See full text of RA 10175 or the Cybercrime Prevention Act of 2012 in https://www.officialgazette.gov.

ph/2012/09/12/republic-act-
no-10175/
For academic purposes, see concurring and dissenting opinions of the other justices.
The author encourages the reader to read the full text of the jurisprudence due to the significance and timeliness of the topics
discussed therein.

jeffsarabusing.wordpress.com
EN BANC
G.R. No. 203335, February 18, 2014 ]
JOSE JESUS M. DISINI, JR., et. al., PETITIONERS,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE
DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE
AND THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, RESPONDENTS.

Ponente: ABAD, J.:

Facts:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime Prevention Act of 2012,
unconstitutional and void.

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person can connect to the
internet, a system that links him to other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study, amusement, upliftment, or
pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special audiences like
associates, classmates, or friends and read postings from them;

1
3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges, trade houses, credit card
companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual accesses to and uses of
the internet. The cyberspace is a boon to the need of the current generation for greater information and facility of communication.
But all is not well with the system since it could not filter out a number of persons of ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them can, for instance, avail himself of the system to unjustly ruin the reputation of
another or bully the latter by posting defamatory statements against him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-motivated can use the cyberspace for
committing theft by hacking into or surreptitiously accessing his bank account or credit card or defrauding him through false
representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children
who have access to the internet. For this reason, the government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and networks of
indispensable or highly useful institutions as well as to the laptop or computer programs and memories of innocent individuals. They
accomplish this by sending electronic viruses or virtual dynamites that destroy those computer systems, networks, programs, and
memories. The government certainly has the duty and the right to prevent these tomfooleries from happening and punish their
perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities violate certain
of their constitutional rights. The government of course asserts that the law merely seeks to reasonably put order into cyberspace
activities, punish wrongdoings, and prevent hurtful attacks on the system.

Issues:

2
Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as crimes and
impose penalties for their commission as well as provisions that would enable the government to track down and penalize violators.
These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime of libel.

Held:

3
 Section Legal Provision Petitioner’s Contention SC’s Ruling
Sec. 4(a)(1) – Section 4. Cybercrime Offenses. – The Fails to meet the strict Constitutional.
Illegal Access following acts constitute the offense of scrutiny standard The Court finds nothing in Section
cybercrime punishable under this Act: required of laws that 4(a)(1) that calls for the application
interfere with the of the strict scrutiny standard since
(a) Offenses against the confidentiality, fundamental rights no fundamental freedom, like
integrity and availability of computer data speech, is involved in punishing
and systems: what is essentially a condemnable
act – accessing the computer
(1) Illegal Access. – The access to the whole system of another without right. It
or any part of a computer system without is a universally condemned
right. conduct.

Sidenote: Ethical hackers are not

covered by the provision, and thus,
are not punishable.
Sec. 4(a)(3) – (3) Data Interference. – The intentional or Suffers from overbreadth Constitutional.
Data reckless alteration, damaging, deletion or as it intrudes into the area But Section 4(a)(3) does not
Interference deterioration of computer data, electronic of protected speech and encroach on these freedoms at all.
document, or electronic data message, expression It simply punishes what essentially
without right, including the introduction or is a form of vandalism, the act of
transmission of viruses. willfully destroying without right
the things that belong to others, in
this case their computer data,
electronic document, or electronic
data message. Such act has no
connection to guaranteed
freedoms. There is no freedom to
destroy other people’s computer
systems and private documents.

4
Sec. 4(a)(6) – Section 4(a)(6) provides: Violates equal protection Constitutional.
Cybersquatting Section 4. Cybercrime Offenses. – The clause in that, not being The law is reasonable in penalizing
following acts constitute the offense of narrowly tailored, it will <the person> for acquiring the
cybercrime punishable under this Act: cause a user using his real domain name in bad faith to profit,
name to suffer the same mislead, destroy reputation, or
(a) Offenses against the confidentiality, fate as those who use deprive others who are not ill-
integrity and availability of computer data aliases or take the name motivated of the rightful
and systems: of another in satire, opportunity of registering the
parody, or any other same. The challenge to the
xxx literary device. constitutionality of Section 4(a)(6)
on ground of denial of equal
(6) Cyber-squatting. – The acquisition of protection is baseless.
domain name over the internet in bad faith
to profit, mislead, destroy the reputation,
and deprive others from registering the
same, if such a domain name is:
(i) Similar, identical, or confusingly similar to
an existing trademark registered with the
appropriate government agency at the time
of the domain name registration;

(ii) Identical or in any way similar with the

name of a person other than the registrant,
in case of a personal name; and

(iii) Acquired without right or with

intellectual property interests in it.
Sec.4(b)(3) – Section 4(b)(3) provides: Violates the constitutional Constitutional.
Computer- Section 4. Cybercrime Offenses. – The rights to due process and The law punishes those who
related Identity following acts constitute the offense of to privacy and acquire or use such identifying
Theft cybercrime punishable under this Act: correspondence, and information without right,

5
 transgresses the freedom implicitly to cause damage.
xxxx of the press. Petitioners simply fail to show how
government effort to curb
b) Computer-related Offenses: computer-related identity theft
violates the right to privacy and
xxxx correspondence as well as the right
to due process of law.
(3) Computer-related Identity Theft. – The
intentional acquisition, use, misuse, Also, the charge of invalidity of this
transfer, possession, alteration, or deletion section based on the overbreadth
of identifying information belonging to doctrine will not hold water since
another, whether natural or juridical, the specific conducts proscribed do
without right: Provided: that if no damage not intrude into guaranteed
has yet been caused, the penalty imposable freedoms like speech. Clearly, what
shall be one (1) degree lower. this section regulates are specific
actions: the acquisition, use,
misuse or deletion of personal
identifying data of another. There
is no fundamental right to acquire
another’s personal data.

Further, petitioners fear that

Section 4(b)(3) violates the
freedom of the press in that
journalists would be hindered from
accessing the unrestricted user
account of a person in the news to
secure information about him that
could be published. But this is not
the essence of identity theft that
the law seeks to prohibit and

6
 punish. Evidently, the theft of
identity information must be
intended for an illegitimate
purpose. Moreover, acquiring and
disseminating information made
public by the user himself cannot
be regarded as a form of theft.

Sec.4(c)(1) – (c) Content-related Offenses: Violates freedom of Constitutional.

Cybersex expression insofar as The understanding of those who
(1) Cybersex.– The willful engagement, between husband and drew up the cybercrime law is that
maintenance, control, or operation, directly wife or consenting adults. the element of “engaging in a
or indirectly, of any lascivious exhibition of business” is necessary to constitute
sexual organs or sexual activity, with the aid the illegal cybersex. The Act
of a computer system, for favor or actually seeks to punish cyber
consideration. prostitution, white slave trade, and
pornography for favor and
consideration. This includes
interactive prostitution and
pornography, i.e., by webcam.
Sec 4(c)(2) – (2) Child Pornography. — The unlawful or Petitioners point out that Constitutional.
Child prohibited acts defined and punishable by the provision of ACPA that
Pornography Republic Act No. 9775 or the Anti-Child makes it unlawful for any It seems that the above merely
Pornography Act of 2009, committed person to “produce, expands the scope of the Anti-Child
through a computer system: Provided, That direct, manufacture or Pornography Act of 2009.
the penalty to be imposed shall be (1) one create any form of child
degree higher than that provided for in pornography” clearly The question of aiding and abetting
Republic Act No. 9775. relates to the prosecution the offense by simply commenting
of persons who aid and on it will be discussed elsewhere
abet the core offenses below. For now the Court must
that ACPA seeks to hold that the constitutionality of

7
 punish. Petitioners are Section 4(c)(2) is not successfully
wary that a person who challenged.
merely doodles on paper
and imagines a sexual
abuse of a 16-year-old is
not criminally liable for
producing child
pornography but one who
formulates the idea on his
laptop would be. Further,
if the author bounces off
his ideas on Twitter,
anyone who replies to the
tweet could be considered
aiding and abetting a
cybercrime.

Sec.4(c)(3) – (3) Unsolicited Commercial Communications. Unconstitutional.

Unsolicited – The transmission of commercial electronic
Commercial communication with the use of computer But, firstly, the government
Communications system which seeks to advertise, sell, or presents no basis for holding that
offer for sale products and services are unsolicited electronic ads reduce
prohibited unless: the “efficiency of computers.”
(i) There is prior affirmative consent from Secondly, people, before the
the recipient; or arrival of the age of computers,
have already been receiving such
(ii) The primary intent of the communication unsolicited ads by mail. These have
is for service and/or administrative never been outlawed as nuisance
announcements from the sender to its since people might have interest in
existing users, subscribers or customers; or such ads. What matters is that the
recipient has the option of not

8
 opening or reading these mail ads.
(iii) The following conditions are present: That is true with spams. Their
recipients always have the option
(aa) The commercial electronic to delete or not to read them.
communication contains a simple, valid, and
reliable way for the recipient to reject To prohibit the transmission of
receipt of further commercial electronic unsolicited ads would deny a
messages (opt-out) from the same source; person the right to read his emails,
even unsolicited commercial ads
(bb) The commercial electronic addressed to him. Commercial
communication does not purposely disguise speech is a separate category of
the source of the electronic message; and speech which is not accorded the
same level of protection as that
(cc) The commercial electronic given to other constitutionally
communication does not purposely include guaranteed forms of expression
misleading information in any part of the but is nonetheless entitled to
message in order to induce the recipients to protection. The State cannot rob
read the message. him of this right without violating
the constitutionally guaranteed
The above penalizes the transmission of freedom of expression. Unsolicited
unsolicited commercial communications, advertisements are legitimate
also known as “spam.” forms of expression.

Art. 353, 354, Art. 353 – Definition of Libel The libel provisions of the Constitutional.
and 355 of Art. 354 – Requirement for Publicity cybercrime law carry with
Revised Penal Art. 355 – Libel means by writings or similar them the requirement of See SC’s discussion on the Fermin
Code means “presumed malice” even case.
Note: RPC Libel requires existence of when the latest
Sec.4(c)(4) of malice. Where the offended party is a jurisprudence already As to the ICCPR, General Comment
Cybercrime Law public individual, actual malice is required to replaces it with the higher 34 does not say that the truth of
- Libel standard of “actual the defamatory statement should

9
be proven. If the offended party is a private malice” as a basis for constitute an all-encompassing
individual, malice is presumed. conviction. Petitioners defense. As it happens, Article 361
Sec.4(c)(4) Libel. — The unlawful or argue that inferring recognizes truth as a defense but
prohibited acts of libel as defined in Article “presumed malice” from under the condition that the
355 of the Revised Penal Code, as amended, the accused’s defamatory accused has been prompted in
committed through a computer system or statement by virtue of making the statement by good
any other similar means which may be Article 354 of the penal motives and for justifiable ends.
devised in the future. code infringes on his Besides, the UNHRC did not
constitutionally actually enjoin the Philippines, as
guaranteed freedom of petitioners urge, to decriminalize
expression. libel. It simply suggested that
defamation laws be crafted with
Petitioners would go care to ensure that they do not
further. They contend that stifle freedom of expression.
the laws on libel should be
stricken down as The Court agrees with the Solicitor
unconstitutional for General that libel is not a
otherwise good constitutionally protected speech
jurisprudence requiring and that the government has an
“actual malice” could obligation to protect private
easily be overturned as individuals from defamation.
the Court has done in
Fermin v. People even The internet is characterized as
where the offended encouraging a freewheeling,
parties happened to be anything-goes writing style. In a
public figures. sense, they are a world apart in
terms of quickness of the reader’s
Also, petitioners contend reaction to defamatory statements
that the laws violate the posted in cyberspace, facilitated by
International Covenant of one-click reply options offered by
Civil and Political Rights to the networking site as well as by

10
 the effect that penal the speed with which such
defamation laws should reactions are disseminated down
include defense of truth. the line to other internet users.
Whether these reactions to
defamatory statement posted on
the internet constitute aiding and
abetting libel, acts that Section 5 of
the cybercrime law punishes, is
another matter that the Court will
deal with next in relation to Section
5 of the law.

Sec. 5 – Other Sec. 5. Other Offenses. — The following acts Petitioners assail the Unconstitutional as to Aiding or
Offenses shall also constitute an offense: constitutionality of Abetting in Sec.4c4 (Libel), 4c3
Section 5 that renders (Unsolicited Commercial
(a) Aiding or (a) Aiding or Abetting in the Commission of criminally liable any Communications), and 4c2 (Child
Abetting in the Cybercrime. – Any person who willfully person who willfully abets Pornography).
Commission of abets or aids in the commission of any of the or aids in the commission
Cybercrime offenses enumerated in this Act shall be or attempts to commit Constitutional as to Aiding or
held liable. any of the offenses Abetting in Sec.4a1 (Illegal
(b) Attempt in enumerated as Access), 4a2 (Illegal Interception),
the Commission (b) Attempt in the Commission of cybercrimes. It suffers 4a3 (Data Interference), 4a4
of Cybercrime Cybercrime. — Any person who willfully from overbreadth, (System Interference), 4a5
attempts to commit any of the offenses creating a chilling and (Misuse of Devices, 4a6 (Cyber-
enumerated in this Act shall be held liable. deterrent effect on squatting), 4b1 (Forgery), 4b2
protected expression. (Fraud), 4b3 (Identity Theft), and
4c1 (Cybersex).

Constitutional as to Attempting to
commit any of these offenses.

11
The question is: are online postings
such as “Liking” an openly
defamatory statement,
“Commenting” on it, or “Sharing” it
with others, to be regarded as
“aiding or abetting?” - NO.

The old parameters for enforcing

the traditional form of libel would
be a square peg in a round hole
when applied to cyberspace libel.
Unless the legislature crafts a cyber
libel law that takes into account its
unique circumstances and culture,
such law will tend to create a
chilling effect on the millions that
use this new medium of
communication in violation of their
constitutionally-guaranteed right
to freedom of expression. Vague
and overbroad. The severity of
criminal sanctions may well cause
speakers to remain silent rather
than communicate even arguably
unlawful words, ideas, and images.

The terms “aiding or abetting”

constitute broad sweep that
generates chilling effect on those
who express themselves through
cyberspace posts, comments, and

12
other messages. Hence, Section 5
of the cybercrime law that
punishes “aiding or abetting” libel
on the cyberspace is a nullity.

Section 5 with respect to Section

4(c)(4) Libel is unconstitutional. Its
vagueness raises apprehension on
the part of internet users because
of its obvious chilling effect on the
freedom of expression, especially
since the crime of aiding or
abetting ensnares all the actors in
the cyberspace front in a fuzzy
way. In the absence of legislation
tracing the interaction of netizens
and their level of responsibility
such as in other countries, Section
5, in relation to Section 4(c)(4) on
Libel, Section 4(c)(3) on
Unsolicited Commercial
Communications, and Section
4(c)(2) on Child Pornography,
cannot stand scrutiny.

But the crime of aiding or abetting

the commission of cybercrimes
under Section 5 should be
permitted to apply to Section
4(a)(1) on Illegal Access, Section
4(a)(2) on Illegal Interception,

13
Section 4(a)(3) on Data
Interference, Section 4(a)(4) on
System Interference, Section
4(a)(5) on Misuse of Devices,
Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section
4(b)(3) on Computer-related
Identity Theft, and Section 4(c)(1)
on Cybersex. None of these
offenses borders on the exercise
of the freedom of expression.

The crime of willfully attempting to

commit any of these offenses is for
the same reason not objectionable.
A hacker may for instance have
done all that is necessary to
illegally access another party’s
computer system but the security
employed by the system’s lawful
owner could frustrate his effort.
Another hacker may have gained
access to usernames and
passwords of others but fail to use
these because the system
supervisor is alerted. If Section 5
that punishes any person who
willfully attempts to commit this
specific offense is not upheld, the

14
 owner of the username and
password could not file a complaint
against him for attempted hacking.
But this is not right. The hacker
should not be freed from liability
simply because of the vigilance of a
lawful owner or his supervisor.

Petitioners of course claim that

Section 5 lacks positive limits and
could cover the innocent. While
this may be true with respect to
cybercrimes that tend to sneak
past the area of free expression,
any attempt to commit the other
acts specified in Section 4(a)(1),
Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5),
Section 4(a)(6), Section 4(b)(1),
Section 4(b)(2), Section 4(b)(3), and
Section 4(c)(1) as well as the actors
aiding and abetting the
commission of such acts can be
identified with some reasonable
certainty through adroit tracking of
their works. Absent concrete proof
of the same, the innocent will of
course be spared.

Sec.6 Sec. 6. All crimes defined and penalized by Constitutional.

the Revised Penal Code, as amended, and

15
 special laws, if committed by, through and Section 6 merely makes
with the use of information and commission of existing crimes
communications technologies shall be through the internet a qualifying
covered by the relevant provisions of this circumstance. As the Solicitor
Act: Provided, That the penalty to be General points out, there exists a
imposed shall be one (1) degree higher than substantial distinction between
that provided for by the Revised Penal Code, crimes committed through the use
as amended, and special laws, as the case of information and
may be. communications technology and
similar crimes committed using
other means. In using the
technology in question, the
offender often evades
identification and is able to reach
far more victims or cause greater
harm. The distinction, therefore,
creates a basis for higher penalties
for cybercrimes.
Sec.7 Sec. 7. Liability under Other Laws. — A Violation of the right Unconstitutional as to online libel
prosecution under this Act shall be without against double jeopardy and online child pornography.
prejudice to any liability for violation of any For the others, to be determined
provision of the Revised Penal Code, as by courts.
amended, or special laws.
When two different laws define
two crimes, prior jeopardy as to
one does not bar prosecution of
the other although both offenses
arise from the same fact, if each
crime involves some important act
which is not an essential element
of the other. With the exception of

16
the crimes of online libel and
online child pornography, the
Court would rather leave the
determination of the correct
application of Section 7 to actual
cases.

Online libel is different. There

should be no question that if the
published material on print, said to
be libelous, is again posted online
or vice versa, that identical
material cannot be the subject of
two separate libels. The two
offenses, one a violation of Article
353 of the Revised Penal Code and
the other a violation of Section
4(c)(4) of R.A. 10175 involve
essentially the same elements and
are in fact one and the same
offense. Indeed, the OSG itself
claims that online libel under
Section 4(c)(4) is not a new crime
but is one already punished under
Article 353. Section 4(c)(4) merely
establishes the computer system
as another means of
publication. Charging the offender
under both laws would be a blatant
violation of the proscription
against double jeopardy.

17
 The same is true with child
pornography committed online.
Section 4(c)(2) merely expands the
ACPA’s scope so as to include
identical activities in cyberspace.
As previously discussed, ACPA’s
definition of child pornography in
fact already covers the use of
“electronic, mechanical, digital,
optical, magnetic or any other
means.” Thus, charging the
offender under both Section 4(c)(2)
and ACPA would likewise be
tantamount to a violation of the
constitutional prohibition against
double jeopardy.
Sec.8 Section 8 provides for the penalties for the Penalties are too severe. Constitutional.
following crimes: Sections 4(a) on Offenses
Against the Confidentiality, Integrity and The matter of fixing penalties for
Availability of Computer Data and Systems; the commission of crimes is as a
4(b) on Computer-related Offenses; 4(a)(5) rule a legislative prerogative. Here
on Misuse of Devices; when the crime the legislature prescribed a
punishable under 4(a) is committed against measure of severe penalties for
critical infrastructure; 4(c)(1) on Cybersex; what it regards as deleterious
4(c)(2) on Child Pornography; 4(c)(3) on cybercrimes. They appear
Unsolicited Commercial Communications; proportionate to the evil sought to
and Section 5 on Aiding or Abetting, and be punished. xxx Judges and
Attempt in the Commission of Cybercrime. magistrates can only interpret and
apply them and have no authority
to modify or revise their range as

18
 determined by the legislative
department. The courts should not
encroach on this prerogative of the
lawmaking body.

Sec.12 Sec. 12. Real-Time Collection of Traffic Data. Petitioners assail the grant Unconstitutional.
— Law enforcement authorities, with due to law enforcement
cause, shall be authorized to collect or agencies of the power to See full text for the discussion
record by technical or electronic means collect or record traffic regarding the right to privacy,
traffic data in real-time associated with data in real time as touching the topics of
specified communications transmitted by tending to curtail civil informational privacy and the
means of a computer system. liberties or provide technicalities of traffic data and
opportunities for official computer data transferred through
Traffic data refer only to the abuse. They claim that the internet.
communication’s origin, destination, route, data showing where
time, date, size, duration, or type of digital messages come In much the same way, ICT users
underlying service, but not content, nor from, what kind they are, must know that they cannot
identities. and where they are communicate or exchange data
destined need not be with one another over cyberspace
All other data to be collected or seized or incriminating to their except through some service
disclosed will require a court warrant. senders or recipients providers to whom they must
before they are to be submit certain traffic data that are
Service providers are required to cooperate protected. Petitioners needed for a successful
and assist law enforcement authorities in invoke the right of every cyberspace communication. The
the collection or recording of the above- individual to privacy and conveyance of this data takes
stated information. to be protected from them out of the private sphere,
government snooping into making the expectation to privacy
The court warrant required under this the messages or in regard to them an expectation
section shall only be issued or granted upon information that they that society is not prepared to
written application and the examination send to one another. recognize as reasonable.
under oath or affirmation of the applicant

19
and the witnesses he may produce and the The Court, however, agrees with
showing: (1) that there are reasonable Justices Carpio and Brion that
grounds to believe that any of the crimes when seemingly random bits of
enumerated hereinabove has been traffic data are gathered in bulk,
committed, or is being committed, or is pooled together, and analyzed,
about to be committed; (2) that there are they reveal patterns of activities
reasonable grounds to believe that evidence which can then be used to create
that will be obtained is essential to the profiles of the persons under
conviction of any person for, or to the surveillance. With enough traffic
solution of, or to the prevention of, any such data, analysts may be able to
crimes; and (3) that there are no other determine a person’s close
means readily available for obtaining such associations, religious views,
evidence. political affiliations, even sexual
preferences. Such information is
likely beyond what the public may
expect to be disclosed, and clearly
falls within matters protected by
the right to privacy.

However, SC struck down the

provision as unconstitutional
because of the vagueness of the
provision. What constitutes “due
cause”? The authority that Section
12 gives law enforcement agencies
is too sweeping and lacks restraint.
While it says that traffic data
collection should not disclose
identities or content data, such
restraint is but an illusion.
Admittedly, nothing can prevent

20
 law enforcement agencies holding
these data in their hands from
looking into the identity of their
sender or receiver and what the
data contains. This will
unnecessarily expose the citizenry
to leaked information or, worse, to
extortion from certain bad
elements in these agencies.

Sec.13 Sec. 13. Preservation of Computer Data. — Section 13 constitutes an Constitutional.

The integrity of traffic data and subscriber undue deprivation of the
information relating to communication right to property. They The data that service providers
services provided by a service provider shall liken the data preserve on orders of law
be preserved for a minimum period of six (6) preservation order that enforcement authorities are not
months from the date of the transaction. law enforcement made inaccessible to users by
Content data shall be similarly preserved for authorities are to issue as reason of the issuance of such
six (6) months from the date of receipt of a form of garnishment of orders. The process of preserving
the order from law enforcement authorities personal property in civil data will not unduly hamper the
requiring its preservation. forfeiture proceedings. normal transmission or use of the
Such order prevents same.
Law enforcement authorities may order a internet users from
one-time extension for another six (6) accessing and disposing of
months: Provided, That once computer data traffic data that
preserved, transmitted or stored by a essentially belong to
service provider is used as evidence in a them.
case, the mere furnishing to such service
provider of the transmittal document to the
Office of the Prosecutor shall be deemed a
notification to preserve the computer data
until the termination of the case.

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 The service provider ordered to preserve
computer data shall keep confidential the
order and its compliance.

Sec.14 Sec. 14. Disclosure of Computer Data. — Law The process envisioned in Constitutional.
enforcement authorities, upon securing a Section 14 is being likened
court warrant, shall issue an order requiring to the issuance of a it is well-settled that the power to
any person or service provider to disclose or subpoena. Petitioners’ issue subpoenas is not exclusively a
submit subscriber’s information, traffic data objection is that the judicial function. Executive
or relevant data in his/its possession or issuance of subpoenas is a agencies have the power to issue
control within seventy-two (72) hours from judicial function. subpoena as an adjunct of their
receipt of the order in relation to a valid investigatory powers.
complaint officially docketed and assigned
for investigation and the disclosure is
necessary and relevant for the purpose of
investigation.

Sec.15 Sec. 15. Search, Seizure and Examination of Petitioners challenge Constitutional.
Computer Data. — Where a search and Section 15 on the
seizure warrant is properly issued, the law assumption that it will On its face, however, Section 15
enforcement authorities shall likewise have supplant established merely enumerates the duties of
the following powers and duties. search and seizure law enforcement authorities that
procedures. would ensure the proper
Within the time period specified in the collection, preservation, and use of
warrant, to conduct interception, as defined computer system or data that have
in this Act, and: been seized by virtue of a court
(a) To secure a computer system or a warrant. The exercise of these
computer data storage medium; duties do not pose any threat on
the rights of the person from
(b) To make and retain a copy of those whom they were taken. Section 15

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computer data secured; does not appear to supersede
existing search and seizure rules
(c) To maintain the integrity of the relevant but merely supplements them.
stored computer data;

(d) To conduct forensic analysis or

examination of the computer data storage
medium; and

(e) To render inaccessible or remove those

computer data in the accessed computer or
computer and communications network.

Pursuant thereof, the law enforcement

authorities may order any person who has
knowledge about the functioning of the
computer system and the measures to
protect and preserve the computer data
therein to provide, as is reasonable, the
necessary information, to enable the
undertaking of the search, seizure and
examination.

Law enforcement authorities may request

for an extension of time to complete the
examination of the computer data storage
medium and to make a return thereon but
in no case for a period longer than thirty
(30) days from date of approval by the
court.

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Sec.17 Sec. 17. Destruction of Computer Data. — Petitioners claim that such Constitutional.
Upon expiration of the periods as provided destruction of computer
in Sections 13 and 15, service providers and data subject of previous But, as already stated, it is unclear
law enforcement authorities, as the case preservation or that the user has a demandable
may be, shall immediately and completely examination violates the right to require the service
destroy the computer data subject of a user’s right against provider to have that copy of the
preservation and examination. deprivation of property data saved indefinitely for him in
without due process of its storage system. If he wanted
law. them preserved, he should have
saved them in his computer when
he generated the data or received
it. He could also request the service
provider for a copy before it is
deleted.
Sec.19 Sec. 19. Restricting or Blocking Access to Petitioners contest Unconstitutional.
Computer Data.— When a computer data is Section 19 in that it stifles
prima facie found to be in violation of the freedom of expression Violative of the constitutional
provisions of this Act, the DOJ shall issue an and violates the right guarantees to freedom of
order to restrict or block access to such against unreasonable expression and against
computer data. searches and seizures. unreasonable searches and
seizures.

Computer data may constitute

personal property, and thus, are
protected from unreasonable
searches and seizures whether
while stored in their personal
computers or in the service
provider’s systems.

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The content of the computer data
can also constitute speech. In such
a case, Section 19 operates as a
restriction on the freedom of
expression over cyberspace.
Certainly not all forms of speech
are protected. Legislature may,
within constitutional bounds,
declare certain kinds of expression
as illegal. But for an executive
officer to seize content alleged to
be unprotected without any
judicial warrant, it is not enough
for him to be of the opinion that
such content violates some law, for
to do so would make him judge,
jury, and executioner all rolled into
one.

Not only does Section 19 preclude

any judicial intervention, but it also
disregards jurisprudential
guidelines established to
determine the validity of
restrictions on speech. Section 19,
however, merely requires that the
data to be blocked be found prima
facie in violation of any provision of
the cybercrime law. Taking Section
6 into consideration, this can
actually be made to apply in

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 relation to any penal provision. It
does not take into consideration
any of the dangerous tendency
test, balancing of interest test, and
clear and present danger test.
Sec.20 Sec. 20. Noncompliance. — Failure to Petitioners challenge Constitutional.
comply with the provisions of Chapter IV Section 20, alleging that it
hereof specifically the orders from law is a bill of attainder. The But since the non-compliance
enforcement authorities shall be punished argument is that the mere would be punished as a violation of
as a violation of Presidential Decree No. failure to comply Presidential Decree (P.D.)
1829 with imprisonment of prision constitutes a legislative 1829, Section 20 necessarily
correctional in its maximum period or a fine finding of guilt, without incorporates elements of the
of One hundred thousand pesos regard to situations where offense which are defined therein.
(Php100,000.00) or both, for each and every non-compliance would be xxx Thus, the act of non-
noncompliance with an order issued by law reasonable or valid. compliance, for it to be punishable,
enforcement authorities. must still be done “knowingly or
willfully.” There must still be a
judicial determination of guilt,
during which, as the Solicitor
General assumes, defense and
justifications for non-compliance
may be raised. Thus, Section 20 is
valid insofar as it applies to the
provisions of Chapter IV which are
not struck down by the Court.
Sec.24 and 26a Sec. 24. Cybercrime Investigation and Petitioners mainly Constitutional.
Coordinating Center.– There is hereby contend that Congress
created, within thirty (30) days from the invalidly delegated its It passes the completeness test
effectivity of this Act, an inter-agency body power when it gave the and sufficient standard test.
to be known as the Cybercrime Investigation Cybercrime Investigation
and Coordinating Center (CICC), under the and Coordinating Center

26
 administrative supervision of the Office of (CICC) the power to
the President, for policy coordination among formulate a national
concerned agencies and for the formulation cybersecurity plan
and enforcement of the national without any sufficient
cybersecurity plan. standards or parameters
for it to follow.
Sec. 26. Powers and Functions.– The CICC
shall have the following powers and
functions:
(a) To formulate a national cybersecurity
plan and extend immediate assistance of
real time commission of cybercrime offenses
through a computer emergency response
team (CERT); x x x.

Hence,

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

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c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad faith to the prejudice of
others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual activity for favor or
consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal Code are committed with
the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic data and subscriber
information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the expiration of the prescribed
holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

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Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original author of the post;
but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes
as VALID and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section
4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect
to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel.

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that authorizes prosecution of the
offender under both the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and Article 353 of the
Revised Penal Code constitutes a violation of the proscription against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of Republic Act 10175
and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a violation of the same proscription,

and, in respect to these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.

Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, and Reyes, JJ., concur.
Sereno, C.J., Carpio, and Leonen, JJ., see concurring and dissenting opinion.
Velasco, J., no part due to prior case.
Brion, J., see separate concurring opinion.
Mendoza, J., join Justice Brion in all his positions.
Perlas-Bernabe, J., no part.

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