stifles freedom of expression and
violates the right against unreasonable searches and seizures. The
Solicitor General concedes that this provision may be unconstitutional. But
since laws enjoy a presumption of constitutionality, the Court must satisfy
itself that Section 19 indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including
malware, as well as files that contain texts, images, audio, or video
recordings. Without having to go into a lengthy discussion of property rights
in the digital space, it is indisputable that computer data, produced or
created by their writers or authors may constitute personal property.
Consequently, they are protected from unreasonable searches and
seizures, whether while stored in their personal computers or in the service
provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the right to be
secure in one’s papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable.
Further, it states that no search warrant shall issue except upon probable
cause to be determined personally by the judge. Here, the Government, in
effect, seizes and places the computer data under its control and
disposition without a warrant. The Department of Justice order cannot
substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a
case, Section 19 operates as a restriction on the freedom of expression
over cyberspace. Certainly not all forms of speech are protected.
Legislature may, within constitutional bounds, declare certain kinds of
expression as illegal. But for an executive officer to seize content alleged to
be unprotected without any judicial warrant, it is not enough for him to be of
the opinion that such content violates some law, for to do so would make
him judge, jury, and executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also
disregards jurisprudential guidelines established to determine the validity of
restrictions on speech. Restraints on free speech are generally evaluated
on one of or a combination of three tests: the dangerous tendency doctrine,
the balancing of interest test, and the clear and present danger rule.101
Section 19, however, merely requires that the data to be blocked be found
prima facie in violation of any provision of the cybercrime law. Taking
Section 6 into consideration, this can actually be made to apply in relation
to any penal provision. It does not take into consideration any of the three
tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being
violative of the constitutional guarantees to freedom of expression and
against unreasonable searches and seizures.
Sec. 20. Noncompliance. — Failure to comply with the provisions of
Chapter IV hereof specifically the orders from law enforcement authorities
shall be punished as a violation of Presidential Decree No. 1829 with
imprisonment of prision correctional in its maximum period or a fine of One
hundred thousand pesos (Php100,000.00) or both, for each and every
noncompliance with an order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The
argument is that the mere failure to comply constitutes a legislative finding
of guilt, without regard to situations where non-compliance would be
reasonable or valid.
But since the non-compliance would be punished as a violation of
Presidential Decree (P.D.) 1829,102 Section 20 necessarily incorporates
elements of the offense which are defined therein. If Congress had
intended for Section 20 to constitute an offense in and of itself, it would not
have had to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a
fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any
person who knowingly or willfully obstructs, impedes, frustrates or delays
the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done
"knowingly or willfully." There must still be a judicial determination of guilt,
during which, as the Solicitor General assumes, defense and justifications
for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the
Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.– There is
hereby created, within thirty (30) days from the effectivity of this Act, an
inter-agency body to be known as the Cybercrime Investigation and
Coordinating Center (CICC), under the administrative supervision of the
Office of the President, for policy coordination among concerned agencies
and for the formulation and enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the following
powers and functions:
(a) To formulate a national cybersecurity plan and extend immediate
assistance of real time commission of cybercrime offenses through a
computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power
when it gave the Cybercrime Investigation and Coordinating Center (CICC)
the power to formulate a national cybersecurity plan without any sufficient
standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative
power, the Court has adopted two tests: the completeness test and the
sufficient standard test. Under the first test, the law must be complete in all
its terms and conditions when it leaves the legislature such that when it
reaches the delegate, the only thing he will have to do is to enforce it. The
1avvphi1
second test mandates adequate guidelines or limitations in the law to

determine the boundaries of the delegate’s authority and prevent the
delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management
approaches, actions, training, best practices, assurance and technologies
that can be used to protect cyber environment and organization and user’s
assets.104 This definition serves as the parameters within which CICC
should work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the
policy of the law to "prevent and combat such [cyber] offenses by
facilitating their detection, investigation, and prosecution at both the
domestic and international levels, and by providing arrangements for fast
and reliable international cooperation."105 This policy is clearly adopted in
the interest of law and order, which has been considered as sufficient
standard.106 Hence, Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of
unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of traffic data in
real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice to
restrict or block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system without
right;
b. Section 4(a)(3) that penalizes data interference, including transmission
of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name
over the internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of
identifying information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of
sexual organs or sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes defined
under the Revised Penal Code are committed with the use of information
and communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service
providers to preserve traffic data and subscriber information as well as
specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a court-
issued warrant;
k. Section 15 that authorizes the search, seizure, and examination of
computer data under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved
computer data after the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime
investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating
Center (CICC);
o. Section 26(a) that defines the CICC’s Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that
penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and
CONSTITUTIONAL with respect to the original author of the post; but VOID
and UNCONSTITUTIONAL with respect to others who simply receive the
post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the
commission of cybercrimes as VA L I D and CONSTITUTIONAL only in
relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on
System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on
Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section
4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related
Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and
UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child
Pornography, 4(c)(3) on Unsolicited Commercial Communications, and
4(c)(4) on online Libel.1âwphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the

correct application of Section 7 that authorizes prosecution of the offender
under both the Revised Penal Code and Republic Act 10175 to actual
cases, WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4)
of Republic Act 10175 and Article 353 of the Revised Penal Code
constitutes a violation of the proscription against double jeopardy; as well
as
2. Child pornography committed online as to which, charging the offender
under both Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or
the Anti-Child Pornography Act of 2009 also constitutes a violation of the
same proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.
SO ORDERED.
Footnotes
*No part.
1 The US Supreme Court first suggested the standard by implication in
footnote 4 of United States v. Carolene Products (304 U.S. 144, 152 n.4
(1938). See Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict
Scrutiny in the Federal Courts. Winkler, A. UCLA School of Law, Public Law
& Legal Theory Research Paper Series, Research Paper No. 06-14,
http://ssrn.com/abstract=897360 (last accessed April 10, 2013).
2 Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, March 24,
2009, 582 SCRA 254, 278.

3 White Light Corporation v. City of Manila, G.R. No. 122846, January 20,
2009, 576 SCRA 416, 437.

4 All 50 states of the United States have passed individual state laws
criminalizing hacking or unauthorized access, http://www.ncsl.org/issues-

research/telecom/computer-hacking-and-unauthorized-access-laws.aspx
(last accessed May 16, 2013). The United States Congress has also passed
the Computer Fraud and Abuse Act 18 U.S.C. § 1030 that penalizes, among
others, hacking. The Budapest Convention on Cybercrime considers hacking
as an offense against the confidentiality, integrity and availability of computer
data and systems and 29 countries have already ratified or acceded,
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=185&CM=
&DF=&CL=ENG (last accessed May 16, 2013).
5 Ethical Hacking. Palmer, C. IBM Systems Journal, Vol. 40, No. 3, 2001, p.
770, http://pdf.textfiles.com/security/palmer.pdf (last accessed April 10,
2013).
6 Id. at 774.
7 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,
G.R. Nos. 178552, 178554, 178581, 178890, 179157 & 179461, October 5,
2010, 632 SCRA 146, 185.
8 The intentional destruction of property is popularly referred to as vandalism.
It includes behavior such as breaking windows, slashing tires, spray painting

a wall with graffiti, and destroying a computer system through the use of a
computer virus, http://legal-dictionary.thefreedictionary.com/Vandalism (last
accessed August 12, 2013).
9 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,
supra note 7, at 186; Estrada v. Sandiganbayan, 421 Phil. 290, 354 (2001).
10 Id.
11 Id., citing the Opinion of Justice Vicente V. Mendoza in Estrada v.
Sandiganbayan.
12 1987 CONSTITUTION, Article III, Section 1.
13 Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011, 659 SCRA
189, 204-205.
14 130 Phil. 415 (1968)
15 535 Phil. 687, 714-715 (2006).
16 Supra note 12, Article II, Section 2.
17 Supra note 12, Article III, Section 3.
18 In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio
v. Senator Gordon, supra note 15.

19 Section 3(g) of Republic Act 10173 or the Data Privacy Act of 2012 defines
personal information as "any information whether recorded in a material form

or not, from which the identity of an individual is apparent or can be
reasonably and directly ascertained by the entity holding the information, or
when put together with other information would directly and certainly identify
an individual."
20 People v. Uy, G.R. No. 174660, May 30, 2011, 649 SCRA 236.
21 Supra note 17 (G.R. No. 203359 [Guingona]; G.R. No. 203518 [PIFA]).
22 Merriam-Webster, http://www.merriam-webster.com/dictionary/favor (last
accessed May 30, 2013).

23 Bicameral Conference Committee, pp. 5-6.
24 Id.
25 Office of the Solicitor General, COMMENT, p. 71.
26 REPUBLIC ACT 9208, Section 4(e).
27 Id., Section 3(c).
28 G.R. No. 191080, November 21, 2011, 660 SCRA 475.
29 REVISED PENAL CODE, Article 201 (2)(b)(2), as amended by Presidential
Decree 969.
30 Pita v. Court of Appeals, 258-A Phil. 134 (1989).
31 REPUBLIC ACT 9775 entitled AN ACT DEFINING THE CRIME OF CHILD
PORNOGRAPHY, PRESCRIBING PENALTIES THEREFOR AND FOR

OTHER PURPOSES.
32 Sto. Tomas v. Salac, G.R. No. 152642, November 13, 2012, 685 SCRA
245, citing People v. Ventura, 114 Phil. 162, 167 (1962).

33 Supra note 31, Section 4(b).
34 G.R. No. 203407 (Bagong Alyansang Makabayan), MEMORANDUM, pp.
34-37.
35 White Buffalo Ventures, LLC v. Univ. of Tex. at Austin, 2004 U.S. Dist.
LEXIS 19152 (W.D. Tex. Mar. 22, 2004).
36 Concurring Opinion of Chief Justice Reynato S. Puno in Pharmaceutical
and Health Care Association of the Philippines v. Duque III, 561 Phil. 387,
449 (2007).
37 Supra note 29, Article 362.
38 Borjal v. Court of Appeals, 361 Phil. 1 (1999); Vasquez v. Court of Appeals,
373 Phil. 238 (1999).

39 573 Phil. 278 (2008).
40 Vasquez v. Court of Appeals, supra note 38.
41 L. BOADO, COMPACT REVIEWER IN CRIMINAL LAW 403-404 (2d ed.
2007).
42 Vasquez v. Court of Appeals, supra note 38, citing New York Times v.
Sullivan, 376 U.S. 254, 11 L.Ed.2d 686 (1964).

43 Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1151 (Cal. App. 4th Dist.
2004).
44 Borjal v. Court of Appeals, supra note 38, citing United States v. Bustos,
37 Phil. 731 (1918).

45 Supra note 41, at 403.
46 Supra note 29, Article 354.
47 Communication 1815/2008.
48 General Comment 34, ICCPR, par. 47.
49 ICCPR, Article 19(2) and (3).
50 Sandals Resorts Int’l. Ltd. v. Google, Inc., 86 A.D.3d 32 (N.Y. App. Div. 1st
Dep’t 2011).
51 Office of the Solicitor General, MEMORANDUM, pp. 69-70.
52 REPUBLIC ACT 3701, Section 1.
53 REPUBLIC ACT 4712, Section 5.
54 LABOR CODE, Article 264.
55 G.R. No. 203440 (Sta. Maria), PETITION, p. 2.
56 http://www.statisticbrain.com/social-networking-statistics/ (last accessed
January 14, 2013).

57 http://en.wikipedia.org/wiki/Social_networking_service (last accessed
January 14, 2013).
58 http://www.statisticbrain.com/social-networking-statistics/ (last accessed
January 14, 2013).

59 http://en.wikipedia.org/wiki/Facebook (last accessed January 14, 2013).
60 G. R . No. 203378 (Adonis) and G.R. No. 203391 (Palatino),

CONSOLIDATED MEMORANDUM, p. 34.
61 521 U.S. 844 (1997).
62 Griswold v. Connecticut, 381 U.S. 479 (1965).
63 G.R. No. 203378 (Adonis), First AMENDED PETITION, pp. 35-36.
65 576 Phil. 357 (2008).
66 Id.
67 Id.
68 A contention found in Bruce Byars, Timothy O’Keefe, and Thomas Clement
"Google, Inc.: Procurer, Possessor, Distributor, Aider and Abettor in Child

Pornography,"
http://forumonpublicpolicy.com/archivespring08/byars.pdf (last accessed
May 25, 2013).
69 Id., citing 47 U.S.C. 230.
70 Bianca Bosker, Facebook To Share Users' Home Addresses, Phone

Numbers With External Sites,
http://www.huffingtonpost.com/2011/02/28/facebook-home-addresses-
phone-numbers_n_829459.html (last accessed July 18, 2013).
71 G.R. No. 203440 (Sta Maria), MEMORANDUM, p. 14, citing Luis B. Reyes,
The Revised Penal Code: Book 1, 118 (17th ed. 2008).

72 Shiresee Bell, Man Pleads Guilty to Attempted USC Website Hacking,
Email Accounts, http://columbia-sc.patch.com/groups/police-and-fire/p/man-

pleaded-guilty-to-hacking-usc-website-email-accounts (last accessed July
18, 2013); Peter Ryan, Hackers target Bureau of Statistics data,
http://www.abc.net.au/news/2013-04-26/abs-targeted-by-hackers/4652758
(last accessed July 18, 2013).
74 Supra note 51, at 49, citing People v. Doriquez, 133 Phil. 295 (1968).
75 Office of the Solicitor General, MEMORANDUM, p. 49.
76 Section 21, Article III, 1987 CONSTITUTION: "No person shall be twice put
in jeopardy of punishment for the same offense. If an act is punished by a

law and an ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution for the same act."
77 Baylosis v. Hon. Chavez, Jr., 279 Phil. 448 (1991).
78 People v. Dela Cruz, G.R. No. 100386, December 11, 1992, 216 SCRA
476, citing People v. Millora, 252 Phil. 105 (1989).

79 Supra note 14, at 436-437.
80 Ople v. Torres, 354 Phil. 948, 974-975 (1998).
81 In the Matter of the Petition for Habeas Corpus of Capt. Alejano v. Gen.
Cabuay, 505 Phil. 298, 322 (2005); Gamboa v. Chan, G.R. No. 193636, July
24, 2012, 677 SCRA 385.
82 SEC. 2. Declaration of Policy. — The State recognizes the vital role of
information and communications industries such as content production,

telecommunications, broadcasting electronic commerce, and data
processing, in the nation’s overall social and economic development. The
State also recognizes the importance of providing an environment conducive
to the development, acceleration, and rational application and exploitation of
information and communications technology (ICT) to attain free, easy, and
intelligible access to exchange and/or delivery of information; and the need
to protect and safeguard the integrity of computer, computer and
communications systems, networks, and databases, and the confidentiality,
integrity, and availability of information and data stored therein, from all forms
of misuse, abuse, and illegal access by making punishable under the law
such conduct or conducts. In this light, the State shall adopt sufficient powers
to effectively prevent and combat such offenses by facilitating their detection,
investigation, and prosecution at both the domestic and international levels,
and by providing arrangements for fast and reliable international
cooperation.
83 Convention on Cybercrime, Art. 20, opened for signature November 23,
2001, ETS 185.

84 Cybercrime Law, Section 4(a)(1),.
85 Id., Section 4(a)(3)
86 Id., Section 4(c)(1)
87 Id., Section 4(c)(2)
88 Supra note 14.
89 Id. at 433-437.
90 429 U.S. 589 (1977).
91 Id. at 599.
93
Jonathan Strickland, How IP Convergence Works,
http://computer.howstuffworks.com/ip-convergence2.htm (last accessed
May 10, 2013).
94 442 U.S. 735 (1979).
96 Supra note 14, at 437, citing Emerson, Nine Justices in Search of a
Doctrine, 64 Mich. Law Rev. 219, 229 (1965).

97 G.R. No. 203391 (Palatino v. Ochoa).
98 Biraogo v. Philippine Truth Commission, G.R. Nos. 192935 and 193036,
December 7, 2010, 637 SCRA 78, 143; ADMINISTRATIVE CODE of 1987,

Book I, Chapter 9, Section 37, and Book VII, Chapter 1, Section 13.
99 Computer data is defined by R.A. 10175 as follows:
"SEC. 3. Definition of Terms. x x x

xxxx
(e) Computer data refers to any representation of facts, information, or
concepts in a form suitable for processing in a computer system including a
program suitable to cause a computer system to perform a function and
includes electronic documents and/or electronic data messages whether
stored in local computer systems or online."
100 Pita v. Court of Appeals, supra note 30, at 151.
101 Chavez v. Gonzales, 569 Phil. 155 (2008).
102 Entitled PENALIZING OBSTRUCTION OF APPREHENSION AND

PROSECUTION OF CRIMINAL OFFENDERS.
103 Gerochi v. Department of Energy, 554 Phil. 563 (2007).
104 REPUBLIC ACT 10175, Section 3(k).
105 Supra note 94.
106 Gerochi v. Department of Energy, supra note 103, at 586, citing Rubi v.
Provincial Board of Mindoro, 39 Phil. 660 (1919).

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Is the place of access

the proper venue to

First, it adds a new element—the crime must be committed

Under the new law, the penalty is imprisonment for a minimum

As a result, PEPCI created and thereafter maintained a website

Read more: http://business.inquirer.net/84102/is-the-place-of-access-the-

[ GR No. 208146, Jun 08, 2016 ]

This resolves a Petition for Review on Certiorari[1]

Private respondent Timothy Desmond (Desmond) is

On December 9, 2002, Desmond filed a complaint

'NOW THAT WE ARE SET TO BUILD THE HOTEL SO

IF YOU INSISTS (sic) TO BE CALLED AN

The above-quoted electronic message being defamatory

UNDER THE LEADERSHIP OF TIM DESMOND AS

Dio moved for reconsideration of the February 6, 2004

Arraignment will proceed as previously set on July 20,

On October 11, 2005, Dio filed a Motion for leave of

The trial court's Order dated February 7, 2006 denied

The trial court granted Dio's Motion for Partial

WHETHER OR NOT THE LOWER COURT ERRED IN

WHETHER OR NOT THE LOWER COURT ERRED IN

Hence, this Petition was filed.

Desmond and the Office of the Solicitor General filed

The Office of the Solicitor General filed on June 11,

Dio stresses that "venue is jurisdictional in criminal

Dio further argues that publication, one of the elements

Finally, Dio argues that she sent the emails as private

The primordial issue for resolution is whether an

The Petition is denied.

If a motion to quash is based on a defect in the

If it is based on the ground that the facts charged do not

More than this practical consideration, however, is the

Petitioner relies on Agustin to argue the proscription of

In Agustin, the accused in the criminal case was already

Aside from obiter dictum in jurisprudence, petitioner

A defect in the complaint filed before the fiscal is not a

That the court trying the case has no jurisdiction over th

c) That the officer who filed the information had no authority to

d) That it does not conform substantially to the prescribed form

That more than one offense is charged except in those cases

f) That the criminal action or liability has been extinguished;

That the accused has been previously convicted or in jeopard

"Section 11. The provincial or the city fiscal shall:

(b) Investigate and/or cause to be investigated all

Petitioner, however, insists that his failure to assert the

In fine, there must have been a valid and sufficient

Petitioner next claims that the lack of authority of the

Finally, petitioner avers that an amendment of the first

The proper remedy is to give the prosecution the

Article 355 of the Revised Penal Code provides:

Whether emailing or, as in this case, sending emails to

Passionate and emphatic grievance, channelled through

Certainly, if we remain faithful to the dictum that

Good faith is not among the grounds for quashing an

WHEREFORE, the Petition for Review on Certiorari

Carpio, (Chairperson), Del Castillo, and Mendoza, JJ.,

[2] Id. at 24-32. The Decision, docketed as CA-G.R. CR

[4] Id. at 31.

[5] Id. at 24.