En Banc: 733 Phil. 717

733 Phil.
717
EN BANC
G.R. No. 203335, April 22, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA,

JANETTE TORAL AND ERNESTO SONIDO, JR., 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.
G.R. NO. 203299]
LOUIS “BAROK” C. BIRAOGO, PETITIONER, VS. NATIONAL BUREAU

OF INVESTIGATION AND PHILIPPINE NATIONAL POLICE,
RESPONDENTS.
G.R. NO. 203306]
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN

MOVEMENT, INC., JERRY S. YAP, BERTENI “TOTO” CAUSING,
HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E.
RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL.,
PETITIONERS, VS. OFFICE OF THE PRESIDENT, REPRESENTED BY
PRESIDENT BENIGNO SIMEON AQUINO III, SENATE OF THE
PHILIPPINES, AND HOUSE OF REPRESENTATIVES, RESPONDENTS.
G.R. NO. 203359]
SENATOR TEOFISTO DL GUINGONA III, PETITIONER, VS. EXECUTIVE

SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF
OF THE PHILIPPINE NATIONAL POLICE, AND DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, RESPONDENTS.
G.R. NO. 203378]

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-
CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, AND
GILBERT T. ANDRES, PETITIONERS, VS. THE EXECUTIVE
SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT,
THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, RESPONDENTS.
G.R. NO. 203391]
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI

CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL.,
PETITIONERS, VS. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS
EXECUTIVE SECRETARY AND ALTER-EGO OF PRESIDENT BENIGNO
SIMEON AQUINO III, LEILA DE LIMA IN HER CAPACITY AS
SECRETARY OF JUSTICE, RESPONDENTS.
G.R. NO. 203407]
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO

M. REYES, JR., NATIONAL ARTIST BIENVENIDO L. LUMBERA,
CHAIRPERSON OF CONCERNED ARTISTS OF THE PHILIPPINES,
ELMER C. LABOG, CHAIRPERSON OF KILUSANG MAYO UNO,
CRISTINA E. PALABAY, SECRETARY GENERAL OF KARAPATAN,
FERDINAND R. GAITE, CHAIRPERSON OF COURAGE, JOEL B.
MAGLUNSOD, VICE PRESIDENT OF ANAKPAWIS PARTY-LIST, LANA R.
LINABAN, SECRETARY GENERAL GABRIELA WOMEN’S PARTY,
ADOLFO ARES P. GUTIERREZ, AND JULIUS GARCIA MATIBAG,
PETITIONERS, VS. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, PAQUITO N. OCHOA, JR.,
EXECUTIVE SECRETARY, SENATE OF THE PHILIPPINES,
REPRESENTED BY SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE
OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO
BELMONTE, JR., LEILA DE LIMA, SECRETARY OF THE DEPARTMENT
OF JUSTICE, LOUIS NAPOLEON C. CASAMBRE, EXECUTIVE
DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, NONNATUS CAESAR R. ROJAS, DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, D/GEN. NICANOR A.
BARTOLOME, CHIEF OF THE PHILIPPINE NATIONAL POLICE,
MANUEL A. ROXAS II, SECRETARY OF THE DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, RESPONDENTS.
G.R. NO. 203440]
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, VS. 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.
G.R. NO. 203453]
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP),

PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM
AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO
AND THE PETITIONERS IN THE E-PETITION
HTTP://WWW.NUJP.ORG/NO-TO-RA10175/, PETITIONERS, VS. THE
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES
AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS
ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN
RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175,
RESPONDENTS.
G.R. NO. 203454]
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, PETITIONERS,

VS. THE HON. SECRETARY OF JUSTICE, THE HON. SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, RESPONDENTS.
G.R. NO. 203469]
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL

A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER
RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN
P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;
BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY
S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN
B. LICERA, JR; AND PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON; PETITIONERS, VS. HIS
EXCELLENCY BENIGNO S. AQUINO III, IN HIS CAPACITY AS
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; SENATE OF THE
PHILIPPINES, REPRESENTED BY HON. JUAN PONCE ENRILE, IN HIS
CAPACITY AS SENATE PRESIDENT; HOUSE OF REPRESENTATIVES,
REPRESENTED BY FELICIANO R. BELMONTE, JR., IN HIS CAPACITY
AS SPEAKER OF THE HOUSE OF REPRESENTATIVES; HON. PAQUITO
N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY; HON.
LEILA M. DE LIMA, IN HER CAPACITY AS SECRETARY OF JUSTICE;
HON. LOUIS NAPOLEON C. CASAMBRE, IN HIS CAPACITY AS
EXECUTIVE DIRECTOR, INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE; HON. NONNATUS CAESAR R. ROJAS, IN HIS
CAPACITY AS DIRECTOR, NATIONAL BUREAU OF INVESTIGATION;
AND P/DGEN. NICANOR A. BARTOLOME, IN HIS CAPACITY AS CHIEF,
PHILIPPINE NATIONAL POLICE, RESPONDENTS.
G.R. NO. 203501]
PHILIPPINE BAR ASSOCIATION, INC., PETITIONER, VS. HIS

EXCELLENCY BENIGNO S. AQUINO III, IN HIS OFFICIAL CAPACITY AS
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; HON. PAQUITO
N. OCHOA, JR., IN HIS OFFICIAL CAPACITY AS EXECUTIVE
SECRETARY; HON. LEILA M. DE LIMA, IN HER OFFICIAL CAPACITY
AS SECRETARY OF JUSTICE; LOUIS NAPOLEON C. CASAMBRE, IN HIS
OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR, INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE; NONNATUS CAESAR R.
ROJAS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION; AND DIRECTOR GENERAL NICANOR A.
BARTOLOME, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE
PHILIPPINE NATIONAL POLICE, RESPONDENTS.
G.R. NO. 203509]
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, PETITIONER,

VS. THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR.,
RESPONDENT.
G.R. NO. 203515]
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. REPRESENTED BY

BENNY D. ANTIPORDA IN HIS CAPACITY AS PRESIDENT AND IN HIS
PERSONAL CAPACITY, PETITIONER, VS. OFFICE OF THE PRESIDENT,
PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE
NATIONAL POLICE, NATIONAL BUREAU OF INVESTIGATION,
DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE
PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175,
RESPONDENTS.
G.R. NO. 203518]
PHILIPPINE INTERNET FREEDOM ALLIANCE, COMPOSED OF

DAKILA-PHILIPPINE COLLECTIVE FOR MODERN HEROISM,
REPRESENTED BY LENI VELASCO, PARTIDO LAKAS NG MASA,
REPRESENTED BY CESAR S. MELENCIO, FRANCIS EUSTON R. ACERO,
MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO,
NOEMI LARDIZABAL-DADO, IMELDA MORALES, JAMES MATTHEW B.
MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA,
MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA
TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA
SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH
KENG, ANA ALEXANDRA C. CASTRO, PETITIONERS, VS. THE
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ
OFFICE OF CYBERCRIME, AND THE OTHER MEMBERS OF THE
CYBERCRIME INVESTIGATION AND COORDINATING CENTER,
RESPONDENTS.
RESOLUTION
ABAD, J.:
A number of petitioners seek reconsideration of the Court’s February 18, 2014 Decision
that declared invalid and unconstitutional certain provisions of Republic Act 10125 or the
Cybercrime Prevention Act of 2012 and upheld the validity of the others. The
respondents, represented by the Office of the Solicitor General, also seek reconsideration
of portions of that decision. After going over their motions, however, the Court sees no
substantial arguments from either side to warrant the reversal of its February 18, 2014
Decision.
The point about the legislative bicameral committee’s insertions of certain provisions that
were neither in the House bill nor in the Senate bill is something that the Court is not
inclined to investigate since insertions are within the power of those committees to make
so long as the passage of the law complies with the constitutional requirements. [1] The
Cybercrime Prevention Act went through both houses and they approved it. Any issue
concerning alleged non-compliance with the governing rules of both houses regarding
committee insertions have to be internally resolved by each house.
In any event, the Court will briefly address certain aspects of the decision that drew the
most objections.
Section 6 of the cybercrime law imposes penalties that are one degree higher when the
crimes defined in the Revised Penal Code and certain special laws are committed with the
use of information and communication technologies (ICT). Some of the petitioners insist
that Section 6 is invalid since it produces an unusual chilling effect on users of
cyberspace that would hinder free expression.
Petitioner Bloggers and Netizens for Democracy insist that Section 6 cannot stand in the
absence of a definition of the term “information and communication technology”.[2] But
petitioner seems to forget the basic tenet that statutes should not be read in isolation from
one another. The parameters of that ICT exist in many other laws. Indeed those
parameters have been used as basis for establishing government systems and classifying
evidence.[3] These along with common usage provide the needed boundary within which
the law may be applied.
The Court had ample opportunity to consider the proposition that Section 6 violates the
equal protection clause via the parties’ pleadings, oral arguments, and memoranda. But,
as the Decision stressed, the power to fix the penalties for violations of penal laws, like
the cybercrime law, exclusively belongs to Congress.
In any event, Section 6 of the cybercrime law merely makes the commission of existing
crimes through the internet a qualifying circumstance that raises by one degree the
penalties corresponding to such crimes. This is not at all arbitrary since a substantial
distinction exists between crimes committed through the use of ICT and similar crimes
committed using conventional means.
The United Nations Special Rapporteur,[4] Frank La Rue, acknowledged the material
distinction. He pointed out that “[t]he vast potential and benefits of the Internet are
rooted in its unique characteristics, such as its speed, worldwide reach and relative
anonymity.” For this reason, while many governments advocate freedom online, they
recognize the necessity to regulate certain aspects of the use of this media to protect the
most vulnerable.[5]
Not infrequently, certain users of the technology have found means to evade being
identified and for this reason have been emboldened to reach far more victims or cause
greater harm or both. It is, therefore, logical for Congress to consider as aggravating the
deliberate use of available ICT by those who ply their wicked trades.
Compared to traditional crimes, cybercrimes are more perverse. In traditional estafa for
example, the offender could reach his victim only at a particular place and a particular
time. It is rare that he could consummate his crime without exposing himself to detection
and prosecution. Fraud online, however, crosses national boundaries, generally depriving
its victim of the means to obtain reparation of the wrong done and seek prosecution and
punishment of the absent criminal. Cybercriminals enjoy the advantage of anonymity,
like wearing a mask during a heist.
Petitioners share the Chief Justice’s concern for the overall impact of those penalties,
being one degree higher than those imposed on ordinary crimes, including the fact that
the prescriptive periods for the equivalent cybercrimes have become longer. [6]
Prescription is not a matter of procedure over which the Court has something to say.
Rather, it is substantive law since it assumes the existence of an authority to punish a
wrong, which authority the Constitution vests in Congress alone. Thus, there is no
question that Congress may provide a variety of periods for the prescription of offenses
as it sees fit. What it cannot do is pass a law that extends the periods of prescription to
impact crimes committed before its passage.[7]
It is pointed out that the legislative discretion to fix the penalty for crimes is not absolute
especially when this discretion is exercised in violation of the freedom of expression.
The increase in the penalty for online libel creates, according to this view, greater and
unusual chilling effect that violates the protection afforded to such freedom.
But what the stiffer penalty for online libel truly targets are those who choose to use this
most pervasive of media without qualms, tearing down the reputation of private
individuals who value their names and community standing. The law does not remotely
and could not have any chilling effect on the right of the people to disagree, a most
protected right, the exercise of which does not constitute libel.
The majority of the movants believe that the Court’s decision upholding the
constitutionality of Section 4(c)(4), which penalizes online libel, effectively tramples
upon the right to free expression. But libel is not a protected speech. There is no
freedom to unjustly destroy the reputation of a decent woman by publicly claiming that
she is a paid prostitute.
As early as 1912, the Court held that libel is a form of expression not protected by the
Constitution.[8] Libel, like obscenity, belongs to those forms of speeches that have never
attained Constitutional protection and are considered outside the realm of protected
freedom. As explained by the US Supreme Court in Champlinsky v. New Hampsire:[9]
Allowing the broadest scope to the language and purpose of the Fourteenth Amendment,
it is well understood that the right of free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the libelous, and the insulting
or “fighting” words – those which, by their very utterance, inflict injury or tend to incite
an immediate breach of the peace. It has been well observed that such utterances are no
essential part of any exposition of ideas, and are of such slight social value as a step to
truth that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality. “Resort to epithets or personal abuse is not in any proper
sense communication of information or opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no question under that instrument.” (Emphasis
supplied)
The constitutional guarantee against prior restraint and subsequent punishment, the
jurisprudential requirement of “actual malice,” and the legal protection afforded by
“privilege communications” all ensure that protected speech remains to be protected and
guarded. As long as the expression or speech falls within the protected sphere, it is the
solemn duty of courts to ensure that the rights of the people are protected.
At bottom, the deepest concerns of the movants seem to be the fact that the government
seeks to regulate activities in the internet at all. For them, the Internet is a place where a
everyone should be free to do and say whatever he or she wants. But that is anarchical.
Any good thing can be converted to evil use if there are no laws to prohibit such use.
Indeed, both the United States and the Philippines have promulgated laws that regulate
the use of and access to the Internet.[10]
The movants argue that Section 4(c)(4) is both vague and overbroad. But, again, online
libel is not a new crime. It is essentially the old crime of libel found in the 1930 Revised
Penal Code and transposed to operate in the cyberspace. Consequently, the mass of
jurisprudence that secures the freedom of expression from its reach applies to online
libel. Any apprehended vagueness in its provisions has long been settled by precedents.
The parties’ other arguments in their respective motions for reconsideration are mere
reiterations that the Court already considered and ruled upon when it promulgated its
earlier Decision.
WHEREFORE, the Court DENIES with finality the various motions for reconsideration
that both the petitioners and the respondents, represented by the Office of the Solicitor
General, filed for lack of merit.
SO ORDERED.
Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, and Reyes,
JJ., concur.
Sereno, C.J., see concurring & dissenting opinion.
Carpio, J., I vote to declare section 6 constitutional. I reiterate my separate dissenting &
concurring opinion.
Velasco, Jr., J., no part, with prior inhibition
Brion, J., see my dissent.
Mendoza, J., I join the position of C.J. on sec. 6 and other positions taken by J. brion.
Perlas-Bernabe, J., no part.
Leonen, J., see dissent.
Tatad v. The Secretary of the Department of Energy, 346 Phil. 321 (1997), citing
[1]
Tolentino v. Secretary of Finance, G.R. Nos. 115455, 115525, 115543, 115544, 115754,
115781, 115852, 115873 & 115931, August 25, 1994, 235 SCRA 630.
[2]
Motion for Reconsideration, p. 2357.
An Act Providing And Use Of Electronic Commercial And Non-Commercial

[3]
Transactions, Penalties For Unlawful Use Thereof, And Other Purposes, Republic Act
8792, June 14, 2000.
Special Rapporteur on the promotion and protection of the right to freedom of opinion
[4]
and expression.
[5]
La Rue accepts that “legitimate types of information … may be restricted [such as]
child pornography (to protect the rights of children), hate speech (to protect the rights of
affected communities), defamation (to protect the rights and reputation of others against
unwarranted attacks), direct and public incitement to commit genocide (to protect the
rights of others), and advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence (to protect the rights of others, such as
the right to life).” (Citations omitted) (A/HRC/17/27, p.8); see Maria Luisa Isabel L.
Rosales, Today the Internet, Tomorrow Cable TV?: Situating the Internet as a Human
Right, 57 Ateneo L.J. 463, 484-85 (2012).
Philippine Bar Association, Motion for Reconsideration, p. 2397; Bloggers and

[6]
Netizens for Democracy, Motion for Reconsideration, p. 2362.
People of the Philippine Islands v. Parel, G.R. No. L-18260, January 27, 1923, citing
[7]
Fiore, Irretroactividad e Interpretacion de las Leyes, pp. 426-428.

[8]
Worcester v. Ocampo, 22 Phil. 41 (1912), cited in Bernas, S.J. The 1987 Constitution
of the Republic of the Philippines: A Commentary, 3rd ed., Rex Book Store, Manila,
2003.
315 U.S. 568 (1942), cited in Gorospe, R. Constitutional Law: Notes and Readings on
[9]
the Bill of Rights, Citizenship and Suffrage, Vol. I, Rex Book Store, Manila, 2006, p. 672.
[10]
In the Philippines, the following laws were enacted to regulate the access and use of
the Internet: Electronic Commerce Act of 2000 (Republic Act 8792), Access Devices
Regulation Act (Republic Act 8484) and the Anti-Bullying Act of 2013 (Republic Act
10627). The United States, on the other hand, enacted the following laws: (1) to combat
Internet fraud: (a) 15 U.S.C. §§ 45, 52 (Unfair or deceptive acts or practices; false
advertisements; (b) 18 U.S.C. §§ 1028, 1029, 1030 (fraud in connection with
identification documents and information; fraud in connection with access devices; and
fraud in connection with computers); and (c) 15 U.S.C. § 1644 (credit card fraud). (2)
For Child Pornography, Child Luring and other Related Activities: (a) 18 U.S.C. § 2251
(sexual exploitation and other abuse of children), and (b) 18 U.S.C. § 2421
(transportation for illegal sexual activity). See US Federal Cybercrime Laws, retrieved at
http://digitalenterprise.org/governance/us_code.html (last accessed April 3, 2014).
DISSENTING AND CONCURRING OPINION
SERENO, C.J.:
Freedoms such as these are protected not

only against heavy-handed frontal attack,
but also from being stifled by more subtle
governmental interference.
Justice Potter Stewart[1]
Nothing can be more plain and unambiguous than the Constitutional command 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 Constitution’s mantle of protection is not limited to
direct interference[2] with the right to free speech; it prohibits anything that as much as
subtly chills its exercise.
I maintain my dissent insofar as the application of Section 6 to libel is concerned because

the one degree higher penalty it imposes creates a chilling effect on the exercise of free
speech. Hence, while a solitary sentence to that effect would have sufficed, I respectfully
but vigorously reassert my dissent, considering the far-reaching effects of Section 6 on
the lives and liberty of the Filipino people. Freedom of speech is the nucleus of other
rights. That is why it is the first right that is curtailed when a free society falls under a
repressive regime.[3] That is also why this Court has acknowledged freedom of speech as
occupying a preferred position in the hierarchy of rights.[4]
Unfortunately, the questioned provision was discussed only cursorily in the Court’s
Decision, – through a single paragraph, – and again in the resolution of the motions for
reconsideration, despite the gravity of its consequences. The Decision dismissively
disposes of the issue by 1) stating that Section 6 operates only to make commissions of
crimes through the Internet a qualifying circumstance and 2) substantial distinctions
justify a higher penalty for crimes through information communication technology (ICT).
I believe that it is the Court’s constitutional duty to explain to the people its decision
exhaustively, especially when the issue has broad implications on the national life.
Indeed, if the majority had only thoroughly examined the implications of Section 6, at
least as far as its application to libel is concerned, they might have seen how the
provision subtly but surely endangers the preferred right to free speech.
It is also the Court’s duty to address the confusion that may have resulted from its
Decision when the matter of such confusion is raised in a motion for reconsideration.
Especially so when several parties raise the issue, since it would show how widespread
the misconception is. Failure to do so may create and propagate unfounded fears with
inevitable adverse effects. If the Court takes the time to resolve moot and academic cases
when doing so will be instructive to the bar and bench and the public, and when the
issues raised are of paramount public interest,[5] all the more should it endeavour to allay
the concrete fears of the population, no matter how absurd, by clarifying and untangling
the confusion that caused them. This I will do in relation to the wild conclusions some
parties hold about the nature of ICT in Section 6.
I had fervently hoped that this conscientious reiteration of my reasons for asserting the
unconstitutionality of Section 6 insofar as its application to libel is concerned would have
the effect of convincing those who take a contrary position – within and outside of the
Court – to reconsider their strongly-held position on Section 6. It would be a glimmer of
hope should this reassertion even as much as nudge them slightly to be open to this
different view being offered in the marketplace of ideas. Incidentally, the marketplace has
moved into cyberspace which we must now protect, not for its own sake, but for the vast
possibilities for robust exchange of ideas it has opened, especially those pertaining to
politics and governance. ICT has proven to be an ally of democracy. Hence, nowhere is
the protection of free speech more imperative than in this ubiquitous medium.
I also explain my position on the validity of regulating the transmission of unsolicited

commercial communications under Section 4(c)(3). I believe that the regulation prevents
harmful conduct that may interfere with an e-mail user’s enjoyment of his e-mail.
Consequently, the interference may possibly affect his online exercise of his right to free
speech, free expression and free association, that e-mail services facilitate.
Urgent need to remove the chilling

effect of Section 6 insofar as its
application to cyberlibel is concerned.
The Court had struck down unconstitutional provisions of the Cybercrime Prevention
Act, in the exercise of its duty as the ultimate guardian of the Constitution. However, it
has left Section 6 completely unscathed. In doing so, the Court would appear not to have
completely slain the beast still poised to attack the right to freedom of speech. Perhaps it
is the deceivingly simple and innocuous wording of the provision that has successfully
masked its invidious repercussions. Or perhaps, it is because of the provision’s indirect,
rather than frontal attack on free speech that has left the majority unconcerned. Indeed, it
is often the quiet and creeping interference upon fundamental rights that succeeds in
absolutely undermining liberty. It is the Court’s duty to examine and expose to light this
hidden peril and rouse the complacent from her complacency.
I believe that the Court should now closely scrutinize Section 6 anew if it had failed to do
so the first time around.
As a general rule, penal statutes cannot be facially invalidated on the ground that they
produce a “chilling effect,” since they are intended to have an in terrorem effect[6] to deter
criminality.[7] However, when a law provides for a penalty that goes beyond the in
terrorem effect needed to deter crimes and impedes the exercise of freedom of
speech, it should be quashed at once without hesitation. As I previously demonstrated,
the increase in penalty under this seemingly innocuous provision of Section 6, insofar as
it is applied to libel, indirectly but absolutely results in chilling the right of the people to
free speech and expression. Therefore, it is unconstitutional.
Section 6 creates an additional in

terrorem effect on top of that already
created by Article 355 of the
Revised Penal Code.
Our Revised Penal Code is based on the premise that humans are rational beings who
refrain from criminal acts if threatened with punishment sufficient to outweigh any
expected gain in committing the crime.[8] This consequence is the intended in terrorem
effect of penal statutes.[9] Hence, in their exercise of freedom of speech, people
circumspectly weigh the severity of the punishment if the speech turns out to be libelous
against the possible benefit to be derived from it.
However, additional in terrorem effect may be validly created by law to discourage resort
to greater perversity in the commission of a felony. Hence, under the Revised Penal
Code the imposable penalty is increased when there are aggravating circumstances
showing a greater perversity in the commission of a felony.[10]
Section 6 of the Cybercrime Prevention Act introduces the use of ICT as a qualifying
aggravating circumstance, thusly:
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. (Emphases supplied)
Article 355 of the Revised Penal Code, provides for libel the penalty of prisión
correccional in its minimum (from 6 months and 1 day to 2 years and 4 months) and
medium (from 2 years, 4 months, and 1 day to 4 years and 2 months) periods. However,
with the increase in penalty by one degree under the Cybercrime Prevention Act, libel
qualified by the use of ICT is now punishable by prisión correccional in its maximum
period (from 4 years, 2 months and 1 day to 6 years) to prisión mayor in its minimum
period (from 6 years and 1 day to 8 years).[11] Therefore, Section 6 doubles the maximum
penalty for online libel.
Thus, Section 6 effectively creates an additional in terrorem effect by introducing

ICT as a qualifying aggravating circumstance. This burden is imposed on top of the
intended in terrorem effect of the original penalties imposed by the Revised Penal Code.
Thus, the public will now have to take this additional burden into account in their
calculation of penalties. As if the need to weigh the costs and benefits of whether to
exercise freedom of speech is not burdened enough by the possibility of a libel suit, the
public will now have to additionally mull over their use of ICT in the exercise of this
freedom through ICT.
Every individual, including those of us in the judiciary, who rely heavily on the use of
ICT can easily see how burdensome this state of affairs is. Significantly, the statistical
facts show that the Philippines depends greatly on ICT as a means of communication and
of expression. As pointed out by Justice Leonen in his Separate Dissenting and
Concurring Opinion to the main Decision, a global study of internet users showed that
78% of Filipino respondents said that they access the Internet several times a day, while
79% used e-mail at least once a day.[12] Additionally, 72% used social media at least once
a day. This shows the inextricability of ICT from our national life. Indeed, we do not
need statistics to convince us of this fact. What office or establishment or individual can
function without the Internet nowadays? Given this reality, it is inevitable that the
increase in penalty per se will effectively chill the exercise of the preferred constitutional
right to free speech.
Worse, as will be shown below, this increase in penalty has domino effects which
combine to create a behemoth that treacherously tramples over freedom of speech – the
imposition of harsher accessory penalties, the neutralization of the full benefits of the law
on probation, the increase in the prescription periods for the crime of cyberlibel and its
penalty, and the fact that the aggravating circumstance cannot be offset by any mitigating
circumstance. Additionally, all these extra burden can be easily imposed since the use of
ICT per se, without need to prove criminal intent, automatically calls for the application
of a penalty one degree higher.
The increase in penalty also

results in the imposition of
harsher accessory penalties
As explained earlier, before the Cybercrime Prevention Act, the imposable penalty for
libel under Art. 355 of the Revised Penal Code, even if committed by means of ICT, was
prisión correccional in its minimum and medium periods. Now, under Section 6 of the
Cybercrime Prevention Act, the imposable penalty for libel qualified by ICT has been
increased to prisión correccional in its maximum period to prisión mayor in its minimum
period.[13] Consequently, it is now possible for the harsher accessory penalties for prisión
mayor to attach. These are: the deprivation of public offices and employments even if
conferred by popular election, the deprivation of the right to vote, disqualification from
offices or public employments and the forfeiture of retirement pay. Undeniably, public
office and employment as well as the right to vote, and retirement pay are not trifling
privileges that one can easily risk losing. Hence, the public will now have to factor in
these severe consequences into their calculations. The exercise of freedom of speech
through ICT is thereby further burdened.
I also note that these accessory penalties hit public officers hardest. This can be troubling
because it is often public servants who know about and may expose corruption within
their ranks. Such harsher penalties will certainly discourage public servants from
exercising their freedom of speech to denounce wrongdoing. We are therefore depriving
ourselves of a potent check against official abuse.
The increase in penalty

neutralizes the full benefits of the
law on probation, consequently
threatening the public with the
guaranteed imposition of imprisonment
and the accessory penalties thereof.
Under Presidential Decree No. (P.D.) 968 or the Probation Law,[14] qualified offenders
who immediately admit to their liability and thus renounce the right to appeal are given
the chance to avoid the stigma of incarceration by making them undergo rehabilitation
outside prison instead. However, Section 9 of the law excludes those sentenced to
serve a maximum term of imprisonment of more than six years from its coverage.
Since the maximum penalty for libel committed through the use of ICT has been
increased two-fold to 8 years, a convicted offender may now be disqualified from
availing of the benefits of probation.
Given the basic postulate animating our penal laws that humans are calculating beings
who weigh the perils of their actions, it is possible that people may risk a conviction for
libel, since they may avail themselves of the privilege of probation. They may find that
the exercise of their freedom to speak and to express themselves is worth the threat. But
when this very beneficial[15] technology is made a qualifying aggravating
circumstance that guarantees imprisonment, the in terrrorem effect of libel is further
magnified and becomes unduly oppressive to the exercise of free speech.
Furthermore, it should be noted that offenders will now lose the additional benefit of
probation – the suspension of accessory penalties.
Section 6 increases the prescription

periods for the crime of cyberlibel
and its penalty to 15 years.
Before the passage of the Cybercrime Prevention Act, the State waives its right to
prosecute libel after only one year. With the increase in penalty by one degree pursuant to
Section 6 of the Cybercrime Prevention Act, however, the penalty for libel through ICT
becomes afflictive under Article 25 of the Revised Penal Code. Accordingly, while a
charge for ordinary libel may be filed within the limited period of only one year from its
commission, the charge for online libel can be instituted within 15 years since under
Article 90 that is the prescription period for crimes punishable by afflictive penalties,
other than reclusion perpetua and reclusion temporal.[16] This is not a trivial matter since,
in effect, the threat of prosecution for online libel lingers for 14 years more. Similarly, the
prescription period for the penalty of libel through ICT is increased from 10 to 15 years.
These increases in the prescription periods are additional factors in the rational
calculation of whether or not to exercise freedom of speech through ICT. Obviously, this
adverse change further tilts the scales against the exercise of freedom of speech.
ICT as a qualifying aggravating

circumstance cannot be offset by
any mitigating circumstance.
A qualifying aggravating circumstance like the use of ICT increases the penalty by
degrees, not by period as a generic aggravating circumstance does.[17] Moreover, while a
generic aggravating circumstance may be offset by a generic mitigating circumstance
such as voluntary surrender, a qualifying aggravating circumstance is more onerous in
that it cannot be similarly offset.[18] Hence, since Section 6 now punishes the offender
with a higher range of penalty — prisión correccional in its maximum period (from 4
years, 2 months and 1 day to 6 years) to prisión mayor in its minimum period (from 6
years and 1 day to 8 years) — the period of imprisonment will remain within this higher
and harsher range.
It is not difficult to see how Section 6 subjugates freedom of speech through its
combined effects – longer prison terms, harsher accessory penalties, loss of benefits
under the Probation Law, extended prescription periods, and ineligibility of these
penalties to be offset by mitigating circumstances. We cannot turn a blind eye to this
and turn our backs on the Filipino people. I am convinced more than ever of the
unconstitutionality of Section 6, as far as libel is concerned.
For providing that the use per se of

ICT, even without malicious intent,
aggravates the crime of libel, Section
6 is seriously flawed and burdens
free speech.
I now discuss an additional factor by which free speech is burdened.
Petitioners Cruz et al.[19] observe in their motion for reconsideration that Section 6
increases by one degree the penalty for a crime committed through ICT without regard to
how ICT contributed to the gravity of the crime.[20] Hence, even if the use of ICT is
“completely arbitrary” and unintended, it merits a higher penalty that is double that
imposed for ordinary libel.[21]
They also note that provisions of the Cybercrime Prevention Act appear to be malum
prohibitum. Hence, they penalize acts by their mere commission regardless of the intent
of the actor.[22] Petitioners then proceed to explain that this is inconsistent with the idea of
criminalizing the act of aiding and abetting the commission of a crime as well as the
attempt to commit a crime that operate within the concept of malum in se, where intent or
mens rea is essential to justify culpability and penalty. Hence, the mere fact of having
aided the commission of a crime already becomes criminal even without criminal intent
under Section 5.
While petitioners Cruz et al. raise the criticism of inconsistency with regard to Section 5,
I believe that it is more appropriately raised against Section 6. Their observation is true in
the way ICT as a qualifying circumstance is applied: the use of ICT per se, even without
criminal intent, merits an automatic one degree increase in penalty. This application, I
believe, is inconsistent with the philosophy animating the Revised Penal Code. It also
burdens free speech since the provision makes it extremely easy to prove the existence of
this qualifying circumstance against an offender. How can a simple click of the mouse,
without more, earn a person a penalty one degree higher than the original penalty for
libel, with all its consequent oppressive effects discussed above?
Under the Revised Penal Code the basic consideration for criminal liability to arise is the
mens rea of the accused.[23] He must be shown to have possessed a guilty mind or
criminal intent on top of committing the physical act prohibited by law.[24] Hence, as a
general rule, it is necessary for criminal liability that the act be committed by means of
dolo or “malice”;[25] otherwise, there can be no crime. That is why crimes under the
Revised Penal Code, including libel, are generally characterized as crimes mala in se, for
which there must be malicious intent.
It follows that to incur greater criminal liability and consequently higher penalty,
such as that provided under Section 6, there must also be a greater perversity of the
mind, a greater mens rea, or a greater criminal intent. Hence, for the existence of a
circumstance to be considered in increasing criminal liability, it is essential that such
circumstance clearly reveal the guiltier mind and greater criminal intent of the accused.
Thus, there must be a clear intent and purposeful taking advantage of an aggravating
circumstance. This is the fundamental principle behind the application of an aggravating
circumstance.
The heavier punishment resulting from the attendance of so-called aggravating
circumstances under Article 14 of the Revised Penal Code is attributed to various factors,
which may be categorized as (1) the motivating power itself (e.g. “in consideration of a
price, reward, or promise”[26]); (2) the place of commission (e.g. “dwelling of the
offended party”[27]); (3) the means and ways employed (e.g. use of vehicle), (4) the time
(e.g. nighttime[28]); or (5) the personal circumstances of the offender or of the offended
party (e.g. “insult or disregard of respect due to a party on account of rank, age, sex” [29]).
Most aggravating circumstances are in the nature of means and ways employed to
commit a crime.[30] The use of ICT logically falls under this category as a means for the
commission of libel and other crimes under the Revised Penal Code. Hence, we proceed
to further analyze this category. A closer look below at the circumstances falling under
this category[31] reveals a shared principle behind their appreciation and application: that
they must be abused deliberately with criminal intent. The same principle should then
properly apply to the use of ICT, since it belongs to the same category. Hence, the need
for criminal intent in the use of ICT before it can be deemed aggravating.
Taking advantage of a public position.
The circumstance of (the offender’s) public position is not aggravating by itself. It only
becomes so if it was taken advantage of and there is proof that it was.[32] It means that the
offenders must have used the influence, prestige or ascendancy that their office gives
them as the means by which they realize their purpose.[33] The offenders must have
abused their office in order to commit the offense.[34] In that way, the malicious intent of
the mind is revealed. If the accused did not avail themselves of their authority, their
public position would not be aggravating;[35] not even if they were sergeants in the
Philippine Army and were in fatigue uniform and had army rifles at the time they
committed a crime.[36] Hence, the intent to use a public position for the purpose of
committing a crime appears to be essential.
By a band or with the aid of armed men
Similarly, the circumstance of commission of a crime by a band should have been

especially sought and taken advantage of.[37] Jurisprudence is consistent that the aid of
armed men is not aggravating unless the accused availed themselves of that aid or relied
upon it.[38] The accused must have knowingly counted upon the assistance of the armed
men in the commission of the crime.[39]
Abuse of Superior strength
The same is required of superior strength – it must have been abused purposely.[40] It is
present when the offenders assess a superiority of strength that they select and take
advantage of in the commission of the crime.[41] The mere fact of superiority in the
number of assailants does not suffice; they must have taken advantage of their combined
strength.[42] They must have cooperated in such a way as to secure advantage from their
superiority in strength.[43]
Abuse of confidence
For the aggravating circumstance of abuse of confidence, it is necessary that there exists
a relationship of trust and confidence between the accused and the victim, and that the
culprits took advantage of the trust reposed in them by the offended party.[44] Indeed, it is
essential that the confidence between the parties was immediate and personal, such that it
gave the accused some advantage or made it easier for them to commit the criminal act.
[45]
Again, intent is essential for this circumstance to aggravate the crime.
Use of vehicle
Among the aggravating circumstances, the one closest to the use of ICT would be the use
of vehicles, since both are tangible tools and are by themselves neutral, if not beneficial.
But again, like the other aggravating circumstances, the mere use of a vehicle will not
qualify it as an aggravating circumstance. The use of vehicle has to be purposely sought
to facilitate the commission of the offense or to render the escape of the offender easier
and his apprehension more difficult. Otherwise, the circumstance is not aggravating. [46]
Like other means of committing a

crime which are made aggravating
circumstances, the use of ICT has
to be purposely sought to show
criminal intent justifying a higher
penalty.
It is clear from this sampling that for aggravating circumstances that refer to the means
employed to commit the crime, it is essential that deliberately employing or taking
advantage of them either to facilitate the crime or to insure impunity must be proven.
This is as it should be, since it is the knowing and purposive resort to the aggravating
circumstances - the added criminal intent - that aggravates the crime. In other words, the
aggravation arises because of a more perverse mind, not from the mere presence or use of
the means. It is this malicious intent in the adoption of the circumstance that reveals an
added perversity that justifies a greater penalty.
The same principle should be applied to ICT. The mere use of ICT by itself should
not automatically make it aggravating. It has to be purposely sought to facilitate the
crime, maximize damage or ensure impunity. It must be established that the otherwise
beneficial nature of ICT was selected and intentionally sought, deliberately and
consciously adopted to advance the perpetration of the crime. That is the only way to
attribute greater perversity on the part of the offender in using ICT and to justify
the imposition of a penalty one degree higher. If there is no such intent, there can be
no aggravation. If the mind is innocent as to the adoption of a particular means,
there can be no aggravating circumstance. This malicious intent, like the elements of
the crimes itself, must be proven beyond reasonable doubt. If not so proven, the ICT
cannot qualify the crime, and the criminal cannot be penalized one degree higher.
Hence, there is a need to spell out the condition that ICT be specifically taken
advantage of and abused to facilitate the commission of a crime, ensure impunity, or
maximize damage. In other words, its use has to be abused to be aggravating.
That the law failed to specify that ICT must be taken advantage of and abused with intent
– in order to facilitate the crime, ensure impunity or maximize the damage - is
lamentable. Again, considering how ICT has become so ubiquitously indispensable and
how it has penetrated almost every facet of life, the need to specifically show intent in the
use of ICT for the commission of a crime like libel becomes all the more crucial, logical
and just.
Because of this unclear requirement of criminal intent in the application of the qualifying
circumstance of use of ICT, Section 6 of the Cybercrime Prevention Act effectively
scares the public from using ICT and exacerbates the chilling effect on free speech.
Considering all these, it is not difficult to see how the increase of the penalty under
Section 6 mutes freedom of speech. It creates a domino effect that effectively subjugates
the exercise of the freedom – longer prison terms, harsher accessory penalties, loss of
benefits under the Probation Law, extended prescription periods, and ineligibility of these
penalties to be offset by mitigating circumstances. Worse, the qualifying circumstance
can be applied easily by simply proving the use of ICT, sans proof of criminal intent to
purposely use ICT for libel, thereby further chilling freedom of speech.
The Court must clarify that ICT

should not refer to “stand alone”
devices but should be connected
to the Internet.
The Court must also take the time to clarify that ICT as used in Section 6 should refer
only to devices connected to the Internet and does not include stand alone devices. This
should necessarily follow from the avowed reasons of the government for imposing one
degree higher penalty on crimes committed with the use of ICT.
As the Court had said, the use of ICT enables the offender to evade identification and to
reach far more victims or cause greater harm. Indeed, respondents in their Memorandum
prepared by the Office of the Solicitor General (OSG) enumerate three factors which
justify the higher penalty for crimes committed with the use of ICT.[47] First, the OSG
explains that cybercrimes are limitless as to their scope because they are not bound by
time and geography. On the other hand, non-cybercrimes are limited by distance, border
security, various regulations and time. Secondly, respondents explain that cybercrimes
are easily committed due to the accessibility of ICT.[48] There are approximately 30
million internet users in the country and a billion more worldwide. Hence, any person can
create widespread chaos with anonymity. Thirdly, criminal purpose is accomplished with
greater impact with the use of ICT.[49]
“Stand alone” devices do not have these consequences. Hence, they could not have been
contemplated under Section 6.
While this may seem obvious to most, many people are confused as seen from the
number of motions for reconsideration that raised this issue.[50] Many think that the mere
use of a “stand alone” computer device will automatically trigger the application of
Section 6. If this is not clarified, it will sow unnecessary fear of using computer
technology with adverse effects on individual and organizational efficiency and
productivity. In fact some petitioners[51] have made the absurd conclusion that even the
use of hardware in the commission of the crime, such as physically injuring a person by
hitting him with a mobile phone, will now be penalized under the questioned provision,
with all its concomitant penalties.
Validity of regulating unsolicited

commercial communications under
Section 4(c)(3).
I have previously found the petitions questioning Section 4(c)(3) dismissible because of
a failure to establish that a pre-enforcement judicial review thereof was warranted.
Hence, without delving into the merits of petitioners’ arguments, I disagreed with the
majority when they declared the questioned provision unconstitutional; first, because the
said petitions are dismissible per se. However, since the majority had proceeded to
review Section 4(c)(3), let me now explain my position on the matter.
I fully agree with the opinion of Justice Roberto Abad that commercial speech should be
protected even if it does not enjoy the same level of protection as other categories of free
speech and expression. However, may I emphasize that the questioned provision is
not burdensome to commercial speech at all since the law does not prohibit the
sending of unsolicited e-mail per se. Section 4(c)(3)(iii) allows the sending of
unsolicited e-mails, provided that the following conditions are present: (a) the
commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the
same source; (b) the commercial electronic communication does not purposely disguise
the source of the electronic message; and (c) the commercial electronic communication
does not purposely include misleading information in any part of the message in order to
induce the recipients to read the message.
Additionally, Petitioners Cruz et al., make a valid observation when they point out in
their motions for reconsideration that contrary to the holding of the majority, online
transmission of unsolicited commercial communications is not of the same level as
unsolicited advertisements by mail.[52]
Firstly, ordinary mail advertisements are not as voluminous while e-mail ads can be so
voluminous that they interfere with an e-mail user’s enjoyment of his e-mail account.
Indeed, the assailed provision seeks to prevent malicious attacks done through the
sending of e-mails, which the victim cannot opt out from. One of those forms of attack
includes what is called “mail bombing.”[53] Here, an attacker intentionally sends large
volumes of e-mail to a single address in an effort to overwhelm the mail server and
degrade the communication system by making it unserviceable.[54] This is a form of
Denial of Service (DoS) attack, as it prevents other users who are using the same server
from accessing their e-mails.[55] We can thus imagine a situation in which an e-mail
account reaches its storage capacity, thereby preventing the account holder from
receiving legitimate mails, as these e-mails are “bounced” back to the senders. [56] This
situation would impede the robust exchange of ideas as well as the speedy flow of
information and communication. It is precisely so that recipients of unsolicited
commercial communications can prevent the congestion of their e-mail accounts that the
provision requires that recipients of unsolicited commercial communications be allowed
to opt out under Section 4(c)(3)(iii).
Secondly, as petitioners pointed out, unsolicited e-mail commercial communications,

unlike ordinary mail commercial communications can be used for another form of attack
called “phishing.”[57] It is an internet scam done by offering enticing deals or false
statements (such as winning a cash prize), aimed at tricking users into disclosing their
personal, financial, and other confidential information.[58] The message used for phishing
may appear to be coming from a department store, a known company, a bank, the
government, or even from a contact whose e-mail account has been “hacked.” [59] Phishing
can attack millions of e-mail addresses around the world, and has emerged as an effective
method of stealing personal and confidential data of users.[60] It is said that phishing is
typically executed as follows:[61]
A successful phishing attack deceives and convinces users with fake technical content
and social engineering practices. Most phishing attacks are initiated through e-mails,
where the user gets an e-mail that prompts him or her to follow a link given in the e-mail.
This link leads to a phishing Web site, though the e-mail says otherwise. The e-mail may
contain a message stating that a particular transaction has taken place on the user’s
account, and a link is provided to check his or her balance. Or the e-mail may contain a
link to perform a security check on the user’s account.
Hence, Section 4(c)(3) is valid because it seeks to regulate a potentially harmful conduct.
Such harmful conduct may interfere with a user’s enjoyment of his e-mail and
consequently of his legitimate exercise of his fundamental rights that e-mail facilitates.
Thus, I respectfully disagree with the facial invalidation of Section 4(c)(3) and hold that
it is not unconstitutional.
Call to vigilance
The Court has struck down provisions of the Cybercrime Prevention Act that clearly
violate constitutional rights such as Section 12 and Section 19. It also partially struck
down as unconstitutional Section 7 insofar as it applies to cyberlibel and online child
pornography and Section 4(c)(4) insofar as it creates criminal liability on the part of
persons who receive a libelous post and merely react to it. However, we left Section 6
completely untouched while wrongly invalidating Section 4(c)(3). The motions for
reconsideration of the two provisions had given the Court another opportunity to
complete the job it has started by also striking down as unconstitutional Section 6 insofar
as its application to libel clearly chills freedom of speech and by upholding the
constitutionality of Section 4(c)(3). It is an opportunity we should not have squandered.
We cannot be complacent. The very fabric of our democratic society is in danger of being
slowly torn apart. The Court staunchly defended the right to commercial speech of
advertisers by declaring unconstitutional Section 4(c)(3) which simply regulates the
sending of unsolicited commercial communications even as it admits that commercial
speech is not accorded the same level of protection as that given to other constitutionally
guaranteed forms of expression. On the other hand, it does not give the same steadfast
protection for freedom of speech which Section 6 clearly chills. Hence, it is puzzling that
the Court is willing to uphold commercial speech than the preferred right to free speech
of citizens.
True, the State has a legitimate interest in the preservation of order. For that purpose, it
also has the power, exercised through the legislature, to criminalize acts and provide
penalties therefor. Hence, it can validly regulate harmful conduct under Section 4(c)(3).
Section 6, however, is a different matter. The State cannot override a clear Constitutional
command that no law shall be passed abridging the freedom of speech. I believe that the
interest in encouraging free speech in a democratic society outweighs any theoretical but
unproven benefit of an unduly harsher penalty for cyberlibel.[62]
The history of our nation has shown that we do not lack for brave people who dutifully
speak against the excesses of government and at great cost to themselves. In recent times,
ICT has been used to generate mass protests against perceived corruption and excesses in
government. But the guaranteed imposition of imprisonment of as much as eight years
and harsher accessory penalties that Section 6 mandates, together with the fact that they
may be imposed so easily since no criminal intent is necessary to make the use of ICT a
qualifying circumstance, may force even the bravest and most conscientious dissenters
among us to forego their prized constitutional right to free speech and expression. That
would be the start of the slow, quiet, but sure demise of our democracy. We can be
complacent only at our own peril.
I had earlier voted with the majority to uphold Section 4(c)(4) on cyberlibel – save for its
application to those who merely react to a libelous post – on the presumption that Section
6, which imposes a one degree higher penalty on crimes committed using ICT, would be
declared unconstitutional insofar as it is applied to cyberlibel. However, in view of the
ultimate ruling of the majority affirming the constitutionality of Section 6, I consequently
conclude that Section 4(c)(4) is wholly unconstitutional. The invalidation of Section 6
would have removed the heavy burden on free speech exercised online. Indeed, Section 6
is completely incompatible with free speech. To reiterate, the majority’s insistence that
Section 4(c)(4) cannot be implemented without at the same time imposing the higher
penalty provided by Section 6 – with its invidious chilling effects discussed above –
constrains me to hold that Section 4(c)(4) is wholly unconstitutional as well. If free
speech is to be truly defended as a right with a preferred position in the hierarchy of
rights, its online exercise should also be vigorously protected.
WHEREFORE, I vote to DECLARE:
1. Section 6 UNCONSTITUTIONAL, insofar as it applies to libel, for unduly

curtailing freedom of speech;
2. Section 4(c)(4) UNCONSTITUTIONAL; and
3. Section 4(c)(3) NOT UNCONSTITUTIONAL for being a valid regulation

of a harmful conduct.
Nevertheless, I CONCUR with the majority in its other dispositions.
Bates v. City of Little Rock, 361 US 516 (1960), as cited in Healy v. James, 408 U.S.
[1]
169, 280-281 (1972).

[2]
Healy v. James, 408 US 169, 280 (1972).
[3]
ISAGANI A. CRUZ, CONSTITUTIONAL LAW, 198-199 (2000).
Ayer Productions Ptd. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, 29 April 1988,
[4]
160 SCRA 861.
Province of North Cotabato v. Government of the Republic of the Philippines Peace

[5]
Panel on Ancestral Domain (GRP), G.R. Nos. 183591, 183752,183893, 183951 &
183962, 14 October 2008, 568 SCRA 402.
Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.

[6]
178552, 5 October 2010, 632 SCRA 146.

[7]
The Philippine Railway Co. v. Geronimo Paredes, 64 Phil. 129 (1936).
[8]
RAMON C. AQUINO, THE REVISED PENAL CODE – Vol. 1, 3 (1961).
[9]
See id. at 8-11.
Id. at 277; LUIS B. REYES, THE REVISED PENAL CODE – CRIMINAL LAW,
[10]
BOOK ONE, 328 (2008).
See REVISED PENAL CODE, Art. 61 (on rules for graduating penalties); Reyes,
[11]
supra note 10 at 705-706; Cf.: People v. Medroso, G.R. No. L-37633, 31 January 1975,
62 SCRA 245.
[12]
Dissenting and Concurring Opinion of Justice Leonen, p. 12.
[13]
Supra note 11.
Probation Law; Francisco v. Court of Appeals, 313 Phil. 241 (1995); and Baclayon v.
[14]
Mutia, 241 Phil. 126 (1984). See: Del Rosario v. Rosero, 211 Phil. 406 (1983).
According to the 2012 Global Internet Survey, 91% of Filipino respondents agree that
[15]
the Internet does more help to society than it does to hurt it while 93% have indicated that
their lives have improved due to using the Internet. Additionally, 96% agree that the
Internet is essential to their knowledge and education. See Dissenting and Concurring
Opinion of Justice Leonen p. 13.
[16]
See also TSN dated 15 January 2013, pp. 80-81.
LEONOR D. BOADO, NOTES AND CASES ON THE REVISED PENAL CODE,

[17]
146 (2008 ed).

[18]
Supra note 8 at 277.
[19]
G.R. No. 203469.
[20]
Id at 30.
[21]
Id.
[22]
Id.
[23]
People v. Sandiganbayan, 341 Phil. 503 (1997).
VICENTE J. FRANCISCO, THE REVISED PENAL CODE: ANNOTATED AND

[24]
COMMENTED — BOOK ONE 33 (3rd ed. 1958).

[25]
Id. at 33-34.
LUIS B. REYES, THE REVISED PENAL CODE – CRIMINAL LAW, BOOK ONE,
[26]
385 (2008).
[27]
Id. at 349.
[28]
Id. at 363.
[29]
Id. at 343.
By taking advantage of public position; by a band; with the aid of armed men or
[30]
persons who insure or afford impunity; through abuse of confidence; by means of

inundation, fire, poison, explosion, stranding of a vessel or intentional damage thereto,
derailment of locomotive, or by the use of any other artifice involving great waste and
ruin; by craft, fraud, or disguise; with evident premeditation; by taking advantage of
superior strength, or by employing means to weaken the defense; with treachery; by
employing means or bringing about circumstances which add ignominy; through
unlawful entry; by breaking a wall, roof, floor, door, or window; with the aid of persons
under fifteen years of age or by means of motor vehicles, motorized watercraft, airships,
or other similar means and by deliberately augmenting the wrong done by causing other
wrong not necessary for its commission.
[31]
Id.
Reyes, supra note 26 at 338 citing People v. Ordiales, G.R. No. L-30956, 23
[32]
November 1971, 42 SCRA 238, 245-246.

Aquino, supra note 8 at 279; Reyes, supra note 26 at 336, citing U.S. v. Rodriguez, 19
[33]
Phil. 150, 156-157 (1911).

[34]
Aquino, Id.
[35]
Id. at 284 citing Jacinto Martinez, 2 Phil. 199 (1903).
[36]
Id. at 285 citing Pantoja, 25 SCRA 468.
[37]
Reyes, supra note 26 at 373.
[38]
[39]
Francisco, supra note 24 at 501, citing U.S. v. Abaigar, 2 Phil. 417.
[40]
[41]
[42]
Aquino, supra note 8 at 350.
[43]
Aquino, supra note 8 at 351, citing Elizaga, 86 Phil. 365.
[44]
Francisco, supra note 24 at 495, citing People v. Luchico, 49 Phil. 689; Reyes, 357.
[45]
Aquino, supra note 8 at 299.
Reyes, supra note 26 at 463, citing People v. Garcia, G.R. No. L-32071, 9 July 1981.
[46]
See also People v. Espejo (G.R. No. L-27708, 19 December 1970, 36 SCRA 400, 418)
which found aggravating the use of a vehicle in going to the place of the crime, in
carrying away the effect thereof and in facilitating escape of the offenders.
[47]
Respondents’ Memorandum dated 19 February 2013, p. 82.
[48]
Id.
[49]
Id.
Phil. Bar Association (G.R. No. 203501); Cruz et al. (G.R. No. 203378) ; Adonis
[50]
(G.R. No. 203378); Palatino (G.R. No. 203391).

[51]
Palatino (G.R. No. 203391).
[52]
Supra note 19 at 8.
Also called “jamming” or “flooding.” See VICENTE AMADOR,

[53]
WWW.CYBERLAW.COM, 421-422 (2010).
JONATHAN CLOUGH, PRINCIPLES OF CYBERCRIME, 37 (2010); EC

[54]
COUNCIL, COMPUTER FORENSICS: INVESTIGATING NETWORK INTRUSIONS

& CYBER CRIME, 7-6 to 7-7 (2010).
[55]
Id.
See EC COUNCIL, COMPUTER FORENSICS: INVESTIGATING NETWORK

[56]
INTRUSIONS & CYBER CRIME, 7-6 to 7-7 (2010).

[57]
Supra note 19 at 9.
[58]
Clough, supra note 54 at 192-194; EC Council, supra note 54 at 7-8.
[59]
See Clough, supra note 54 at192-194.
[60]
Clough, supra note 54 at 192-194; EC Council, supra note 54 at 7-8.
[61]
Id.
Paraphrasing US Supreme Court Justice John Paul Stevens who said in Reno v. ACLU,
[62]
521 U.S. 844, 885 (1997), “The interest in encouraging freedom of expression in a
democratic society outweighs any theoretical but unproven benefit of censorship.”
Dissenting Opinion
BRION, J.:
I write this dissenting opinion to the Court’s resolution denying the motions for
reconsideration regarding the constitutionality of the Cybercrime Prevention Act
(Cybercrime Law) to reiterate my stance regarding cyberlibel, and urge my colleagues to
reconsider its earlier ruling upholding the constitutionality of the application of Section
6[1] of the Cybercrime Law to cyberlibel.[2]
The ponencia denied the motions for reconsideration, and upheld the constitutionality of
the application of Section 6 of the Cybercrime Law to cyberlibel. According to the
ponencia, Section 6, which qualifies the crime of libel when committed through
Information Communications Technology (ICT) and increases its penalty, is not
unconstitutional because it is a valid exercise of Congress’ power to define and penalize
crimes. The ponencia also alleged substantial distinctions between cyberlibel and libel
that warrant an increase in the penalty of the former.
At the outset, allow me to clarify that I do not think that libel per se is unconstitutional;
neither is its application in communications made through ICT violative of the
Constitution. Jurisprudence has long settled that libel is not protected speech, and that
Congress, in the exercise of its power to define and penalize crimes, may validly prohibit
its utterance.
Increasing the penalty of libel when committed through ICT, however, is another matter.
I submit that Section 6 of the Cybercrime Law, insofar as it qualifies the crime of libel,
violates freedom of speech because it unduly increases the prohibitive effect of libel law
on online speech.
My reasons are twofold: first, I do not believe that there is sufficient distinction between
libelous speech committed online and speech uttered in the real, physical world to
warrant increasing the prohibitive impact of penal law in cyberlibel.
Second, the increase in the penalty of libel when committed through computer systems
can have the effect of imposing self-censorship in the Internet and of curtailing an
otherwise robust avenue for debate and discussion on public issues. In other words, over-
penalizing online speech could overreach into matters other than libelous and can thus
prevent protected speech from being uttered.
Cyberlibel as libelous speech committed through the Internet
The ponencia pointed out as justifications for increasing the penalty of cyberlibel the
following characteristics of communications in the Internet: its speed, worldwide reach
and relative anonymity. The ponencia notes that cybercrimes, including cyberlibel, are
more perverse than traditional crimes because of the anonymity of its perpetrator and the
difficulty of prosecuting cybercrimes.
Viewed at its most extreme, cyberlibel’s impact on a person’s reputation would indeed be
more perverse than ordinary libel – the speed, worldwide reach and the sender’s relative
anonymity in Internet communications all contribute to increasing a libelous statement’s
harmful effect on a person’s reputation. Thus, a libelous article, once published and
shared in the Internet, could reach millions in a short period of time, and injure reputation
more than if it had been published in the traditional sense.
But allow me to point out the other side of the impact of qualifying cyberlibel: a person,
who sent an e-mail containing a libelous statement against another person, with the intent
of sending that e-mail only to the latter and has in fact been viewed only by that person,
would be penalized with cyberlibel and its corresponding higher penalty. A person, who
through the course of chatting online with another person privately uttered a libelous
statement about a third person may also be penalized with cyberlibel. The definition of
publication, after all, has not been changed when the elements of libel in the Revised
Penal Code had been adopted into the definition of cyberlibel. For libel prosecution
purposes, a defamatory statement is considered published when a third person, other than
the speaker or the person defamed, is informed of it.[3]
In the examples I have cited, the reach of the libelous statement committed through the
Internet is more or less the same as its reach had it been published in the real, physical
world. Thus, following the ponencia’s reasoning, we will have a situation where a
libelous statement that has reached one person would be punished with a higher penalty
because it was committed through the Internet, just because others could reach millions
when communicating through the same medium.
The same reasoning applies to anonymity in Internet communications: an anonymous

libeler would be penalized in the same manner as an identified person, because both of
them used the Internet as a medium of communicating their libelous utterance.
The apparent misfit between the ponencia’s reasons behind the increase in the penalty of
cyberlibel and its actual application lies in the varying characteristics of online speech:
depending on the platform of communications used, online speech may reach varying
numbers of people: it could reach a single person (or more) through e-mail and chat; it
could be seen by anyone who wants to view it (amounting to millions or more, depending
on the website’s traffic) through a public website.
Worthy of note too, is that the publicity element of libel in the Revised Penal Code does
not take into consideration the amount of audience reached by the defamatory statement.
Libelous speech may be penalized when, for instance, it reaches a third person by mail, [4]
or through a television program,[5] or through a newspaper article published nationwide.[6]
All these defamatory imputations are punishable with the same penalty of prision
correccional in its minimum and medium periods or a fine ranging from 200 to 6,000
pesos or both.[7] I do not see any reason why libel committed through ICT should be
treated in a harsher manner.
I submit that we cannot rule on the basis of extreme, outlying situations, especially since,
as I would explain in my succeeding discussion, increasing the penalty of cyberlibel
could curtail speech in the Internet. If we must err in this decision, we must err on the
side of protecting freedom of speech, a fundamental right ranking high in the value of
constitutional freedoms, so cherished because it is crucial to the functioning of a working
democracy.
As a final point in the matter, I note that despite the Cybercrime Law’s passage, bills
punishing cyber-bullying and electronic violence have been filed in Congress. As filed,
the bills penalize cyber-bullying, or the act of using social media to “harm or harass other
people in a deliberate, repeated and hostile manner.”[8] Electronic Violence, on the other
hand, has been defined as any act involving the exploitation of data that “can cause or is
likely to cause mental, emotional and psychological distress or suffering to the victim.” [9]
To my mind, these bills represent Congress’ intent to penalize the extreme situation that
the ponencia contemplates; at most, these bills are a recognition that cyberlibel has not
been intended to cover such extreme situation, but only to recognize and clarify that the
crime of libel may be committed through computer systems.
The increase in penalty under Section 6 of the Cybercrime Law overreaches and
curtails protected speech
I further agree with the Chief Justice’s arguments regarding the application of Section 6
to libel.
As Chief Justice Sereno points out, Section 6 not only considers ICT use to be a
qualifying aggravating circumstance, but also has the following effects: first, it increases
the accessory penalties of libel; second, it disqualifies the offender from availing of the
privilege of probation; third, it increases the prescriptive period for the crime of libel
from one year to fifteen years, and the prescriptive period for its penalty from ten years to
fifteen years; and fourth, its impact cannot be offset by mitigating circumstances.
These effects, taken together, unduly burden the freedom of speech because the inhibiting
effect of the crime of libel is magnified beyond what is necessary to prevent its
commission. Thus, it can foster self-censorship in the Internet and curtail otherwise
protected online speech.
[1]
Section 6 of the Cybercrime Law 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.
[2]
Section 4(c)(4) of the Cybercrime Law provides:
(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.
[3]
Alcantara v. Ponce, 545 Phil. 678, 683 (2007).
[4]
US v. Grino, 36 Phil. 738 (1917); People v. Silvela, 103 Phil. 773 (1958).
[5]
People v. Casten, CA-G.R. No. 07924-CR, December 13, 1974.
[6]
Fermin v. People of the Philippines, 573 Phil. 12 (2008).
[7]
Article 355 of the Revised Penal Code
[8]
Section 2 of House Bill No. 3749, or the Social Media Regulation Act of 2014.
[9]
Electronic Violence Against Women (E-VAW) Law of 2013.
DISSENTING OPINION
LEONEN, J.:
I reiterate my dissent in this case.
I am also of the view that the seven (7) Motions for Partial Reconsideration[1] and the
Motion for Reconsideration[2] have raised very serious constitutional issues that should
merit a second full deliberation by this court. At the very least, we should have required
the opposing parties to file their comments on these motions. Thereafter, a full analytical
evaluation of each and every argument should have been done. The members of this
court should have been given enough time to be open and reflect further on the points
raised by the parties.
The matters raised by the parties revolve around the cherished right to free expression in
the internet age. The brief resolution issued on behalf of the majority of this court fails to
do justice to the far-reaching consequences of our decision in this case.
It is not enough that we proclaim, as the majority does, that libel is unprotected speech.
The ponencia’s example, i.e. “[t]here is no freedom to unjustly destroy the reputation of a
decent woman by publicly claiming that she is a paid prostitute,”[3] fails to capture the
nuances of criminalizing libel in our jurisprudence and in reality. It is a precarious
simplification of the issue inferred from one imagined case. This obfuscation practically
neuters the ability of this court to do incisive analysis in order to provide the necessary
protection to speech as it applies to the internet.
The ponencia cites the 1912 case of Worcester v Ocampo[4] to support its argument.
There was no internet in 1912. The jurisprudential analysis of problems relating to speech
criticizing public officers and public figures took many turns since then.[5]
The analysis of libel is compounded by the unfortunate confusion by the ponencia of

“libelous speech” and “hate speech” by citing a case decided beyond our jurisdiction, that
of Chaplinsky v. New Hampsire.[6] Chaplinsky was a case decided in 1942 and the words
uttered there were “fighting words” within the context of another language and another
culture. This case should have been taken in the context of subsequent declarations from
the Supreme Court of that jurisdiction which asserted that debates on public issues will
occasionally be caustic but needs to be “uninhibited, robust and wide open.” [7] This was
the 1964 case of New York Times Co. v. Sullivan.[8]
Until the promulgation of the main opinion in this case, Ayer Productions Pty. Ltd. v.
Capulong[9] was the controlling case in this jurisdiction, not Chaplinsky v. New
Hampshire. Ayer Productions clarified jurisprudence that emerged since US v. Bustos[10]
and expanded the protection of free speech as against prosecutions for libel for both
public officers and public figures. These precedents were unbroken until our decision in
this case.
The majority now condones the same 1930s text definition of libel effectively discarding
the carefully crafted exception painstakingly built from the assertion of fundamental
rights in this court. This condonation reveals the legislative blinders to the radically
different context of the internet. The text of Section 4(c)(4) of the Cybercrime Prevention
Act of 2012 is a swing towards lesser protection of the primordial right to speech. The
position taken by the majority deserves a second hard look, if only to ensure the
constitutional guarantee that our people truly have freedom of expression as a means to
assert their sovereignty and governmental authority in cyberspace.
Further reflection and deliberation is necessary, aided by comments from all the parties to
this case, to determine the effect of such simplified referral to the 1930s provision on
libel in a law that seeks to regulate networked and layered communities in the internet.
The lines that distinguish what is private and what is public in cyberspace are not as clear
as in the physical world. Social media creates various interlocking communities of
friends and followers. The ponencia’s concept of author and its simplified distinction of
those that post and those that “like” posted comments are not entirely accurate as used in
the internet.[11] A Twitter community of twenty followers should not be likened to a
Twitter community of thousands. Conversations limited to a small group should not be
considered public for purposes of libel.
“Public defamation” as a category might not make sense in cyberspace. Unlike various
types of media for which our courts may now be familiar with, entry into various
cyberspace communities may require several conscious acts by the user which may
negate the evils that criminal libel is supposed to prevent. For instance, the user agrees to
end-user license agreements (EULA).
The chilling effect on various types of speech with just the possibility of criminal libel
prosecution compared with the consequences of civil liabilities for defamation presents
another dimension that have been glossed over by the main opinion and the resolution on
the various motions for reconsideration.[12] We have to acknowledge the real uses of
criminal libel if we are to be consistent to protect speech made to make public officers
and government accountable. Criminal libel has an in terrorem effect that is inconsistent
with the contemporary protection of the primordial and necessary right of expression
enshrined in our Constitution. The history and actual use of criminal libel[13] should be
enough for us to take a second look at the main opinion in this case. The review should
include a consideration of the nature of cyberspace as layered communities used to
evolve ideas. Such review should result in a declaration of unconstitutionality of criminal
libel in the Revised Penal Code and in the Cybercrime Prevention Act of 2012.
The resolution of these motions for reconsideration does not even consider the arguments
raised against the overbroad concept of “lascivious” in Section 4 (c)(1) or the prohibition
of cybersex. This standard is an unacceptable retreat from our current jurisprudential
concepts of obscenity[14] that produced a refined balance between expression and public
rights. This court should seriously take the allegations of vagueness and overbroadness [15]
and the possibility that the leeway given to law enforcers[16] can actual limit the
fundamental rights of privacy and autonomy as well as the freedoms to express sexual
intimacies.
Also neglected are the issues raised in relation to section 4 (c)(3) which the Solicitor
General characterized as sufficient and narrowly tailored to meet the public objective of
preventing spam while at the same time solicitous of speech in the form of
advertisements.[17] I view the current provisions as sufficiently narrow and tailored to
meet legitimate and compelling state interests. It protects the ordinary internet user
against unwarranted intrusions. Certainly, freedom of expression should not evolve into a
fundamental and protected right to badger. The Cybercrime Prevention Act of 2012 does
not prohibit advertising. It simply requires that whoever advertises must be accountable
to the user, not use false identities and allow for opt out mechanisms so that the user will
not continue to receive unwelcome advertising ad nauseum.[18]
I agree with the Chief Justice that Section 6 attenuates the penalties unjustifiably. I add
that this amounts to a greater chilling effect when speech in any of its forms (political,
commercial or with sexual content) transfers from physical spaces to the internet. There
can be no reason for such additional deterrence: none that would justify the increase in
the penalties. This issue, too, requires better comment from all the parties and a fuller
and more deliberate deliberation from this court
Further comment from the parties will allow us to fully appreciate the nuances, layers,
and dimensions occasioned by the various platforms in the internet that color the
seemingly simple issues involved in this case. We have to be open to understanding the
context of these issues from parties that may have used the internet in a more pervasive
manner and are more familiar with the terrain than the members of this court. Comment
from the other parties could have enlightened us further. We lose nothing with better
clarification of context from the parties.
ACCORDINGLY, I vote against the issuance, at this juncture, of a resolution

denying, all seven (7) Motions for Partial Reconsideration and the Motion for
Reconsideration for lack of merit. I also vote to REQUIRE all the parties to comment
on the seven (7) Motions for Partial Reconsideration and the Motion for Reconsideration
within a non-extendible period of thirty (30) days from notice.
I maintain the vote I manifested in my Dissenting and Concurring Opinion to the

February 18, 2014 decision. Thus, I vote to declare as unconstitutional for being
overbroad and violative of Article III, Section 4 of the Constitution the following
provisions of Republic Act No. 10175 or the Cybercrime Prevention Act of 2012:
(a) The entire Section 19 or the "take down" provision;

(b) The entire Section 4(c)(4) on cyber libel as well as Articles 353, 354, and 355 on
libel of the Revised Penal Code;
(c) The entire Section 4(c)( 1) on cybersex; .
(d) Section 5 as it relates to Sections 4(c)(l) and 4(c)(4);
(e) Section 6 as it increases the penalties to Sections 4(c)(1) and 4(c)(4);
(f) Section 7 as it allows impermissibly countless prosecution of Sections 4(c)(1)
and 4(c)(4); and
(g) Section 12 on warrantless real-time traffic data surveillance.
Likewise, I maintain my dissent with the majority’s finding that Section 4(c)(3) on
Unsolicited Commercial Advertising is unconstitutional.
Moreover, I maintain my vote to dismiss the rest of the constitutional challenges

against the other provisions in Republic Act No. 10175 as raised in the consolidated
petitions for not being justiciable in the absence of an actual case or controversy.
The parties that filed Motions for Partial Reconsideration are: petitioner Senator
[1]
Teofisto Guingona III in G.R. No. 203359; petitioners Alexander Adonis et al. in G.R.
No. 203378; petitioners Bayan Muna et al. and Bayan Muna Representative Neri
Colmenares et al. (filed a joint motion) in G.R. Nos. 203407 and 203509; petitioners
Bloggers and Netizens for Democracy (BAND) including Anthony Ian M. Cruz et al. in
G.R. No. 203469; petitioners National Union of Journalists of the Philippines et al. in
G.R. No. 203543; petitioners Philippine Bar Association in G.R. No, 203501;
respondents and the Office of the Solicitor General.
Petitioners Hon. Raymond Palatino et al. in G.R. No. 203391 filed a Motion for
[2]
Reconsideration.
[3]
Ponencia, p. 4.
Id. The ponencia cites the secondary source Bernas, S.J. The 1987 Constitution of the
[4]
Republic of the Philippines, which cites 22 Phil. 41 (1912).

[5]
See United States v. Bustos, 13 Phil. 690 (1918) [Per J. Johnson]; New York Times Co.
v. Sullivan, 376 U.S. 254 (1964); Ayer Productions Pty. Ltd. v. Capulong, 243 Phil. 1007
(1988) [Per J. Feliciano, En Banc]; Borjal v. Court of Appeals, 361 Phil. 1 (1999) [Per J.
Bellosillo, Second Division]; Vasquez v. Court of Appeals, 373 Phil. 238 (1999) [Per J.
Mendoza, En Banc]; Guingguing v. Court of Appeals, 508 Phil. 193 (2005) [Per J. Tinga,
Second Division]; and Villanueva v. Philippine Daily Inquirer, Inc., G.R. No. 164437,
May 15, 2009, 588 SCRA 1 [Per J. Quisumbing, Second Division]. See also Lopez v.
Court of Appeals, 145 Phil. 219 (1970) [Per J. Fernando, En Banc]; Mercado v. Court of
First Instance, 201 Phil. 565 (1982) [Per J. Fernando, Second Division]; and Adiong vs.
Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712 [Per J.
Gutierrez, En Banc].
Ponencia, p. 4. The ponencia cites the secondary source Gorospe R., Constitutional
[6]
Law: Notes and Readings on the Bill of Rights, Citizenship and Suffrage, Vol. 1, p. 672,
which actually cites 315 U.S. 568 (1942).
[7]
376 U.S. 254, 270 (1964).
[8]
376 U.S. 254 (1964).
[9]
243 Phil. 1007 (1988) [Per J. Feliciano, En Banc].
[10]
13 Phil. 690 (1918) [Per J. Johnson].
[11]
See Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014, p. 26.
See discussion on the state’s interest vis-à-vis decriminalization of libel in J. Leonen’s

[12]
Dissenting and Concurring Opinion, Disini v. Secretary of Justice, G.R. No. 203335,
February 18, 2014, pp. 63-70.
[13]
Id. at 63-70.
See Pita v. Court of Appeals, G.R. No. 80806, 178 SCRA 362, October 5, 1989. [En
[14]
Banc, Sarmiento, J.].
Petitioners Adonis et al in G.R. No. 203378, in their Motion for Partial

[15]
Reconsideration, pp. 32-33; petitioners Bayan et al. and Bayan Muna Representative Neri
Colmenares in G.R. Nos. 203407 and 203508, in their Joint Motion for Partial
Reconsideration, pp. 26-28.
Petitioners Adonis et al. in G.R. No. 203378, in their Motion for Partial
[16]
Reconsideration, p. 33
Respondents, represented by the Office of the Solicitor General, in their Motion for
[17]
Partial Reconsideration, pp. 5-12.
See discussion in J. Leonen’s Dissenting and Concurring Opinion, Disini v. Secretary

[18]
of Justice, G.R. No. 203335, February 18, 2014, pp. 88-99.

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733 Phil.

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA,

G.R. NO. 203299]

LOUIS “BAROK” C. BIRAOGO, PETITIONER, VS. NATIONAL BUREAU

G.R. NO. 203306]

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN

G.R. NO. 203359]

SENATOR TEOFISTO DL GUINGONA III, PETITIONER, VS. EXECUTIVE

G.R. NO. 203378]

G.R. NO. 203391]

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI

G.R. NO. 203407]

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO

G.R. NO. 203440]

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA

G.R. NO. 203453]

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP),

G.R. NO. 203454]

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, PETITIONERS,

G.R. NO. 203469]

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL

G.R. NO. 203501]

PHILIPPINE BAR ASSOCIATION, INC., PETITIONER, VS. HIS

G.R. NO. 203509]

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, PETITIONER,

G.R. NO. 203515]

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. REPRESENTED BY

G.R. NO. 203518]

PHILIPPINE INTERNET FREEDOM ALLIANCE, COMPOSED OF

An Act Providing And Use Of Electronic Commercial And Non-Commercial

Philippine Bar Association, Motion for Reconsideration, p. 2397; Bloggers and

Netizens for Democracy, Motion for Reconsideration, p. 2362.

Fiore, Irretroactividad e Interpretacion de las Leyes, pp. 426-428.

Freedoms such as these are protected not

Justice Potter Stewart[1]

I maintain my dissent insofar as the application of Section 6 to libel is concerned because

I also explain my position on the validity of regulating the transmission of unsolicited

Urgent need to remove the chilling

Section 6 creates an additional in

Thus, Section 6 effectively creates an additional in terrorem effect by introducing

The increase in penalty also

The increase in penalty

Section 6 increases the prescription

ICT as a qualifying aggravating

For providing that the use per se of

Taking advantage of a public position.

By a band or with the aid of armed men

Similarly, the circumstance of commission of a crime by a band should have been

Abuse of Superior strength

Like other means of committing a

The Court must clarify that ICT

Validity of regulating unsolicited

Secondly, as petitioners pointed out, unsolicited e-mail commercial communications,

WHEREFORE, I vote to DECLARE:

1. Section 6 UNCONSTITUTIONAL, insofar as it applies to libel, for unduly

2. Section 4(c)(4) UNCONSTITUTIONAL; and

3. Section 4(c)(3) NOT UNCONSTITUTIONAL for being a valid regulation