G.R. No. 203335               February 11, 2014 4.

Inquire and do business with institutional entities like

government agencies, banks, stock exchanges, trade houses,
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, credit card companies, public utilities, hospitals, and schools; and
JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
vs. 5. Communicate in writing or by voice with any person through his
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE e-mail address or telephone.
INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF This is cyberspace, a system that accommodates millions and billions of
OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE simultaneous and ongoing individual accesses to and uses of the internet.
NATIONAL BUREAU OF INVESTIGATION, Respondents. The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the
ABAD, J.: 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
These consolidated petitions seek to declare several provisions of Republic them can, for instance, avail himself of the system to unjustly ruin the
Act (R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional reputation of another or bully the latter by posting defamatory statements
and void. against him that people can read.

The Facts and the Case And because linking with the internet opens up a user to communications
from others, the ill-motivated can use the cyberspace for committing theft
The cybercrime law aims to regulate access to and use of the cyberspace. by hacking into or surreptitiously accessing his bank account or credit card
Using his laptop or computer, a person can connect to the internet, a or defrauding him through false representations. The wicked can use the
system that links him to other computers and enable him, among other cyberspace, too, for illicit trafficking in sex or for exposing to pornography
things, to: guileless children who have access to the internet. For this reason, the
government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.
1. Access virtual libraries and encyclopedias for all kinds of
information that he needs for research, study, amusement,
upliftment, or pure curiosity; Notably, there are also those who would want, like vandals, to wreak or
cause havoc to the computer systems and networks of indispensable or
highly useful institutions as well as to the laptop or computer programs
2. Post billboard-like notices or messages, including pictures and
and memories of innocent individuals. They accomplish this by sending
videos, for the general public or for special audiences like
electronic viruses or virtual dynamites that destroy those computer
associates, classmates, or friends and read postings from them;
systems, networks, programs, and memories. The government certainly
has the duty and the right to prevent these tomfooleries from happening
3. Advertise and promote goods or services and make purchases and punish their perpetrators, hence the Cybercrime Prevention Act.
and payments;
But petitioners claim that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their
constitutional rights. The government of course asserts that the law merely j. Section 6 on the Penalty of One Degree Higher;
seeks to reasonably put order into cyberspace activities, punish
wrongdoings, and prevent hurtful attacks on the system. k. Section 7 on the Prosecution under both the Revised Penal
Code (RPC) and R.A. 10175;
Pending hearing and adjudication of the issues presented in these cases,
on February 5, 2013 the Court extended the original 120-day temporary l. Section 8 on Penalties;
restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law m. Section 12 on Real-Time Collection of Traffic Data;
until further orders.
n. Section 13 on Preservation of Computer Data;
The Issues Presented
o. Section 14 on Disclosure of Computer Data;
Petitioners challenge the constitutionality of the following provisions of the
cybercrime law that regard certain acts as crimes and impose penalties for
p. Section 15 on Search, Seizure and Examination of Computer
their commission as well as provisions that would enable the government
Data;
to track down and penalize violators. These provisions are:
q. Section 17 on Destruction of Computer Data;
a. Section 4(a)(1) on Illegal Access;
r. Section 19 on Restricting or Blocking Access to Computer Data;
b. Section 4(a)(3) on Data Interference;
s. Section 20 on Obstruction of Justice;
c. Section 4(a)(6) on Cyber-squatting;
t. Section 24 on Cybercrime Investigation and Coordinating Center
d. Section 4(b)(3) on Identity Theft;
(CICC); and

e. Section 4(c)(1) on Cybersex;

u. Section 26(a) on CICC’s Powers and Functions.

f. Section 4(c)(2) on Child Pornography;

Some petitioners also raise the constitutionality of related Articles 353,
354, 361, and 362 of the RPC on the crime of libel.
g. Section 4(c)(3) on Unsolicited Commercial Communications;
The Rulings of the Court
h. Section 4(c)(4) on Libel;
Section 4(a)(1)
i. Section 5 on Aiding or Abetting and Attempt in the Commission
of Cybercrimes;
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense instructions for how these can be remedied. Ethical hackers are the
of cybercrime punishable under this Act: equivalent of independent auditors who come into an organization to
verify its bookkeeping records.5
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems: Besides, a client’s engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and
(1) Illegal Access. – The access to the whole or any part of a computer the systems to be tested. This is referred to as the "get out of jail free
system without right. card."6 Since the ethical hacker does his job with prior permission from the
client, such permission would insulate him from the coverage of Section
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny 4(a)(1).
standard required of laws that interfere with the fundamental rights of the
people and should thus be struck down. Section 4(a)(3) of the Cybercrime Law

The Court has in a way found the strict scrutiny standard, an American Section 4(a)(3) provides:
constitutional construct,1 useful in determining the constitutionality of laws
that tend to target a class of things or persons. According to this standard, Section 4. Cybercrime Offenses. – The following acts constitute the offense
a legislative classification that impermissibly interferes with the exercise of of cybercrime punishable under this Act:
fundamental right or operates to the peculiar class disadvantage of a
suspect class is presumed unconstitutional. The burden is on the (a) Offenses against the confidentiality, integrity and availability of
government to prove that the classification is necessary to achieve a computer data and systems:
compelling state interest and that it is the least restrictive means to
protect such interest.2 Later, the strict scrutiny standard was used to assess xxxx
the validity of laws dealing with the regulation of speech, gender, or race
as well as other fundamental rights, as expansion from its earlier
(3) Data Interference. – The intentional or reckless alteration, damaging,
applications to equal protection.3
deletion or deterioration of computer data, electronic document, or
electronic data message, without right, including the introduction or
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls transmission of viruses.
for the application of the strict scrutiny standard since no fundamental
freedom, like speech, is involved in punishing what is essentially a
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that,
condemnable act – accessing the computer system of another without
while it seeks to discourage data interference, it intrudes into the area of
right. It is a universally condemned conduct. 4
protected speech and expression, creating a chilling and deterrent effect
on these guaranteed freedoms.
Petitioners of course fear that this section will jeopardize the work of
ethical hackers, professionals who employ tools and techniques used by
Under the overbreadth doctrine, a proper governmental purpose,
criminal hackers but would neither damage the target systems nor steal
constitutionally subject to state regulation, may not be achieved by means
information. Ethical hackers evaluate the target system’s security and
that unnecessarily sweep its subject broadly, thereby invading the area of
report back to the owners the vulnerabilities they found in it and give
protected freedoms.7 But Section 4(a)(3) does not encroach on these
freedoms at all. It simply punishes what essentially is a form of (i) Similar, identical, or confusingly similar to an existing trademark
vandalism,8 the act of willfully destroying without right the things that registered with the appropriate government agency at the time of
belong to others, in this case their computer data, electronic document, or the domain name registration;
electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other people’s computer (ii) Identical or in any way similar with the name of a person other
systems and private documents. than the registrant, in case of a personal name; and

All penal laws, like the cybercrime law, have of course an inherent chilling (iii) Acquired without right or with intellectual property interests
effect, an in terrorem effect 9 or the fear of possible prosecution that hangs in it.
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 Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal
because they instill such kind of fear is to render the state powerless in protection clause12 in that, not being narrowly tailored, it will cause a user
addressing and penalizing socially harmful conduct. 10 Here, the chilling using his real name to suffer the same fate as those who use aliases or take
effect that results in paralysis is an illusion since Section 4(a)(3) clearly the name of another in satire, parody, or any other literary device. For
describes the evil that it seeks to punish and creates no tendency to example, supposing there exists a well known billionaire-philanthropist
intimidate the free exercise of one’s constitutional rights. named "Julio Gandolfo," the law would punish for cyber-squatting both the
person who registers such name because he claims it to be his pseudo-
Besides, the overbreadth challenge places on petitioners the heavy burden name and another who registers the name because it happens to be his
of proving that under no set of circumstances will Section 4(a)(3) be real name. Petitioners claim that, considering the substantial distinction
valid.11 Petitioner has failed to discharge this burden. between the two, the law should recognize the difference.

Section 4(a)(6) of the Cybercrime Law But there is no real difference whether he uses "Julio Gandolfo" which
happens to be his real name or use it as a pseudo-name for it is the evil
Section 4(a)(6) provides: purpose for which he uses the name that the law condemns. The law is
reasonable in penalizing him for acquiring the domain name in bad faith to
Section 4. Cybercrime Offenses. – The following acts constitute the offense profit, mislead, destroy reputation, or deprive others who are not ill-
of cybercrime punishable under this Act: motivated of the rightful opportunity of registering the same. The
challenge to the constitutionality of Section 4(a)(6) on ground of denial of
(a) Offenses against the confidentiality, integrity and availability of equal protection is baseless.
computer data and systems:
Section 4(b)(3) of the Cybercrime Law
xxxx
Section 4(b)(3) provides:
(6) Cyber-squatting. – The acquisition of domain name over the internet in
bad faith to profit, mislead, destroy the reputation, and deprive others Section 4. Cybercrime Offenses. – The following acts constitute the offense
from registering the same, if such a domain name is: of cybercrime punishable under this Act:
xxxx Two constitutional guarantees create these zones of privacy: (a) the right
against unreasonable searches16 and seizures, which is the basis of the
b) Computer-related Offenses: right to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has
xxxx 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
(3) Computer-related Identity Theft. – The intentional acquisition, use,
government intrusion.18
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 The usual identifying information regarding a person includes his name, his
imposable shall be one (1) degree lower. citizenship, his residence address, his contact number, his place and date
of birth, the name of his spouse if any, his occupation, and similar
data.19 The law punishes those who acquire or use such identifying
Petitioners claim that Section 4(b)(3) violates the constitutional rights to
information without right, implicitly to cause damage. Petitioners simply
due process and to privacy and correspondence, and transgresses the
fail to show how government effort to curb computer-related identity theft
freedom of the press.
violates the right to privacy and correspondence as well as the right to due
process of law.
The right to privacy, or the right to be let alone, was institutionalized in the
1987 Constitution as a facet of the right protected by the guarantee
Also, the charge of invalidity of this section based on the overbreadth
against unreasonable searches and seizures. 13 But the Court acknowledged
doctrine will not hold water since the specific conducts proscribed do not
its existence as early as 1968 in Morfe v. Mutuc, 14 it ruled that the right to
intrude into guaranteed freedoms like speech. Clearly, what this section
privacy exists independently of its identification with liberty; it is in itself
regulates are specific actions: the acquisition, use, misuse or deletion of
fully deserving of constitutional protection.
personal identifying data of another. There is no fundamental right to
acquire another’s personal data.
Relevant to any discussion of the right to privacy is the concept known as
the "Zones of Privacy." The Court explained in "In the Matter of the
Further, petitioners fear that Section 4(b)(3) violates the freedom of the
Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator
press in that journalists would be hindered from accessing the unrestricted
Gordon"15 the relevance of these zones to the right to privacy:
user account of a person in the news to secure information about him that
could be published. But this is not the essence of identity theft that the law
Zones of privacy are recognized and protected in our laws. Within these seeks to prohibit and punish. Evidently, the theft of identity information
zones, any form of intrusion is impermissible unless excused by law and in must be intended for an illegitimate purpose. Moreover, acquiring and
accordance with customary legal process. The meticulous regard we accord disseminating information made public by the user himself cannot be
to these zones arises not only from our conviction that the right to privacy regarded as a form of theft.
is a "constitutional right" and "the right most valued by civilized men," but
also from our adherence to the Universal Declaration of Human Rights
The Court has defined intent to gain as an internal act which can be
which mandates that, "no one shall be subjected to arbitrary interference
established through the overt acts of the offender, and it may be
with his privacy" and "everyone has the right to the protection of the law
presumed from the furtive taking of useful property pertaining to another,
against such interference or attacks."
unless special circumstances reveal a different intent on the part of the is necessary to constitute the illegal cybersex. 24 The Act actually seeks to
perpetrator.20 As such, the press, whether in quest of news reporting or punish cyber prostitution, white slave trade, and pornography for favor
social investigation, has nothing to fear since a special circumstance is and consideration. This includes interactive prostitution and pornography,
present to negate intent to gain which is required by this Section. i.e., by webcam.25

Section 4(c)(1) of the Cybercrime Law The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or
sexual activity—is not novel. Article 201 of the RPC punishes "obscene
Section 4(c)(1) provides: publications and exhibitions and indecent shows." The Anti-Trafficking in
Persons Act of 2003 penalizes those who "maintain or hire a person to
Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of engage in prostitution or pornography." 26 The law defines prostitution as
cybercrime punishable under this Act: any act, transaction, scheme, or design involving the use of a person by
another, for sexual intercourse or lascivious conduct in exchange for
money, profit, or any other consideration.27
xxxx

The case of Nogales v. People28 shows the extent to which the State can
(c) Content-related Offenses:
regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court weighed the property rights of
(1) Cybersex.– The willful engagement, maintenance, control, or operation, individuals against the public welfare. Private property, if containing
directly or indirectly, of any lascivious exhibition of sexual organs or sexual pornographic materials, may be forfeited and destroyed. Likewise,
activity, with the aid of a computer system, for favor or consideration. engaging in sexual acts privately through internet connection, perceived by
some as a right, has to be balanced with the mandate of the State to
Petitioners claim that the above violates the freedom of expression clause eradicate white slavery and the exploitation of women.
of the Constitution.21 They express fear that private communications of
sexual character between husband and wife or consenting adults, which In any event, consenting adults are protected by the wealth of
are not regarded as crimes under the penal code, would now be regarded jurisprudence delineating the bounds of obscenity. 30 The Court will not
as crimes when done "for favor" in cyberspace. In common usage, the term declare Section 4(c)(1) unconstitutional where it stands a construction that
"favor" includes "gracious kindness," "a special privilege or right granted or makes it apply only to persons engaged in the business of maintaining,
conceded," or "a token of love (as a ribbon) usually worn controlling, or operating, directly or indirectly, the lascivious exhibition of
conspicuously."22 This meaning given to the term "favor" embraces socially sexual organs or sexual activity with the aid of a computer system as
tolerated trysts. The law as written would invite law enforcement agencies Congress has intended.
into the bedrooms of married couples or consenting individuals.
Section 4(c)(2) of the Cybercrime Law
But the deliberations of the Bicameral Committee of Congress on this
section of the Cybercrime Prevention Act give a proper perspective on the
Section 4(c)(2) provides:
issue. These deliberations show a lack of intent to penalize a "private
showing x x x between and among two private persons x x x although that
may be a form of obscenity to some." 23 The understanding of those who Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of
drew up the cybercrime law is that the element of "engaging in a business" cybercrime punishable under this Act:
xxxx The question of aiding and abetting the offense by simply commenting on
it will be discussed elsewhere below. For now the Court must hold that the
(c) Content-related Offenses: constitutionality of Section 4(c)(2) is not successfully challenged.

xxxx Section 4(c)(3) of the Cybercrime Law

(2) Child Pornography. — The unlawful or prohibited acts defined and Section 4(c)(3) provides:
punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of
2009, committed through a computer system: Provided, That the penalty Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of
to be imposed shall be (1) one degree higher than that provided for in cybercrime punishable under this Act:
Republic Act No. 9775.
xxxx
It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 200931 (ACPA) to cover identical activities in (c) Content-related Offenses:
cyberspace. In theory, nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child pornography using a xxxx
computer system. Actually, ACPA’s definition of child pornography already
embraces the use of "electronic, mechanical, digital, optical, magnetic or
(3) Unsolicited Commercial Communications. – The transmission of
any other means." Notably, no one has questioned this ACPA provision.
commercial electronic communication with the use of computer system
which seeks to advertise, sell, or offer for sale products and services are
Of course, the law makes the penalty higher by one degree when the crime prohibited unless:
is committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for
(i) There is prior affirmative consent from the recipient; or
such higher penalty.32 The potential for uncontrolled proliferation of a
particular piece of child pornography when uploaded in the cyberspace is
(ii) The primary intent of the communication is for service and/or
incalculable.
administrative announcements from the sender to its existing
users, subscribers or customers; or
Petitioners point out that the provision of ACPA that makes it unlawful for
any person to "produce, direct, manufacture or create any form of child
(iii) The following conditions are present:
pornography"33 clearly relates to the prosecution of persons who aid and
abet the core offenses that ACPA seeks to punish. 34 Petitioners are wary
that a person who merely doodles on paper and imagines a sexual abuse of (aa) The commercial electronic communication contains
a 16-year-old is not criminally liable for producing child pornography but a simple, valid, and reliable way for the recipient to reject
one who formulates the idea on his laptop would be. Further, if the author receipt of further commercial electronic messages (opt-
bounces off his ideas on Twitter, anyone who replies to the tweet could be out) from the same source;
considered aiding and abetting a cybercrime.
 (bb) The commercial electronic communication does not Commercial speech is a separate category of speech which is not accorded
purposely disguise the source of the electronic message; the same level of protection as that given to other constitutionally
and guaranteed forms of expression but is nonetheless entitled to
protection.36 The State cannot rob him of this right without violating the
(cc) The commercial electronic communication does not constitutionally guaranteed freedom of expression. Unsolicited
purposely include misleading information in any part of advertisements are legitimate forms of expression.
the message in order to induce the recipients to read the
message. Articles 353, 354, and 355 of the Penal Code

The above penalizes the transmission of unsolicited commercial Section 4(c)(4) of the Cyber Crime Law
communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the Petitioners dispute the constitutionality of both the penal code provisions
same sentence or comment was said to be making a "spam." The term on libel as well as Section 4(c)(4) of the Cybercrime Prevention Act on
referred to a Monty Python’s Flying Circus scene in which actors would cyberlibel.
keep saying "Spam, Spam, Spam, and Spam" when reading options from a
menu.35 The RPC provisions on libel read:

The Government, represented by the Solicitor General, points out that Art. 353. Definition of libel. — A libel is public and malicious imputation of
unsolicited commercial communications or spams are a nuisance that a crime, or of a vice or defect, real or imaginary, or any act, omission,
wastes the storage and network capacities of internet service providers, condition, status, or circumstance tending to cause the dishonor, discredit,
reduces the efficiency of commerce and technology, and interferes with or contempt of a natural or juridical person, or to blacken the memory of
the owner’s peaceful enjoyment of his property. Transmitting spams one who is dead.
amounts to trespass to one’s privacy since the person sending out spams
enters the recipient’s domain without prior permission. The OSG contends
Art. 354. Requirement for publicity. — Every defamatory imputation is
that commercial speech enjoys less protection in law.
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people,
1. A private communication made by any person to another in the
before the arrival of the age of computers, have already been receiving
performance of any legal, moral or social duty; and
such unsolicited ads by mail. These have never been outlawed as nuisance
since people might have interest in such ads. What matters is that the
2. A fair and true report, made in good faith, without any
recipient has the option of not opening or reading these mail ads. That is
comments or remarks, of any judicial, legislative or other official
true with spams. Their recipients always have the option to delete or not
proceedings which are not of confidential nature, or of any
to read them.
statement, report or speech delivered in said proceedings, or of
any other act performed by public officers in the exercise of their
To prohibit the transmission of unsolicited ads would deny a person the
functions.
right to read his emails, even unsolicited commercial ads addressed to him.
Art. 355. Libel means by writings or similar means. — A libel committed by The elements of libel are: (a) the allegation of a discreditable act or
means of writing, printing, lithography, engraving, radio, phonograph, condition concerning another; (b) publication of the charge; (c) identity of
painting, theatrical exhibition, cinematographic exhibition, or any similar the person defamed; and (d) existence of malice.40
means, shall be punished by prision correccional in its minimum and
medium periods or a fine ranging from 200 to 6,000 pesos, or both, in There is "actual malice" or malice in fact 41 when the offender makes the
addition to the civil action which may be brought by the offended party. defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not. 42 The reckless disregard standard
The libel provision of the cybercrime law, on the other hand, merely used here requires a high degree of awareness of probable falsity. There
incorporates to form part of it the provisions of the RPC on libel. Thus must be sufficient evidence to permit the conclusion that the accused in
Section 4(c)(4) reads: fact entertained serious doubts as to the truth of the statement he
published. Gross or even extreme negligence is not sufficient to establish
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of actual malice.43
cybercrime punishable under this Act:
The prosecution bears the burden of proving the presence of actual malice
xxxx in instances where such element is required to establish guilt. The defense
of absence of actual malice, even when the statement turns out to be
(c) Content-related Offenses: false, is available where the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay official) and Borjal (the
Executive Director, First National Conference on Land Transportation).
xxxx
Since the penal code and implicitly, the cybercrime law, mainly target libel
against private persons, the Court recognizes that these laws imply a
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 stricter standard of "malice" to convict the author of a defamatory
of the Revised Penal Code, as amended, committed through a computer statement where the offended party is a public figure. Society’s interest
system or any other similar means which may be devised in the future. and the maintenance of good government demand a full discussion of
public affairs.44
Petitioners lament that libel provisions of the penal code 37 and, in effect,
the libel provisions of the cybercrime law carry with them the requirement Parenthetically, the Court cannot accept the proposition that its ruling in
of "presumed malice" even when the latest jurisprudence already replaces Fermin disregarded the higher standard of actual malice or malice in fact
it with the higher standard of "actual malice" as a basis for when it found Cristinelli Fermin guilty of committing libel against
conviction.38 Petitioners argue that inferring "presumed malice" from the complainants who were public figures. Actually, the Court found the
accused’s defamatory statement by virtue of Article 354 of the penal code presence of malice in fact in that case. Thus:
infringes on his constitutionally guaranteed freedom of expression.
It can be gleaned from her testimony that petitioner had the motive to
Petitioners would go further. They contend that the laws on libel should be make defamatory imputations against complainants. Thus, petitioner
stricken down as unconstitutional for otherwise good jurisprudence cannot, by simply making a general denial, convince us that there was no
requiring "actual malice" could easily be overturned as the Court has done malice on her part. Verily, not only was there malice in law, the article
in Fermin v. People39 even where the offended parties happened to be being malicious in itself, but there was also malice in fact, as there was
public figures.
motive to talk ill against complainants during the electoral campaign. In such cases if the defendant proves the truth of the imputation made by
(Emphasis ours) him, he shall be acquitted.

Indeed, the Court took into account the relatively wide leeway given to Besides, the UNHRC did not actually enjoin the Philippines, as petitioners
utterances against public figures in the above case, cinema and television urge, to decriminalize libel. It simply suggested that defamation laws be
personalities, when it modified the penalty of imprisonment to just a fine crafted with care to ensure that they do not stifle freedom of
of ₱6,000.00. expression.48 Indeed, the ICCPR states that although everyone should enjoy
freedom of expression, its exercise carries with it special duties and
But, where the offended party is a private individual, the prosecution need responsibilities. Free speech is not absolute. It is subject to certain
not prove the presence of malice. The law explicitly presumes its existence restrictions, as may be necessary and as may be provided by law. 49
(malice in law) from the defamatory character of the assailed
statement.45 For his defense, the accused must show that he has a The Court agrees with the Solicitor General that libel is not a
justifiable reason for the defamatory statement even if it was in fact true. 46 constitutionally protected speech and that the government has an
obligation to protect private individuals from defamation. Indeed,
Petitioners peddle the view that both the penal code and the Cybercrime cyberlibel is actually not a new crime since Article 353, in relation to Article
Prevention Act violate the country’s obligations under the International 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above
Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis merely affirms that online defamation constitutes "similar means" for
v. Republic of the Philippines, 47 the United Nations Human Rights committing libel.
Committee (UNHRC) cited its General Comment 34 to the effect that penal
defamation laws should include the defense of truth. But the Court’s acquiescence goes only insofar as the cybercrime law
penalizes the author of the libelous statement or article. Cyberlibel brings
But General Comment 34 does not say that the truth of the defamatory with it certain intricacies, unheard of when the penal code provisions on
statement should constitute an all-encompassing defense. As it happens, libel were enacted. The culture associated with internet media is distinct
Article 361 recognizes truth as a defense but under the condition that the from that of print.
accused has been prompted in making the statement by good motives and
for justifiable ends. Thus: The internet is characterized as encouraging a freewheeling, anything-goes
writing style.50 In a sense, they are a world apart in terms of quickness of
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the the reader’s reaction to defamatory statements posted in cyberspace,
truth may be given in evidence to the court and if it appears that the facilitated by one-click reply options offered by the networking site as well
matter charged as libelous is true, and, moreover, that it was published as by the speed with which such reactions are disseminated down the line
with good motives and for justifiable ends, the defendants shall be to other internet users. Whether these reactions to defamatory statement
acquitted. posted on the internet constitute aiding and abetting libel, acts that
Section 5 of the cybercrime law punishes, is another matter that the Court
Proof of the truth of an imputation of an act or omission not constituting a will deal with next in relation to Section 5 of the law.
crime shall not be admitted, unless the imputation shall have been made
against Government employees with respect to facts related to the Section 5 of the Cybercrime Law
discharge of their official duties.
Section 5 provides: But, when it comes to certain cybercrimes, the waters are muddier and the
line of sight is somewhat blurred. The idea of "aiding or abetting"
Sec. 5. Other Offenses. — The following acts shall also constitute an wrongdoings online threatens the heretofore popular and unchallenged
offense: dogmas of cyberspace use.

(a) Aiding or Abetting in the Commission of Cybercrime. – Any According to the 2011 Southeast Asia Digital Consumer Report, 33% of
person who willfully abets or aids in the commission of any of the Filipinos have accessed the internet within a year, translating to about 31
offenses enumerated in this Act shall be held liable. million users.55 Based on a recent survey, the Philippines ranks 6th in the
top 10 most engaged countries for social networking. 56 Social networking
(b) Attempt in the Commission of Cybercrime. — Any person who sites build social relations among people who, for example, share interests,
willfully attempts to commit any of the offenses enumerated in activities, backgrounds, or real-life connections.57
this Act shall be held liable.
Two of the most popular of these sites are Facebook and Twitter. As of late
Petitioners assail the constitutionality of Section 5 that renders criminally 2012, 1.2 billion people with shared interests use Facebook to get in
liable any person who willfully abets or aids in the commission or attempts touch.58 Users register at this site, create a personal profile or an open
to commit any of the offenses enumerated as cybercrimes. It suffers from book of who they are, add other users as friends, and exchange messages,
overbreadth, creating a chilling and deterrent effect on protected including automatic notifications when they update their profile. 59 A user
expression. can post a statement, a photo, or a video on Facebook, which can be made
visible to anyone, depending on the user’s privacy settings.
The Solicitor General contends, however, that the current body of
jurisprudence and laws on aiding and abetting sufficiently protects the If the post is made available to the public, meaning to everyone and not
freedom of expression of "netizens," the multitude that avail themselves of only to his friends, anyone on Facebook can react to the posting, clicking
the services of the internet. He points out that existing laws and any of several buttons of preferences on the program’s screen such as
jurisprudence sufficiently delineate the meaning of "aiding or abetting" a "Like," "Comment," or "Share." "Like" signifies that the reader likes the
crime as to protect the innocent. The Solicitor General argues that plain, posting while "Comment" enables him to post online his feelings or views
ordinary, and common usage is at times sufficient to guide law about the same, such as "This is great!" When a Facebook user "Shares" a
enforcement agencies in enforcing the law. 51 The legislature is not required posting, the original "posting" will appear on his own Facebook profile,
to define every single word contained in the laws they craft. consequently making it visible to his down-line Facebook Friends.

Aiding or abetting has of course well-defined meaning and application in Twitter, on the other hand, is an internet social networking and
existing laws. When a person aids or abets another in destroying a microblogging service that enables its users to send and read short text-
forest,52 smuggling merchandise into the country, 53 or interfering in the based messages of up to 140 characters. These are known as "Tweets."
peaceful picketing of laborers,54 his action is essentially physical and so is Microblogging is the practice of posting small pieces of digital content—
susceptible to easy assessment as criminal in character. These forms of which could be in the form of text, pictures, links, short videos, or other
aiding or abetting lend themselves to the tests of common sense and media—on the internet. Instead of friends, a Twitter user has "Followers,"
human experience. those who subscribe to this particular user’s posts, enabling them to read
the same, and "Following," those whom this particular user is subscribed
to, enabling him to read their posts. Like Facebook, a Twitter user can could certainly be charged with libel. If Roger, seeing the poster, writes on
make his tweets available only to his Followers, or to the general public. If it, "I like this!," that could not be libel since he did not author the poster. If
a post is available to the public, any Twitter user can "Retweet" a given Arthur, passing by and noticing the poster, writes on it, "Correct!," would
posting. Retweeting is just reposting or republishing another person’s that be libel? No, for he merely expresses agreement with the statement
tweet without the need of copying and pasting it. on the poster. He still is not its author. Besides, it is not clear if aiding or
abetting libel in the physical world is a crime.
In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet But suppose Nestor posts the blog, "Armand is a thief!" on a social
service provider like PLDT, Smart, Globe, or Sun; d) the internet café that networking site. Would a reader and his Friends or Followers, availing
may have provided the computer used for posting the blog; e) the person themselves of any of the "Like," "Comment," and "Share" reactions, be
who makes a favorable comment on the blog; and f) the person who posts guilty of aiding or abetting libel? And, in the complex world of cyberspace
a link to the blog site. 60 Now, suppose Maria (a blogger) maintains a blog expressions of thoughts, when will one be liable for aiding or abetting
on WordPress.com (blog service provider). She needs the internet to cybercrimes? Where is the venue of the crime?
access her blog so she subscribes to Sun Broadband (Internet Service
Provider). Except for the original author of the assailed statement, the rest (those
who pressed Like, Comment and Share) are essentially knee-jerk
One day, Maria posts on her internet account the statement that a certain sentiments of readers who may think little or haphazardly of their response
married public official has an illicit affair with a movie star. Linda, one of to the original posting. Will they be liable for aiding or abetting? And,
Maria’s friends who sees this post, comments online, "Yes, this is so true! considering the inherent impossibility of joining hundreds or thousands of
They are so immoral." Maria’s original post is then multiplied by her friends responding "Friends" or "Followers" in the criminal charge to be filed in
and the latter’s friends, and down the line to friends of friends almost ad court, who will make a choice as to who should go to jail for the outbreak
infinitum. Nena, who is a stranger to both Maria and Linda, comes across of the challenged posting?
this blog, finds it interesting and so shares the link to this apparently
defamatory blog on her Twitter account. Nena’s "Followers" then The old parameters for enforcing the traditional form of libel would be a
"Retweet" the link to that blog site. square peg in a round hole when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into account its unique
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of circumstances and culture, such law will tend to create a chilling effect on
Nena’s original tweet and posts this on her Facebook account. the millions that use this new medium of communication in violation of
Immediately, Pamela’s Facebook Friends start Liking and making their constitutionally-guaranteed right to freedom of expression.
Comments on the assailed posting. A lot of them even press the Share
button, resulting in the further spread of the original posting into tens, The United States Supreme Court faced the same issue in Reno v. American
hundreds, thousands, and greater postings. Civil Liberties Union,61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing
The question is: are online postings such as "Liking" an openly defamatory transmission, by means of a telecommunications device, of
statement, "Commenting" on it, or "Sharing" it with others, to be regarded
as "aiding or abetting?" In libel in the physical world, if Nestor places on "obscene or indecent" communications to any recipient under 18 years of
the office bulletin board a small poster that says, "Armand is a thief!," he age; and (2) the knowing use of an interactive computer service to send to
a specific person or persons under 18 years of age or to display in a the globe like bad news. Moreover, cyberlibel often goes hand in hand with
manner available to a person under 18 years of age communications that, cyberbullying that oppresses the victim, his relatives, and friends, evoking
in context, depict or describe, in terms "patently offensive" as measured by from mild to disastrous reactions. Still, a governmental purpose, which
contemporary community standards, sexual or excretory activities or seeks to regulate the use of this cyberspace communication technology to
organs. protect a person’s reputation and peace of mind, cannot adopt means that
will unnecessarily and broadly sweep, invading the area of protected
Those who challenged the Act claim that the law violated the First freedoms.62
Amendment’s guarantee of freedom of speech for being overbroad. The
U.S. Supreme Court agreed and ruled: If such means are adopted, self-inhibition borne of fear of what sinister
predicaments await internet users will suppress otherwise robust
The vagueness of the Communications Decency Act of 1996 (CDA), 47 discussion of public issues. Democracy will be threatened and with it, all
U.S.C.S. §223, is a matter of special concern for two reasons. First, the CDA liberties. Penal laws should provide reasonably clear guidelines for law
is a content-based regulation of speech. The vagueness of such a enforcement officials and triers of facts to prevent arbitrary and
regulation raises special U.S. Const. amend. I concerns because of its discriminatory enforcement.63 The terms "aiding or abetting" constitute
obvious chilling effect on free speech. Second, the CDA is a criminal broad sweep that generates chilling effect on those who express
statute. In addition to the opprobrium and stigma of a criminal conviction, themselves through cyberspace posts, comments, and other
the CDA threatens violators with penalties including up to two years in messages.64 Hence, Section 5 of the cybercrime law that punishes "aiding
prison for each act of violation. The severity of criminal sanctions may well or abetting" libel on the cyberspace is a nullity.
cause speakers to remain silent rather than communicate even arguably
unlawful words, ideas, and images. As a practical matter, this increased When a penal statute encroaches upon the freedom of speech, a facial
deterrent effect, coupled with the risk of discriminatory enforcement of challenge grounded on the void-for-vagueness doctrine is acceptable. The
vague regulations, poses greater U.S. Const. amend. I concerns than those inapplicability of the doctrine must be carefully delineated. As Justice
implicated by certain civil regulations. Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the
xxxx inapplicability of the overbreadth and vagueness doctrines to penal
statutes as appropriate only insofar as these doctrines are used to mount
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, ‘facial’ challenges to penal statutes not involving free speech."
presents a great threat of censoring speech that, in fact, falls outside the
statute's scope. Given the vague contours of the coverage of the statute, it In an "as applied" challenge, the petitioner who claims a violation of his
unquestionably silences some speakers whose messages would be entitled constitutional right can raise any constitutional ground – absence of due
to constitutional protection. That danger provides further reason for process, lack of fair notice, lack of ascertainable standards, overbreadth, or
insisting that the statute not be overly broad. The CDA’s burden on vagueness. Here, one can challenge the constitutionality of a statute only if
protected speech cannot be justified if it could be avoided by a more he asserts a violation of his own rights. It prohibits one from assailing the
carefully drafted statute. (Emphasis ours) constitutionality of the statute based solely on the violation of the rights of
third persons not before the court. This rule is also known as the
Libel in the cyberspace can of course stain a person’s image with just one prohibition against third-party standing.66
click of the mouse. Scurrilous statements can spread and travel fast across
But this rule admits of exceptions. A petitioner may for instance mount a In regard to the crime that targets child pornography, when "Google
"facial" challenge to the constitutionality of a statute even if he claims no procures, stores, and indexes child pornography and facilitates the
violation of his own rights under the assailed statute where it involves free completion of transactions involving the dissemination of child
speech on grounds of overbreadth or vagueness of the statute. pornography," does this make Google and its users aiders and abettors in
the commission of child pornography crimes? 68 Byars highlights a feature in
The rationale for this exception is to counter the "chilling effect" on the American law on child pornography that the Cybercrimes law lacks—
protected speech that comes from statutes violating free speech. A person the exemption of a provider or notably a plain user of interactive computer
who does not know whether his speech constitutes a crime under an service from civil liability for child pornography as follows:
overbroad or vague law may simply restrain himself from speaking in order
to avoid being charged of a crime. The overbroad or vague law thus chills No provider or user of an interactive computer service shall be treated as
him into silence.67 the publisher or speaker of any information provided by another
information content provider and cannot be held civilly liable for any
As already stated, the cyberspace is an incomparable, pervasive medium of action voluntarily taken in good faith to restrict access to or availability of
communication. It is inevitable that any government threat of punishment material that the provider or user considers to be obscene...whether or not
regarding certain uses of the medium creates a chilling effect on the such material is constitutionally protected. 69
constitutionally-protected freedom of expression of the great masses that
use it. In this case, the particularly complex web of interaction on social When a person replies to a Tweet containing child pornography, he
media websites would give law enforcers such latitude that they could effectively republishes it whether wittingly or unwittingly. Does this make
arbitrarily or selectively enforce the law. him a willing accomplice to the distribution of child pornography? When a
user downloads the Facebook mobile application, the user may give
Who is to decide when to prosecute persons who boost the visibility of a consent to Facebook to access his contact details. In this way, certain
posting on the internet by liking it? Netizens are not given "fair notice" or information is forwarded to third parties and unsolicited commercial
warning as to what is criminal conduct and what is lawful conduct. When a communication could be disseminated on the basis of this
case is filed, how will the court ascertain whether or not one netizen’s information.70 As the source of this information, is the user aiding the
comment aided and abetted a cybercrime while another comment did not? distribution of this communication? The legislature needs to address this
clearly to relieve users of annoying fear of possible criminal prosecution.
Of course, if the "Comment" does not merely react to the original posting
but creates an altogether new defamatory story against Armand like "He Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness
beats his wife and children," then that should be considered an original raises apprehension on the part of internet users because of its obvious
posting published on the internet. Both the penal code and the cybercrime chilling effect on the freedom of expression, especially since the crime of
law clearly punish authors of defamatory publications. Make no mistake, aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy
libel destroys reputations that society values. Allowed to cascade in the way. What is more, as the petitioners point out, formal crimes such as libel
internet, it will destroy relationships and, under certain circumstances, will are not punishable unless consummated. 71 In the absence of legislation
generate enmity and tension between social or economic groups, races, or tracing the interaction of netizens and their level of responsibility such as
religions, exacerbating existing tension in their relationships. in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on
Child Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under information and communications technologies shall be covered by the
Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access, relevant provisions of this Act: Provided, That the penalty to be imposed
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, shall be one (1) degree higher than that provided for by the Revised Penal
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Code, as amended, and special laws, as the case may be.
Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) Section 6 merely makes commission of existing crimes through the internet
on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None a qualifying circumstance. As the Solicitor General points out, there exists a
of these offenses borders on the exercise of the freedom of expression. substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed
The crime of willfully attempting to commit any of these offenses is for the using other means. In using the technology in question, the offender often
same reason not objectionable. A hacker may for instance have done all evades identification and is able to reach far more victims or cause greater
that is necessary to illegally access another party’s computer system but harm. The distinction, therefore, creates a basis for higher penalties for
the security employed by the system’s lawful owner could frustrate his cybercrimes.
effort. Another hacker may have gained access to usernames and
passwords of others but fail to use these because the system supervisor is Section 7 of the Cybercrime Law
alerted.72 If Section 5 that punishes any person who willfully attempts to
commit this specific offense is not upheld, the owner of the username and Section 7 provides:
password could not file a complaint against him for attempted hacking. But
this is not right. The hacker should not be freed from liability simply
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be
because of the vigilance of a lawful owner or his supervisor.
without prejudice to any liability for violation of any provision of the
Revised Penal Code, as amended, or special laws.
Petitioners of course claim that Section 5 lacks positive limits and could
cover the innocent.73 While this may be true with respect to cybercrimes
The Solicitor General points out that Section 7 merely expresses the settled
that tend to sneak past the area of free expression, any attempt to commit
doctrine that a single set of acts may be prosecuted and penalized
the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
simultaneously under two laws, a special law and the Revised Penal Code.
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)
When two different laws define two crimes, prior jeopardy as to one does
(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and
not bar prosecution of the other although both offenses arise from the
abetting the commission of such acts can be identified with some
same fact, if each crime involves some important act which is not an
reasonable certainty through adroit tracking of their works. Absent
essential element of the other.74 With the exception of the crimes of online
concrete proof of the same, the innocent will of course be spared.
libel and online child pornography, the Court would rather leave the
determination of the correct application of Section 7 to actual cases.
Section 6 of the Cybercrime Law
Online libel is different. There should be no question that if the published
Section 6 provides: material on print, said to be libelous, is again posted online or vice versa,
that identical material cannot be the subject of two separate libels. The
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as two offenses, one a violation of Article 353 of the Revised Penal Code and
amended, and special laws, if committed by, through and with the use of the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the
same elements and are in fact one and the same offense. Indeed, the OSG mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00)
itself claims that online libel under Section 4(c)(4) is not a new crime but is but not exceeding One million pesos (Ph₱1,000,000.00) or both.
one already punished under Article 353. Section 4(c)(4) merely establishes
the computer system as another means of publication. 75 Charging the Any person found guilty of any of the punishable acts enumerated in
offender under both laws would be a blatant violation of the proscription Section 4(c)(2) of this Act shall be punished with the penalties as
against double jeopardy.76 enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of
2009:" Provided, That the penalty to be imposed shall be one (1) degree
The same is true with child pornography committed online. Section 4(c)(2) higher than that provided for in Republic Act No. 9775, if committed
merely expands the ACPA’s scope so as to include identical activities in through a computer system.
cyberspace. As previously discussed, ACPA’s definition of child
pornography in fact already covers the use of "electronic, mechanical, Any person found guilty of any of the punishable acts enumerated in
digital, optical, magnetic or any other means." Thus, charging the offender Section 4(c)(3) shall be punished with imprisonment of arresto mayor or a
under both Section 4(c)(2) and ACPA would likewise be tantamount to a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two
violation of the constitutional prohibition against double jeopardy. hundred fifty thousand pesos (Ph₱250,000.00) or both.

Section 8 of the Cybercrime Law Any person found guilty of any of the punishable acts enumerated in
Section 5 shall be punished with imprisonment one (1) degree lower than
Section 8 provides: that of the prescribed penalty for the offense or a fine of at least One
hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts thousand pesos (Ph₱500,000.00) or both.
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 Section 8 provides for the penalties for the following crimes: Sections 4(a)
pesos (Ph₱200,000.00) up to a maximum amount commensurate to the on Offenses Against the Confidentiality, Integrity and Availability of
damage incurred or both. Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5)
on Misuse of Devices; when the crime punishable under 4(a) is committed
Any person found guilty of the punishable act under Section 4(a)(5) shall be against critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child
punished with imprisonment of prision mayor or a fine of not more than Pornography; 4(c)(3) on Unsolicited Commercial Communications; and
Five hundred thousand pesos (Ph₱500,000.00) or both. Section 5 on Aiding or Abetting, and Attempt in the Commission of
Cybercrime.
If punishable acts in Section 4(a) are committed against critical
infrastructure, the penalty of reclusion temporal or a fine of at least Five The matter of fixing penalties for the commission of crimes is as a rule a
hundred thousand pesos (Ph₱500,000.00) up to maximum amount legislative prerogative. Here the legislature prescribed a measure of severe
commensurate to the damage incurred or both, shall be imposed. penalties for what it regards as deleterious cybercrimes. They appear
proportionate to the evil sought to be punished. The power to determine
Any person found guilty of any of the punishable acts enumerated in penalties for offenses is not diluted or improperly wielded simply because
Section 4(c)(1) of this Act shall be punished with imprisonment of prision at some prior time the act or omission was but an element of another
offense or might just have been connected with another crime. 77 Judges
and magistrates can only interpret and apply them and have no authority Petitioners assail the grant to law enforcement agencies of the power to
to modify or revise their range as determined by the legislative collect or record traffic data in real time as tending to curtail civil liberties
department. or provide opportunities for official abuse. They claim that data showing
where digital messages come from, what kind they are, and where they are
The courts should not encroach on this prerogative of the lawmaking destined need not be incriminating to their senders or recipients before
body.78 they are to be protected. Petitioners invoke the right of every individual to
privacy and to be protected from government snooping into the messages
Section 12 of the Cybercrime Law or information that they send to one another.

Section 12 provides: The first question is whether or not Section 12 has a proper governmental
purpose since a law may require the disclosure of matters normally
considered private but then only upon showing that such requirement has
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement
a rational relation to the purpose of the law, 79 that there is a compelling
authorities, with due cause, shall be authorized to collect or record by
State interest behind the law, and that the provision itself is narrowly
technical or electronic means traffic data in real-time associated with
drawn.80 In assessing regulations affecting privacy rights, courts should
specified communications transmitted by means of a computer system.
balance the legitimate concerns of the State against constitutional
guarantees.81
Traffic data refer only to the communication’s origin, destination, route,
time, date, size, duration, or type of underlying service, but not content,
Undoubtedly, the State has a compelling interest in enacting the
nor identities.
cybercrime law for there is a need to put order to the tremendous
activities in cyberspace for public good.82 To do this, it is within the realm
All other data to be collected or seized or disclosed will require a court of reason that the government should be able to monitor traffic data to
warrant. enhance its ability to combat all sorts of cybercrimes.

Service providers are required to cooperate and assist law enforcement Chapter IV of the cybercrime law, of which the collection or recording of
authorities in the collection or recording of the above-stated information. traffic data is a part, aims to provide law enforcement authorities with the
power they need for spotting, preventing, and investigating crimes
The court warrant required under this section shall only be issued or committed in cyberspace. Crime-fighting is a state business. Indeed, as
granted upon written application and the examination under oath or Chief Justice Sereno points out, the Budapest Convention on Cybercrimes
affirmation of the applicant and the witnesses he may produce and the requires signatory countries to adopt legislative measures to empower
showing: (1) that there are reasonable grounds to believe that any of the state authorities to collect or record "traffic data, in real time, associated
crimes enumerated hereinabove has been committed, or is being with specified communications."83 And this is precisely what Section 12
committed, or is about to be committed; (2) that there are reasonable does. It empowers law enforcement agencies in this country to collect or
grounds to believe that evidence that will be obtained is essential to the record such data.
conviction of any person for, or to the solution of, or to the prevention of,
any such crimes; and (3) that there are no other means readily available for But is not evidence of yesterday’s traffic data, like the scene of the crime
obtaining such evidence. after it has been committed, adequate for fighting cybercrimes and,
therefore, real-time data is superfluous for that purpose? Evidently, it is Informational privacy has two aspects: the right not to have private
not. Those who commit the crimes of accessing a computer system information disclosed, and the right to live freely without surveillance and
without right,84 transmitting viruses,85 lasciviously exhibiting sexual organs intrusion.91 In determining whether or not a matter is entitled to the right
or sexual activity for favor or consideration; 86 and producing child to privacy, this Court has laid down a two-fold test. The first is a subjective
pornography87 could easily evade detection and prosecution by simply test, where one claiming the right must have an actual or legitimate
moving the physical location of their computers or laptops from day to day. expectation of privacy over a certain matter. The second is an objective
In this digital age, the wicked can commit cybercrimes from virtually test, where his or her expectation of privacy must be one society is
anywhere: from internet cafés, from kindred places that provide free prepared to accept as objectively reasonable.92
internet services, and from unregistered mobile internet connectors.
Criminals using cellphones under pre-paid arrangements and with Since the validity of the cybercrime law is being challenged, not in relation
unregistered SIM cards do not have listed addresses and can neither be to its application to a particular person or group, petitioners’ challenge to
located nor identified. There are many ways the cyber criminals can quickly Section 12 applies to all information and communications technology (ICT)
erase their tracks. Those who peddle child pornography could use relays of users, meaning the large segment of the population who use all sorts of
computers to mislead law enforcement authorities regarding their places electronic devices to communicate with one another. Consequently, the
of operations. Evidently, it is only real-time traffic data collection or expectation of privacy is to be measured from the general public’s point of
recording and a subsequent recourse to court-issued search and seizure view. Without reasonable expectation of privacy, the right to it would have
warrant that can succeed in ferreting them out. no basis in fact.

Petitioners of course point out that the provisions of Section 12 are too As the Solicitor General points out, an ordinary ICT user who courses his
broad and do not provide ample safeguards against crossing legal communication through a service provider, must of necessity disclose to
boundaries and invading the people’s right to privacy. The concern is the latter, a third person, the traffic data needed for connecting him to the
understandable. Indeed, the Court recognizes in Morfe v. Mutuc 88 that recipient ICT user. For example, an ICT user who writes a text message
certain constitutional guarantees work together to create zones of privacy intended for another ICT user must furnish his service provider with his
wherein governmental powers may not intrude, and that there exists an cellphone number and the cellphone number of his recipient,
independent constitutional right of privacy. Such right to be left alone has accompanying the message sent. It is this information that creates the
been regarded as the beginning of all freedoms.89 traffic data. Transmitting communications is akin to putting a letter in an
envelope properly addressed, sealing it closed, and sending it through the
But that right is not unqualified. In Whalen v. Roe, 90 the United States postal service. Those who post letters have no expectations that no one
Supreme Court classified privacy into two categories: decisional privacy will read the information appearing outside the envelope.
and informational privacy. Decisional privacy involves the right to
independence in making certain important decisions, while informational Computer data—messages of all kinds—travel across the internet in
privacy refers to the interest in avoiding disclosure of personal matters. It is packets and in a way that may be likened to parcels of letters or things that
the latter right—the right to informational privacy—that those who oppose are sent through the posts. When data is sent from any one source, the
government collection or recording of traffic data in real-time seek to content is broken up into packets and around each of these packets is a
protect. wrapper or header. This header contains the traffic data: information that
tells computers where the packet originated, what kind of data is in the
packet (SMS, voice call, video, internet chat messages, email, online
browsing data, etc.), where the packet is going, and how the packet fits The Court, however, agrees with Justices Carpio and Brion that when
together with other packets. 93 The difference is that traffic data sent seemingly random bits of traffic data are gathered in bulk, pooled
through the internet at times across the ocean do not disclose the actual together, and analyzed, they reveal patterns of activities which can then be
names and addresses (residential or office) of the sender and the recipient, used to create profiles of the persons under surveillance. With enough
only their coded internet protocol (IP) addresses. The packets travel from traffic data, analysts may be able to determine a person’s close
one computer system to another where their contents are pieced back associations, religious views, political affiliations, even sexual preferences.
together. Such information is likely beyond what the public may expect to be
disclosed, and clearly falls within matters protected by the right to privacy.
Section 12 does not permit law enforcement authorities to look into the But has the procedure that Section 12 of the law provides been drawn
contents of the messages and uncover the identities of the sender and the narrowly enough to protect individual rights?
recipient.
Section 12 empowers law enforcement authorities, "with due cause," to
For example, when one calls to speak to another through his cellphone, the collect or record by technical or electronic means traffic data in real-time.
service provider’s communication’s system will put his voice message into Petitioners point out that the phrase "due cause" has no precedent in law
packets and send them to the other person’s cellphone where they are or jurisprudence and that whether there is due cause or not is left to the
refitted together and heard. The latter’s spoken reply is sent to the caller in discretion of the police. Replying to this, the Solicitor General asserts that
the same way. To be connected by the service provider, the sender reveals Congress is not required to define the meaning of every word it uses in
his cellphone number to the service provider when he puts his call drafting the law.
through. He also reveals the cellphone number to the person he calls. The
other ways of communicating electronically follow the same basic pattern. Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to
In Smith v. Maryland,94 cited by the Solicitor General, the United States hint at the meaning it intends for the phrase "due cause." The Solicitor
Supreme Court reasoned that telephone users in the ‘70s must realize that General suggests that "due cause" should mean "just reason or motive"
they necessarily convey phone numbers to the telephone company in and "adherence to a lawful procedure." But the Court cannot draw this
order to complete a call. That Court ruled that even if there is an meaning since Section 12 does not even bother to relate the collection of
expectation that phone numbers one dials should remain private, such data to the probable commission of a particular crime. It just says, "with
expectation is not one that society is prepared to recognize as reasonable. due cause," thus justifying a general gathering of data. It is akin to the use
of a general search warrant that the Constitution prohibits.
In much the same way, ICT users must know that they cannot
communicate or exchange data with one another over cyberspace except Due cause is also not descriptive of the purpose for which data collection
through some service providers to whom they must submit certain traffic will be used. Will the law enforcement agencies use the traffic data to
data that are needed for a successful cyberspace communication. The identify the perpetrator of a cyber attack? Or will it be used to build up a
conveyance of this data takes them out of the private sphere, making the case against an identified suspect? Can the data be used to prevent
expectation to privacy in regard to them an expectation that society is not cybercrimes from happening?
prepared to recognize as reasonable.
The authority that Section 12 gives law enforcement agencies is too
sweeping and lacks restraint. While it says that traffic data collection
should not disclose identities or content data, such restraint is but an This Court is mindful that advances in technology allow the government
illusion. Admittedly, nothing can prevent law enforcement agencies and kindred institutions to monitor individuals and place them under
holding these data in their hands from looking into the identity of their surveillance in ways that have previously been impractical or even
sender or receiver and what the data contains. This will unnecessarily impossible. "All the forces of a technological age x x x operate to narrow
expose the citizenry to leaked information or, worse, to extortion from the area of privacy and facilitate intrusions into it. In modern terms, the
certain bad elements in these agencies. capacity to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society." 96 The Court
Section 12, of course, limits the collection of traffic data to those must ensure that laws seeking to take advantage of these technologies be
"associated with specified communications." But this supposed limitation is written with specificity and definiteness as to ensure respect for the rights
no limitation at all since, evidently, it is the law enforcement agencies that that the Constitution guarantees.
would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," Section 13 of the Cybercrime Law
choosing whatever specified communication they want. This evidently
threatens the right of individuals to privacy. Section 13 provides:

The Solicitor General points out that Section 12 needs to authorize Sec. 13. Preservation of Computer Data. — The integrity of traffic data and
collection of traffic data "in real time" because it is not possible to get a subscriber information relating to communication services provided by a
court warrant that would authorize the search of what is akin to a "moving service provider shall be preserved for a minimum period of six (6) months
vehicle." But warrantless search is associated with a police officer’s from the date of the transaction. Content data shall be similarly preserved
determination of probable cause that a crime has been committed, that for six (6) months from the date of receipt of the order from law
there is no opportunity for getting a warrant, and that unless the search is enforcement authorities requiring its preservation.
immediately carried out, the thing to be searched stands to be removed.
These preconditions are not provided in Section 12. Law enforcement authorities may order a one-time extension for another
six (6) months: Provided, That once computer data preserved, transmitted
The Solicitor General is honest enough to admit that Section 12 provides or stored by a service provider is used as evidence in a case, the mere
minimal protection to internet users and that the procedure envisioned by furnishing to such service provider of the transmittal document to the
the law could be better served by providing for more robust safeguards. Office of the Prosecutor shall be deemed a notification to preserve the
His bare assurance that law enforcement authorities will not abuse the computer data until the termination of the case.
provisions of Section 12 is of course not enough. The grant of the power to
track cyberspace communications in real time and determine their sources The service provider ordered to preserve computer data shall keep
and destinations must be narrowly drawn to preclude abuses. 95 confidential the order and its compliance.

Petitioners also ask that the Court strike down Section 12 for being Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue
violative of the void-for-vagueness doctrine and the overbreadth doctrine. deprivation of the right to property. They liken the data preservation order
These doctrines however, have been consistently held by this Court to that law enforcement authorities are to issue as a form of garnishment of
apply only to free speech cases. But Section 12 on its own neither regulates personal property in civil forfeiture proceedings. Such order prevents
nor punishes any type of speech. Therefore, such analysis is unnecessary.
internet users from accessing and disposing of traffic data that essentially judicial function. But it is well-settled that the power to issue subpoenas is
belong to them. not exclusively a judicial function. Executive agencies have the power to
issue subpoena as an adjunct of their investigatory powers. 98
No doubt, the contents of materials sent or received through the internet
belong to their authors or recipients and are to be considered private Besides, what Section 14 envisions is merely the enforcement of a duly
communications. But it is not clear that a service provider has an obligation issued court warrant, a function usually lodged in the hands of law
to indefinitely keep a copy of the same as they pass its system for the enforcers to enable them to carry out their executive functions. The
benefit of users. By virtue of Section 13, however, the law now requires prescribed procedure for disclosure would not constitute an unlawful
service providers to keep traffic data and subscriber information relating to search or seizure nor would it violate the privacy of communications and
communication services for at least six months from the date of the correspondence. Disclosure can be made only after judicial intervention.
transaction and those relating to content data for at least six months from
receipt of the order for their preservation. Section 15 of the Cybercrime Law

Actually, the user ought to have kept a copy of that data when it crossed Section 15 provides:
his computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep. Sec. 15. Search, Seizure and Examination of Computer Data. — Where a
search and seizure warrant is properly issued, the law enforcement
At any rate, as the Solicitor General correctly points out, the data that authorities shall likewise have the following powers and duties.
service providers preserve on orders of law enforcement authorities are
not made inaccessible to users by reason of the issuance of such orders. Within the time period specified in the warrant, to conduct interception, as
The process of preserving data will not unduly hamper the normal defined in this Act, and:
transmission or use of the same.
(a) To secure a computer system or a computer data storage
Section 14 of the Cybercrime Law medium;

Section 14 provides: (b) To make and retain a copy of those computer data secured;

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, (c) To maintain the integrity of the relevant stored computer data;
upon securing a court warrant, shall issue an order requiring any person or
service provider to disclose or submit subscriber’s information, traffic data
(d) To conduct forensic analysis or examination of the computer
or relevant data in his/its possession or control within seventy-two (72)
data storage medium; and
hours from receipt of the order in relation to a valid complaint officially
docketed and assigned for investigation and the disclosure is necessary and
(e) To render inaccessible or remove those computer data in the
relevant for the purpose of investigation.
accessed computer or computer and communications network.
The process envisioned in Section 14 is being likened to the issuance of a
subpoena. Petitioners’ objection is that the issuance of subpoenas is a
Pursuant thereof, the law enforcement authorities may order any person deprivation of property without due process of law. But, as already stated,
who has knowledge about the functioning of the computer system and the it is unclear that the user has a demandable right to require the service
measures to protect and preserve the computer data therein to provide, as provider to have that copy of the data saved indefinitely for him in its
is reasonable, the necessary information, to enable the undertaking of the storage system. If he wanted them preserved, he should have saved them
search, seizure and examination. in his computer when he generated the data or received it. He could also
request the service provider for a copy before it is deleted.
Law enforcement authorities may request for an extension of time to
complete the examination of the computer data storage medium and to Section 19 of the Cybercrime Law
make a return thereon but in no case for a period longer than thirty (30)
days from date of approval by the court. Section 19 empowers the Department of Justice to restrict or block access
to computer data:
Petitioners challenge Section 15 on the assumption that it will supplant
established search and seizure procedures. On its face, however, Section Sec. 19. Restricting or Blocking Access to Computer Data.— When a
15 merely enumerates the duties of law enforcement authorities that computer data is prima facie found to be in violation of the provisions of
would ensure the proper collection, preservation, and use of computer this Act, the DOJ shall issue an order to restrict or block access to such
system or data that have been seized by virtue of a court warrant. The computer data.
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 Petitioners contest Section 19 in that it stifles freedom of expression and
existing search and seizure rules but merely supplements them. violates the right against unreasonable searches and seizures. The Solicitor
General concedes that this provision may be unconstitutional. But since
Section 17 of the Cybercrime Law laws enjoy a presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right mentioned.
Section 17 provides:
Computer data99 may refer to entire programs or lines of code, including
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods malware, as well as files that contain texts, images, audio, or video
as provided in Sections 13 and 15, service providers and law enforcement recordings. Without having to go into a lengthy discussion of property
authorities, as the case may be, shall immediately and completely destroy rights in the digital space, it is indisputable that computer data, produced
the computer data subject of a preservation and examination. or created by their writers or authors may constitute personal property.
Consequently, they are protected from unreasonable searches and
Section 17 would have the computer data, previous subject of preservation seizures, whether while stored in their personal computers or in the
or examination, destroyed or deleted upon the lapse of the prescribed service provider’s systems.
period. The Solicitor General justifies this as necessary to clear up the
service provider’s storage systems and prevent overload. It would also Section 2, Article III of the 1987 Constitution provides that the right to be
ensure that investigations are quickly concluded. secure in one’s papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable.
Petitioners claim that such destruction of computer data subject of Further, it states that no search warrant shall issue except upon probable
previous preservation or examination violates the user’s right against cause to be determined personally by the judge. Here, the Government, in
effect, seizes and places the computer data under its control and One hundred thousand pesos (Php100,000.00) or both, for each and every
disposition without a warrant. The Department of Justice order cannot noncompliance with an order issued by law enforcement authorities.
substitute for judicial search warrant.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The
The content of the computer data can also constitute speech. In such a argument is that the mere failure to comply constitutes a legislative finding
case, Section 19 operates as a restriction on the freedom of expression of guilt, without regard to situations where non-compliance would be
over cyberspace. Certainly not all forms of speech are protected. reasonable or valid.
Legislature may, within constitutional bounds, declare certain kinds of
expression as illegal. But for an executive officer to seize content alleged to But since the non-compliance would be punished as a violation of
be unprotected without any judicial warrant, it is not enough for him to be Presidential Decree (P.D.) 1829, 102 Section 20 necessarily incorporates
of the opinion that such content violates some law, for to do so would elements of the offense which are defined therein. If Congress had
make him judge, jury, and executioner all rolled into one. 100 intended for Section 20 to constitute an offense in and of itself, it would
not have had to make reference to any other statue or provision.
Not only does Section 19 preclude any judicial intervention, but it also
disregards jurisprudential guidelines established to determine the validity P.D. 1829 states:
of restrictions on speech. Restraints on free speech are generally evaluated
on one of or a combination of three tests: the dangerous tendency Section 1. The penalty of prision correccional in its maximum period, or a
doctrine, the balancing of interest test, and the clear and present danger fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any
rule.101 Section 19, however, merely requires that the data to be blocked person who knowingly or willfully obstructs, impedes, frustrates or delays
be found prima facie in violation of any provision of the cybercrime law. the apprehension of suspects and the investigation and prosecution of
Taking Section 6 into consideration, this can actually be made to apply in criminal cases by committing any of the following acts:
relation to any penal provision. It does not take into consideration any of
the three tests mentioned above.
x x x.

The Court is therefore compelled to strike down Section 19 for being

Thus, the act of non-compliance, for it to be punishable, must still be done
violative of the constitutional guarantees to freedom of expression and
"knowingly or willfully." There must still be a judicial determination of guilt,
against unreasonable searches and seizures.
during which, as the Solicitor General assumes, defense and justifications
for non-compliance may be raised. Thus, Section 20 is valid insofar as it
Section 20 of the Cybercrime Law applies to the provisions of Chapter IV which are not struck down by the
Court.
Section 20 provides:
Sections 24 and 26(a) of the Cybercrime Law
Sec. 20. Noncompliance. — Failure to comply with the provisions of
Chapter IV hereof specifically the orders from law enforcement authorities Sections 24 and 26(a) provide:
shall be punished as a violation of Presidential Decree No. 1829 with
imprisonment of prision correctional in its maximum period or a fine of
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 Further, the formulation of the cybersecurity plan is consistent with the
Coordinating Center (CICC), under the administrative supervision of the policy of the law to "prevent and combat such [cyber] offenses by
Office of the President, for policy coordination among concerned agencies facilitating their detection, investigation, and prosecution at both the
and for the formulation and enforcement of the national cybersecurity domestic and international levels, and by providing arrangements for fast
plan. and reliable international cooperation." 105 This policy is clearly adopted in
the interest of law and order, which has been considered as sufficient
Sec. 26. Powers and Functions.– The CICC shall have the following powers standard.106 Hence, Sections 24 and 26(a) are likewise valid.
and functions:
WHEREFORE, the Court DECLARES:
(a) To formulate a national cybersecurity plan and extend immediate
assistance of real time commission of cybercrime offenses through a 1. VOID for being UNCONSTITUTIONAL:
computer emergency response team (CERT); x x x.
a. Section 4(c)(3) of Republic Act 10175 that penalizes
Petitioners mainly contend that Congress invalidly delegated its power posting of unsolicited commercial communications;
when it gave the Cybercrime Investigation and Coordinating Center (CICC)
the power to formulate a national cybersecurity plan without any sufficient b. Section 12 that authorizes the collection or recording
standards or parameters for it to follow. of traffic data in real-time; and

In order to determine whether there is undue delegation of legislative c. Section 19 of the same Act that authorizes the
power, the Court has adopted two tests: the completeness test and the Department of Justice to restrict or block access to
sufficient standard test. Under the first test, the law must be complete in suspected Computer Data.
all its terms and conditions when it leaves the legislature such that when it
reaches the delegate, the only thing he will have to do is to enforce 2. VALID and CONSTITUTIONAL:
it.1avvphi1 The second test mandates adequate guidelines or limitations in
the law to determine the boundaries of the delegate’s authority and
a. Section 4(a)(1) that penalizes accessing a computer
prevent the delegation from running riot. 103
system without right;

Here, the cybercrime law is complete in itself when it directed the CICC to
b. Section 4(a)(3) that penalizes data interference,
formulate and implement a national cybersecurity plan. Also, contrary to
including transmission of viruses;
the position of the petitioners, the law gave sufficient standards for the
CICC to follow when it provided a definition of cybersecurity.
c. Section 4(a)(6) that penalizes cyber-squatting or
acquiring domain name over the internet in bad faith to
Cybersecurity refers to the collection of tools, policies, risk management
the prejudice of others;
approaches, actions, training, best practices, assurance and technologies
that can be used to protect cyber environment and organization and user’s
assets.104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.
d. Section 4(b)(3) that penalizes identity theft or the use n. Section 24 that establishes a Cybercrime Investigation
or misuse of identifying information belonging to and Coordinating Center (CICC);
another;
o. Section 26(a) that defines the CICC’s Powers and
e. Section 4(c)(1) that penalizes cybersex or the lascivious Functions; and
exhibition of sexual organs or sexual activity for favor or
consideration; p. Articles 353, 354, 361, and 362 of the Revised Penal
Code that penalizes libel.
f. Section 4(c)(2) that penalizes the production of child
pornography; Further, the Court DECLARES:

g. Section 6 that imposes penalties one degree higher 1. Section 4(c)(4) that penalizes online libel as VALID and
when crimes defined under the Revised Penal Code are CONSTITUTIONAL with respect to the original author of the post;
committed with the use of information and but VOID and UNCONSTITUTIONAL with respect to others who
communications technologies; simply receive the post and react to it; and

h. Section 8 that prescribes the penalties for cybercrimes; 2. Section 5 that penalizes aiding or abetting and attempt in the
commission of cybercrimes as VA L I D and CONSTITUTIONAL only
i. Section 13 that permits law enforcement authorities to in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
require service providers to preserve traffic data and Illegal Interception, Section 4(a)(3) on Data Interference, Section
subscriber information as well as specified content data 4(a)(4) on System
for six months;
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on
j. Section 14 that authorizes the disclosure of computer Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)
data under a court-issued warrant; (2) on Computer-related Fraud, Section 4(b)(3) on Computer-related
Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and
k. Section 15 that authorizes the search, seizure, and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child Pornography,
examination of computer data under a court-issued 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online
warrant; Libel.1âwphi1

l. Section 17 that authorizes the destruction of previously Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct
preserved computer data after the expiration of the application of Section 7 that authorizes prosecution of the offender under
prescribed holding periods; both the Revised Penal Code and Republic Act 10175 to actual cases, WITH
THE EXCEPTION of the crimes of:
m. Section 20 that penalizes obstruction of justice in
relation to cybercrime investigations; 1. Online libel as to which, charging the offender under both
Section 4(c)(4) of Republic Act 10175 and Article 353 of the
 Revised Penal Code constitutes a violation of the proscription
against double jeopardy; as well as

2. Child pornography committed online as to which, charging the

offender under both Section 4(c)(2) of Republic Act 10175 and
Republic Act 9775 or the Anti-Child Pornography Act of 2009 also
constitutes a violation of the same proscription, and, in respect to
these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.