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.

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G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

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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.

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G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OFTHE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

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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.

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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.

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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.

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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.
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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.

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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.

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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.

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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.

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G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

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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.

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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 DO OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.

DISSENTING AND CONCURRING OPINION

SERENO, 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  with the right to free speech; it prohibits
2

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.  That is also why this Court has
3

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,  all the more should it
5

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  to deter criminality.  However,
6 7

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.  This consequence is the intended in terrorem effect of penal statutes.  Hence, in their
8 9

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).  Therefore, Section 6 doubles the maximum
11

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.  Additionally, 72% used social
12

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.  Consequently, it is now possible for the
13

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,  qualified offenders who
14

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  technology is
15

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.  This is not a trivial
16
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.  Moreover, while a generic aggravating
17

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.  Hence,
18

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.  observe in their motion for reconsideration that Section 6 increases by one
19

degree the penalty for a crime committed through ICT without regard to how ICT contributed to the
gravity of the crime.  Hence, even if the use of ICT is "completely arbitrary" and unintended, it merits
20

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.  Petitioners
22

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.  He must be shown to have possessed a guilty mind or criminal intent on top of
23

committing the physical act prohibited by law.  Hence, as a general rule, it is necessary for criminal
24

liability that the act be committed by means of dolo or "malice";  otherwise, there can be no crime.
25

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" ); (2) the place
26

of commission (e.g. "dwelling of the offended party" ); (3) the means and ways employed (e.g. use
27

of vehicle), (4) the time (e.g. nighttime ); or (5) the personal circumstances of the offender or of the
28

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.  The use of ICT logically falls under this category as a means for the commission of libel and
30

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  reveals a shared principle behind
31

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.  It means that the offenders must have used
32

the influence, prestige or ascendancy that their office gives them as the means by which they realize
their purpose.  The offenders must have abused their office in order to commit the offense.  In that
33 34

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;  not even if they were sergeants in the
35

Philippine Army and were in fatigue uniform and had army rifles at the time they committed a
crime.  Hence, the intent to use a public position for the purpose of committing a crime appears to
36

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.  Jurisprudence is consistent that the aid of armed men is not aggravating
37

unless the accused availed themselves of that aid or relied upon it.  The accused must have
38

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.  It is present when
40

the offenders assess a superiority of strength that they select and take advantage of in the
commission of the crime.  The mere fact of superiority in the number of assailants does not suffice;
41

they must have taken advantage of their combined strength.  They must have cooperated in such a
42

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.  Indeed, it is essential that the
44

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.  Again, intent is essential for this
45

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.  First, the OSG explains that cybercrimes are limitless as to
47

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.  There
48

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.  Many think that the mere use of a "stand alone"
50

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  have made the absurd conclusion
51

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."  Here, an
53

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.  This is a form of
54

Denial of Service (DoS) attack, as it prevents other users who are using the same server from
accessing their e-mails.  We can thus imagine a situation in which an e-mail account reaches its
55

storage capacity, thereby preventing the account holder from receiving legitimate mails, as these e-
mails are "bounced" back to the senders.  This situation would impede the robust exchange of ideas
56

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."  It is an
57

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.  The message used for phishing may appear to be coming from a department store, a
58

known company, a bank, the government, or even from a contact whose e-mail account has been
"hacked."  Phishing can attack millions of e-mail addresses around the world, and has emerged as
59
an effective method of stealing personal and confidential data of users.  It is said that phishing is
60

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.

MARIA LOURDES P. A. SERENO

Chief Justice