The institution of a controversial new Cybercrime Prevention Act in the Philippines may leave plagiarists subject to criminal sanctions. The penalty for the plagiarism depends on the number of prior offences, but first-time infringers can expect up to one to three years in prison.

While criminal sanctions will only apply to specific types of plagiarism, Justice Secretary Leila de Lima reportedly warned recently that plagiarism in the form of online piracy of copyrighted material is tantamount to copyright infringement. The Act has been widely protested by various parties (including government officials) as unconstitutional and infringing free speech rights, with particular concerns over the vagueness of the statutory definition of “libel.” In an advisory opinion, de Lima seems to have downplayed the constitutional issues that the Act poses, indicating that the public should simply avoid plagiarism through proper attribution, noting that the criminal offence requires deliberate intent. However, in a legal system, where stare decisis is not a strictly binding legal principle, the legislature has an increased responsibility to be explicit in their intentions so that the laws can be properly implemented.

By issuing an advisory, the Philippine Department of Justice (DOJ) intended to increase public awareness and dialogue regarding plagiarism and copyright infringement issues, but in the process, it may have confused the subject even more. By explicitly linking copyright to criminal law, the DOJ statement may have had a chilling effect on the creation of new copyrightable materials, as creators will be wary of potential criminal sanctions. Without proper contextualization, the already blurred lines between allusions, homages, and plagiarism are impossible to delineate with respect to the state of the law. It is clear that purposive analyses are vital to establish such lines, but the effect could be calamitous for the “guinea pigs” of the legislation.

It has been widely contented that the dawn of the Internet age, and sources such as Wikipedia, in combination with a lack of proper accreditation and citation education, are responsible for a rise in plagiarism. While this may be, it is also quite likely that the Internet age has increased the recognition of plagiarism, and in part has dictated the necessity for these new cyber-laws to combat web-based issues. However, as I have previously discussed, advances in technology pose new challenges to the State to ensure that responsible government is in place to uphold the constitutional rights of citizens. The modern age has become something of an information overload, and great care must be taken by governments to ensure that information, particularly information used in criminal proceedings, is obtained legitimately and in line with human rights. Western courts have taken a relatively liberal approach in balancing the rights of states and citizens, and recent judgments in the Ontario Court of Appeal indicate that privacy interests of citizens are of paramount concern – but are limited within ‘reasonable’ parameters.

Laws are generally reflective of social values, and intellectual property laws are no exception. In an IPilogue post earlier this year, Bill C-11 (Copyright Modernization Act) was assessed in view of social norms, and the author indicated that when laws are in accordance with social values, it is more likely that citizens will follow them. This is a difficult notion to disagree with, especially when the laws are written with clear intention and purpose with respect to what the State expects its citizens. Indeed, plagiarism is noted as an offence of integrity that is particularly socially based in public adherence due to the implications that can result from being caught in the act. Frequently, plagiarists are subject to treatment as social pariahs, and end up self-sabotaging. However, in an ironic twist, Philippine Senator Vicente “Tito” Sotto III, the legislator responsible for inserting the controversial criminal libel clause into the Cybercrime Prevention Act has been under fire for multiple allegations of plagiarism, himself. Unfortunately for Philippine citizens, at least in the interim, this seems to have an element of quis custodiet ipsos custodes, who watches the watchers?

The answer may be in part, the Supreme Court. With respect to this Act, it seems that the uprising of the citizens, through numerous petitions and dialogue, has served to ensure that the proper checks and balances are in place. Irrespective of opinions about the purposes of the legislation, be it to purify the reputations of legislators or to legitimately protect intellectual property interests of citizens, it is essential that the balance of interests be considered, as with any law. The Supreme Court of the Philippines will begin to assess the constitutionality of the Act and how to approach the petitions on October 9, 2012.

UPDATE: On October 9, 2012, the implementation of the legislation was suspended pending deliberation of the Supreme Court. Nobody has been charged yet under the Act, and it seems that the vehement protests of Philippine citizens and international human rights organizations have at least affected another review of the legislation, which was widely criticized as overbroad and unconstitutional. The Court will hear oral arguments from all of the 15 petitioners questioning the constitutionality of the legislation, as well as the government as a responding party. The DOJ has responded by hosting an open forum promoting discussion among all sectors of government and with civil rights groups concerned about the effects of the legislation. Following oral arguments, the Supreme Court will rule on the merits, which will dictate the ultimate fate of the legislation. The Temporary Restraining Order against the law will expire in 120 days.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.