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WORKING TITLE: Is advertising a cybercrime?

An analysis of the
Disini Decision and its Impact on Online Advertising through Spam
Messages
I.

INTRODUCTION
Electronic spamming is the use of electronic messaging
systems to send unsolicited messages, especially advertising,
as well as sending messages repeatedly.
It is named after Spam, a luncheon meat, by way of a Monty
Python sketch in which Spam is included in every dish.
Spamming remains economically viable because advertisers
have no operating costs beyond the management of their
mailing lists, servers, infrastructures, IP ranges, and domain
names, and it is difficult to hold senders accountable for their
mass mailings.
Because the barrier to entry is so low, spammers are
numerous, and the volume of unsolicited mail has become
very high.
In the year 2011, the estimated figure for spam messages is
around seven trillion. The costs, such as lost productivity and
fraud, are borne by the public and by Internet service
providers, which have been forced to add extra capacity to
cope with the deluge.

II.

HISTORY/BACKGROUND
In 2012, the Cybercrime Prevention Act (R.A. 10175) was
signed into law.
It aims to address legal issues concerning Internet use and
online interactions.
Among the cybercrime offenses included in the bill are
cybersquatting, cybersex, child pornography, identity theft,
illegal access to data, and libel.
The act has been criticized for its provisions on criminalizing
libel which is said to be a curtailment in freedom of
expression.
The SC on October 9, 2012 issued a TRO stopping the
implementation of the law for 120 days.
On February 18, 2014, the Supreme Court ruled that section 5
of the law decision was constitutional, and that sections 4-C-3,
7, 12 and 19 were unconstitutional. (Disini v. Secretary of
Justice)
LAWS INVOLVED
Cybercrime Prevention Act of 2012
o Section 4(c)(3) of the Cybercrime Prevention Act prohibits
the transmission of unsolicited commercial electronic

III.

communications, commonly known as spams, that seek to


advertise, sell, or offer for sale of products and services
unless the recipient affirmatively consents, or when the
purpose of the communication is for service or
administrative announcements from the sender to its
existing users, or when 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.

Electronic Commerce Act of 2000 (RA 8792)

IV.

ISSUES
Are consumers afforded property rights over electronic mail
clients?
Are unsolicited commercial communications sent by
companies protected by the doctrine of freedom of
commercial speech? If the answer is in the affirmative, up to
what degree of protections is afforded the companies?
Does the decision of the Supreme Court in Disini vs. Secretary
of Justice violate the balancing of rights of consumers to
receive unsolicited commercial communications and of the
businesses to send these messages?
Is there a contractual relationship between the user and the email client/provider?
o If the answer is in the affirmative, was there any waiver
of rights? What are the implications of this waiver?

V.

THESIS STATEMENT
The Supreme Court should have ruled that unsolicited
commercial communications be penalized because these
unsolicited commercial communications are a violation
against the property rights of the recipient.

VI.

VII.

SUMMARY OF ARGUMENTS
The Supreme Court, in ruling that unsolicited commercial
communications are a category of commercial speech, though
not receiving the same level of protection as other
constitutionally
guaranteed
forms
of
expression,
is
nonetheless entitled to protection.
The OSG argued that unsolicited commercial communications
amount to both nuisance and trespass because they tend to
interfere with the enjoyment of using online services and that
they enter the recipients domain without prior permission.
ANALYSIS
Businesses at their inception rely on marketing or advertising to
boost their name and products/services
They are likely to avail of one of the cheapest ways of advertising
flyers for offline and physical advertising and social media and
emails for online advertising.
If spam is prohibited, it will have a negative effect on start-ups
and small-medium enterprises (SMEs) due to their reliance on
cheaper advertising alternatives. They will not survive much less
thrive.
The SC took judicial notice of this practice
On the rationale of the Court as to the non-existence of a law which
declares spam messages as nuisance. The law (or the provision)
they just struck down is the law that declares online spam as a
nuisance and thus prohibiting it. For offline spam advertisements,
no law exists.

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