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The much-awaited day for oral arguments against the Cybercrime Prevention Act of 2012 last Tuesday, 15 January, started very early for me. While I was asked  the week before to bring a wide screen Powerpoint projector to the Supreme Court, I was only told on the same day to set it up as early as 12pm. I was told this at 11am. So while I would have wanted to spend time with fellow netizens encamped at the corner of Taft and Padre Faura, I did not have the time to do so.

The wait seemed like a very long time. While it was already the tenth time for me to appear before the Supreme Court, it always seems like the first. First to arrive to join me at the counsel’s table was Atty. Rodel Cruz of the Philippine Bar Association who like me, had had very little sleep. He argued against the “take-down” clause, Section 19 of the law. He was with Atty. Jayjay Disisni. Rep Neri Colmenares and Atty. Julius Matibag, both form the Bayan group of parties, arrived last, coming obviously from the rally outside.

The hearing started about 20 minutes late with Senator TG Guingona making an opening statement that lasted three minutes. He did not say much but his reference to the law being a “cyber-vampire” was a hit with the media.

I had three submissions; to wit: both the law’s provisions on libel and cyber sex were null and void on the basis of “overbreadth” and “void for vagueness”. By definition, a law is “overbroad” when it proscribes speech and its language is so broad that it could encompass even constitutionally protected speech. The test for vagueness, on the other hand, is when the statute leaves the public to guess as to exactly what is criminalized by a statute. The last submission was that our libel law is contrary to our treaty obligations under the International Covenant on Civil and Political Rights, which protects the right to freedom of expression.

I argued that the cyberlaw’s definition of libel was vague because it might encompass even protected speech. I asked, courtesy of screen shots from my former student Kevin San Agustin, whether retweets on Twitter and reposts and likes on Facebook could give rise to liability for libel. Likewise , I asked whether libelous remarks left at the comments portion of a blog could make the owner of the blog liable for libel. I then quoted from the Revised Penal Code’s provision on "who may be liable" for libel and asked if Internet service providers, telcos and social networking companies could be liable for libel. All these, I argued, cannot be ascertained from the face of the statute itself.

Anent the cybersex definition, instead of arguing with words, I showed three pictures which depicted a nude woman, a couple engaged in the sexual act, and many people engaging in sexual conduct and asked if the pictures were “lascivious” and whether the people posting online in exchange for a nominal consideration could be prosecuted for cybersex. The picture of the naked woman is on display at Moma in New York. The second, that of a couple engaging in sex, is exhibited at the Tate in London, while the third depicting couples engaging in sexual conduct is a permanent installation at the Sydney Opera House.

Four Justices subjected me to rigorous questioning which as I predicted, took about half the time of the almost five hours of oral argumentations. Justice Roberto Abad commented that the state has an interest to protect the reputation of the people. I did not disagree with this proposition but highlighted the UN view in the case of Adonis v. Philippines saying that this interest may be achieved through civil damages.

Justice Antonio Carpio asked if libel in the Revised Penal Code may have already become unconstitutional because of the New York Times vs Sullivan doctrine which declared that speech about public officers could only be actionable when said with actual knowledge of falsity or in utter disregard thereof; and the Constitutional right of the people to information on matters concerning public concerns. I answered affirmatively.

Justice Marvic Leonen asked about whether his former student, Christopher Lao, should be protected by the state from cyber bullying. He also asked if it was a legitimate state interest to protect minority views from the bullying of the majority. I replied that precisely, freedom of expression exists to protect unpopular speech since there is no need to protect popular speech. I also reiterated that victims could sue for damages, adding further that the absence of imprisonment as a consequence of breach of our civil laws does not make the civil code any less a law than the revised penal code.

Finally, Chief Justice Ma. Lourdes Sereno asked about suicides arising from cyber bullying and the fact that legislation should in fact result in the "chilling" of rights to prevent these instances. It was this question that elicited the most spirited response from me . Perhaps in a future column, I will reprint the transcript of how I answered this question. But from what I recall, I reiterated that the Bill of Rights protects freedom of expression because this is the foundation of all other freedoms guaranteed by the Constitution. The freedom is guaranteed because it enables us to know the truth, quoting from Abrams vs. US that the “best test of truth is the power of the thought to be accepted in the market place of ideas”. I also quoted US v. Bustos where the Court said that free expression is “the scalpel against government abscesses” and that the wound for hurt feelings for government officials is the “balm of a clear conscience”.

Nope, we do not know how the Court will decide the case. Nonetheless, I ended my day happy since it was a day spent defending a very important freedom.

by Harry Roque, reproduced with permission from http://harryroque.com/. The written pleadings in the case can be downloaded here; full recordings of the oral arguments can be downloaded from the Supreme Court website.