Legal Tech | What is cybersedition?

By Atty. Marlon Anthony “Marnie” Tonson

marnie

Technically, “cybersedition” is a misnomer. This much can be gleaned from the quick clarification that Secretary Rodolfo Salalima of the Department of Information and Communication Technology (DICT) made upon his announcement earlier this week of an imminent arrest for “cybersedition”.

“Remember: Rebellion, sedition are crimes under the Revised Penal Code,” he said. “You do sedition, you incite people via cyber or via the Internet, there is cyber-rebellion, there is cybersedition.”

The Cybercrime Prevention Act (Republic Act 10175) under Section 6 punishes all crimes defined and penalized by the Revised Penal Code (RPC) “committed by, through and with the use of information and communications technologies.” This law adds further that “the penalty to be imposed shall be one degree higher.”

Now, the RPC does indeed define the felony known as “sedition” in Article 139. But “cybersedition” cannot be based on this “basic” sedition simply because modern technology does not yet allow persons to “rise tumultuously” in cyberspace. Perhaps someday in the future of virtual reality? But certainly not today.

Cybersedition, therefore, can only pertain to two other felonies in the RPC — Inciting a Rebellion (Article 138) and Inciting to Sedition (Article 142). The term “cyberincitement”, however, just does not have the same punch or headline-grabbing appeal.

Incitement felonies

The word “incite” comes from the Latin word “citare” which means to urge, rouse, or excite. Hence, inciting to sedition calls on persons to do seditious acts while inciting a rebellion calls upon persons to commit acts of rebellion. The RPC specifically defines what constitute acts of sedition and of rebellion.

“Incitement to Rebellion” must be done without actually taking arms or being in open hostility against the government, otherwise the proper charge would be the crime of rebellion.

“Incitement to Sedition” also requires the perpetrator not to take “any direct part in the crime of sedition”, otherwise he must be properly charged with sedition.

With regard to rebellion, the felony of incitement is done by means of “speeches, proclamations, writings, emblems, or other representations”. These are also pretty much the same primary means to commit the felony of “Inciting to Sedition”, but with cartoons added to the mix.

All these means of incitement — to sedition and to rebellion — can very well be done online as well as offline.

Scurrilous cyberlibel

Aside from the primary means of committing “Inciting to Sedition”, Article 142 of the RPC provides for the secondary means of committing this same felony.

That is, the same article punishes “any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels.” Again, all these secondary means can be executed online.

This same RPC provision explicitly defines seditious words and scurrilous libels as those which:

1. Are against the government or any of the duly constituted authorities thereof;

2. Tend to disturb or obstruct any lawful officer in executing the functions of his office;

3. Tend to instigate others to cabal and meet together for unlawful purposes;

4. Suggest or incite rebellious conspiracies or riots; and

5. Lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the government.

Unconstitutional?

Now, online scurrilous libel or scurrilous cyberlibel is very troublesome for free expression advocates for three reasons.

First reason: unlike the felonies of using the primary means of incitement, scurrilous libel does not require rebellion or sedition to happen at all. In other words, without a resultant rebellion or sedition, there can be no “inciting to…” felony committed — except for “Inciting to Sedition” through the secondary means of scurrilous libel.

Second reason: almost anything online can be construed as being “against the government or the duly constituted authorities”, or “suggest rebellious conspiracies”, or “tend to disturb the peace of the community, the safety and order of the government”.

Third reason: the limitations imposed by the Supreme Court on cyberlibel do not extend nor apply to scurrilous cyberlibel. The SC in its 2014 decision in the case of Disini v. Executive Secretary ruled that criminal liability for cyberlibel under Section 4(c)(4) of the Cybercrime Prevention Act falls upon the person who had originally posted online the libelous post, and not upon those who merely shared or liked that post.

But someone who shares or retweets a scurrilous cyberlibel “against the government or the duly constituted authorities” cannot avail of the same protection afforded by the high court.

Cyberlibel pertains to the felony in the RPC found under Title 13, “Crimes Against Honor”. But “scurrilous cyberlibel” (as a type of “cybersedition”) pertains to the felony of “Inciting to Sedition” under Title 3 of the RPC, “Crimes Against Public Order”.

For these reasons, there are constitutional grounds to assail the felony of “Inciting to Sedition” by means of “scurrilous libel”, as well as “cybersedition” through the application of Section 6 of the Cybercrime Prevention Act to this particular method of commission (“Online Scurrilous Libel” or “Scurrilous Cyberlibel”).

Content regulation of speech is not favored under the 1987 Constitution. Moreover, Article 142 of the RPC can be attacked as being void for vagueness in violation of the equal protection clause of the Constitution.

The author is a founding co-convenor of the Philippine Internet Freedom Alliance (PIFA) and is a member of its legal team