Govt asks SC to lift TRO on cybercrime law

The government has asked the Supreme Court to junk the 15 petitions contesting the controversial Cybercrime Prevention Act of 2012 or Republic Act 10175, saying the petitioners failed to cite "factual basis to overthrow the presumption of constitutionality of a law." In its 173-page comment, the government, through the Office of the Solicitor General, also asked the Supreme Court to lift the temporary restraining order it issued so that the law, signed by President Benigno Aquino III on September 12, could finally be implemented. "The issuance of injunction to restrain the enforcement of a law should not be made to rest merely on purely legal arguments, without evidence being introduced, for or against the validity of a challenged statute. For it is to be understood that there is always a presumption of validity that attaches to every legislative act," the government said. It also said the law only "regulates and penalizes" acts defined as cybercrimes like hacking, and does not prevent the petitioners from using the Internet and expressing their thoughts. It said the law does not necessarily regulate or punish free speech. The government also said the petitioners cannot raise objections on the law allowing access to traffic data, because these data are logged, stored, and kept by service providers and are considered as their business records. "No service provider has [so far] raised any objection to [the Cybercrime Law]," the government pointed out in its comment. The government insisted that real-time collection of traffic data without any warrant does not infringe on a person's right to privacy. "The constitutional right to privacy does not extend to traffic data...

Real-time collection of traffic data is akin to the collection of information derived from visual surveillance of an open physical space. As such, it does not intrude into 'private' space, and thus its retrieval does not call for the constitutional requirement of a prior judicial warrant," it said. The government said "traffic data" referred to in the Cybercrime Law is "non-content data" that consists of the origin, destination, route, time and date of the communication. It said that unlike content data, which is considered private, traffic data is an "auxiliary to the communication and is necessarily shared with a service provider who is a third party." “Untenable” criticisms The government also described as "untenable" the criticisms against the "libel" clause in the law, saying that libel is already considered a crime punishable under Article 353 in relation to Article 355 of the Revised Penal Code. Article 355 states: "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 prisión 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." "Libel is unprotected speech,” the government said. “It remains to be a crime in many nations." It also said that the term "information and communication technology" as used in the cybercrime law is not vague, as claimed by the petitioners. "Information and Communications Technology is just the full text of 'Information Technology' and has been in use since the 1980s," it said. On the petitioners' argument that the law violates a person's right against double jeopardy or being sued and penalized for the same offense, the government said: "It is not a constitutional prohibition against laws that may present possible prosecution for an offense penalized under other laws or statutes." Immunity from suits In the case of the five of the petitions that included President Benigno Aquino III as respondent, the government stressed that the president is immune from any suits during the period of his tenure. The government also said five other petitioners that cited "transcendental importance" in filing their pleas do not have a locus standi (legal standing) or personal stake if the cybercrime law is implemented. "They fail to particularize how the implementation of specific provisions of RA No. 10175 would result in direct injury to their organization and members," the government said. The government was referring to the respective petitions of the National Union of Journalists of the Philippines, Jose Jesus Disini et al, Paul Cornelius Castillo et al, the National Press Club of the Philippines, and the Philippine Bar Association. "Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the law’s enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by the general public," it said. "Though generally petitioners are frequent Internet users, or subscribers, they do not show how their use is actually impeded or affected by any of the questioned provisions of R.A. No. 10175," the government added. Petitions vs cybercrime law A total of 15 petitions have been filed against the law between September 24 and October 8, seeking to declare as unconstitutional the law or parts of it. The petitioners said the law was illegal because it violates the people's rights to free expression, free speech, due process, equal protection of the law, among others. The new law also gives the justice secretary enormous powers to take down content or block access to sites for suspected violations, even without a court order. Justice Secretarly Leila de Lima had earlier said plagiarism could also be punished under the cybercrime law if they are found to be infringing on copyright or the exclusive rights of a creator over his or her original work. In October, the Supreme Court issued a TRO that prevented the Department of Justice, the National Bureau of Investigation and even the Department of Science and Technology (DOST) from implementing the entire law for the next 120 days or until February next year. The high court said the TRO would be in effect while it deliberates on the merits of the 15 petitions through oral arguments that will be held in January next year. — KBK, GMA News

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