VOID: Cybercrime Offense on Posting Unsolicited Commercial Communications, Section 4 (c) (3) of R.A. 10175

When R.A. 10175 (Cybercrime Prevention Act of 2012) was passed, it contained a provision prohibiting spam or unsolicited commercial advertisements being sent to emails.

When the constitutionality of the law was challenged, this particular provision on anti-spam was sought to be declared in valid, among others.

This provision on anti-spam is reflected in Section 4 (c) (3) of R.A. 10175, which is faithfully reproduced herein:

“Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

“x x x

“(c) Content-related Offenses:

“x x x

“(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

“(i) There is prior affirmative consent from the recipient; or

“(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or

“(iii) The following conditions are present:

“(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;

“(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

“(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.”

As may be deduced, this provision is intended against electronic spam emails sent by businesses or individuals seeking to sell products or services. The Supreme Court took cognizance of this and even provided for a short history of spam. As it turns out, the term “spam” referring to needless repetition of a sentence or comment is traced to a Monty Python’s Flying Circus scene wherein actors repeatedly read out loud “Spam, Spam, Spam, and Spam” on a menu. When the digital word came about, the term “spam” was carried over in internet chat rooms and interactive fantasy games whenever someone makes a repetitive comment.

Going back, the above provisions do not totally prohibit spamming as it provided for three exceptions. First, prior affirmative consent from the recipient would not punishable. Second, the communication is for service and/or administrative announcements by the sender to its existing users, subscribers or customers (e.g. service notices, maintenance, etc.). Third, the communication has an opt-out link, its source is not disguised, and there is no misleading information to induce the recipient to read the message.

Despite these three qualifications, the entire provision was still invalidated for violating commercial free speech which is a form of freedom of speech guaranteed and protected by no less than the 1987 Philippine Constitution.

Void as commercial speech enjoys protection

In invalidating Section 4 (c) (3) of R.A. 10175, the Supreme Court held that commercial speech (be they spam) enjoy protection under the constitutional guarantee of freedom of speech. In the words of the high tribunal, spams are “legitimate forms of expression.”

In its attempt to defend the legality of the provision, the Philippine Government through the Solicitor General argued that spams are a “nuisance”. They end up wasting a lot of storage space. They adversely affect the network capacities of internet service providers. They create inefficiency in commerce and technology. They interfere with the owner’s peaceful enjoyment of his property. The sender of the spams in effect are trespassing on the recipient’s right to privacy as spams enter the recipient’s domain without any consent or permission. For these reasons, the Solicitor General posited that commercial speech enjoys limited protection under the law.

However, the Supreme Court noted that the Government was not able to present any basis for its claims – particularly on the supposed resulting inefficiency of the computers. Further, even before the computer age, people had already been receiving unsolicited ads via snail mail. In the Philippines, these unsolicited advertisements has not been declared illegal as a nuisance since it is likely that the people may be interested in them. The same holds true for ads which are the electronic counterparts of this advertisements.

To the Court, the essential thing to consider is that the recipient has always the option of deleting or not reading them. Otherwise, the people would be denied of their right to read their emails if the sending of the spams would be prohibited. Consequently, the Government cannot deny this right to the people as commercial speech remains a form of freedom of expression guaranteed by the Constitution no less despite its limited protection.

Commentary

While spam can be irritating and annoying to some, there is good reason why it is a protected speech. Businesses, particularly those starting up, rely on some form of marketing or advertising. When a store opens, it is likely going to avail of one of the cheapest way to advertise – through flyers for offline and e-mail for online. If spam would be prohibited, a lot of startups and SMEs will likely be unable to survive much less thrive. The high tribunal even took judicial notice of this practice even before the rise of the Internet age.

There is, however, some point to think about on the rationale of the Court that there is no existing law declaring spam a nuisance and thus prohibiting it. Isn’t R.A. 10175 or the Cybercrime Law itself the law that declares online spam a nuisance and thus prohibiting it? For offline advertisement (e.g. flyers, posters, etc.), there is no such law but the same cannot be said anymore for online advertisement with the promulgation of the Cybercrime Law.

On another point, the Government made for a good argument on the supposed resulting inefficiency of computers as a result of spam. The Supreme Court almost took this into consideration if not for the lack of basis. What if the Solicitor General provided for research and study on the matter, would the result have been different? Unlike offline advertisement, it does not exactly invade a person’s personal space or privacy. However, it is different in e-mail which is almost an extension of a person’s private personal space. Thus, the Solicitor General may have a point in saying that a spam sender trespasses on the recipient’s right to privacy it indeed enters the recipient’s domain without any consent or permission. Think of the possibility of being flooded with spam in your inbox that 90% of the content is spam and only 10% are actual emails.

Of course, these concerns on spam can easily be remedied by spam filters provided for by most email service providers. The Supreme Court’s holding that what is crucial is that the recipient has still the right to whether open or not spam holds sway. After all, the recipient may do want to open an unsolicited advertising material which may turn out to be what he/she was looking for in a long while – a vacation get away to a beach in Palawan.

All things considered, commercial speech is a form of freedom of speech. While commercial speech may enjoy limited protection, it is protected no less by the 1987 Philippine Constitution and thus any prohibition thereof would be unconstitutional.