Disini, Jr. v. The Secretary of Justice, G.R. No. 203335

FACTS:

Petitioners Jose Jesus M. Disini, Jr., Rowena S. Disini, Lianne Ivy P. Medina, Janette Toral and Ernesto Sonido, Jr., as taxpayers, file a Petition for Certiorari and Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, the petitioners seek to 1) nullify Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175, otherwise known as the “Cybercrime Prevention Act of 2012” for violating the fundamental rights protected under the Constitution; and 2) prohibit the Respondents, singly and collectively, from enforcing the afore-mentioned provisions of the Cybercrime Act.

Named as Respondents are the Secretary of Justice, the Secretary of the Interior and Local Government, the Executive Director of the Information Communications Technology Office, the Chief of the Philippine National Police, and the Director of the National Bureau of Investigation.

ISSUES/GROUNDS:

  1. Sections 4(c)(4), 6, 7, 12 and 19 of The Cybercrime Act violate the petitioners’ constitutionally protected rights to freedom of expression, due process, equal protection, privacy of communications, as well as the Constitutional sanctions against double jeopardy, undue delegation of legislative authority and the right against unreasonable searches and seizure;
    • • Sections 6 and 7 of the Cybercrime Act more than doubles the liability for imprisonment for any violation of existing penal laws are in violation of the petitioners’ right against Double Jeopardy;
    • • Section 12 of the Cybercrime Act, which permits the NBI and the PNP “with due cause” to engage in real time collection of traffic data without the benefit of the intervention of a judge, violates the Petitioners’ Constitutionally-protected right to be free from unreasonable searches and seizure as well as the right to the privacy of communications;
    • • Section 19 of the Cybercrime Act, which authorizes the Respondent Secretary of DOJ to block or restrict access to any content upon a prima facie finding that the same violates the law, contains an undue delegation of legislative authority, infringes upon the judicial power of the judiciary, and violates the Petitioners’ Constitutionally-protected right to due process and freedom of expression; and
    • • Section 4(c)(4) defines libel as a cybercrime and in relation to Section 6 of the law increased the penalty from 6 months  to 4 years and 2 months to the greater period of 6 years to 10 years, infringes upon the right to freedom of expression and also restricts the freedom of the press. Under Section 12, a prima facie finding by the Secretary of DOJ can trigger an order directed at service providers to block access to the said material without the benefit of a trial or a conviction. Thus, RA 10175 infringes upon the right to freedom of expression and also restricts the freedom of the press. The increased penalties, plus the ease by which allegedly libelous materials can be removed from access, work together as a “chilling effect” upon protected speech.
  2. No other plain, speedy, or adequate remedy in the court of law, and that this Petition is therefore cognizable by the SC’s judicial power under Article VIII, Section 1 par. 2 of the Constitution and pursuant to Rule 65, Sec. 1 of the 1997 Rules of Civil Procedure, as amended.

ARGUMENTS/DISCUSSIONS:

  1. The Cybercrime Act Violates Free Speech:
    • • imposes heavier penalties for online libel than paper-based libel; single act of online libel will result in two convictions penalized separately under the RP and the Cybercrime Act;
    • online libel under the Cybercrime Act will ensure the imprisonment of the accused and for a much longer period. Such changes will result in a chilling effect upon the freedom of speech;
    • • with the passage of the Cybercrime Act, Senator Vicente Sotto III’s earlier threat to criminally prosecute all bloggers and internet users who were critical of his alleged plagiarism of online materials for use in his speech against the Reproductive Health Bill became real; threat of criminal prosecution under RA 10175 will work to preclude people such as Petitioners from posting social commentaries online, thus creating a “chilling effect” upon the freedom of expression;
    • • gives the DOJ Secretary blanket authority to restrain and block access to content whether authored by private citizens or the organized press sans any hearing of any kind but merely upon a mere prima facie showing that a particular Internet article constitutes online libel;
    • • respondents must demonstrate how the Cybercrime Act will fare under strict scrutiny
  2. Sections 6 and 7 of the Cybercrime Act violate the Double Jeopardy and Equal Protection Clauses of the Constitution:
    • • Persons who commit crimes using information and communication technologies (ICTs) face the possibility of being imprisoned more than double the imprisonment laid down in the RPC or special law, simply by the passage of the Cybercrime Act;
    • • the cybercrimes defined and punished under Section 6 of the Act are absolutely identical to the crimes defined in the RPC and special laws which raises the possibility that an accused will be punished twice for the same offense in violation of the Constitution;
    • • Congress created a class of offenders who commit crimes “by, through or with the use” of ICTs in violation of the equal protection clause
  3. The Real Time Collection of Traffic Date Violate the Right to Privacy and the Right Against Unreasonable Searches and Seizure:
    • • No compelling state interest that justifies real time collection of data; the authority vested on the Philippine National Police and the National Bureau of Investigation to collect data is not bounded by any reasonable standard except “due cause” which presumably, the PNP and NBI will determine for itself;
    • • While the privacy of suspected terrorists, through the Human Security Act, are protected by the intervention of the Court of Appeals before surveillance operations are conducted, the privacy of all citizens may be infringed without judicial participation in the Cybercrime Act;
    • • Neither the PNP nor the NBI is required to justify the incursion into the right to privacy;
    • No limits imposed upon the PNP or the NBI since they can lawfully collect traffic data at all times without interruption;
    • • No stated justification for this warrant-free unlimited incursion into the privacy of citizens
  4. The Respondent DOJ Secretary’s Take Down Authority under Section 19 of the Cybercrime Act violates Due Process and is an Undue Delegation of Legislative Authority
    • • The DOJ Secretary’s overwhelming powers to order the restriction or blocking of access to certain content upon a mere prima facie finding without any need for a judicial determination is in clear violation of petitioners’ Constitutionally protected right to due process;
    • • The Cybercrime Act contemplates that the respondent DOJ Secretary will be “judge, jury and executioner” of all cybercrime-related complaints;
    • To consider that all penal provisions in all specials laws are cybercrimes under Section 6, it • follows that:
      1. Complaints filed by intellectual property rights owners may be acted upon the Respondent DOJ Secretary to block access to websites and content upon a mere prima facie showing of an infringement;
      2. Foreign sites (e.g. Amazon.com) offering goods on retail to Philippine citizens may be blocked for violating the Retail Trade Law;
      3. Foreign service providers such as Skype may be blocked from offering voice services without securing a license from the National Telecommunications Communication;
      4. YouTube video may be blocked for presumably violating the IP Code.
    • • The Cybercrime Act fails the two tests laid down by the Court in Abakada Guro Party List v. Purisima (GR No. 166715) to determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test
      1. Nowhere in the Cybercrime Act’s declaration of policy does it lay down the legislative policy with respect to the blocking of content. No limits upon the takedown power of the respondent DOJ Secretary;
      2. Prima facie standard is not enough to prevent the DOJ Secretary from exercising infinite discretion and becoming the supreme authority in the Philippine Internet landscape.

PRAYER:

  1. Declare null and void, for being unconstitutional, Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175;
  2. Prohibit all Respondents from implementing Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175;
  3. Issue a TRO enjoining the Respondents from implementing Sections 4(c)(4), 6, 7, 12 and 19 of RA 10175; and
  4. Issue other reliefs, just and equitable in the premises.

Sec. 4(c)(4), Sec. 6, Sec. 7, Sec. 12, Sec. 19, Due process, Equal protection, Privacy of communication, Double jeopardy, Separation of powers, Take down authority, Real time collection of traffic data

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BULLETINS & ADVISORIES

LIST OF PETITIONS

  1. G.R. No. 203299
  2. G.R. No. 203306
  3. G.R. No. 203335
  4. G.R. No. 203359
  5. G.R. No. 203378
  6. G.R. No. 203391
  7. G.R. No. 203407
  8. G.R. No. 203440
  9. G.R. No. 203453
  10. G.R. No. 203454
  11. G.R. No. 203469
  12. G.R. No. 203501
  13. G.R. No. 203509
  14. G.R. No. 203515
  15. G.R. No. 203518

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