Senator Santiago said 5 provisions of anti cyber law Unconstitutional – must be amended

 Senator Miriam Defensor-Santiago. Photo credit: Inquirer.net 

Senator Miriam Defensor-Santiago joined calls yesterday to amend the Cybercrime Prevention Act of 2012, saying five of its provisions are likely to be declared unconstitutional by the Supreme Court.

Santiago, who was a keynote speaker at the inter-university conference on business and economics at Adamson University, said at least five provisions listed in the new law are "too broad or too vague, tantamount to unconstitutionality."

Because it is "broadly written that it deters free expression," Santiago predicted that the SC will "strike down" the bill on its face, "because of its chilling effect."

"...The Supreme Court will reject the law because under the vagueness doctrine, it provides for punishment, without specifying what conduct is punishable and therefore, the law is void because it violates due process," said Santiago, who holds a doctorate in juridical science and attended postdoctoral studies on internet law at Harvard University.

"Prior censorship violates the overbreadth doctrine and the vagueness doctrine in constitutional law," she said.

"On its face, the Constitution provides for absolute freedom of speech by providing (that) 'No law shall be passed abridging the freedom of speech'," she also said.

"Notice that the constitutional language is absolute. However, jurists have tried to balance the absolute language with vital social needs," she added.

Santiago explained that in constitutional law, freedom of speech occupies a so-called preferred position.

"The preferred position of free speech in the Constitution means that any law limiting free speech should be presumed to be either neutral or presumed to be unconstitutional. There is no presumption of constitutionality," she said.

The "vague provisions" she listed included Sec. 4 paragraph 4 which makes libel a cybercrime if committed online; Section 5 which punishes any person who aids or abets the commission of any cybercrime, even if it is only through Facebook or Twitter; Sec. 6 which adopts the entire Penal Code, if the crime is committed by the use of Information technology, but the penalty shall be one degree higher; Sec. 7 which makes the same crime punishable, both under the Penal Code and the Cybercrime Act; and Sect. 19 which authorizes the Department of Justice (DOJ) to issue an order to restrict access to computer data which is found to be prima facie in violation of the new law or the so-called "take-down" issue.

Santiago said she participated during the interpellation period and the period of amendments when the anti-cybercrime measure was being deliberated in the Senate. She, however, failed to join the voting because she was on sick leave due to hypertension.

According to Santiago, one of her major amendments was to require a court order before law enforcement authorities can seize or disclose data other than traffic data. She also introduced an amendment requiring a court warrant for a search and seizure.

Sen. Edgardo Angara earlier vowed to look into Section 19 and amend the particular "take-down" provision so that the Justice Department can only order a closure of a suspected website based on a court order.

To strengthen the government's resolve against cybercrimes, Santiago urged the Philippines to become a party to the Budapest Cybercrime Convention of 2001.

She said that if properly worded, a cybercrime law "would be effective in preventing many cases of fraud."

Meanwhile, Malacañang yesterday appealed to hackers protesting Republic Act No. 10175, the Cybercrime Prevention Act of 2012, to voice out their opposition in the proper forum and not by attacking government websites especially those that are vital sources of information for the public.

Deputy Presidential spokesperson Abigail Valte said the attacks made by hackers since the implementation of the controversial measure last week have been "counter-productive" as they deprived the public of crucial pieces of information that can be accessed through government websites.

Valte issued this reaction as he was asked whether the Palace is amenable to the investigation being sought by Sen. Alan Peter Cayetano on the high vulnerability of government websites to hacking after the online portals of the Office of the President, Bangko Sentral ng Pilipinas (BSP), the Senate, the House of Representatives, and Metropolitan Waterworks and Sewerage System (MWSS) fell victims to hackers last week.

Manila Bulletin