Justice official turns “cyber-bullying” into a criminal offense without Congress’ approval

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By Raïssa Robles

Cyber-bullying was never mentioned in the Cybercrime Prevention Law or Republic Act No. 10175 that the Supreme Court upheld as constitutional.

And yet the draft Implementing Rules and Regulations (IRR) that Justice Assistant Secretary Geronimo Sy released to the media not only adds a new section on cyber-bullying. The IRR even takes pains to point out that “if committed through a computer system,” the “penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 10627 (the Anti-Bullying Law).

I obtained my copy of the draft IRR from Isagani de Castro, editor-in-chief of ABS-CBNNews.com

I was highly disturbed by this insertion for two reasons. First, two senators had openly claimed to be victims of cyber-bullying.

During the height of the debate on the passage of a Reproductive Health Law, Senator Vicente Sotto claimed:

“Perhaps I’ve been the first senator in the Philippines to fall victim to cyber-bullying,” said Sotto, who stood up on the floor to answer the continued attack he has been receiving in social networking sites.

“In blogs, Facebook, and Twitter, I became the center of ridicule and malicious attacks from various individuals, especially those backing the RH Bill,” he said, referring to the Reproductive Health bill (RH).

“This might be part of their strategies, with their millions of funds. If you can’t kill the message, kill the messenger,” said Sotto, who is opposing the passage of the bill.

Senator Nancy Binay also claimed likewise during her senatorial campaign.

Is this a way of responding to the complaints of Senators Sotto and Binay, I wondered?

The second reason I was highly disturbed was that Assec Sy appeared to be usurping the lawmaking powers of Congress.

And so I asked University of the Philippines law professor Harry Roque to comment on what Assec Sy’s office did. I asked Atty. Roque, who practices criminal law in the Philippines and abroad, whether my reading was correct. I also asked him whether an IRR could have more sections than what the original law contains.

Roque agreed with my conclusion. He told me that an IRR cannot contain more sections than the original law. And if this happens, he said this would be “a case of executive legislation.”

In other words, it’s illegal.

Hmmm. The last time we had “executive legislation” was during the Marcos dictatorship when President-for-Life Ferdinand Marcos gave himself decree-making powers.

I wondered why Justice Assec Sy had inserted cyber-bullying.

I phoned him, but midway through the interview, he told me he had to attend a meeting. Could I please e-mail my questions about the IRR to him, he said.

I thought it more prudent – as a journalist – to write publicly about my concerns since e-mailing him might be misconstrued as agreeing with the Cybercrime Law. To this day, I believe the entire law should be trashed and another one drafted in its place. One that would nurture the budding use of the Internet as a democratic weapon against corruption and misgovernance, while keeping the youth protected from being abused online by sex predators.

Why the insertion of “cyber-bullying” should worry you 

The Philippines passed an Anti-Bullying Act last year. But this was not a law meant to send anyone in jail. It was meant to curb bullying in elementary and high schools. It recognized for the first time the phenomenon of cyber-bullying or “bullying done through the use of technology or any electronic means.”

However – and this I would like to emphasize – the law did not specify any punishment for bullies, who are presumed to be fellow students of the victims. The most serious penalty meted out by the law is suspension of operations of any private school that fails to comply with the anti-bullying law by adopting anti-bullying policies and procedures.

Now the draft IRR of the Cybercrime Law from Assec Sy’s office specifies that if the bullying is done using a computer system, “the penalty to be imposed shall be one (1) degree higher.”

This insertion, in effect, amends the Anti-Bullying Act of 2013. Instead of this law imposing a purely administrative sanction, the draft IRR of the Cybercrime Law implies that cyber-bullying has become a criminal offense – WHEN IT IS NOT, UNDER THE LAW THAT CONGRESS PASSED LAST YEAR. The draft IRR of the Cybercrime Law doesn’t also explain what “one degree higher means” in the case of the Anti-Bullying Act of 2013, which only threatens school owners with closure of their schools but never with a jail sentence.

Justice Assec Geronimo Sy’s draft IRR in effect “legislates” a cyber-bullying Law.

Congress enacted last year an Anti-Bullying Act that only affects the student population from elementary to high school. As I said, this Act punishes cyber-bullying but not with a jail sentence. Because we are talking here of minors committing the offense. And minors – under a separate law amending the Juvenile Justice System or RA 10630 – cannot be jailed for crimes they commit because they are considered “below the age of criminal responsibility.”

Now, bear this in mind as you read below the two sections that are in the draft IRR that mention bullying:

The first mention is under the section, “Definition of Terms”:

a)Bullying refers to the unlawful or prohibited acts defied and punishable by Republic Act No. 10627 or the Anti-Bullying Act of 2013, committed through the use of technology or any electronic means.

Please note that there is no “bullying” under the “Definition of Terms” of the Cybercrime Law or RA 10175.

The second mention of bullying in the draft IRR is under “Other Offenses” after “Cybersquatting”, “Cybersex” and “Libel”. But this time, it is called “Cyber-Bullying”:

4.Cyber-Bullying – Any person found guilty of Bullying shall be punished with the penalties as enumerated in Republic Act No. 10627 or the “Anti-Bullying Act of 2013”: Provided, that the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 10627, if committed through a computer system.

The way this section reads, you could reasonably conclude that cyber-bullying is an offense that can be committed by “any person” and not just by school kids. And the penalties would be harsher than those imposed by the Anti-Bullying Act of 2013.

In other words, we will have a new law enacted through a simple IRR. A law that could have a chilling effect on netizens who could be accused of cyber-bullying senators.

I wonder what other legal horrors the IRR of the Cybercrime Law – draft or otherwise – still contain. Knowing how exuberant Assec Sy is with his attempts to impose a draconian Cybercrime Law, the IRR will have to be subjected to a microscopic analysis.

You can refer to the following pertinent documents below:

The draft IRR of the Cybercrime Law

The Cybercrime Law (RA 10175)

The Anti-Bullying Act of 2013 (Republic Act 10627) 

The IRR of the Anti-Bullying Act of 2013

Amended law on minors in conflict with the law (Republic Act 10630)