03/02/2020 G.R. No. 203335 But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute. The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence.67 As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any government threat of punishment regarding certain uses of the medium creates a chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly complex web of interaction on social media websites would give law enforcers such latitude that they could arbitrarily or selectively enforce the law. Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another comment did not? Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory story against Armand like "He beats his wife and children," then that should be considered an original posting published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic groups, races, or religions, exacerbating existing tension in their relationships. In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child pornography and facilitates the completion of transactions involving the dissemination of child pornography," does this make Google and its users aiders and abettors in the commission of child pornography crimes?68 Byars highlights a feature in the American law on child pornography that the Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer service from civil liability for child pornography as follows: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider and cannot be held civilly liable for any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene...whether or not such material is constitutionally protected.69 When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details. In this way, certain information is forwarded to third parties and unsolicited commercial communication could be disseminated on the basis of this information.70 As the source of this information, is the user aiding the distribution of this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible criminal prosecution. Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny. But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the freedom of expression. The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker may for instance have done all that is necessary to illegally access another party’s computer system but the security employed by the system’s lawful owner could frustrate his effort. Another hacker may have gained access to usernames and passwords of others but fail to use these because the system supervisor is alerted.72 If Section 5 that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the username and password could not file a complaint against him for attempted hacking. But this is not right. The hacker should not be freed from liability simply because of the vigilance of a lawful owner or his supervisor. Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may be true with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the commission of such acts can be identified with some reasonable certainty through adroit tracking of their works. Absent concrete proof of the same, the innocent will of course be spared. Section 6 of the Cybercrime Law Section 6 provides: Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be. Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the Solicitor General points out, there exists a substantial distinction between crimes committed through the use of information and communications technology and similar crimes committed using other means. In using the technology in question, the offender often evades identification and is able to reach far more victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes. Section 7 of the Cybercrime Law Section 7 provides: Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two https://lawphil.net/judjuris/juri2014/feb2014/gr_203335_2014.html 10/19