DISINI VS EXECUTIVE SECRETARY

FACTS OF THE CASE:

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

The cybercrime law aims to regulate access to and use of the cyberspace. The cyberspace is a boon to
the need of a 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 communication 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 these reasons, the government has a legitimate right to regulate the use of cyberspace and contain
and punish wrongdoings. 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.

ISSUES AND RULING OF THE COURT:

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

1. The petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of
laws that interfere with the fundamental rights of the people. Is Section 4(a)(1) on Illegal Access
unconstitutional?

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

RULING:

No. The strict scrutiny standard, an American constitutional construct, is useful in determining the
constitutionality of laws that tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of fundamental right or operates
to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The Court finds
nothing in Section 4(a)(1) that calls for the application of the strict scrutiny standard since no
fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act –
accessing the computer system of another without right. It is a universally condemnable act.
Section 4(a)(3) on Data Interference;

2.  Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while is seeks to
discourage data interference, it intrudes into the area of protected speech and expression,
creating a chilling and deterrent effect on these guaranteed freedoms.

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.

RULING:

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected speech. Section 4(a)(3) does not encroach on these freedoms at all. It
simply punishes what essentially is a form of vandalism, the act of wilfully 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. Ergo, there is no freedom to destroy
other people’s computer systems and private documents. All penal laws, like the cybercrime law, have
of course an inherent chilling effect, an in terrorem effect, or the fear of possible prosecution that hangs
on the heads of citizens who are minded to step beyond the boundaries of what is proper. But to
prevent the State from legislating criminal laws because they instil such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct.

Section 4(a)(6) on Cyber-squatting;

3. Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause in
that, not being narrowly tailored, it will cause a user using his real name to suffer the same fate
as those who use aliases or take the name of another in satire, parody, or any other literary
device.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead,
destroy the reputation, and deprive others from registering the same
RULING:

No, the challenge to the constitutionality of Section 4(a)(6) is baseless. The law is reasonable in
penalizing the act of acquiring the domain name in bad faith to profit, mislead, destroy reputation, or
deprive others who are not ill-motivated of the rightful opportunity of registering the same. It is the evil
purpose for which one uses the name that the law condemns.
Section 4(b)(3) on Identity Theft;

4. Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to
privacy and correspondence, and transgresses the freedom of the press.

Section 4(b)(3) provides:

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1)
degree lower.

RULING:

No. In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a
court must determine whether a person has exhibited a reasonable expectation of privacy and, if so,
whether that expectation has been violated by unreasonable government intrusion. The law punishes
those who acquire or use identifying information without right, implicitly to cause damage. Petitioners
fail to show how government effort to curb computer-related identity theft violates the right to privacy
and correspondence as well as the right to due process. There is no fundamental right to acquire
another’s personal right. The Court has defined intent to gain as an internal act which can be established
through overt acts of the offender, and it may be presumed from the furtive taking of useful property
pertaining to another, unless special circumstances reveal a different intent on the part of the
perpetrator. As such, the press, whether in the quest of news reporting or social investigation, has
nothing to fear since a special circumstance is present to negate intent to gain which is required by this
Section.
Section 4(c)(1) on Cybersex;

5. Petitioners claim that cybersex violates the freedom of expression clause of the Constitution
under Section 4(c)(1 of the cybercrime law.

Section 4(c)(1) provides:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of
any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system,
for favor or consideration.

RULING:

The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it
apply only to persons engaged in the business of maintaining, controlling, or operating, directly or
indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system
as Congress has intended.
Section 4(c)(2) on Child Pornography;

6. Petitioners are wary that a person who 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 liable under Section 4(c)(2). Further, if the author bounces off
his ideas on Twitter, anyone who replies to the tweet could be considered aiding and abetting a
cybercrime.

Section 4(c)(2) provides:

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No.
9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That
the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No.
9775.

RULING:

The constitutionality of Section 4(c)(2) is not successfully challenged. The law makes the penalty higher
by one degree when the crime is committed in cyberspace. But no one can complain since the intensity
or duration of penalty is a legislative prerogative and there is a rational basis for such higher penalty.
Section 4(c)(3) on Unsolicited Commercial Communications;

7. Is Section 4(c)(3) unconstitutional for penalizing the transmission of unsolicited commercial

communications?
Section 4(c)(3) provides:

3) Unsolicited Commercial Communications. – The transmission of commercial electronic

communication with the use of computer system which seeks to advertise, sell, or offer for sale products
and services are prohibited

RULING:

Yes, because to prohibit the transmission of unsolicited ads would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him. Commercial speech is a separate category of
speech which us not accorded the same level of protection as that given to other constitutionally
guaranteed forms of expression but is nonetheless entitled to protection. The State cannot rob him of
this right without violating the constitutionally guaranteed freedom of expression. Thus, unsolicited
advertisements are legitimate forms of expression.
Section 4(c)(4) on Libel;

8. Petitioners dispute the constitutionality of both the penal code provisions on libel as well as
Section4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

Section4(c)(4) 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

RULING:

Since the penal code and implicitly, the cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of malice to convict the author of a
defamatory statement where the offended party is a public figure.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice.

There is actual malice or malice in fact when the offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of whether it was false or not.

The reckless disregard standard used here required a high degree of awareness of probable falsity.
There must be sufficient evidence to permit the conclusion that the accused in fact entertained serious
doubts as to the truth of the statement he published.

Gross or even extreme negligence is not sufficient to establish actual malice. The defense of absence of
actual malice, even when the statement turns out to be false, is available where the offended party is a
public official or a public figure. But, where the offended party is a private individual, the prosecution
need not prove the presence of actual malice. For his defense, the accused must show that he has a
justifiable reason for the defamatory statement even if it was in fact true.
Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

9. Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who
wilfully abets or aids in the commission or attempts to commit any of the offenses enumerated
as cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected
expression.

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of
the offenses enumerated in this Act shall be held liable.

RULING:

A governmental purpose, which seeks to regulate the use of cyberspace communication technology to
protect a person’s reputation and peace of mind, cannot adopt means that will unnecessarily and
broadly sweep, invading the area of protected freedoms. If such means are adopted, self-inhibition
borne of fear of what sinister predicaments await internet users will suppress otherwise robust
discussion of public issues. Democracy will be threatened and with it, all liberties. Penal laws should
provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary
and discriminatory enforcement. The terms “aiding or abetting” constitute broad sweep that generates
chilling effect on those who express themselves through cyberspace posts, comments, and other
messages. Hence, Section 5 of the cybercrime law that punishes “aiding or abetting” libel on the
cyberspace is a nullity.
Section 6 on the Penalty of One Degree Higher;

10. Is Section 6 on the penalty of one degree higher constitutional?

Section 6 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.

RULING:

Yes, because there exists a substantial distinction between crimes committed through the use of
information and communication 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.
Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175

11. Is Section 7 on the prosecution under both the Revised Penal Code (RPC) and RA 10175
constitutional?

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

RULING:

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:

 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
 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.
Section 8 on Penalties;
 12. Is Section 8 valid and constitutional?

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a)
and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (Ph₱200,000.00) up to a maximum amount commensurate to the damage
incurred or both.

RULING:

Valid and constitutional, because the matter of fixing penalties for the commission of crimes is as a rule
a legislative prerogative.
Section 12 on Real-Time Collection of Traffic Data;

13. Is Section 12 on Real-Time collection of traffic data valid and constitutional?

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall
be authorized to collect or record by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer system.

RULING:

Void and unconstitutional, because Section 12 does not permit law enforcement authorities to look into
the contents of the messages and uncover the identities of the sender and the recipient. Thus, the
authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint.

Section 13 on Preservation of Computer Data;

14. Is Section 13 on preservation of computer data valid and constitutional?

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content data shall be similarly preserved
for six (6) months from the date of receipt of the order from law enforcement authorities requiring its
preservation.

RULING:

Valid and constitutional, because the user ought to have kept a copy of that data when it crossed his
computer if he was so minded. There was no undue deprivation of property since the data that service
providers preserve on orders of law enforcement authorities are not made accessible to users by
reasons of the issuance of such orders.
Section 14 on Disclosure of Computer Data;

15. Is Section 14 on disclosure of computer data valid and constitutional?

Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court
warrant, shall issue an order requiring any person or service provider to disclose or submit
subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-
two (72) hours from receipt of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and relevant for the purpose of
investigation.

RULING:

Valid and constitutional, because what Section 14 envisions is merely the enforcement of a duly issued
court warrant. Disclosure can be made only after judicial intervention.

MAIN TOPIC: Section 15 on Search, Seizure and Examination of Computer Data;

16. Is Section 15 on search, seizure and examination of computer data valid and constitutional?

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is
properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant 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.

RULING:

Hence, it is valid and constitutional, because Section 15 merely enumerates the duties of law
enforcement authorities that would ensure proper collection, preservation, and use of computer system
or data that have been seized by virtue of a court warrant. The exercise of these duties do not pose any
threat on the rights of the person from whom they were taken. Section 15 does not appear to supersede
existing search and seizure rules but merely supplements them.
 Section 17 on Destruction of Computer Data;
 17. Is Section 17 on destruction of computer data valid and constitutional?

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and
15, service providers and law enforcement authorities, as the case may be, shall immediately and
completely destroy the computer data subject of a preservation and examination.

RULING:

Valid and constitutional, because it is unclear that the user has a demandable right to require the service
provider to have that copy of data saved indefinitely for him in its storage system.
Section 19 on Restricting or Blocking Access to Computer Data;

18. Is Section 19 on restricting or blocking access to computer data valid and constitutional?

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found
to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to
such computer data.

RULING:

Void and unconstitutional, because Section 19 not only precludes any judicial intervention but it also
disregards jurisprudential guidelines established to determine the validity of restrictions on speech.
 Section 20 on Obstruction of Justice;

19. Is Section 20 on obstruction of justice valid and constitutional?

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the
orders from law enforcement authorities shall be punished as a violation of Presidential Decree No.
1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law
enforcement authorities.

RULING:

Valid and constitutional insofar as it applies to the provisions of Chapter IV which are not struck down by
the Court.
Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

20. Is Section 24 on Cybercrime Investigation and Coordinating Center (CICC) valid and
constitutional?

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30)
days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation
and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.
RULING:

valid and constitutional, because cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. The law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
 Section 26(a) on CICC’s Powers and Functions.

21. Is Section 26(a) on CICC’s power and functions valid and constitutional?

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)

RULING:

the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat
such [cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic
and international levels, and by providing arrangements for fast and reliable international cooperation.
This policy is clearly adopted in the interest of law and order, which has been considered as sufficient
standard. Hence, Sections 24 and 26(a) are likewise valid.

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 VA L I D 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

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.