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Philippines passes law that criminalises cybersex

The Philippines, which has historically never filtered online activity, has passed an act that outlaws a long list of offences including cybersex and libel, at the same time handing the government powers to block site access.

President Benigno Aquino III has signed the Cybercrime Prevention Act of 2012-- which criminalises a wide range of cyber activities from hacking and identity theft to cybersquatting and spamming -- and announced the launch of the Office of Cybercrime. It is, however, the vague terms used to outlaw cybersex and the update of the Revised Penal Code to criminalise libel communication via computers or "any other similar means which may be devised in the future", that is of most concern. Like Acta and Ceta, the act is seeking to control and curtail certain cyber behaviour through criminalisation -- unlike Acta or Ceta, it is targeting nearly any cyber activity it can think of, referencing them with some of the vaguest terminology imaginable and thus leaving potential innocent parties open to investigation and action.

Cybersex crimes, which could result in imprisonment of between six and ten years or a fine of between around £3,000 and £15,000, are defined as: "The wilful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favour or consideration". There are a few problems with the terms used here. This part of the act (which also covers child pornography) is designed to combat the Philippines' huge problem with people trafficking and individuals being forced into cybersex activities for the profit of a ringleader.

According to the country's Department of Social Welfare and Development,60,000 to 600,000 street children are victims of child prostitution. However, if the act is designed to combat this problem, the use of the term "wilful" is problematic. Victims of the crimes in question are by no means "wilful", so the term is either included for other purposes or could potentially leave real victims vulnerable to criminal charges. It suggests mutually willing participants, not just those coerced to take part in profitable applications, could be considered criminally liable. The terms "for favour and consideration" are also vague -- it is not directly talking about partaking in cybersex for money, and so could be used to target ordinary people with no involvement in the sex trade.

While "Unsolicited Commercial Communications" are given three get out of jail free clauses that moderate the enforcement of the law, the libel entry, along with the cybersex one, has none. It simply adds it to the roster of other, traditional means of communications that could result in criminal punishment. The United Nations Human Rights Commission has already deemed the Philippines' libel laws "excessive" in the past, calling on it to implement reform of a system that is "incompatible with the freedom of expression protected under international human rights law". Rather than heeding this call, the government has instead opted to cast penalties for online libel "one degree higher than provided for by the… libel committed in traditional media".

Furthermore, in the recent Philippines case of Lacsa v. Intermediate Appellate Court, the definition of libel became even broader and more subject to interpretation, by extending it to include inference, irony and ridicule: "Words calculated to induce suspicion are sometimes more effective to destroy reputation than false charges directly made. Ironical and metaphorical language is a favoured vehicle for slander. A charge is sufficient if the words are calculated to induce the hearers to suppose and understand that the person or persons against whom they were uttered were guilty of certain offenses, or are sufficient to impeach their honesty, virtue, or reputation, or to hold the person or persons up to public ridicule."

It seems the act's libel clause was also hastily added to the roster at the last minute by Senator Vicente Sotto III, who says it will make the public "more cautious online".

In contrast, ruling on the Freedom of Information act has been dragging. The International Federation of Journalists said it is "greatly concerned that the inclusion of online content in the act could be used to curtail freedom of expression online. We are further concerned that the government of the Philippines continues to delay the passing of the FOI bill, which clearly stands against their stated commitment to press freedom."

Sotto, who has repeatedly been lambasted online for allegedly plagiarising his speeches, said a few weeks before the act was passed or the libel inclusion mentioned: "There are groups who are professional faultfinders who have nothing to do but sit in front of their computers and dig for faults… once the cybercrime bill is enacted into law, they will be accountable for what they say or write."

Philippine blogger Raïssa Robles commented: "Libel was never in the Senate and House versions of the cybercrime bill prepared by the respective committees of both chambers. The section on libel therefore never underwent any congressional public hearing… The inclusion of libel was never reflected in any piece of legislative document that was made publicly available."

Robles' concerns reflect those of the general public -- the "cut and paste" law does not take into account any of the nuances of online communication versus traditional. "Can the one who 'shares' or 'likes' on Facebook or re-tweets on Twitter the offending piece now be held liable for libel? Can someone who posts a comment agreeing with the alleged libellous material also be sued?" writes Robles. Indeed, the law makes no effort to differentiate between bloggers, domain owners or site moderators -- meaning anyone could be at risk.

Raymond Palatino, a representative for the Kabataan Partylist (the only youth party list in the Philippines congress) called the law "a step backward in our long-term aim of decriminalising libel" and warned that it could be used to control free speech and reign in government criticism.

"Under this law, politicians can easily file charges against 'hostile and combative' critics and witnesses by claiming that virtual protesters have threatened their life and property. Censorship will lead to repression once an activist or reform advocate has been labelled a cybercriminal.

"Woe to the National Bureau of Investigation agent and the Department of Justice prosecutor who will be swamped with cybercrime cases filed by showbiz actors, politicians, business tycoons, and other untouchables who want to punish their online critics. Instead of dealing with cyberwarfare, our agents will be investigating online libel."

The Burgos Media Centre shares the sentiment, responding to the passing of the act with this statement: "The presence of the decayed idea of libel in the crimes enlisted in the bill may be used to attack not only the cyberpress members but also to the progressive netizens like activists and political bloggers. Through this law, the Trapos [traditional politicians] can now easily file charges against critics by claiming that cyber journalists have threatened their life and property."