Are these lascivious?
That’s the question lawyer Harry Roque posed to the Supreme Court justices to underscore the dangers of the Cybercrime Law. He referred to the three photos posted here:
There were a number of compelling issues that were highlighted in last Tuesday’s oral arguments on the Cybercrime Law (R.A. 10175) at the Supreme Court. One was its being unconstitutional because of overbreath as forwarded by Atty. Harry. Roque.
The online Free Dictionary explains that “In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment.”
The First Amendment (to the United States Constitution) “prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.”
Roque cited Section 4 (C)1 of the Cybercrime Law which is about Cybersex which lists among punishable acts Cybersex.
The law defined cybersex as “The willful 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 favor or consideration.”
Using the “void for vagueness” doctrine, Roque asked, “What is defamatory? Who is liable for libel? What are justifiable motives? What are good intentions? What is lascivious?”
Then he presented acclaimed works of art with nude figures from the Museum of Modern Arts (New York), Tate Gallery in London, and Sydney Opera House, asking the justices , “Are these slides lascivious?’
Roque noted that the Cybercrime Law didn’t even use the word “pornography.”
Another argument against the Cybercrime Law was the unconstitutionality of the libel provision.
Also included in the list of punishable acts is Libel . Section 4C (4) of the law states “The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.”
Roque pointed out the judgment of the International Covenant on Civil and Political Rights that in the case of Alexander Adonis who was imprisoned for two years for libel that the penalty of imprisonment is incompatible Article 19 of the ICCPR which guarantees the right to freedom of expression.
The Philippines has signed and ratified the ICCPR.
Asked by Carpio what happens when a government ratifies an international treaty, Roque replied, “It becomes part of domestic law.”
Carpio noted that the Cybercrime Law may be unconstitutional since it adopted the libel provision of the Revised Penal Code (RPC) which may no longer be in conformance with Supreme Court decisions and international law.