A Tale of Two Countries: Thailand and the Philippines on Freedom of Expression
On 15 January 2013, the Philippine Supreme Court will hear oral arguments on the case challenging the constitutionality of Republic Act 10175, commonly known as the Cybercrime Prevention Act, which was adopted last September 2012. At least 15 petitions have been filed with the Supreme Court from various groups challenging this law. The question being asked now is whether or not the Supreme Court will uphold the Philippine’s tradition of free speech.
One of the key contentions of the petitioners is that the law violates the right to freedom of expression, as guaranteed under Article 3, Section 4 of the Philippine Constitution and Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Philippines has been party since 1986. This is because the law appears to impose increased penalties on the crime of libel under the Philippines’ Revised Penal Code (RPC).
Criminalizing defamation or libel is frowned upon under international human rights law. The UN Human Rights Committee, a body of independent experts tasked to monitor the implementation of the ICCPR has taken the view that States should decriminalize defamation. The Committee has emphasized that to comply with their obligations under the ICCPR, States may only apply the criminal law in the most serious defamation cases and even in these cases, “imprisonment is never an appropriate penalty.”
Contrary to these international standards, in the Philippines under the RPC, a person found guilty of libel, a form of defamation, may be imprisoned from six months to four years, and imposed a fine. These penalties are in addition to any liability the person may incur as a result of any civil action that may be brought by the offended party. The Cybercrime Prevention Act compounds the already problematic provisions of the RPC by providing for even stronger penalties for libel. Under Section 6 of the new law, when a person commits a crime found in the RPC using information and communication technologies, he or she will incur a penalty one degree higher than what is provided under the RPC. Hence, a person found guilty of committing libel online may be subject to imprisonment from six to nine years.
The Cybercrime Prevention Act is a type of law that is not unique to the Philippines. Other countries have been using similar laws to stifle public debate and undermine freedom of expression. One of the Philippines’ closest neighbors, Thailand, has its own Computer-Related Offences Commission Act. Since its enactment in 2007, this law has been criticized both nationally and internationally for being used as a tool to unduly limit freedom of opinion and expression in the country.
One of the most well-known cases under Thailand’s Computer-Related Offences Commission Act is that of Chiranuch Premchaiporn, the web master of the news website www.prachatai.com. She was charged under Sections 14 and 15 of the law for the appearance of ten messages alleged to be defamatory to the monarchy that were posted on the web board of Prachatai. Chiranuch Premchaiporn was not the author of these messages nor was she the one who posted these messages. She merely managed the website where these messages were posted. Section 14 of the Thai law penalizes the importation to a computer system of false data in a manner that is likely to damage the country’s security or cause panic to the public. Section 15 makes criminally liable a service provider who “intentionally supports or consents” to the commission of the offences under Section 14.
Unlike Thailand’s law, the Philippines’ Cybercrime Prevention Act does not carry a provision expressly making criminally liable Internet service providers (ISPs) who “intentionally support or consent” to the commission of the crime. However, Section 5(a) of the Philippine law holds liable any person who “willfully abets or aids” in the commission of the crime. Hence, it is similar to the Thai law, since it does not define what amounts to “willfully aiding or abetting”. Because of this ambiguity, it is possible that a web manager in the Philippines may be held liable under Section 5(a) of the law for failing to take down an allegedly libelous post on a web board, as what happened in Thailand.
The Philippine law, therefore, is similar to the Thai law in that it appears to make liable web masters, ISPs or intermediaries for content distributed or created by their users. According to Frank La Rue, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, such a liability provision “severely undermines the enjoyment of the right to freedom of opinion and expression”. This leads to “self-protective and over-broad censorship, often without transparency and due process of law.”
Thailand’s Computer-Related Crimes Act, to this day, remains in force as an affront to the guarantee of human rights in the country. It has become a tool for silencing voices critical of government policies. The case of Chiranuch Premchaiporn has no doubt cast a chilling effect upon ISPs and web masters in Thailand.
The Philippines still has a chance to rid itself of this repellent kind of law as the Supreme Court examines the merits of the case this month. Hopefully, the Court will look to what has been happening in neighboring countries and take into consideration international human rights law standards, including the country’s international human rights obligations.
In the ASEAN region, the Philippines has done better than most others to respect and protect the right to freedom of expression and opinion. Laws such as the Cybercrime Prevention Act serve to undermine this performance. The Court should therefore play its important role in safeguarding human rights and the rule of law and strike down this repellent law.
Ms. Emerlynne Gil-Liu is the International Legal Adviser of the International Commission of Jurists (ICJ), a non-governmental organization headquartered in Geneva and devoted to promoting the understanding and observance of the rule of law and legal protection of human rights throughout the world. Ms. Gil-Liu holds office at the Asia-Pacific regional office of the ICJ in Bangkok, Thailand.