SUPREME COURT PADRE FAURA MANILA

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

- versus

G.R. ______________________

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

PETITION FOR CERTIORARI

Petitioners, by undersigned counsel, to this most Honorable Supreme Court respectfully state:

PREFATORY STATEMENT
Experience should teach us to be most on our guard to protect liberty when the governments purposes are beneficient. Men born to freedom are naturally alert to

repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. (Justice Louis D. Brandeis)

This Petition assails in the strongest terms imaginable what a majority in Congress (House of Representatives and Senate) has drafted and what the Executive, through President Benigno Aquino III, has signed into law. Petitioners humbly come before this august body and most respectfully pray that its Honorable Members, acting collectively as the third great branch of government, exercise their constitutional duty to unanimously CHECK the unconstitutional acts of Congress and the Presidency.

This is a case of transcendental importance, a first of its kind in our history. This will herald the entry of this Honorable Supreme Court into a world of cyber communication that is perpetually active, global and free. According to the 2011 Southeast Asia Digital Consumer Report,1 thirty-three percent (33%) of Filipinos have accessed the internet within the twelve-month period, translating to about thirty-one million (31,000,000) users. There are multi-millions more in other parts of the world, regardless of race, religion, culture and background, knowingly or not, who will be affected by the assailed law and, eventually, by the decision of this Honorable Supreme Court.

As the assailed law will immediately impact on the rights of every Filipino on the Internet ourselves, our spouses, our children, our parents, our employers, our workers, our traders, our teachers and students there is urgency in this petition. At the same time, there is urgent need, as well as wisdom, to understanding how the Internet is expanding and evolving our very concepts of free expression.

The world has changed and is changing. It has become smaller. Communications have grown faster and more direct. Thanks to the Internet, people
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http://www.slideshare.net/truongbang/south-east-asia-sea-digital-consumer-report-2011

now have direct access to a platform that allows them to communicate with friends and strangers all at once, at the literal click of a button. As one famous blogger and perceptive journalist, Jessica Zafra,2 described

Whenever something unpleasant happens, be it a terrible meal at an overpriced restaurant or a traffic altercation or the sight of a grown man threatening his sons classmate or a public official demanding a bribe, we report it on social media and blogs. They're free, they're fast, they get the word out before the traditional media does. Newspapers and television networks get information from online media..We are, in effect, our very own print and broadcast networks. Everyone's a media mogul. 3

Communications - messages, ideas, images (whether still or moving), sound - nowadays come in various forms. They can be short or long. They can be made up of whole documents, essays, paragraphs, or even cryptic sentences made up of no more than 140 characters, with no standard whatsoever as to grammar or spelling. Some messages nowadays do not even contain letters. So-called emoticons convey a range of emotions without a single character of the alphabet used as an actual letter. For example, consider these emoticons for: Happiness - :) Sadness/Displeasure - :( Love - <3 Coolness - \m/ For the generations born into these times or yet not too late to embrace its ways language, terms, symbols, and speed for conveying have all evolved and continue to evolve, literally on a day-to-day, hour-to-hour, minute-by-minute basis. Communication is changing, in fact, with every new message. On the popular social networking site Twitter, because of an imposed rule for brevity one can only send messages no more than 140 characters in length new users would find many of the posts perplexing and cryptic. But more seasoned

Jessica Zafra of Interaksyon.com ( News Portal Tv5 in the internet) in her article , The Cybercrime Law: The Return of the Thought Police http://www.interaksyon.com/article/44057/jessica-zafra--the-cybercrime-law-thereturn-of-the-thought-police 3 Jessica Zafra of Interaksyon.com (News Portal Tv5 in the internet) in her article, The Cybercrime Law: The Return of the Thought Police http://www.interaksyon.com/article/44057/jessica-zafra--the-cybercrime-law-thereturn-of-the-thought-police
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users think nothing of the new abbreviations and symbols that are born and thrown away by necessity and fashion. On Facebook, which reports of 955 million monthly active users at the end of June 2012,4 one can express agreement without need for a single key-stroke. A click of a computer mouse-button is enough to Like or Recommend, and to thereby not only agree, but even to with the same single act of a mouse click further spread the very same message Liked or recommended.

As with all messages in any traditional or new form, any thought on the Internet may be friendly, offensive, neutral, informative or business-like.

Whichever way they are intended to be received, these messages, and the ability to form and spread them, have given rise to a universal environment that has meaningfully deepened and widened our very own democratic space.

Online Filipinos are enjoying with the rest of the world platforms for expression, education, and empowerment unimagined and hard to fathom for those still tethered to traditional media such as newspapers, radio, movies, and even television and mobile telephone. And it is not just their means of communicating that are evolving. With every message sent, received, consumed or even merely scanned, so too are their very concepts of what can or may be conveyed or consumed.

Horizons for thought expand with every new idea. Tolerance is raised for every disagreement that takes place, for every new encounter in cyberspace between and among friends, and, yes, also even involving literal strangers. On the Internet, these interactions take place every second. As radical as that sounds to older, more traditional consumers of news, commentary, and information, children being born or just beginning to be schooled today are exposed to, inoculated to, and strengthened and empowered by, this space where ideas form, clash, spawn, and die by the microsecond.

http://newsroom.fb.com/content/default.aspx?NewsAreaId=22

Quoting herein petitioner Law Professor Melencio Sta. Maria of the Ateneo School of Law, he said
[T]his kind of free-wheeling interaction, though at times very offensive, has developed through time a kind of special tolerance among the interactors. The public has found an accessible direct medium to ventilate their opinions, and people are learning to go beyond offensive opinions and accept them as just another point of view. This is a very healthy development in a democracy where free expression must be actively robust. As former Justice William Douglas of the United States Supreme Court said a "...function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups." (Terminiello v. Chicago 337 US 1)5

Let it not be misconstrued that this petition simply seeks the perpetuation of licentiousness in the enjoyment of computers utilized by multi-millions of netizens6 in the Philippines and indeed around the world. Surely, the petitioners know that freedom must not be enjoyed for its own sake. It must be exercised with a profound understanding of its responsibilities for the public good. If the

sanctity of our fundamental freedoms will be curtailed, the petitioners only seek that it be properly undertaken strictly pursuant to and within the limitations of the BILL OF RIGHTS enshrined in the peoples Constitution.

Republic Act No. 10175 patently disregards this. Important sections of the same violate the due process clause of our constitution, the equal protection of the law clause, the prohibition on illegal seizure, and the double jeopardy proscription.
5

Atty. Mel Sta. Maria, ANALYSIS: The Cybercrime Law and How it Affects Your Freedom of Expression, posted in Interaksyon.com ( News Portal of TV5) on September 17, 2012. http://www.interaksyon.com/article/43328/analysis--the-cybercrime-law-and-how-it-affects-your-freedom-ofexpression 6 Netizens is used to refer to people who use the internet. It is a modern alteration of citizens.

Equally more significant is the laws violation of the freedom of speech and expression and the right to privacy of communication. The law or some part of it should be struck down as void. The laws repugnancy betrays its constitutionality. It disobeys the sovereign command enunciated in Section 10, Article 16 of the 1987 Philippine Constitution which provides:
The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

An editorial by InterAksyon.com, the online news portal of broadcasting network TV5, captures much of petitioners concern: 7
The law explicitly brings the archaic libel lawinto the realm of the Internet. [Thus it purports to] settle a question that, prior to [President Aquinos] signing of the Cybercrime Law, the Philippines and most other democracies were still grappling with, and, to their credit, still allowing to percolate in courts and in space which, and for which, behavior, and ergo policies (even ethics and etiquette), are still in flux. The question being: are social media like Facebook and Twitter platforms for private or public expression? The Cybercrime Law has answered that question. Anything you do online writing, posting, sharing, "liking" - is essentially publication and for that matter broadcasting. Nothing is private. Everything is actionable, and potentially criminal. [Senator Francis] Escudero says he did not see the provision or did not appreciate its implications. He also did not see additional clauses that aggravate the penalties greater fines, longer prison terms - for libel when found and proved online. Nor the provision that would allow libel's prosecution twice over, offline and then online, violating Constitutional guarantees against double jeopardy.
And it's retroactive, too, experts now say. Or at least, it will

erase the very concept of retroactivity. Because the Internet

7

http://www.interaksyon.com/article/44266/editorial--oh-please-take-time-to-explain-sen escudero)

potentially keeps your posts, tweets, and status updates live in perpetuity or at least until the Cybercrime law pushes you, as it will, to take everything down there is no past date beyond which the long arm of the law cannot reach.

In other words, the assailed law, as soon as it comes into effect, will immediately stifle the freedom of Filipinos to express themselves, in what is by far, the most democratic medium ever created by humankind. It will stifle not only speech, but thought, altering not only words but action. At every turn and at every moment online, Filipinos will have a specter of subsequent punishment hanging over them, effectively acting as prior restraint.

This law, in other words, will not only deprive Filipinos of their constitutionally guaranteed liberties. It will deprive them of their place in the world as it has evolved and continues to evolve. It will deny them their place in a world and time where free expression is not only a right but also integral to the way of living, of competing, of surviving, of being.

NATURE OF THE PETITION

This petition is filed pursuant to Section I, Article 8 of the 1987

Constitution of the Philippines which pertinently provides that this Honorable Supreme Court possesses the judicial power to determine whether or not there has been a grave abuse of discretion amounting to lack or in excess of jurisdiction on the part of any branch of government. This is also brought pursuant to the

power of the Supreme Court under Section 4 of Article 3 of the 1987 Constitution of the Philippines to decide cases involving the constitutionality of , among others, a law and its implementation. More particularly , this case is filed special civil action under Rule 65 of the Rules of Court of the Philippines Act No. 10175 otherwise known as Cybercrime Prevention Act of 2012. as a for

Certiorari to declare unconstitutional Sections 4 (c) (4),5,6,7 and 19 of Republic

PARTIES
The Petitioners are MELENCIO S. STA.MARIA, AMPARITA S. STA. MARIA, SEDFREY M. CANDELARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN. They can be served pleadings and processes at the Ateneo Human Rights Center, G/F Ateneo Professional Schools Building, 20 Rockwell Drive, Rockwell Center, Makati City. They teach at the Ateneo de Manila University School of Law and are members of the Ateneo Human Rights Center. Petitioner Melencio S. Sta. Maria further writes for Interaksyon.com, the internet news portal of TV5 and has a daily show at Aksyon TV and RADYO 5. They are filing this suit as taxpayers, internet users, journalist, broadcaster, professors of law and, most importantly, as CITIZENS of the Republic of the Philippines. They all belong to the Ateneo Human Rights Center.

Respondents are:

HONORABLE

PAQUITO OCHAO

in his capacity as Executive

Secretary. He can be served at the Premier Guest House, Malacaang, JP Laurel St., Manila. He is the alter ego of the President who is charged with the

implementation of all laws in the country, particularly Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act of 2012.

HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice. She can be served at the Department of Justice, Padre Faura, Manila. She is impleaded in her capacity as the government official who is charged with the supervision and control of the National Bureau of Investigation. She is alter-ego of the President charged with the enforcement and prosecution of crimes and the

duty of restricting and blocking

access to computer data in accordance with

Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act of 2012.

HONORABLE MANUEL ROXAS Secretary of the Department of Interior. He can be served at A. Francisco Gold Condominium II, EDSA Corner Macapagal St., Diliman Quezon City. He is impleaded in his capacity and also in his capacity as the government official who is charged with the supervision and control of the Philippine National Police. She is also the alter-ego of the President charged with the implementation of Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act of 2012.

The CHIEF of the Philippine National Police. He can be served at the PNP National Headquarters, Camp Crame, Quezon City Metro Manila. He is charged with the implementation of Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act of 2012.

The DIRECTOR of the National Bureau of Investigation. He can be served at the NBI Building, Taft Avenue, Manila. He is Prevention Act of 2012. also charged with the implementation of Republic Act No. 10175, otherwise known as the Cybercrime

BASIS FOR TAKING COGNIZANCE OF THIS PETITION

LEGAL STANDING OF THE PETITIONERS

The instant petition is for certiorari under Rule 65 of the Rules of Court and the jurisdiction of this Honorable Court is being invoked by herein petitioners on the ground that Sections 4 (4) , 5, 6, 7 and 19 of Republic Act No. 10175,

otherwise known as the Cybercrime Prevention Act of 2012 promulgated on 12 September 2012 (R.A. No. 10175), is in gross contravention of the 1987

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Constitution.

Among others, Sections 4 (4) on

libel

is unconstitutionally

overbroad as it may apparently apply to postings made even before the effectivity of the law on October 3, 2012 and thus will have the effect of an ex-post-facto law. This is not to say nor admit that petitioners committed libel or some other offense under Republic Act No. 10175 but, considering that Section 19 illegally grants the Department of Justice (DOJ) restricting of access to computer data facie determination, power to ORDER blocking or

without notice and hearing, after a prima

Section 19 may be applied and place the petitioners and

other netizens in unwanted and serious prejudice intruding into their freedom of expression and the right to privacy of communication.

Petitioner Melencio S. Sta. Maria is a broadcaster, journalist, internet-user, and professor of law. As such, he has broadcasts in radio, television and You Tube. He has published articles posted in cyberspace in Interaksyon.com. With the enactment of R.A. No. 10175, and the imminent enforcement of Section 19 thereof, the petitioner will sustain a direct injury as described in paragraph 12 of the STATEMENT OF THE FACTS AND THE CASE and in paragraphs 5 to 8 of the APPLICATION AND BASIS FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER.

Petitioners Sedfrey M. Candelaria is the Dean of the Ateneo de Manila University School of Law and a professor of Constitutional Law, while Amparita Sta. Maria, Ray Paolo J. Santiago, Gilbert V. Sembrano, and Ryan Jeremiah D. Quan are all members of the law faculty of the Ateneo Law School and members

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of the Ateneo Human Rights Center. As law professors, they have such a stake in the outcome of the controversy, where the overbroad provisions of the law present far-reaching implications on well-settled doctrines on the constitutional guarantees to the right to information and freedom of speech and of expression, as well as on legal protections of the privacy of communication and correspondence. Petitioners, who are also human rights educators, advocates, and legal practitioners, perceive and are alarmed by the chilling effect the law and its particular provisions in question create on the exercise and enjoyment of citizens rights to seek and receive information, as well as the freedom of speech. Whereas libel has already been decriminalized in other jurisdictions, R.A. 10175 bolsters and buttresses this outdated penal provision.

Clearly, therefore, petitioners have legal standing to challenge Sections 4 (4), 5, 6, 7 and 19 of Republic Act No.10175 , consistent with the definition of locus standi, as enunciated in Francisco, Jr. v. House of Representatives, 415 SCRA 44 (2003), thus
Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. (underscoring ours)

Moreover, the petitioners are concerned citizens and taxpayers of the Philippines. With the enactment of Republic Act No. 10175, the enforcement and implementation thereof would entail expenses to the national treasury for, among

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others, the organization by the National Bureau of Investigation (NBI) and Philippine National Police (PNP) of a cybercrime unit or center manned by special investigators to exclusively handle cases involving violations of said law (Sec. 10), as well as the real-time collection of traffic data (Sec. 12), among others, as provided in R.A. No. 10175.

In any event, the instant case involves issues of paramount importance as the constitutionality of some important parts of the statute are in question, insofar as they patently violate the due process clause, the equal protection of the law clause, the prohibition on illegal search and seizure, and the double jeopardy proscription. Equally significant is the fact that the law violates freedom of speech and expression and the right to privacy of communication as will hereinafter be discussed.

Hence, the transcendental importance to the public and the nation of the issues raised demands that this petition for certiorari be settled promptly and definitely, brushing aside technicalities of procedure and calling for the admission of a citizens taxpayers suit, as this Honorable Court held in Santiago v. Commission on Elections, 270 SCRA 106 (1997), thus
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside technicalities of procedure in cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.: A party's standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers Cases, this Court brushed aside this technicality because the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. (Supra at p. 135)

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Indeed, this Honorable Courts pronouncement in the case of Randolf David v. Gloria Macapagal-Arroyo, G.R. No. 171396, 03 May 2006, teaches us that
It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. This is the underlying legal tenet of the liberality doctrine on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the transcendental importance doctrine, a relaxation of the standing requirements for the petitioners in the PP 1017 cases.

RIPENESS OF THE PETITION

The instant petition is ripe for adjudication inasmuch as the enactment and impending implementation of the patently unconstitutional provisions of R.A. No. 10175, involves a clearly justiciable controversy, consistent with Francisco, Jr.

v. House of Representatives, 415 SCRA 44 (2003), which held that

In Sanidad v. Commission on Elections, questioned was the power of the President to propose amendments to the Constitution on the ground that it was exercised beyond the limits prescribed by the Constitution. Holding that it was a justiciable controversy, this Court made the following disquisition: The amending process both as to proposal and ratification, raises a judicial question. x x x. The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself. The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authority to determine whether that power has been discharged within its limits.

Moreover, there is an extreme urgency and necessity to resolve the present petition in view of the enactment and impending enforcement of R.A. No. 10175, particularly Sections 4 (4) , 5, 6, 7 and 19 thereof, which is not only patently

14

unconstitutional, but would also result in grave and irreparable injury to the nation, its citizens and taxpayers (including herein petitioners).

Clearly, therefore, as R.A. No. 10175 has already been signed by the President and, is already effective by the time of the filing of this petition, the instant petition is ripe for adjudication, consistent with Francisco, Jr. v. House of Representatives, 415 SCRA 44 (2003), which held that
In Tan v. Macapagal, this Court, through Chief Justice Fernando, held that for a case to be considered ripe for adjudication, it is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture. Only then may the courts pass on the validity of what was done, if and when the latter is challenged in an appropriate legal proceeding. The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been filed with the House of Representatives and the 2001 Rules have already been already promulgated and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with.

Under the circumstances obtaining and where time is of the essence, no appeal or any plain, speedy and adequate remedy is available to the herein petitioners in the ordinary course of law and to whose interests further delay would be prejudicial.

STATEMENT OF THE FACTS AND THE CASE

1.) On January 30, 2012, the Senate passed Senate Bill No. 2796 entitled An Act Defining CyberCrime Providing Prevention, Investigation and Imposition of Penalties Therefore and For Other Purposes;

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2.) On May 21, 2012, the House of Representatives of Congress passed House Bill No. 5808 entitled An Act Defining CyberCrime Providing Prevention, Investigation and Imposition of Penalties Therefore and For Other Purposes;

3.)

After consolidation of House Bill 5808 and Senate Bill 2796, the

President of the Philippines, President Benigno Aquino III, finally signed into law Republic Act No. 10175, otherwise known as the CyberCrime Prevention Act of 2012 on September 12, 2012. It was published on September 18, 2012. Judicial notice under Section 1, Rule 129 of the Rules of Court herein invoked existence of Republic Act No. 10175. as to the

4.) Republic Act No. 10175 takes effect on October 3, 2012. 5.) Section 28 of Republic Act No. 10175 provides that the ICTO-DOST, the DOJ and the Department of the Interior and Local Government (DILG) shall jointly formulate the necessary rules and regulations within ninety (90) days from approval of this Act, for its effective implementation. The 90-day period from the approval of the Act by the President will end on December 11, 2012;

6.) The said Republic Act No. 10175 contains, among others, the following assailed provisions:

CHAPTER II PUNISHABLE ACTS SEC. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this Act: xxxxxxx (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. SEC. 5. Other Offenses. The following acts shall also constitute an offense:

16 (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.

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. 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. 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.

7.)

All of the above provisions, taken singularly and/ together,

are

unconstitutional, as they transgress the following provisions of the Bill of Rights in Article III of the 1987 Constitution of the Philippines:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. xxx xxx xxx

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Section 21. 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.

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8.) Petitioner is a broadcaster and a TV Anchor in Radyo 5 and AKSYON TV. The Program is RELASYON which runs from Monday to Friday from 12:00 pm to 2:00pm. He co-anchors the show with TV5 News and Current Affairs head, Luchi Cruz Valdes. In the program, they entertain, read and answer questions coming from various texters and messages from its RELASYON page in

Facebook. 9.) He is also a Facebook and Twitter user. Facebook and Twitter are social sites where one can post messages and other types of communication available for everybody to see. He also shares, likes, and re-tweets messages. 10.) He is also a journalist in Interaksyon.com, the news portal of TV5. Interaksyon.com posts his various articles on topics ranging from currents events to human interests topics. Messages are received and sent and the petitioner also is given the option to reply to the messages. 11.) The other petitioners are law professors at the Ateneo de Manila University School of Law. The matter at hand is of paramount importance to them considering their roles as both officers of the Court and members of the academe. Teaching law is not solely about imparting legal knowledge to students. It is also about being examples to law students by being vanguards of the law. They are likewise members of the Ateneo Human Rights Center and are engaged in the promotion and protection of human rights. The implementation of the said unconstitutional provisions would clearly affect fundamental human rights such as the right to information, freedom of speech and expression, and the privacy of communication and correspondence. Also they are also Facebook and Twitter users. 12.) The above mentioned unconstitutional provisions clearly affect

Petitioners freedom of expression in their undertakings as broadcaster, journalist, law professors, and human rights advocates. 13.) Moreover, with the effectivity of Republic Act No. 10175, another form of irreparable damage will occur. Petitioners have posted, shared , retweeted

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and liked articles, long and short messages in Facebook and Twitter previous to the effectivity of Republic Act No. 10175 and this would number more than hundreds already. Should this law remain effective and lest they might be subjected to penalties, they will be constrained to again try to recover, look at and examine all these hundreds of postings, sharings, tweets and likings as they are still presently in cyberspace somewhere capable of being seen by

anybody. To make such retrieval is virtually impossible as these hundreds of postings, sharings, tweets and likings number, at least, in the hundreds. It is impossible for petitioners to even remember all of them. All netizens will be in the same situation as a result of this unconstitutionally overbroad statute. This is irreparable injury. 14.) Because Sections 4 (4), 5, 6, 7 and 19 of Republic Act No. 10175 are

clearly unconstitutionally overbroad as will hereafter be discussed, they have to be declared void. The declaration of the same provisions as unconstitutional will prevent irreparable injury not only to the petitioners but to the millions of netizens as well.

GROUNDS FOR THE PETITION

I Section 19 of Republic Act No. 10175 violates Section 1 of Article 3 of the BILL OF RIGHTS of the 1987 Philippine Constitution II Section 19 of Republic Act No. 10175 violates Section 4 of Article 3 of the BILL OF RIGHTS of the 1987 Philippine Constitution III Section 19 of Republic Act No. 10175 violates Section 3 (1) of Article 3 of the BILL OF RIGHTS of the 1987 Philippine Constitution

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IV Section 19 of Republic Act No. 10175 violates Section 21 of Article 3 of the BILL OF RIGHTS of the 1987 Philippine Constitution V Section 5 of Republic Act No. 10175 violates Section 1 of Article 3 of the BILL OF RIGHTS of the 1987 Philippine Constitution VI Sections 6 of Republic Act No. 10175 violates Sections 1 on equal protection and 21 on double jeopardy of Article 3 of the BILL OF RIGHTS of the 1987 Philippine Constitution VII Section 7 of Republic Act No. 10175 violates Sections 1 on equal protection and 21 on double jeopardy of Article 3 of the BILL OF RIGHTS of the 1987 Philippine Constitution VIII Section 4 (4) on Libel of Republic Act No. 10175 violates Sections 1 and 4 of Article 3 of the BILL OF RIGHTS of the 1987 Philippine Constitution

ARGUMENTS/DISCUSSION
I Section 19 of Republic Act No. 10175 violates Section 1 of Article 3 of the 1987 Philippine Constitution

Section 19 of Republic Act No. 10175 provides

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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.

Section 19 has become notoriously known as the takedown clause. Textually, the unconstitutionality of the provision is self-evident. It grants the power on the part of the Department of Justice (DOJ) not only to determine a prima facie case, but, like a judge, subsequently to issue out ORDERS of restriction or blocking. The Section itself does not provide any requirement for notice and

hearing. This is unprecedented.

Moreover, borrowing the

statement of the Supreme Court in the case of

Cojuangco vs. PCGG, G.R. Nos. 92319-20 October 2, 1990, it is in such instances that We say one cannot be a prosecutor and judge at the same time."

That Section 19 clearly violates procedural due process has been clearly explained by one of the petitioners in his article in Interkasyon.com.8 It is worth reproducing it here. Thus
Without doubt, the power granted to the Department of Justice (DOJ) under Section 19 fundamentally violates the due process clause of the Constitution. Section 1 of Article III of the Bill of Rights of the 1987 Constitution provides that "no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws." The DOJ is the prosecutorial arm of the government. When a crime is committed, the DOJ's power is initially limited to investigation via the normal preliminary investigation or inquest proceeding. Once the DOJ finds prima facie case that a crime has been committed, the only thing it can do is to file the case in court. Once filed, it becomes a criminal case. It is the court which shall decide and issue an order whether or not certain liberties of the accused as protected by the Constitution can be legitimately curtailed during the pendency of the case. Hence, if there is clear evidence that the accused is a flight-risk, the court may legally curtail the accused's liberty to travel by issuing a hold departure order.

Atty. Mel Sta. Maria, OPINION: Beware CyberCrime Laws Section 19: The Takedown Clause posted on September 23, 2012 at Interaksyon.com. http://www.interaksyon.com/article/43846/opinion--beware-thecybercrime-laws-section-19---the-takedown-clause
8

21 Section 19 is extraordinarily different. The DOJ is granted not merely the power to determine the existence of a prima facie case for purposes of filing a criminal case in court. Unprecedentedly, it is expressly given the power to ISSUE AN ORDER merely on a prima facie level restricting or blocking access to ones computer data at a time when a person may not yet be an accused in a criminal case. Such ORDER intrudes into a persons constitutional right to privacy and his or her freedom of expression. Consequently, the DOJ is not only the prosecutor which is the victim's adversary in court. The DOJ is also the judge that , first, determines on a prima facie level whether or not an intrusion on his or her liberties can be ordered and, second, ultimately ORDERS such intrusion even before a court can listen to the victims defense. How can one contend with a prosecutor who likewise is granted the power of a "judge"? This blatantly violates the procedural due process clause which "guarantees procedural fairness." (Fr. Joaquin Bernas, The 1987 Philippine Constitution, A comprehensive Reviewer, Page 28, 2006 edition).9

II Section 19 of Republic Act No. 10175 violates Section 4 of Article 3 of the 1987 Philippine Constitution

Section 4 of Article 3 of the 1987 Constitution provides that

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

The extraordinary power of the Department of Justice to issue an order to restrict or block access to computer data is a form of prior restraint. First, the power is clearly illegal as it is unconstitutional for being violative of the due process clause. Second, the blocking and the restricting immediately snuff even the opportunity to manifest expression through the computer and cyberspace. There is total abatement by coercive means on the part of the government for one to produce speech by way of messages and other forms of communications

through the computer. Third, it prevents expression even before a court of law decides on any legitimate limitation on the victims constitutional right.

Ibid.

22

III Section 19 of Republic Act No. 10175 violates Section 3 (1) of Article 3 of the 1987 Philippine Constitution Section 3 (1) of the 1987 Constitution provides that the privacy of

communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. The threshold question is how does one know what is to be blocked and/or restricted from the computer data of the victim. There is no way but to cull and read all the data-innards of the computer file. Over-reaching is inevitable. Data which should not be opened will be opened. Those which should not be read will be read and those which should not be examined will be examined. This is the only way to discriminate and determine what ought to be blocked and what ought not to be restricted. In the process, the constitutional right of privacy of communication and correspondence of the victim will be intruded, interfered with, and clearly violated. Other files not subject of any inquiry will inevitably be scrutinized. It is unconstitutionally overbroad. Section 19 is an intrusive provision clearly endangering ones privacy of communication. It must be struck down as unconstitutional. IV Section 19 of Republic Act No. 10175 violates Section 21 of Article 3 of the 1987 Philippine Constitution 1. Blocking of computer data under Section 19 constitutes seizure

Again , Section 19 of Republic Act No. 10175 provides

Section 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.

23

Blocking of computer data is seizure within the protective ambit of Article III, Section 2 of the 1987 Constitution which provides
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (underscoring supplied)

Seizure of computer data does not require actual taking by, or transfer of ownership or possession to, the DOJ; nor is it necessary for the blocking of such data to be permanent. For blocking of computer data to constitute seizure, it is enough that the act of blocking results in the interference with a persons possessory interest over such computer data.

In KindHearts for Charitable Humanitarian Development, Inc. v. Geithner et al., [KindHeart] 2009 U.S. Dist. LEXIS 80475 (N.D. Ohio 2009), the parameters of seizure under the Fourth Amendment, which is the same provision where the Philippine Constitution based Article III, Section 2, was expounded . In this case, the plaintiff challenged a provisional determination by the Office of Foreign Assets Control [OFAC] of the United States Treasury Department that plaintiff was a Specially Designated Global Terrorist [SDGT]. It also challenged the block placed by OFAC on plaintiffs assets pending a full investigation. Relying on the US Supreme Court case of Soldal v. Cook County, 506 U.S. 56 (1992), the court ruled:
The government need not take possession of or title to property to seize it; interference with the targets possessory interest triggers Fourth Amendment scrutiny. Illinois v. McArthur, 531 U.S. 326, 330 (2001). In McArthur, officers, who had probable cause to believe a suspects home contained marijuana, prevented him from re-entering his home for the two hours needed to obtain a search warrant. Id. at 331-332. Even though the officers had taken nothing during that period, the Court applied Fourth Amendment scrutiny to the temporary seizure of the suspects home. Id. at 33031.xxx

24

A Fourth Amendment seizure, in contrast, does not result in passage of title to the government or even necessarily permanent deprivation. A seizure affects a possessory interest: Id. at 1263. A Fourth Amendment seizure may often lead to permanent deprivation of the property taken by government officers, but that is not always so. xxx Viewing the consequences of a blocking order in a Fourth Amendment light, the court in AlHaramainstated that because [e]ven a temporary deprivation of property constitutes a seizure, an OFAC blocking action affects Fourth Amendment rights. Id. xxx.

Furthermore, the court also held that blocking as an act of seizure was further bolstered by the fact that the purpose of such block is to deprive the plaintiff of access to the benefits of the property.
This conclusion is not only reinforced, but, indeed, made irrefutable on consideration of the fact that the very purpose of an OFAC blocking action is to depriv[e] the designated person of the benefit of the property, including services, that might otherwise be used to further ends that conflict with U.S. interests. Al Haramain, supra, 585 F. Supp. 2d at 1263. An OFAC block interferes with possessory rights, and is, in Fourth Amendment terms a seizure.

Clearly, the provision on blocking in Section 19 of Republic Act 10175 constitutes seizure that should first comply with the requirement of a judicial warrant upon the finding of a probable cause. It should not merely be effected upon prima facie determination by the DOJ.

On its very face therefore, the said Section 19 is unconstitutional as it violates the right against unreasonable seizures under Section 2 Article 3 of the 1987 Constitution.

2. Section 19 constitutes unreasonable seizure

In the recent case of Ambre y Cayuni v. People, G.R. No. 191532, August 15, 2012, this Honorable Court reiterated the well-entrenched doctrine of the constitutional right of persons against unreasonable searches and seizures.
Section 2, Article III of the Constitution mandates that a search

25 and seizure must be carried out through or on the strength of a judicial warrant predicated upon the existence of probable cause, absent which such search and seizure becomes unreasonable within the meaning of said constitutional provision. Evidence obtained and confiscated on the occasion of such an unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding.

On the other hand, the questioned provision states:

Section 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.

Moreover, a careful

perusal of Section 19 of Republic Act NO. 10175

shows that seizure of a persons computer data, through the acts of restricting and/or blocking, can be easily ordered by the DOJ without any court intervention, such as a warrant, on a prima facie determination by the same government department that such computer data is in violation of the provisions of this Act. Under Section 3 of said law, computer data is defined as:
(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 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. (emphasis ours)

This petition maintains that by dispensing with a judicial warrant, Section 19 sanctions unreasonable seizure, which violates the constitutional guarantee and right of people to be secure in their persons, houses, papers, and effects. This is so because it is primarily only through judicial intervention that the seizure of such effects becomes reasonable as clearly seen from the Constitutional

mandate that any search and/or seizure must be accomplished through probable cause determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

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Although our laws also provide for warrantless search and seizures, these are only exceptions. The general rule is still this: absence of a warrant makes searches, seizures or arrest unreasonable and unconstitutional. A mere provision of a law, such as Section 19 of Republic Act NO. 10175 constitutional mandate and protection. cannot override this

In the case of KindHearts case, supra, the court had also the occasion to elaborate on the reasonableness requirement of the U.S. Constitutions Fourth Amendment. In ruling that the seizure was unreasonable, the court said that
([R]easonableness in all the circumstances of the particular governmental invasion of a citizens personal security is the touchstone of Fourth Amendment analysis); Soldal, supra, 506 U.S. at 61-62. This does not, however, mean that courts always are free to conduct open-ended balancing of interests whenever the government has seized property. On the contrary, searches and seizures are usually reasonable only when conducted withal judicial warrant supported by probable cause. Place, supra, 462 U.S. at 701. The reasonableness clause under the Fourth Amendment derives content and meaning through reference to the warrant clause. U.S. Dist. Court, supra, 407 U.S. at 309-310. Though the ultimate inquiry is reasonableness, the Amendment does not leave the reasonableness of most seizures to the judgment of courts or government officers: the Framers of the Amendment balanced the interests involved and decided that a seizure is reasonable only if supported by a judicial warrant based on probable cause. Place, supra, 462 U.S. at 722 (Blackmun, J. concurring). Under most circumstances searches and seizures conducted without a warrant are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions. Katz v. U.S., 389 U.S. 347, 357(1967). Thus, as stated in Place, supra, 462 U.S. at 701, In the ordinary case, the Court has viewed seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.

Without doubt, Section 19 of Republic Act No. 10175 cannot pass the scrutiny of reasonableness required by Section 2, Article III of the 1987 Constitution. It is unconstitutional and void.

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V Section 5 of Republic Act No. 10175 violates Section 1 of Article 3 of the 1987 Philippine Constitution

Section 5 of Republic Act No. 10175 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.

Given the nature of how communications are made in the computer especially the most popular sites such as the Facebook and the Twitter, the application of Section 5 becomes unconstitutionally overbroad. The analysis of Petitioner Professor Melencio Sta. Maria at Interaksyon.com10 showing the

unconstitutionally overbroadness of the law is worth reproducing. Thus,

Republic Act 10175, the Cybercrime Law, is a special law. What does that mean? It is an accepted legal rule that offenses under special laws are considered MALA PROHIBITA as distinguished from MALA IN SE. In the latter, there must be a criminal mind to be convicted. In murder, theft, robbery and other offenses punished by our Revised Penal Code, for example, intention to do wrong is an essential element. In the former, MALA PROHIBITA, there need not be a criminal mind. The mere perpetuation of the prohibited act is enough. Good faith and absence of a criminal mind, in other words, are not defenses. Intent is immaterial, for example, where ordinances prohibit jaywalking and littering. The Bouncing Check Law is another special law, and so the mere issuance of a check without funds is punishable.

Atty. Mel Sta. Maria ANALYSIS: How the Cybercrime Law criminalizes likes and Tweets posted on Interaksyon.com on September 28, 2012 http://www.interaksyon.com/article/44251/analysis--how-the-cybercrimelaw-criminalizes-likes-and-tweets
10

28 The Cybercrime Law contains a provision which may implicate anyone who uses Facebook or Twitter. Section 5 (a) of the law provides that ... The following acts shall also constitute an offense: 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. "To abet", according to Webster's Dictionary, means "to actively second and encourage", "to forward", or "to assist or support in the achievement of a purpose". On the other hand, "to aid" means "to provide with what is useful or necessary in achieving an end." Article 3 of our Civil Code provides that "ignorance of the law excuses no one from compliance therewith". This means that if you are not aware of the effectivity of an existing law, you can still be held liable for violating it. Clearly, Republic Act Number 10175 is a special law providing as it does special crimes. It likewise adopts the crime of libel provided in the Revised Penal Code and all other crimes therein for as long as they are committed through a computer. To highlight the distinction and "separateness" of these adopted crimes, the Cybercrime Law imposes higher penalties. It also provides that a case under the Revised Penal Code is without prejudice to the filing of another one under the Cybercrime Law. In other words, two cases originating from the same act can be filed separately. The filing can even be simultaneous or successive. Hence if the prosecutor fails in one, he or she can prosecute on the other. This is indeed a very special law. When a Facebook or Twitter user posts his or her views, comments, replies or blogs, his or her intention is clearly for other users to read them. When another user disseminates them or encourages them by sharing or re-tweeting or even liking, he or she actively second and encourage, forward, assist or support in the achievement of the purpose of the original writer. Simply put, the sharer or retweeter abets the activities and the objective of the original writer. This may start a chain reaction. Others may show their support by merely clicking "like" or they may forward it by further sharing and retweeting. In the context of the specific provisions of the Cybercrime Law, therefore, sharers and retweeters, or even just "likers", are abettors regardless of intent. The moment he or she disseminates, he or she abets. A crime has been committed. The defense of good faith, lack of intention to injure and ignorance of the law become totally irrelevant.

29 The Cybercrime Law has no standards. It is all encompassing in scope because it has an indiscriminate multiplier effect brought by successive dissemination potentially producing hundreds of cybercriminals without clear standards under the law and causing even innocent minded people to be hesitant in expressing their thoughts. It is unconstitutionally overbroad because it also threatens others not before the court-those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." (Brockett v. Spokane Arcades, Inc., 472 U.S. 491[, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394] (1985). The doctrine contemplates the pragmatic judicial assumption that an overbroad statute will have a chilling effect on protected expression." City of Daytona Beach v. Del Percio, 476 So.2d 197, 202 (Fla.1985). (Sult vs. State o. SC03-542, June 23, 2005)

VI Sections 6 of Republic Act No. 10175 violates Sections 1 on equal protection and 21 on double jeopardy of Article 3 of the 1987 Philippine Constitution

Section 6 Republic Act No. 10175 pertinently 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 of Republic Act No. 10175 increases the penalty to one degree provided under the Revised Penal Code and other special laws if committed through a computer. This is unconstitutional. It violates the equal protection of the law clause of the 1987 Constitution.

30

Section 1 Article 3 of the Constitution pertinently provides that no person shall be denied the equal protection of the laws. For there to be valid discrimination, the classification must a.) rest on substantial distinctions b.) must be germane to the purpose of the law; c.) equally apply to all members of the same class d.) apply to present and future conditions.11 Does the classification rest on substantial distinctions? The only difference of an offense committed under the Revised Penal Code and other special laws, on the one hand, and, on the other hand, under the Cybercrime Prevention Act of 2012, is that, in the latter, the crime was committed through a computer. This

distinction is not substantial enough. This is so because, still the offender is just the same person. For instance, whether you commit the crime of intriguing against honor under the Revised Penal Code or under the CyberCrime Prevention Act, the offended party was offended because the offender told others

untruthful things about him or her. And whether five more people or six more people or even two more people read the gossip in the computer, the end result will still be the same. The offender will be prosecuted for what he or she uttered or wrote. The computer is immaterial to the injury to the offended party and the evil intent of the offender. On this score alone, the equal protection clause of the constitution is already transgressed. Is the increased penalty germane to the purposes of the law? The answer clearly is in the negative. The increase in the penalty shall not at all serve the purposes of the law. Penalties are always a deterrent. Higher penalties may be greater deterrents. If the purpose of the law is simply to protect the confidentiality and integrity of the data and information stored in the computer, the penalties in the Revised Penal Code are sufficient enough as deterrent.

11

People vs. Cayat 68 Phil 12

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Accordingly, even if the third requisite is complied with, the first and the second are not met. It is unconstitutional. VII Section 7 of Republic Act No. 10175 violates Sections 1 on equal protection and 21 on double jeopardy of Article 3 of the 1987 Philippine Constitution Section 7 Republic Act No. 10175 pertinently 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.

Section 21 of Article 3 of the Constitution provides 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. There is no doubt that Section 7 of Republic Act No. 10175 expressly violates the proscription on double jeopardy as enshrined Section 21 Article 3 of the 1987 Constitution. The test to determine the existence of same offense for the purpose of double jeopardy has been authoritatively explained by eminent constitutionalist Fr. Joaquin Bernas S.J. , thus:
The test now is whether one is identical with the other or whether it is an attempt or frustration of the other or whether one offense necessarily includes or is necessarily included in the other. What this test shows is that identity of offenses does not require one-to-one correspondence between the facts and the law involved in the two charges. It is necessary, however, that one offense is completely included in the other. Thus, while physical injury is not identical with attempted homicide, for purposes of double jeopardy, physical injury is the same as attempted homicide ( which alleges inflicted injury) because physical injury is necessarily included in such attempted homicide.12

12

Joaquin Bernas. The 1987 Philippine Constitution , A comprehensive Reviewer, 2006 Edition Page 186.

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Without gainsaying, Section 6 of Republic Act No. 10175 under the above-quoted constitutional test. It is void. VIII Section 4 (4) on Libel of Republic Act No. 10175 violates Section 1 and 4 of Article 3 of the 1987 Philippine Constitution

utterly fails

Section 4 (4) of Republic Act No. 10175 provides

SEC. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this Act: xxxxxxx (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.

There is a special reference on libel under Republic Act No. 10175. While appearing to be a simple adoption of our 80-year old law on libel under the Revised Penal Code into this new cyberspace law, its application indeed is unconstitutionally overbroad affecting as it does even publications previously made but still presently in cyberspace. This can easily be illustrated. For example, computer user-B shared an article of another user-A in

Facebook which is a social media website that can be seen through the computer. This happened in January of 2008. The article was libelous but it contained legitimate gripe on the subject-public official. It remained there and was not deleted. Because of so many other postings, this libelous posting was overtaken but not deleted by hundreds, perhaps thousands, of other shared articles from computer user-B and other hundreds of computer. This sharing may have Republic

already been forgotten by computer-user B by October 3, 2012 when

Act No. 10175 takes effect. Let us assume that in December of 2012, the person subject of the libelous statement was browsing and looking for people to contact

33

with and he or she chanced upon the posting of computer user-B of the libelous statements made more or less four (4) years ago. Arguably, the libeled person

can still file a case against computer user-B. The over-reaching effect of the law is thus very palpable. Section 4 (4) of Republic Act 10175 is not only vague in its application but it is clearly expansive for it can even encompass speech before the law takes effect. To correct, clarify or remedy the situation, there is a need for some major

amendment that should narrow its ambit so that postings made previous to the effectivity of the law cannot be reached and so that no chilling effect of

prosecutions on all existing messages, blogs, comments and other forms of written communication (but posted prior to the effectivity of the law) could be felt.
A criminal law is overbroad if it punishes activities which are constitutionally protected, Thornhill v. Alabama, 310 U.S. 88, 97 (1940), and it cannot be enforced against any defendant until or unless a limiting construction or partial invalidation narrows its scope so that it does not threaten protected expression. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Commonwealth vs. David Orlando. 371 Mass. 732October 5, 1976 - January 24, 1977

Section 4 (4) clearly is not susceptible to an easy narrowing interpretation or construction. What is clear is the vagueness of its reach. It thus potentially infringes on a persons freedom of speech under Section 4 of Articles 1 and 3 of the 1987 Constitution. It is , in effect, a form of subsequent punishment. Finally, because Republic Act No. 10175 is MALA PROHITA, as previously discussed, computer-user B cannot invoke good faith or absence of criminal intent as a defense. The law did not take into consideration the peculiarities brought about by the new environment created by the internet. The reach is just without any constitutional standards. It so expansive that it violates the narrowing

concept of criminal law. It even has the glaring nuance of an ex-post-facto law. Section 4 (4) likewise violates the equal protection of the law clause under Section 1 of Article 3 of the Constitution for there is no substantial distinction for increasing the penalty under Republic Act No. 10175 vis--vis the same libelous

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act under the Revised Penal Code. In this regard, arguments in Ground VII are adopted.

APPLICATION AND BASIS FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER

1.) The petitioners hereby adopt all their arguments previously made as part of this application for a temporary restraining order.

2.) The issuance of a temporary restraining order must satisfy three (3) elements namely: a.) material invasion of a right; b.) clear right on the part of the complainant; and c.) necessity for the writ to prevent damage (See Versoza v. Court of Appeals, 299 SCRA 100)

3.) All the following elements are satisfied.

4.) Section 10 of Article 16 that

of the 1987 Philippine Constitution provides

The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

5.) It is the right of citizens and taxpayers of a country to have all laws passed without constitutional infirmity. It is their right to live under a system of valid laws which passed the legislative mill at the cost of the taxpayers money. It is also their right to compel our public officials only to enforce laws which are within the mandates of the Constitution and not to enforce those that are void for being violative thereof. 6.) The implementation of Sections 4 (4), 5, 6, 7 and 19 of Republic Act 10175 will clearly result to a material invasion of the above-mentioned rights and

35

constitutional mandate.

No citizen must be allowed even for a second to live

under an infirm law that affects his or her freedom of expression and right to privacy. Instead of enjoying as a matter of right an environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press, the petitioners and the Filipino people will be suffering under a law that endangers freedom of speech, right to privacy, and the freedom of the press and all the other rights argued in this petition.

7.) Moreover, with the effectivity of Republic Act No. 10175, another form of irreparable damage will occur. Petitioners have posted, shared , re-tweeted and liked articles, long and short messages in Facebook and Twitter previous to the effectivity of Republic Act No.10175 and this would number more than hundreds already. Should this law remain effective and lest they might be subjected to penalties, they will be constrained to again try to recover, look at and examine all these hundreds of postings, sharings, tweetings and likings as they are still presently in cyberspace somewhere capable of being seen by anybody. To make such retrieval is virtually impossible as these hundreds of postings, sharings, tweetings and likings number n the hundreds. It is impossible for petitioners to even remember all of them. All netizens will be in the same situation as a result of this unconstitutionally overbroad statute. This is irreparable injury.

8.) Without a temporary restraining order, the petitioners and the Filipino people will undoubtedly suffer irreparable injury. This is not only an isolated injury but a constant and recurring one on the basis of the perpetuation of the

questioned provisions of the law which are constitutionally void.

CONCLUDING STATEMENT
Petitioners finally wish to again underscore the dangers of Section 19 of the Cybercrime Prevention Act. In unison, they reiterate what one of them, Professor

36

Melencio Sta.Maria, has already said in cyberspace, more particularly in his column at Interaksyon.com.13 that
xxx Section 19 is a gem of a provision for a dictator or one who desires to become one. It can be used to control and instill fear on the millions of computer users, commentators, bloggers, repliers, sharers, twitters, and re-twitters. It is, in effect, a GAG law potentially capable of shaping peoples mind and way of thinking. Under the threat of government intrusion, users will be forced to toe the governments line if only to make use of or access (or to again make use of or access) their computers. This environment will create a BIG BROTHER effect, borrowing the words of US Justice William Douglas , where there will be an increasing power of government interfering into the private lives of people under the pretext of national security, law and order , scientific advancement and the like. (Justice William Douglas Points of Rebellion, 1969). It can insidiously encroach on the users well-kept computer-stored-secrets. The chilling-effect of the implementation of Section 19 is a limitless suppression of the freedom of expression and an undue interference into the privacy of people. It may not only take down your computer system. It can also take you down as a person.

Indeed, in Justice Douglas concurring opinion in Gibson v. Florida Legislative Investigation Committee, (372 U.S. 539, March 25, 1963), he rejected the idea of government acting as the Big Brother [Orwell, 1949], and emphasized that by the First Amendment, the people have staked their security on freedom to promote a multiplicity of ideas and to defy governmental intrusion into these precincts. Further quoting the concurring opinion of Justice Brandeis in Whitney v. California, (274 U.S. 357, 375, 377) he said
To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. xxx (emphasis ours)

13

http://www.interaksyon.com/article/43846/opinion--beware-the-cybercrime-laws-section-19---the-takedownclause

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PRAYER
WHEREFORE, it is most respectfully prayed of this Honorable Court that

a.) upon the filing of this petition,

a.1) a temporary restraining order be issued

ordering the

respondents, their representatives, and the government employees over whom they have control/or supervision to desist from the implementation of Republic Act. No. 10175; and,

a.2) a Resolution be issued setting ORAL ARGUMENTS before this Honorable Supreme Court

b.) after due hearing and deliberation

b.1) Declaring NULL AND VOID Sections 4 (4) , 5, 6, 7 and 19 of Republic Act 10175, otherwise known as the Cybercrime

Prevention Act of 2012.

Petitioners pray for such other relief as this Honorable Supreme Court may find equitable and proper in the premises.

Explanation of Service: Service by registered mail of this petition was made, if necessary, pursuant to Rule 13 of the Rules of Court due to distance, time constraint and the filing of equally important pleadings and inadequacy of messengerial staff.

Makati City October 2, 2012

Signatures next page..

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