WHEN THE SUPREME Court issued a
four-month-long temporary restraining order against the controversial
Cybercrime Prevention Act last October, the unusual length of the TRO was
widely interpreted as a deferential gesture.
The high court wanted to spare
Congress the embarrassment of a new law being declared unconstitutional, by
giving it enough time to amend or revise the law’s controversial provisions.
That is certainly how the
Inquirer saw it at the time. But we should have known better, because it has
become obvious that escaping the specter of embarrassment does not rank high on
Congress’ list of priorities.
The lack of action on the part of
Congress has forced the Supreme Court’s hand. It conducted two lengthy rounds
of oral arguments in the last three weeks, and on Tuesday, in the clearest sign
that the cybercrime law is in trouble, it extended the TRO indefinitely.
“The
temporary restraining order in the cybercrime case is extended until further
orders from the court,” the tribunal’s information office announced through a
text message.
We join the many who welcome the
extension of the TRO; we realize, together with other free speech advocates and
critics of sweeping government powers online, that until the patently
unconstitutional law is struck down, we cannot rest or take victory for
granted.
But we do recognize that the indefinite extension of the restraining
order has already had an immediate impact.
None of the law’s provisions,
including the absurd and unthinking application of antiquated libel laws to
online content, can be used to harass online users.
The so-called “chilling effect”
on online speech and Internet user habits remains a potential, not an actual,
threat. (Still, in a ruling dated Dec 28, 2012, the Court of Appeals upheld a
decision by the Marikina Regional Trial Court to proceed with a libel case and
the issuance of arrest warrants on a minor and five other persons for supposed defamatory
posts on a social networking site.)
Extrapolating court rulings from
oral arguments is always a tricky undertaking. It is possible to view the
justices’ demeanor during the oral arguments on the cybercrime law, however, as
a kind of role-playing conducted in public; they wanted to place themselves in
the lawmakers’ shoes.
In the first round, at least two
justices launched inquiries with disquieting implications.
The questions they
raised during the second round, however, together with those raised by other
justices, suggest that the high court as a whole was bending over backward to
think like the legislators who produced the law.
As more than one of them said,
they want to save the law as much as they can.
But what, really, is there to
save? Solicitor General Francis Jardeleza is on record as saying that one of
the main and most controversial provisions, the so-called takedown clause that
allows the Department of Justice to “take down” websites it deems problematic,
is unconstitutional.
And this is the part of the law that benefited from
considerable preparation!
Other unconstitutional
provisions, such as the unthinking extension of the antiquated provisions on
libel in the Revised Penal Code to “cyberspace” and the alarming increase in
the penalties for cyber-libel, were rushed, as even a cursory reading of the
legislative journals will readily prove.
Is it any surprise that the law’s
real-world consequences are so cavalier, so casually cruel?
The Senate’s manifest lack of due
diligence means, for example, that a person logged on to Facebook who “Likes” a
possibly libelous post on that social networking site is also liable for
cyber-libel - an interpretation of the law with which Jardeleza himself agreed
during the oral arguments.
And if convicted, that person will be meted a
penalty one degree higher than a person convicted of committing libel through
the old-fashioned way.
The rank unfairness of it all
explains the widespread revulsion that met the law when President Aquino signed
it in September.
If the prospect of embarrassment
did not move Congress, perhaps opportunity will. We hope the Supreme Court will
give the members of the incoming Congress a chance to craft a much better law,
by ruling that the cybercrime law is unconstitutional, and taking it down for
good. - Inquirer
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