SY 2012-2013, Second Semester


Cyber Crime Law: Bad News or Good News?

R.A.10175 otherwise known as the “Cybercrime Prevention Act of 2012” is both a good news and a bad news for us. The good news is that this act introduces penalties to acts in violation of certain rights which were otherwise not sanctioned by fines or penalties. The bad news, however, is that most of us, if not all, cannot fully understand how this act would affect the cyberworld – and eventually our transactions and activities in the internet. Is regulation of the cyberspace for good? Or is it not? Is the “Libel Provision” proper? Or is it merely politicized? The only way to know and understand the meaning of this law is no less than seeing such law in the legal perspective and not in anything else.

The Cybercrime Prevention Act ought to penalize crimes in the cyberspace which were otherwise outside the realm of our penal and special laws. Most of the cybercrime offenses enumerated under section 4 of this law are acts which are deemed as crimes in the international concept, but are not covered by penal sanctions under our jurisdiction prior to the enactment of this law. This implies that while foreign states discourage said acts by imposing penal sanctions, our government likewise do not encourage the commission of said acts but without however putting a teeth to these words. The advent of this law is a leap of security and protection for what was then an unconquered space. The growth of technology encourages more and more transactions to be done in the cyberworld. What was then a transaction only possible in the real world can now be conveniently performed with just a click of a button. The apparent growth of social media and communication in the internet, just like in the real world, is prone to abuse and misuse. This is where the good news, courtesy of this law, comes in. Imagine having your school ID stolen and the security guard refuses to let you enter the school building because of his long time moto: “no ID, no entry”; like when someone steal or change your password in your personal email and there’s no way you could access your own mail again. How about being annoyed by irrelevant, deceiving and unsolicited commercials waiting that you’d eventually press the button and buy something from them, or clicking a link which will eventually hack or virus your computer. Would it be tolerable for you to take these matters sitting down with the hope that a lightning would eventually strike unto the culprit, or would you take action and implore the aid of our laws? If you’d choose the latter, then this cybercrime prevention law is good news for you but if you’re the culprit who enjoys spreading injustice in the cyberspace, then it’s not unusual if you’ll hack government sites and ask that the law be trashed in its entirety.

Yet, if this law is good news for us, why was it bombarded by protests and criticisms after its enactment? The law, among others, is seen as a curtailment of the freedom we long enjoyed and got accustomed with when dealing with the cyberspace. But aren’t these fears of conquer and curtailment merely a product of speculation? Take for instance the process before a search or seizure could be validly conducted under this law. Similar process or condition to that of any other crimes is required and observed. Under section 12 of R.A. 10175, (last paragraph thereof) a judge, like any other crime, must determine personally whether there is a probable cause before a warrant to search or seize a computer or devise may be taken effect. Nothing in this process could excite our mind to think of any conspiracy or whatever there is we see on T.V. because of three things. First, our government just can’t afford a computer like that in the movie “Eagle Eye” who could be very capable of monitoring every piece of activity we have. Second, it still abides with the rule of law through proper determination and supervision by our courts in the proper conduct of search, seizures and arrests. Third, the purpose of the law is to regulate the cyberspace and not for take over. Aren’t those hackers and identity thieves in the internet more troublesome than this law is? Cybercriminals have nothing to loose and no where to divulge because they either fear no sanction or are confident enough that there tracks are no where to be followed due to absence of a body regulating and overseeing the same.

In the past few years, we’ve seen several reports on cybersex dens and rampant child pornographies in the country. Yet again, we still see or hear reports of continuous operations of police officers against cybersex dens who are mostly financed or manned by foreign nationals. The full efforts of our PNP against these illegal establishments are deemed inutile due to the fact that no adequate law punishes this crime. Criminals manning these dens may easily re-establish and re-locate its facilities because the fangs of the law were not strong enough to completely terminate their operation. A proof to this effect is apparent on papers where, despite continuous police operations, more and more cybersex dens were apprehended and discovered even up to date. Moreover, the people behind these dens call more reason for alarm. Majority of these people manning these dens are foreign nationals. A reasonable man could easily be asking the question as to why would a foreign national choose to invest such business in the country as compared to the rest of the countries. Hmmmmmnnn(brief moment of silence), a simple rule on tourism dictate that if the country and the people are business friendly, investors are more likely to come for business. This could then be the reason why foreign nationals love to put up their sex dens in our country because this country is healthy for their business in two ways. First, there is no fear for sanction because our cyberspace is the epitome of freedom. Second, they can easily exploit our poor people who are in dire need of money. We could then recall that, before the cyberspace had been exploited by this type of business, there was first the sex den. This type of business was likewise manned by some foreign nationals and a few influential locals, but due to business reverses resulting from raids, tongpats and bail bonds, some chooses to re-invent and hence come cybersex dens. What an innovation and what a discovery there is from clever and business minds. In this case, if criminals can reinovate their illegal business, why can’t the law do the same? White Slave Trade under Article 341 of the Revised Penal Code which, among others, punishes the maintenance of sex dens falls short to include maintenance of cybersex dens within its punishable acts. R.A. 10175 therefore is relevant in this matter as it expressly punishes what the Revised Penal Code failed to punish. Good news once again not specifically for your private interest, but for the general public. Bear in mind that child pornography is one of the outcome of cybersex dens. Children are more likely to land on cyber dens than they are on beerhouses as white slaves. The convenience of not being known to customers where the den is situated repels the danger of having a minor sex worker who, in the eyes of the law, is so favored and protected. This very nature of a cyber den gave the basis why a higher penalty is imposed on child pornography under R.A. 10175 as compared to R.A. 9775 or the Anti-Child Pornography Act of 2009.

The abovementioned crimes such as child pornography, cybersex, computer hacking, computer-related indentity theft, or unsolicited commercial communications are easily identified as crimes either because other jurisdiction treat them as such, or that our conscience dictates that these are wrongful acts. However, there is a provision of this law that would mostly raise eyebrows and which stand between the thin lines of what is right and what is wrong. This is the provision which, in the eyes of the netizens, is most likely susceptible for abuse and curtailment our constitutional right to free speech. In particular, the inclusion of libel as a punishable actunder the law brought about numerous objections and speculations as to how said provision reached the corners of R.A. 10175. Every person seems to have his own view as to how libel, which is a felony, reached the territories of special laws. The president, senators, lawyers, media, bloggers or even common users of facebook and twitters have their own view on this matter. But these views may be summarized in two aspects – the Political and Legal aspect.

First aspect of how people rationalize libel under RA 10175 is by looking at the political antecedents before this Cybercrime Prevention Act was even considered as a law. We recall that the Cybercrime Bill quickly became a law faster than RH Bill and any other bill in the congress that time. The nearest political antecedent linked in the quick passage of the law was, if I recall it right, the issue of plagiarism against a senator. There seemed to be a magnetic attraction between this senator and the bill that people ought to blame Mr. Senator why libel was inserted in the final draft of the bill – even the author of the bill could not explain how libel got into his bill. People seem to be convinced that the bill was passed in aid of a bullied senator – but did this kind of thing already occur then? P.D. 1866 or our law against Illegal possession of Firearms and Explosives possess a deep secret as revealed by a law professor and a retired judge. The professor judge relayed that under P.D. 1866, if a person is apprehended in possession of an illegal or unlicensed firearm, he is liable under the law and will suffer the penalty as prescribed therein. But if said person was apprehended in possession of said illegal or unlicensed firearm while committing a crime (say, alarms and scandal under Article 155 of the Revised Penal Code) the crime of illegal possession is absorbed by the crime of alarms and scandal, and the penalty prescribed by the latter crime shall be the only penalty imposed irrespective of the penalty under P.D. 1866. Problem then, the professor added, is that the penalty imposed under alarms and scandal is lower than that imposed in P.D. 1866. Now then, a malefactor can easily evade a higher penalty in case of violation of P.D. 1866 by merely firing his gun to commit alarms and scandal. How could our legislators have missed this point? Speculations then arouse that P.D. 1866 was passed in aid of a bad boy actor who was apprehended for illegal possession of firearms. Whether this was true or not is unconfirmed, but the point being, how could the same speculation arise ones again; where a law is sponsored and passed by the congress for a special benefit to certain individuals. Whether intentional or accidental, one point is clear – enactment of law is a political act. It depends solely on the initiative of our legislatures, lobbyists and political demand. People may ask: “isn’t it that the people are the sovereign of a State?” How could these types of laws then withstand against public clamor? Despite constant battle against the libel provision inside and outside court houses, netizens and law makers still fail to meet to an agreement as to this point. But what is really the source of the public clamor to remove libel from the law, if not declaring the law unconstitutional in its entirety? Is it the fact that the credibility of the law was tainted and doubted because of the political antecedents prior to its enactment? Or is it the fact that adding libel to the equation creates an apparent treat to our exercise of freedom of speech?

Libel under R.A. 10175 is a different breed to that of libel under Article 353 of the Revised Penal Code. The former imposes a penalty, one degree higher than that imposed under Article 353. What was then punishable by imprisonment from six (6) months and one (1) day to four (4) years and two (2) months, is now raised to one degree higher or up to twelve years (12) of imprisonment. The deterrence of the law seem to be very efficient to the point that during its enactment, a lot of people feared posting comments and consciously add disclaimers to their posts for fear of imprisonment. Furthermore, Section 5(a) of the law also punishes those who aid or abet in the commission of libel. Hence, a person who likes, tweet, comment, re-post or share a libelous article is liable under this law. On a brief thought, if a netizen, when posting, sharing, liking, commenting or tweeting is always in danger of violating the law, isn’t this a constructive deprivation of our right to speech? Does this mean that I am now restricted to criticize public officials in the cyberspace where it is convenient to air sentiments and people have easy access to it? The author of the law, Senator Edgardo J. Angara himself, posits part of the answer to the question. In his article in Manila Bulletin [1], Sen. Angara opined: “The provision met stiff opposition, which I believe stems from misunderstanding. Every day, in newspapers and television, journalists speak their minds, even against particular people, practices, or establishments. They have not been jailed for doing so; the right to express our opinions is enshrined in the Philippine Constitution. Neither will they be jailed for doing likewise on the Internet.” he further added by saying: “The law does not in any way stifle the right to freedom of expression. Rather, it protects citizens and expands the scope of that right. Both the Constitution and common sense tell us that the protection of free speech and free press does not extend to malicious falsehood against one’s person or reputation.” In other words, why fear for the sanctions when you will not commit any violation. Those who fear punishments from the law are only criminals because there actions are not warranted by the Constitution; but those who do no wrong can always take shield from our laws. This is where the bad news is; we raised our voices first before we could ever take time understanding the situation. The bad news is not the fact that libel was inserted as a penal provision of R.A. 10175, but it’s our misunderstanding of the reasons and implications of such provision. Our view on the law then cannot be complete without looking at its legal aspect, for a law is to be understood in the legal aspect, as it is supposed to be, and nothing else.

Since R.A. 10175 made reference of libel in relation to the provision under the Revised Penal Code, the former libel is to be understood in the concept of a felony under Article 353 of the Revised Penal Code. Under Article 353, libel has the following elements: (1) There must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or, circumstance; (2) The imputation must be made publicly; (3) It must be malicious; (4) The imputation must tend to cause the dishonor, discredit or contempt of the person defamed. Among the elements abovementioned, malice (under the 3rd element) is the hardest to prove because in the case of People vs. Andrada [2], the malice or ill-will must be proved by clear and convincing evidence. There must be a proof of actual malice before a statement is considered libelous or that such statement must show injury or damage against the victim. Having said this, one does not have to be a law student in order to understand a malicious or injurious commentary. The implication brought about by the provision on libel is not a threat to freedom of speech or the press because, as opined by Sen. Angara, libelous words are not covered by free speech or the press. The Constitution did not in any way intended to enshrine in the bill of rights the freedom of the press so that men can tell untruthful stories against someone else, nor does free speech warrant total freedom of all words we utter. Our Philippine Bill of Rights under Article III of the 1987 Constitution, particularly the freedom of expression is borrowed from the Constitution of the United States of America. In the debate of the Madison’s version of speech and press clause, Madison revealed the intent of the clause which is: “To punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.” [3] Hence, if libel as a felony was accepted as a just and proper law by the people, why can’t we accept it to cover the cyberspace? Due to fast development of our technology, every single person (with proper qualification or none) becomes a critic in his own title. Worst, opinions, nowadays, whether correct or not, are much more futile when shown in the Internet. Imagine the vast users in the cyberspace and how one could easily convey information? It’s basically talking to the whole world with just your fingertips. Can we understand the standard of care required from us every time we seat behind that screen or write a comment, post or like the same? This were ones the very reason for the enactment of libel as a felony. Now that it re-innovates itself, is there a cause for alarm? Should we panic and be mad because there’s a special law prescribing a higher penalty on this crime that what it used to be? Imagine how hard it is to track down a comment down from its source when all you can see are nicknames of real users of mails, blogs or accounts. If libel is brought back to its original penalty for those committed in the cyberspace, will it deter people to stop committing this crime? We must understand that it is mostly the unknown which begets fear. Given proper time to understand this law, would our view to this provision and ultimately this law change? Why not wait for the implementing law, or better yet, participate in the drafting of the implementing rules so that our sentiments and doubts may be aired and clarified. The purpose of forming a State is to afford protection for its people by regulating the dealing between one another. If we therefore hate that the State is doing its job, or that we hate being regulated, why not dissolve this State and let’s govern ourselves independently. The only impact that this law have on us is that it sets boundaries and standards of our conduct in the cyberspace; the rest is on us to take. Ultimately, we are still free to do as we please, only that we are just reminded of how a civilized man (as expected from a subject of a State) should conduct one’s self.


Endnotes

[1] Page 11 of Views – Features Section, Published on Sunday, October 7, 2012

[2] C.A., 37 O.G. 1783 as cited in Criminal Law: Book II of Luis B. Reyes, 17th Edition

[3] W. BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND 151-52 (http://www.chanrobles.com/usa/us_supremecourt/constitution/amendment-01/20-freedom-of-expression.php) last access; December, 8, 2012


The Quest to the Cyber World: A Journey to Regulation of the Cyber Space

During the advent of R.A. 10175 (The Cybercrime Prevention Act of 2012), many hate protests and comments were thrown although some opined that the law is a leap to regulate the cyberspace. We note that prior to R.A. 10175, we already have R.A. 10173 (Data Privacy Act) and R.A. 8792 (Electronic Commerce Act of 2000) as our cyber laws. Yet, the quest for an effective cyber law goes on. There seem to be a thirst for a clear-tight rule which would govern the conduct in the cyberspace. R.A. 10175 was supposed to address the issue but it fall short towards peoples acceptability. What could have caused the bitter acceptability of this cyber law? At present, are we still discontented with our cyber laws that we still seek a better law on the matter? In this case, is Senate Bill Number 3327 otherwise known as The Magna Carta for Philippine Internet Freedom, the current would-be cyber law of the land, a better law than our recently approved cyber laws? S.B. 3327 seeks to repeal R.A. 10175 in toto and barely seek amendment of certain provisions of R.A. 10173 and R.A. 8792. Hence, in the course of this discussion, comparison of the bill is focused against R.A. 10175 since amendments under R.A. 10173 and R.A. 8792 are only for penalty purposes and some trivial matters.

S.B. 3327 is a bill sponsored by Senator Miriam Defensor-Santiago which ought to address the inadequacy of our present laws to cover certain acts in the cyberspace which if committed in the real world the same could constitute a crime or abuse of right. At glace, S.B. 3327 is more numerous in page compared to the past approved cyber laws (although along the process, said bill may be subjected to revisions which would eventually lessen its page number). Yet we cannot help but wonder whether this page numbers mean at all? R.A. 10175 was bitterly accepted due to its all encompassing provisions which permit several interpretations and covers acts which either appears to infringe private rights or raise people’s eyebrows and cause scratchy heads due to poor construction and/or express specification. Likewise, R.A. 8792 and R.A. 10173 were deemed inutile either for failure to include criminal cases on the admissibility of electronic evidence or for failure to be extensive, clear, and specific in the coverage of acts ought to be penalized in the cyberspace. Clashing sentiments for individual freedom in the Internet and for protection and security connive as one to create a chaotic battle ground for heated arguments. Yet at the heart of all this, we can see the face of the cyber law we seek: that which uphold individual right, define duties and protect from abuses committed in the cyberspace. Hence, in the course of the comparison, the discussion will revolve around three things: (1) whether the law promotes Internet freedom and use; (2) whether rights and duties of parties involved are clearly defined; and (3) whether there is proper regulation and implementation.

Promotion of Internet Freedom and Use

R.A. 10175 as a whole is a litany of all punishable acts committed in the Internet without however defining rights and protected expressions of an internet user. It seeks to define directly the punishable acts without further elaborating on the exceptions under said penal provisions. On the other hand, S.B. 3327 started by expressly stating under chapter III, section 4 that the State shall, within its jurisdiction, protects and promote the Internet as an open network. This, in impression is an express declaration from the law that the cyberspace remains to be a private aspect of communication and interaction by an individual and is thereby protected by privacy and no less than the constitution. By so stating, an express mandate and commitment to uphold the same is established unlike from a mere litany of penalties without air tight definition as to its proper goal – which is to uphold freedom and protection in the cyberspace. Furthermore, the law, in so phrasing, has already provided a clear guideline on how the law will be enforced and implemented by public officers unlike the confusingly worded section 12[1] of R.A. 10175 which, although state a requirement of a court order, has limited the same for collection, seizure or disclosure but not to the determination of due cause for such collection, seizure or disclosure and restriction or denial of access to the Internet. Whereas, section 6 paragraph 2 of S.B. 3327 expressly state that no person shall be restricted or denied access to the Internet without an order. The bill further added in section 6 the requirement of a NOTICE & HEARING before an order may be issued which R.A. 10175 failed to mention. The omission of an express mention of determination of DUE CAUSE under section 12 of R.A. 10175 is relevant in the upholding of property rights and privacy of an internet user which by the way was not even mentioned by the law to be in existent. Section 7, paragraph 1 of the bill expressly mentioned that the State shall, within its jurisdiction, protect the right of a person to gain or attain privileged access or control over any device over which the person has property rights. This in turn serves as a recognition of private and property rights of an individual which may not be infringed into even by the government without having complied with the requirements of our law for searches and seizure and most specially the determination of due cause for said government action. This again, was poorly addressed by R.A. 10175. Section 8 on Right to Freedom of Speech and Expression of the bill ought now to remedy the cause of bitterness by the public towards R.A. 10175 which, by way of observation in the cyberspace from blogs, comments, and tweets, was viewed to be a suppression of our Internet freedom for expression and use. In fair, R.A. 10175 never intended martial law in the cyberspace, yet it definitely failed to state such intention. The lack of defining the mitts and bounds of implementing said penalties and exercise of police power in the cyberspace were deemed futile to achieve the real purpose of the law. The unclear statements on certain provisions of the law seemed to have cloaked its spirit and basically put its completion towards administrative hands whose job, although to a certain degree authorizes the making of rules on its manner of implementation, could not warrant none deviation to the real spirit of the law as the law itself has failed to make its instructions clear. Furthermore, the law cannot effectively survive by mere Implementing Rules alone as judicial scrutiny could very well kill the discretions given to administrative officials in the implementation of the law brought about by its unclear and unspecific orders embodied in the very core of its provisions. It is note worthy that under our law, an administrative agency is not vested with the law making power but merely assists in the implementation of laws providing sanctions and defining rights which the Congress themselves must clearly supply. In this juncture, it can be said that this bill has a better hand. The provision on freedom of speech and expression has made FAIR USE WITHOUT SANCTION possible as the law clearly stated what it ought to protect and uphold. Unlike the negative way of defining an act by exclusion to those expressly mentioned punishable acts – as adopted by R.A. 10175, this bill started with the basic way of determining an act as a right before dwelling on prohibitions. In this way, an individual is properly appraised both his right and the States dedication of protecting them before dealing with abuses of rights because our basic rights are vested naturally and should not be made dependent on what is excluded as punishable since what is punishable is merely dependent on the same right which in the eyes of the law is abused and is in demand for justice. Right to privacy and security of data under sections 10 and 11 of the bill could very well be inutile if protection is not given to fair use and freedom to innovate and create without permission – under R.A. 10175, there was still no mention of this. Based on the sentiments of most Internet users during the passage of R.A., 10175, a common fear of Internet use and expression was felt by netizens. This was a result by the fact that the law defined fair use as to depend on what is excluded by the punishable acts it impose. In effect, it created a massive block out as to what Internet act is punishable and what is not.

Definition of Rights and Duties of Parties

Another key feature of S.B. 3327 is that it increases accountability by Internet providers to their consumers and the public by providing for rules on third party disclosure and quality of service and network fair use. R.A. 10175 operates as a mere cyber crime law or the litany of Internet crimes without establishing rights and freedom in the Internet. Furthermore, it is only directed to the offender as a user but not as the Internet provider. Nothing in the law, for example, provide for protection of the consumers from the abuses of telecommunication companies or provide for service standards of these entities. R.A. 7925 otherwise known as Telecommunications Policy Act of the Philippines at present does not cover Local Internet Service Providers, hence could not very well governed their conducts and duties to the general public. As to quality of service content, the MTRCB at present dwell by analogy as to regulating the cyberspace but are still left at thin air in the face of judicial scrutiny due to lack of legislative action vesting such power to this administrative body. All these and more should have been covered by R.A. 10175 if a complete regulation and protection in the cyberspace is to be sought to. A litany of the virgins might save us all but not a general litany of penal sanctions in the Internet. Classification between rights and liabilities of a user and Internet provider is wanting if the State ought to cover the Internet under its laws because these are the key figures which basically compose the Internet. An Internet is not possible without a provider, hence it is quiet unfair to regulate only the conduct of the people in general without however dwelling into the duties, responsibilities and liabilities of those who supply the system. This in turn is one of the major lapses of R.A. 10175 because it only concerns itself on imposing sanctions from the belief that rights and obligations may be had in that way.

Proper Regulation an Implementation

All the while, people remained clueless whether they’d post pictures, make comments or posts some likes for fear of Internet libel and the likes. In fair, this could merely be a result of ignorance of what is libelous and what is not but we cannot deny the fact that the law failed to supply a clear definition of what is punishable and what is not- most especially, what is fair use from not. Furthermore, the increased penalty to one degree higher than that prescribed by our Revised Penal Code on libel aggravated the matter. What are the odds of committing libel with a little or no clue of its covered acts? In fair, one could argue that we should not be ignorant of our own laws which in fact, are readily available for reading. Yet, we cannot close our eyes to the fact that our libel cases where battled by lawyers, most are really good at what they do, and not by mere ordinary netizen. Even our jurisprudence on libel would attest that a clear-cut definition on libel could not be had based on the series of flip-flopping decisions made in the past regarding the matter. What are the odds that one could be convicted of internet libel by mere posting of comment or like considering the penal sanction thereto? If so, what are the remedies available if filed with a libel case? If you are confident enough that your act is not covered, you could just disregard the complaint or have a not guilty plea and let justice do the rest. But how about if we put into equation the presence of a brilliant lawyer who could very much argue that your case is covered by internet libel or a judge itching to have you convicted? You’ll be left at the mercy of a merciful judge, a good lawyer or a favorable appeal respectively. Either way, these remedies could eat up a large amount of your time and money. If so, the panic reached to mind by the netizens is very well not baseless because, as ordinary citizens not well versed with the law, they could only avail of the quickest remedy possible by restricting their Internet transaction such as comments, views, likes, blogs, tweets and the like. Having said this, we might wonder what does the law seeks to deter. Is it the evil sought to be avoided by committing internet libel? or the exercise of freedom in the Internet? There seems to be a confusingly form of idea as to the purpose of raising penalty in Internet libel. In the first place, is it necessary at all? How does a libel on the Internet defer from a libel committed on print media or verbally in that case? A libelous act published even if not read by the people could very well qualify to a crime punishable by law irregardless of the manner of its publication. More so, a libelous comment in the Internet could be timely discarded as compared to that of the printed ones which could mean less damage to the reputation of the offended party. This is why, under S.B. 3327, it can be observed that only fine is imposed in Internet libel in lieu of imprisonment. This, in consideration of the above discussion, is sound than imposing imprisonment because a fine in itself is deterrent enough to punish the offender considering that a remedial measure of immediately discarding libelous comments may be had as compared to other forms of committing libel. The availability of this remedy would render imprisonment unjust and could even lead to further evil and non-encouragement of Internet freedom of use and expression. Furthermore, netizens has nothing to fear now or reason for excuses because section 33 paragraph AA[2] of the bill has expressly provided for the exceptions to Internet libel. It has even provided for valid defenses which may be availed of in order to appraise the people their respective rights and duties as regards this matter. Also, it is noteworthy that the bill has now punished plagiarism committed in the Internet, which although may arguably be covered by the Intellectual Property Law, has now provided for specific coverage and exclusions in relation to the imposition of penalties. Section 35 paragraphs 19 and 20 of the bill in relation to section 29 paragraph A.3.is a key provision of the bill in relation to plagiarism. It states that although plagiarism is a punishable act in relation to copyright infringement, free license or public domain content shall not be subject to payment for damages nor any other penalties. This implies that a netizen could not be so burdened in thinking whether he/she should copy every links and sites attributable to the picture he/she downloaded in goggle image as a primary picture so as to avoid committing plagiarism or copyright infringement in that matter because these stuffs are freely accessible and downloadable – a caveat though because under section 29 paragraph B of the bill, these computer program, script, code or software downloaded with intent to profit thereto are punishable and deemed piracy under the bill. However, what would happen if the gravaman is a minor who is not capable of discernment as to what is protected by copyright and what is not. The last paragraph of section 12[3] of the bill provided for the condition. In this case, the bill demands supervision from parents and guardians to their minor children or wards otherwise the former may suffer the consequences. This provision need be stated in order to clarify the duties and obligations in this certain instance.

As to implementation, a clear expression of the bill other than the summoning of administrative departments responsible thereto is the provision creating the cybercrime courts. Under section 21 of R.A. 10175, the RTC has jurisdiction over cyber crimes and a special cybercrime court is to be created which is manned by specially trained judges. This goal is basically the same as that ought to be achieved by S.B. 3327, but the former is so constructed in a lazy and general manner. Unlike R.A. 10175, the bill has provided for qualifications (such as academic and professional background) of a judge to man the cyber court. It further summoned court personnel of said cyber court to undergo training to suit the demands of the job. A mandatory continuing legal and information and communications technology education is further required to continually abreast a judge of the developments on the matter. Furthermore, the amendment to the AFP modernization act to include technologies which may be deemed helpful in the implementation of this bill is a serious step towards cyber regulation.

In sum, the major distinction between the current would-be cyber law and its predecessor is the manner of expressing its clear cut mandate. R.A. 10175 is a reflection of a crammed law hurriedly passed by the Congress due to some itchy demands. The general statements embodied in its very provisions could be said to be a product of inadequate brainstorming by the Congress and the people. If we could produce a bill a encompassing and adequate as Senate Bill Number 3327, there could be no room for administrative discretion, hence lessens deviation from the real spirit of the law. A clear-cut mandate and instruction from the body no less than granted the power to enact laws is wanting for us to properly regulate the cyber space, but such is not complete by itself. These instructions and mandate must reflect the intention of the people as the ultimate sovereign of the State. Furthermore, the Congress, in enacting laws, should always appraise the people their rights and duties under the law being enacted, before even thinking of penalizing them.


Endnotes

[1] Section 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

[2] AA. Exceptions to internet libel. – The following acts shall not constitute internet libel:

a) Expressions of protest against the government, or against foreign governments;

b) Expressions of dissatisfaction with the government, its agencies or instrumentalities, or its officials or agents, or with those of foreign governments;

c) Expressions of dissatisfaction with non-government organizations, umons, associations, political parties, religious groups, and public figures;

d) Expressions of dissatisfaction with the products or services of commercial entities;

e) Expressions of dissatisfaction with commercial entities, or their officers or agents, as related to the products or services that the commercial entities provide;

f) Expressions of a commercial entity that are designed to discredit the products or services of a competitor, even if the competitor is explicitly identified;

g) An expression made with the intention of remaining private between persons able to access or view the expression, even ifthe expression is later released to the public; and,

h) A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions, or of any matter of public interest.

[3] It shall be presumed that the parents or guardians of a minor shall have provided agreement and shall be bound to the terms of an end user license agreement should the minor in their care signify agreement to the end user license agreement. It shall be presumed that any infringement of intellectual property rights by a minor was done with the knowledge and consent of his parents or guardians.


Fifty Shades of Greed: A Discourse on Our Copyright Law

The Best Things in Life are Free! This is a moto seemingly inculcated and deeply rooted in our Filipino values and culture. What could be better than those freely offered and enjoyed without obligation or reciprocation on your part? Have you tried the free ride bus of Ang Dating Daan, went to Luneta Park on valentines day, parked in a parking lot without parking fee, ask relief goods, find a chair in a mall without the for customers only or do not seat sign, get a free ticket for a concert or even just to redeem a free and limited promo t-shirt? All of these have one thing in common, it attracts people – and the market industry knows it. Have you tried to look at your favorite shampoo, shop for grocery items, choose a post paid plan for your phone, buy yourself a shirt, or observe any of your market transactions? The key word for a best buy are the capital letters FREE. The more freebies they offer, the most likely you are to give in. In all things in terms of economic wisdom, this is the most basic principle that most people, if not all, would gladly adopt. The attitude of Filipinos on haggling for the best buy reflects our desire to as much as possible pay less for more because we are concerned in increasing our individual properties. Ladies and gentle men, the issues that are faced by our Copyright Law nowadays are but carved primarily by this attitude. This article is a response to the clamor for an effective Copyright Law in the Philippines that would strike a balance between Copyright Owners and Consumers. Although no prescription is advised, as the author is not a doctor, nor is he a legislator to propose a bill amending our present Copyright Law, the author for unknown reason is compelled to trace the bone of contention to pave way for a better Copyright Reform.

Rooting it out

Copyright, also known as Author’s Right relates to artistic creations, such as books, music, paintings and sculptures, films and technology-based works such as computer programs and electronic databases. [1] This is a concept of British origin brought about as a reaction to printers’ monopolies at the beginning of the 18th century. Charles II of England was concerned by the unregulated copying of books and passed the Licensing of the Press Act 1662 by Act of Parliament. [2] Then came Statutes of Anne, Paris Convention, Berne Convention and the creation of World Intellectual Property Organization which enhanced Intellectual Property and Copyright Laws and pave way to recognition and protection of individual rights to intellectual properties and expressions. The idea of Copyright and Intellectual Property is a product of Capitalism which recognizes and upheld individual rights and properties. To state otherwise, the concept of Copyright is basically all about money vis property. In the Philippines, we have Republic Act 8293 otherwise known as the Intellectual Property Code of the Philippines as the law primarily governing Philippine copyrights. Section 2 of RA 8293 provides in part that “the State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensure market access for our products xxxx” – money talks again. Basically, the facade of copyright laws is all about money matters, but it also upholds a deeper essence that is the protection of expression. These are the two ingredients that make up the right of a copyright owner. A copyright owner under RA 8293 is vested with Economic Right under Section 177 of said law and Moral Right under Section 193 of the same law. Economic Rights consists of the exclusive right to authorize or prevent (177.1) Reproduction of work or substantial portion thereto; (177.2) its transformation; (177.3) distribution or transfer; (177.4) Rental; (177.5) Public display; (177.6) Public performance; and (177.7) other performance to the public of the work. Simply put, the economic rights of the copyright owner covers all economic transactions and endeavors of his work which is basically premised on his right to property of his work and therefore the accessory right to its fruits and accessions. Moral Rights, on the other hand, is consist of the right to (193.1) Authorship and attribution of the work to the copyright owner; (193.2) Make alterations or withhold its publication; (193.3) Object any derogatory actions against his work which are prejudicial to his honor or reputation; and (193.4) Restrain the use of his name for works not of his creation or in a distorted version of his work. Again, this right is rooted to the property right of the creator to use and abuse his creation, to possess title thereto and facilitate its transfer. These two rights however are not absolute. Section 184 of RA 8293 provides for the limitations on copyright which in sum are “interpreted in such a way as to allow the work to be used in a manner which does not conflict with the normal exploitation of the work and does not unreasonably prejudice the right holder’s legitimate interest” (184.2). Section 185 further allows any use without copyright owner’s consent as long as it constitutes Fair Use – still premised on subsection 184.2. Furthermore, copyright law protects only the form of expression of ideas but NOT the ideas themselves. So that this recently published article vis blog, although may reflect the same ideas of several scholars and writers may not necessarily infringe the works of the latter if the manner and form of expressing these ideas are wholly or substantially different and apart. This could very well be premised on the fact that everything is under the sun. Ideas are but products or adaptations of other ideas which, if mixed with some other ideas, would create a wholly different or an innovation of the old idea. Take for instance Aristotle’s principle on Thesis, Anti-thesis and Synthesis. It is basically the clash of ideas that bring about a new or improved form of idea – yet with the intervention of another’s idea. So do we have to ask permission to use other’s idea in order to create another idea? Possibility and development wise, NO. So, what is being battled and enforced by copyright owners under our copyright laws? Is it their thymotic sense of pride to be recognized and attributed for their work or is it quit a simple battle for individual property right? Based on the abovementioned provisions of RA 8293, the answer is both yet the prevailing factor is still money vis property talk. Copyright owners are but the deserving beneficiaries of any considerations which may be derived by virtue of their creations. It is basically money that makes the world go round in terms of copyright industry – that’s why its birthplace is capitalism. Yet, another factor adds to the equation – CONSUMERS. Again, section 2 of RA 8293 on Declaration of Policy states that “the industrial property system is vital to the development of domestic and creative activity xxxx and promote defusion of knowledge an information for the promotion of national development and progress and the common good”. Said industrial property system is not complete without the consumers, for no defusion of knowledge nor information may take place without the attendance of people who would absorb or patronize the same. But the law does not simply require that consumers should only eat the food of wisdom courtesy of authors and artists, for like any other restaurants, it comes for a price. The declaration of policy simply tells us the ideal aspect of the law but not quiet all – should we blame it to semantics then? If we interpret the law as a whole, it can be inferred that it is for the national development and progress that we protect the individual property rights of copyright owners, because they are the key to national progress and development – an investment of the country. However, a consumer too has his/her own property rights, so that if he/she patronizes a book of a copyright owner, the latter’s work in relation to the form in which it was expressed becomes the possession of the former – in this case, the book. If the consumer now exercises a right of ownership over the book, legally, he/she has all the rights appertaining to an owner to the extent of the property purchased – but the same of course is not absolute. RA 8293, among other laws, prescribes for the limitations of the use of said work to the extent that it does not prejudice the right holder’s legitimate interest (184.2) – in this case, those appertaining to the economic and moral rights of the copyright owner. In this point of view, if one should keep a score, both the copyright owner and consumer are at par with one another to the point that each has vested and limited rights under the law (economic rights for the former; and right to fair use for the latter). However, the interplay of culture sets a smoky reaction. Anyone could assume the shoe of either consumer or copyright owner, yet the attitude observed in playing each role is intended for a wholly different avowal. As a consumer, you would most likely haggle for less the selling price, yet as the copyright owner you would want your price to be as high as possible – thereby creating a double standard. However, you should not be shocked my dear Filipino friend because this is but consistent with our attitude of paying less for more and more for less. This very attitude is what complicates our copyright law, but this article is not intended to sermon for social change. Classical political thinkers don’t argue much on culture but uses culture as a vehicle for legal framework. To state otherwise, this attitude operates as the land on which our copyright laws should be planted. The protection and regulation afforded by our copyright laws should be based primarily on this attitude. This is not to say that our legislatures are unaware of this, however, awareness alone is none sense. Our copyright laws should reflect the balance of rights between consumers and copyright owners, and to constantly tip the scale in case one out ways the other. Piracy of books, DVDs, Music, computer programs, games – to name a few, are but consequences of our natural tendencies to increase our individual properties either for a lesser period or for a lesser cost. To root it out, what is happening at present in the copyright industry is but the consequence of the government’s inaction by failing to constantly balance the natural tendency and attitude of a consumer and copyright owner before even defining and limiting their rights under this matter. This is vital because the basis of regulation is the protection of one’s right from the abusive exercise of a right of another. [3] Since copyright law is basically about enforcement and protection of individual property rights, abuse usually occur when either consumer or copyright owner over claim their individual property rights to the expense of the other.

Comparing Seeds

In the international perspective, a man is still a man. Hence, a Filipino should not be ashamed nor boast his unique expression of greediness and frugality via paying less for more because all humans are created greedy – at least since capitalism and individual property rights were introduced. We all have tendencies and desires to increase our individual properties only that, our level of patience in terms of period of accumulating wealth varies. There are at least 50 Shades of Greed that are at our disposal as humans, so why feel unique for your greed when all of us have it. In the international arena, copyright laws of different States struggle basically because of constant clash between individual properties of copyright owners and consumers. Piracy for example is still rampant internationally – so don’t think Quiapo is its primary manufacturer. The development of technology carries with it other ways and forms of infringement. To name a few; the e-books, itunes or youtube are the primary challenge against copyright laws. If you ask whether our law (RA 8293) covers the following cyber transactions, the answer is a question. Is there itunes, ipad, or youtube on 1998 (the date when RA 8293 became effective)? It’s pretty obvious is it? The thing is, its not that easy to enact a law to include these matters in the cyberspace – even other States are struggling for a better copyright law. Different States employ various brands of copyright laws which are reflections of continuous struggle to balance consumer and copyright owner’s interests. In China for example, they have no equivalent to the doctrine of fair use but copyright law enforcement is lax – that explains the dvds. Protection under the copyright law also is quite limited. For example, recording of live sports broadcasts is not considered an infringement. Furthermore, no criminal liability is imposed in case of infringement when no monetary benefit is received. In contrast, US copyright law is much strict from enforcement to imposition of penalties. Criminal liability accrues even when no monetary benefit is derived from the infringing material. However, registration for copyright purposes is material in US since it evidence the enforcement of a protected right – in contrast to China who does not distinguish nor exercise preference between registered and unregistered work. These are few of the key brands of copyright laws which, by themselves, are reflections of subjective nature of the copyright industry. States adopt copyright policies based on the prevailing environment of the country. Different States face different problems in their respective copyright laws, but not all conflicts are results of the clashing interests of copyright owners and consumers. Few of the puzzles are attributable to other duties and priorities of a State. China for example limits the copyrighted materials crossing their border in order to protect its own local industry. However, this policy is of no consequence. Due to the scarce availability of foreign copyrighted materials, a local consumer has two options; (1) fly abroad and buy the desired copyrighted work, e.g. book/DVD or (2) look for a local copy that is not copyrighted. Of the two choices, the latter is much applicable to most consumers in terms of economic status – this situation is also true in the Philippines. Of the above situations and State’s response thereof, Philippines as a State could always chose what method would be used to address its copyright problems. Would it adopt a strict but formal process of US or the laxity of China? Both have their pros and cons, either way, it is for us to find the one that fits.

The Rotten Plant

At present, our RA 8293 is viewed as outdated and in need for retouch. An amendment of RA 8293 is being proposed which would add teeth to the law. Among others, the bill ought to increase the power of Intellectual Property Office especially in the conduct of warrantless searches and seizures – this particular idea was received bitterly. Scholars criticized the bill as granting more rights than heinous crime victims. But with our present copyright law, copyright owners are at apparent loss. The limited scope of said law and its failure to cope up with technological developments limit the level of protection which may be afforded under our copyright laws. On the other hand, enforceability is another thing. A singer or producer for example is almost certainly sure that 8 out of 10 Filipinos has unauthorized downloads of his song, but enforcing his right under said law is quite impossible without breaking into the privacy of another. An author on the other hand could be at a serious loss due to the availability of book alikes, yet the gravaman could always argue his way out under the fair use doctrine or for his right to use and abuse the same. However, not everything that is the result of infringement is always against the copyright owner. Unauthorized upload of a live performance to youtube for example, although unauthorized publicity is still a publicity – and publicity is beneficial for a celebrity. In short, it is only the economic aspect vis right of the copyright owner that is being infringed. With regard to Moral Right, all that is attributable to the author vis owner is not affected – plagiarism aside. Illegal downloads of music, books, and even recording of live performances does not affect nor separate the work from its owner. In short, the battlefield is only set for a purely economic matter vis the right to the fruits of the copyright work. In this case, if no monetary benefit is derived out of infringement, would it be proper to impose a penalty? Civilly, damages are but proper due to the loss of income or any fruits which properly appertain to the person who should properly receive the same. Criminally, Section 217 of the law pertains to infringement for monetary consideration such as but not limited to sale or trade. But a person in possession of an infringed material, although not maintaining the same for purposes of sale or trade may be put to prison by aiding or abetting – this is without prejudice to other laws penalizing the same act. However, it is noteworthy that the protection granted by law to copyright owners is to be interpreted as a form of incentive since the latter are vehicle for industrial development and diffusion of knowledge and information. Too much focus on the economic right of the copyright owner is futile to the society since a capitalist world has always the tendency to encourage accumulation of individual wealth in so far as it is legal without necessarily being just. In particular, a producer who invests for his talent is driven to lay the hen as many golden eggs as possible. To state otherwise, a side of our copyright industry is being used as purely for income generating purposes and crossing out its public purpose. This is not however the whole story – consumers have their own brand of abuse and greed. But we cannot close our eyes to the fact that copyright owners have their share of blame too. A capitalist society is structured in a way that goods and commodities are distributed based on individual’s economic means. Branded shirts for example are worn only by those who can afford them but that doesn’t mean that the poor are left naked. However, quality and luxury wise, them who are economically capable enjoy most of the pleasures, comforts and developments that the society can offer. For an individual in the upper and middle tier of the society, a P200.00 song album or P400.00 DVD is a reasonable price of commodity. However, most in our society are not that capable yet, these things should reach them in order to fulfill the public purpose of the law.

Planting a New

Our present copyright law is separated from the real world. Without further elaborating on technical matters, protection afforded to copyright owners are toothless bastard in their eyes, yet for consumers, provisions of the law are threatening and confusing if one dwells into their possible implications and analogous interpretations. The absence of a clear and inadvertent provision of the law permits different possibilities and a bunch of arguments. When the law shut its mouth, other will talk on its behalf. The matter on copyright law is very much confusing nowadays unlike before when men view society in tribes. The presence of a globalized society permits international trades of copyrightable items but without a uniform law governing them – in the sense that States varies in policies and level of enforcements. However, a standard of copyright law should be based mainly on moderation of greed between its parties. Copyright owners for example should be granted protection under the condition that they’d register and that prices shall not be unconscionable and that the period of protection should be shorter in order to constantly monitor its circulation and relevance. Limited copies of the work should be distributed immediately after registration in public libraries or facilities for the public who cannot afford them. It is only when the government should take the copyright industry as vested with public interest that the consumers would have no other reason but to comply. Taking seriously this matter is vital in the sense that consumers and copyright owners would not continuously battle and keep scores as to who of them are deriving most benefit. Piracy is an industry that also requires consumers. Satisfy the consumers and cross out reasons for them not to patronize piracy, then no pirate industry will live. If piracy could not be avoided, why not regulate them and issue involuntary sub copyrights to them as legal agents of the real copyright owner and impose tax on them subject to limitations on production. Part of the tax may be given to copyright owners. Since the form of expression of idea is what is protected, let those pirated copies of inferior quality be registered since they are made in inferior form subject to the abovementioned condition. Absurd it may be but this is the only thing that our copyright law should operate based on the real idea from which it was made. Again, it is noteworthy that copyright law took its roots as a reaction from printer’s monopolies. Hence, it is in this case that the government should always be kept on guard – avoiding the copyright law to be used as a vehicle for monopoly. To satisfy the greed of both consumer and copyright owner, the State should feed both of them in equal share and check in constant whether one should take the food of the other not because it legally belong to the other, but because by so doing, the other is left with starving.


[1] Copyright in Historical Perspective, p. 136-137, Patterson, 1968, VanderbiltUniv. Press. Copyrighthistory.com. Retrieved 2013-03-9.

[2] Ronan, Deazley (2006). Rethinking copyright: history, theory, language. Edward Elgar Publishing.. p. 13. ISBN 978-1-84542-282-0

[3] see Article 19 of the New Civil Code

SY 2012-2013, Second Semester


RA 10173: How do it affects intimately to ordinary people??

This law is known as “The Data Privacy Act of 2012” is a special law protecting the individual personal information and communication system in the government and in the private sector. It is a new law passed recently in the Congress. I’m just asking myself what this is all about and how does it affects me or to other people such as in the recent video of “Amalayer” posted in the internet. Does the female commuter have the right of action against the people who posted her video in the internet?

The video spread everywhere on the net, like twitter, facebook and others. Different reactions are coming from people. Different versions of amalayer video were created. This is a question in my mind, how does this “Data Privacy Act of 2012” works to Amalayer? To wit:

SEC. 2. Declaration of Policy. – It is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected.

It is the policy of the state to protect the fundamental human right of privacy, so, where is the privacy of this “amalayer” the female commuter? My first question is, does her rights violated?

The scope of this “Data Privacy Act of 2012” doesn’t apply to all information. It has limitations. To wit:

SEC. 4. Scope. – This Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.

This Act does not apply to the following:

(a) Information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, including:

(1) The fact that the individual is or was an officer or employee of the government institution;

(2) The title, business address and office telephone number of the individual;

(3) The classification, salary range and responsibilities of the position held by the individual; and

(4) The name of the individual on a document prepared by the individual in the course of employment with the government;

(b) Information about an individual who is or was performing service under contract for a government institution that relates to the services performed, including the terms of the contract, and the name of the individual given in the course of the performance of those services;

(c) Information relating to any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit;

(d) Personal information processed for journalistic, artistic, literary or research purposes;

(e) Information necessary in order to carry out the functions of public authority which includes the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions. Nothing in this Act shall be construed as to have amended or repealed Republic Act No. 1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act No. 9510, otherwise known as the Credit Information System Act (CISA);

(f) Information necessary for banks and other financial institutions under the jurisdiction of the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the Anti-Money Laundering Act and other applicable laws; and

(g) Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines

This Act has an extraterritorial application if the act, practice or processing relates to personal information about a Philippine citizen or a resident and the entity has a link with the Philippines, and the entity is processing personal information in the Philippines or even if the processing is outside the Philippines as long as it is about Philippine citizens or residents.

How this law affects to ordinary people? Does will affect it positively or negatively? What about if another Amalayer (the data subject) will comes in? Will he or she have right of actions that are available? And if he has, will he just be sleep with his right?

My second question is, was the manner of capturing and propagating of the video acceptable? The scenario was apparent that Amalayer (data subject) has no idea that somebody is capturing a video on her. Many accounts were created and people assumed that the owner of that accounts were Amalayer making it appear that data subject is in conspiracy with that scenario.

SEC. 12. Criteria for Lawful Processing of Personal Information. – The processing of personal information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:

(a) The data subject has given his or her consent;

(b) The processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract;

(c) The processing is necessary for compliance with a legal obligation to which the personal information controller is subject;

(d) The processing is necessary to protect vitally important interests of the data subject, including life and health;

(e) The processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or

(f) The processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a third party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.

My third question, is that the famous video of Amalayer a violation of “Data Privacy Act of 2012?
Reviewing the rights of the data subject? Does Amalayer exercised it? Are the provisions of law applicable to him? To wit:

SEC. 16. Rights of the Data Subject. – The data subject is entitled to:

(a) Be informed whether personal information pertaining to him or her shall be, are being or have been processed;

(b) Be furnished the information indicated hereunder before the entry of his or her personal information into the processing system of the personal information controller, or at the next practical opportunity:

(1) Description of the personal information to be entered into the system;

(2) Purposes for which they are being or are to be processed;

(3) Scope and method of the personal information processing;

(4) The recipients or classes of recipients to whom they are or may be disclosed;

(5) Methods utilized for automated access, if the same is allowed by the data subject, and the extent to which such access is authorized;

(6) The identity and contact details of the personal information controller or its representative;

(7) The period for which the information will be stored; and

(8) The existence of their rights, i.e., to access, correction, as well as the right to lodge a complaint before the Commission.

How safe our country nowadays? Technology is everywhere. It keeps on improving everyday. It is easy to capture a memory and upload in a minute. Are there laws that fully protecting the rights of people like amalayer? If there is, is it working and properly implemented or it is just legibly written?

“ Justice and power must be brought together, so that whatever is just may be powerful, and whatever is powerful may be just”

-Blaise Pascual


Is Senate Bill No. 3327 (Magna Carta For Philippine Internet Freedom) Better Than Republic Act No. 10175 (Cybercrime Prevention Act of 2012)?

The advent of computers and the World Wide Web have great impact in the society in making the lives of computer users easy as compared to their lives without the presence of computers in performing everyday tasks in their respective works and at home. One computer user must not question the power of a single mouse click or even a tap on the screen can make or go beyond.

It is better to have this type of technology introduced to the present society but as a responsible user, it is better to understand and analyze the advantages of this. Likewise, disadvantages must not be ignored. Careful analysis and assessment of disadvantages of using a particular technology should be given high importance.

Social media is a phrase being used around a lot these days, but it can sometimes be difficult to answer the question of what really a social media is. Media is an instrument on communication, like a newspaper or a radio, so social media would be a social instrument of communication. Majority of the netizens (computer users) found social media very helpful and advantageous.

Definitely because, social media was used to get in touch with our family, teachers/mentors, classmates, officemates and long lost friends. Since it cannot be avoided to be separated from the group of persons that been mentioned by physical distance, through technology we are able to know information about them and be updated on the current news about them and vice versa.

At present, disseminating information became very easy as compared before. A single tweet from Twitter account, post from Facebook account and other post on different social media channels may reach a long way and might create several comments from the receiver. Thus, ethical consequences were highlighted due to the fact that it might lead to the spread of misinformation that may be perceived as fact, the risk of identity theft and cyber-bullying.

In the Philippines, the Cybercrime Prevention Act of 2012 (Republic Act No. 10175) was passed into law last September 12, 2012. The said law aims to provide punishment for certain cybercrime offenses (Section 4, RA 10175). However, the law does not have wide acceptance from Filipinos. Law experts and legislators, and academicians find the law flawed and unconstitutional. The said law allegedly violates the rights guaranteed by the 1987 Constitution to all Filipino citizens such as the freedom of expression, due process, equal protection of the law, double jeopardy and prohibition on illegal seizure.

As the issue was tackled from social media and media (newspapers, radio and television) everyday, some put blame to Senator who prior to the enactment of the law suffered cyber-bullying. Flood of protests against the law became evident nationwide. To add more clamor to the issue, a temporary restraining order (TRO) was issued by the Supreme Court on October 9, 2012 against the Cybercrime Prevention Act or Republic Act 10175. The TRO suspends the law in its entirety for a period of one hundred twenty (120) days.
Although R.A. 10175 does criminalize some acts that are indeed criminalizable, it does so in such a vague way that anything can be caught in its net and called a cybercrime.

The following were the disadvantages of R.A. 10175:

One of the most bothersome parts of the bill is section 19, which states that “Restricting or Blocking Access to Computer Data — when a computer data is prima facie found to be in violation of the provisions of this act, the Department of Justice (DOJ) shall issue an order to restrict or block access to such computer data.” What that means is that if anything you have posted looks like it is in violation of this act, the DOJ can issue an order to restrict or block access to your data. It looks like DOJ don’t need a warrant, they don’t need a court order.

Secondly, the insertion of the provisions of libel into the new law is among the things that poses danger to all internet and social media users. Under the present law, a person found printing or uttering libelous words against another person may be meted 4 to 6 years imprisonment while under the Cybercrime bill, those who post libelous comments through blogs and social media may be imprisoned for at least 12 years. Under the present law, a person can file libel charges against another person in the area where he or she had read the printed material or heard derogatory statements against him or her. It was not however, clarified if that will also be applicable to cyber crimes.

Thirdly, the National Bureau of Investigation, the Criminal Investigation and Detection Group or other intelligence units can get access to a person’s social network accounts and email contents. Some legislators admitted that they were not able to scrutinize the cyber crime bill well before it was passed Congress because of the bulk of resolutions they needed to attend to.

Lastly, aside from libelous statements posted in Internet blogs and social networks, the cybercrime law also aims to put a stop to cybersex, child pornography, cybersquatting, identity theft and unsolicited commercial communications.

As the issue became bigger, on November 12, 2012, Senator Miriam Defensor-Santiago filed the Magna Carta for Philippine Internet Freedom (Senate Bill 3327) and seeks to replace the controversial Cybercrime Prevention Act (RA 10175). According to the Lady Senator, Senate Bill 3327 addressed the deficiencies of RA 10175 and would protect the rights and freedoms of netizens while defining and penalizing cybercrimes.

Senator Miriam Defensor-Santiago has filed a bill crafting a Magna Carta for Philippine Internet Freedom (MCPIF) that would replace the recently enacted but still controversial Republic Act No. 10175, or the Cybercrime Prevention Act of 2012. Santiago’s Senate Bill No. 3327, that would repeal RA 10175, appears to be a more comprehensive measure providing not just prohibited acts and stiff penalties but also guarantees the rights and protection of Internet users in the country. While it provides for the freedom of speech and expression on the Internet, it also penalizes Internet libel and hate speech. While it protects the Internet as an open network, it provides stiff jail penalties and fines for such cybercrimes as hacking, cracking and phishing.

Is Senate Bill 3327 better than RA 10175?

Section 3 (Definition of Terms) of Senate Bill 3327 provides a more detailed and specific definition of the terms relating to such Cybercrime offenses. It specifically states that, whenever possible, the definition of terms relating to cybercrime shall be adopted from those established by the International Telecommunications Union (ITU), the Internet Engineering Task Force (IETF), the World Wide Web Consortium (WWWC), and the Internet Corporation for Assigned Numbers and Names (ICANN), and other international and transnational agencies governing the development, use, and standardization of information and communications technology and the Internet. Unlike the vague definitions provided Section 3 (Definition of Terms) of RA 10175, the definition of terms provided by Senate Bill 3327 is more specific and clearly states that it follows the international standard definition used.
Likewise, the Senate Bill 3327 discussed the most questioned provision of RA 10175, which is classifying online libel as a criminal act (Section 4 par.4, RA 10175). The libel provision provided in RA 10175 (Section 6) seems to be encompassing as it embraces the definition provided in Article 355 of the Revised Penal Code with the only qualification that it be committed online. Senate Bill 3327 defined Internet Libel as “a public and malicious expression tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, made on the Internet or on public networks.”(Section 33, A.1) It specifically requires malice to be present (A.2) and requires that the subject can be clearly identifies (A.3). Looking back, at all-encompassing definition provided in RA 10175, blind items usually used to discuss certain social personalities and/or political figures as a form of entertainment may be embraced. Furthermore, Senate Bill 3327, Section 33, A.4 assures the freedom of speech by providing expression of protest, dissatisfaction, true report made in good faith as well as expression intended to remain private between certain persons be exempted to constitute as online libel. This provision ensures protection to netizens particularly personal bloggers who use the internet as a platform to vent their feelings and opinions.

RA 10175 also provided an all-encompassing definition of Child Pornography. Section 4 (c)(2) provided the definition of Child Pornography given Section 4 (j) of RA 9775 (Anti-Child Pornography Act of 2009). The only qualification provided is the access any form of child pornography THROUGH A COMPUTER SYSTEM. Through the words used in RA 10175, it can be interpreted that as long as one clicked, posted or sent a video containing child pornography materials without any prior knowledge of its content may be held liable. Viruses and spam links are common these days. Some of it automatically posts contents on your social networking sites or sends private messages to your personal contacts. In case these spam links and viruses contained what should qualify as child pornography. The person who opened may be held liable under RA 10175. The owner of the an email address, social networking site or personal website may also be liable if he/she happened to be a victim of spam contents/viruses containing materials defined as child pornography. On the otherhand, Senate Bill 3327 seeks to amend Sections 4 (e) and (f) of the Anti-Child Pornography Act of 2009 (RA 9775). Section 33, C.2(e) and C.5 of Senate Bill 3327 requires prior knowledge and intention of the person in posting/publishing child pornography materials in the internet.

Senate Bill 3327 also provides greater protection against illegal searches and seizures which is guaranteed under Section 2, Article III of the 1987 Constitution. Section 19 of RA 10175 authorizes the Department of Justice to issue an order to restrict access to computer data which is found to be prima facie in violation of the Cybercrime Prevention Act of 2012. Senator Miriam Defensor-Santiago calls such provision as “take-down clause” and claims that it is a dangerous provision wherein the government through its’ acknowledged agency may cause a certain website blocked or restricted without due process of law.

The said provision is not included in Senate Bill 3327 as it is considered a violation of a right guaranteed by the Constitution.

Under Section 28 of Senate Bill 3327, a final ruling from the courts, issued following due notice and hearing should first be obtained before any person may seize data, information, or contents of a device, storage medium, network equipment, or physical plant, or seize any device, storage medium, network equipment, or physical plant connected to the Internet or to telecommunications networks of another, or to gain possession or control of the intellectual property published on the Internet or on public networks of another.

Unlike RA 10175, Senate Bill 3327 (Section 29) includes a stricter and detailed law against copyright infringement. Senate Bill 3327 assures the greater availability of free information on the internet and protection to property rights by providing a specific definition of online piracy. File sharing is one aspect that makes access to internet useful. Senate Bill 3327 fills what RA 10175 fails to provide, regulating the internet to ensure protection of intellectual property rights without violating individual freedoms to data access.

Another defect of RA 10175are Section 6 and Section 7 which many considers as a violation of the constitutional right against double jeopardy. A person charged under RA 10175 for online libel may still be charged the Revised Penal Code for libel even a single act was only committed.

While RA 10175 seems to be a promising law, a closer look at its provisions shows certain flaws which are tantamount to violations of certain rights guaranteed by the 1987 Constitution such as due process, equal protection of the law, double jeopardy and prohibition on illegal seizure. I agree that certain rights may be regulated for the greater protection of the society however, RA 10175 seems to be an all-encompassing law. Many of the terms provided in the said law are vague and susceptible to various interpretations. Although the advocates of RA 10175 claims that these “holes” may be filled up by its Implementing Rules and Regulations I believe that the Magna Carta for Philippine Internet Freedom (Senate Bill 3327) filed by Senator Miriam Santiago would be a better law.
It is indeed a fact that we need a strong law to crack down cybercrimes. We need it to prevent our country to be used by some as their hub for cyber-crimes. Our country is currently experiencing economic growth because of Information and Communications Technology (ICT) and we want to keep it up. Senate Bill 3327 provided solutions to the unconstitutional provisions of RA 10175. The bill also provide a detailed definition of what constitute a certain cybercrime act as oppose to the vague definitions on RA 10175.

The Supreme Court of the Philippines is set to hear oral arguments on the Cybercrime Prevention Act of 2012. The court will hear it on 20th of January 2013. If you would recall the high court issued a temporary restraining order for 120 days, after 15 petitions were filed before it, mostly seeking in one way or another the scrapping of the law or provisions of the law.

Much of the present government’s argument states that we need this law to fight cybercrime. Many of the arguments of pro-cybercrime law argued that without this law, government cannot do their job. Anti-Child Pornography and trafficking laws exist in the Philippines even prior to the Cybercrime Law. Libel likewise exists. Many of the actors supposedly hurt by attacks like being cyberbullied, are hardly cybercrimes— but egos bruised. And much of the propaganda on the Internet is a battle for publishing that has been in play since the printing press began and is no different today, except for the broader audience. What doesn’t exist and still won’t exist even if the cybercrime law is deemed constitutional is a national policy to actually thwart cybercrime, as well as a national cyberwarfare policy.

The truth of the matter is that fighting real cybercrime— cracking, copyright infringement, child pornography, privacy, espionage, financial theft are cross-boarder crimes were necessary. It requires finesse, and technology, and requires that actors— whether nation-states or non-state ones are on the network. The need technology, and people with unique skills from developers to network and systems administrators, and everything in between, including social engineering.

The Magna Carta for Philippine Internet Freedom is a broad, first step towards that goal. Simply, this proposed measure filed by Senator Miriam Santiago in the Senate hopes to address the shortcomings of the Cybercrime Law, and lays the foundation for real strategy for Philippine Cyberpolicy. It takes into consideration people’s rights, and from there grows to fight cybercrime, enact cyberdefense, lays the foundation for modernizing Philippine telecommunications and sets the tone for using the Internet as instrument of Philippine economic development. It is the answer to the Philippine government’s need for real cybercrime initiative by setting the right tone and voice. It lays the foundation for cyberdefense— which the world is fast moving. It sets the direction for modernizing Philippine telecommunications— like have you ever been pissed off at the Internet speed in the Philippines? The MCPIF takes a holistic approach to this.

The Magna Carta for Philippine Internet Freedom is meant to be a fair, and equitable law that balances rights, development, defense and economics. “Recognizing that the growth of the Internet and information and communications technologies are vital to the development and flourishing of an “information society,” where anyone can create, access, utilize and share information and knowledge, and thus enable individuals, communities and peoples to achieve their full potential in promoting their sustainable development and improving their quality of life, the State reaffirms its commitment to the full respect for human, civil, and political rights and the dignity of every human person, and shall guarantee the same in the crafting of laws and regulations governing the use of the Internet and of information and communications technology.”

SY 2012-2013, Second Semester


Data Privacy Act: Am I secured?

The question that often comes to my mind every time I provide my personal information, especially through internet, is that, am I secured? Will it be used for legitimate purpose? Or will it not violate my right to privacy?

With the advent of RA 10173 or also known as the Data Privacy Act, these queries of mine became clear. I am, indeed, secured. The purpose of the Legislative in passing this law is to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected.

But before I go any further, let me just discuss the basis for the passing of RA 10173. It is anchored on the Constitutional guarantee of the right to privacy. Article III, Section 3 of the Philippine Constitution provides that:

(1) “The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.”

RA 10173 is also based on European Council No. 45/2001 in which, it protects the fundamental rights and freedoms of naturalpersons, and in particular their right to privacy with respect to the processing of personal data and shall neither restrict nor prohibit the free flow of personal data between themselves or to recipients.

Scope of application

RA 10173 applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.

On the other hand, this Act does not apply to the following:

(a) Information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, including:

(1) The fact that the individual is or was an officer or employee of the government institution;

(2) The title, business address and office telephone number of the individual;

(3) The classification, salary range and responsibilities of the position held by the individual; and

(4) The name of the individual on a document prepared by the individual in the course of employment with the government;

(b) Information about an individual who is or was performing service under contract for a government institution that relates to the services performed, including the terms of the contract, and the name of the individual given in the course of the performance of those services;

(c) Information relating to any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit;

(d) Personal information processed for journalistic, artistic, literary or research purposes;

(e) Information necessary in order to carry out the functions of public authority which includes the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions. Nothing in this Act shall be construed as to have amended or repealed Republic Act No. 1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act No. 9510, otherwise known as the Credit Information System Act (CISA);

(f) Information necessary for banks and other financial institutions under the jurisdiction of the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the Anti-Money Laundering Act and other applicable laws; and

(g) Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines.

Likewise, section 6 of said law provides for the extraterritorial application of RA 10173. However, it seems that debates will likely arise on this matter because of jurisdictional issues. I wonder if the Implementing Rules and Regulations of this law will somehow address such question.
What are the benefits under RA 10173?

Section 5 of the law provides that: “Nothing in this Act shall be construed as to have amended or repealed the provisions of Republic Act No. 53, which affords the publishers, editors or duly accredited reporters of any newspaper, magazine or periodical of general circulation protection from being compelled to reveal the source of any news report or information appearing in said publication which was related in any confidence to such publisher, editor, or reporter.”

This provision affords great protection in favor of the media men, such as publishers, editors and reporters, against unreasonable harassments of being compelled to reveal the source of any news report or information. It likewise provides peace of mind in favor of the source regarding their personal information being disclosed. In this case, the right of the people to information on matters of public concern will not be abridged.

Section 16 of the law enumerated the rights of the data subject. These enumerations point to one thing, there must be consent and notice before an information can be process. Violation of these rights will sanction penalty, which will be discussed later. Noteworthy to point out is subsection (e) of section 16. It provides that:

“Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected. In this case, the personal information controller may notify third parties who have previously received such processed personal information”

Whenever the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purpose, the data subject has the right to order such information to be suspended, withdrawn, blocked, removed or destroyed by the information controller. The data privacy has also the right to demand indemnity for the injury caused by such information which is incomplete, outdated, false or unlawfully obtained.

Section 20 ensures security of personal information. It provides:

“The personal information controller must implement reasonable and appropriate organizational, physical and technical measures intended for the protection of personal information against any accidental or unlawful destruction, alteration and disclosure, as well as against any other unlawful processing.”

This provision guarantees that the personal information of the data subject will be protected and secured. This way, it will be easy to disclose your personal information, even privileged information, because you know that it is safe. The law puts a heavy burden on the information controller to ensure that the information obtained will only be used for lawful purposes.

This law, as what Senator Anggara said, will not only boost the confidence of potential investors in the country’s IT-BPO industry, but also the trust of ordinary citizens in e-government initiatives.

What are the contentious provisions of RA 10173?

There are provisions in the law that I find interesting, if not contentious. First, is section 5 of the law which provides that:

” Nothing in this Act shall be construed as to have amended or repealed the provisions of Republic Act No. 53, which affords the publishers, editors or duly accredited reporters of any newspaper, magazine or periodical of general circulation protection from being compelled to reveal the source of any news report or information appearing in said publication which was related in any confidence to such publisher, editor, or reporter.”

It may readily appear that this is a benefit under RA 10173. However, if you read it carefully, such provision will likely invite abuse of right on the part of the media men. The provision may be used as a cloak to protect their evil intent in reporting libelous, false or fraudulent information. As the law states, media men may not be compelled to disclose the personal information of their source. What I am afraid of is that, media men may report libelous, false or fraudulent information, claiming that they gathered it through a reliable source, where in fact such source does not exist. They may not be compelled to disclose it and may easily invoke this provision of law.

Another provision that is noteworthy of mentioning is section 7 which provides that: To administer and implement the provisions of this Act, and to monitor and ensure compliance of the country with international standards set for data protection, there is hereby created an independent body to be known as the National Privacy Commission, xxxx”

This provision caught my attention and I find it very interesting. It is provided in this section that there shall be an INDEPENDENT BODY that will monitor and ensure compliance of the law. It means that it is not under the direct supervision or control of the President. The commission, being an independent body, has a wide discretion regarding its obligation as mandated by the law. It means that the President or any other government official, for that matter, may not use their powers in influencing the commission in order to achieve their fraudulent and evil intent. As what happened during the impeachment of Chief Justice Corona, wherein the government used its machinery to obtain information, regardless if it is in violation of the right of CJ Corona. With this provision, we may safely say that we are more secured now compared to what happened to CJ Corona.

Penal Provisions

The law enumerated different kinds of penalties for violation of the RA 10173. the acts punishable under this law are the following:

1. The unauthorized processing of personal information or personal sensitive information – penalties are imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.

2. Accessing Personal Information and Sensitive Personal Information Due to Negligence – penalties are imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

3. Improper Disposal of Personal Information and Sensitive Personal Information – penalties are imposed on persons who knowingly or negligently dispose, discard or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection.

4. Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes – penalties are imposed on persons processing personal information for purposes not authorized by the data subject, or otherwise authorized under this Act or under existing laws.

5. Unauthorized Access or Intentional Breach – penalties are imposed on persons who knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored.

6. Concealment of Security Breaches Involving Sensitive Personal Information – penalties are imposed on persons who, after having knowledge of a security breach and of the obligation to notify the Commission pursuant to Section 20(f), intentionally or by omission conceals the fact of such security breach.

7. malicious disclosure – penalties are imposed on any personal information controller or personal information processor or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her.

8. Unauthorized disclosure – penalties are imposed on any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject.

Having these penal provisions of the law, the data subject is well protected with regard to his personal information.

Conclusion

It is in my humblest opinion that this law will tend not just to increase confidence of the potential investors, especially IT-BPO industry, but also it boost the assurance of the general public that their personal information will not be used to unlawful purposes. It also bolsters the constitutional guaranteed right to privacy. The challenge now to the legislative and the government officials, who have the obligation of ensuring compliance of this law, is with regard to its Implementing Rules and Regulations and the long-term administration of this law. They must craft the IRR carefully in order to attain the significant objective of this law.


Sources

The 1987 Constitution of the Philippines

http://www.pia.gov.ph/news/index.php?article=2101345796739

http://www.gov.ph/2012/08/15/republic-act-no-10173/

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2001R0045:20010201:EN:PDF


SB 3327: “Magna Carta for Philippine Internet Freedom”

“I think it’s fair to say that personal computers have become the most empowering tool we’ve ever created. They are tools of communication, they’re tools of creativity, and they can be shaped by their users” -Bill Gates

Indeed, computer is the most powerful tool that man has ever created. With the help of the internet, this powerful tool may be used in different ways, in communication or even boosting one’s economy and it may even be the channel or forum for every individual to express their feelings or sentiments. However, this great convenience comes with greater responsibility and duty, not only to be mindful of the rights of other people but also, the duty of the government in coming up with a protection for every individual. By that, the Legislative body of the Philippines had passed several laws seeking to protect the rights of Filipino netizens and providing for a penalty for those who will commit a crime through the use of the ICT. For one, RA10173 or the Data Privacy Act of 2012 and another would be the controversial Cybercrime law.

Recently, the Philippines was shaken by the passing of RA10175, also known as Cybercrime Law. Filipinos went hysterical about it and at least 15 petitions were filed before the Supreme Court seeking to declare said law as unconstitutional. On the other hand, the Supreme Court in addressing this problem, issued a 120 day Temporary Restraining Order to stop the implementation of the law.

Is RA10175 BAD?

To help you understand the subject matter of this article and before I dig deeper, let me just express my sentiments about RA10175. Is RA10175 a bad law? I honestly believe that this law is a GOOD law, considering the fact that it seeks to prevent identity theft, fraud and even child pornography. The problem however, which triggered me and the filipino netizens to react, is that the law has loopholes which cannot be left unnoticed because it violates the rights of the people which were secured by the Constitution.

For one, there is a libel provision in the law. Netizens were afraid that the government itself, who must protect their very right to freedom of expression, as mandated by the Consititution, will be the one violating it. The law provides for a heavy penalty for any person who would post, through social networking sites, any libelous statements.

Another issue in this law is the violation of the right of the people to privacy. The Constitution, particularly Section 3 (1), Article III, 1987 Constitution provides:

“The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

It is clear, therefore, that there must be a lawful order of the court. In this case, however, RA10175 gives the government a blanket authority to collect and seized data prior to the issuance of a court order for the same.

As I go along with the discussion, I will try to compare provisions of RA 10175 and SB 3327 to come up with a conclusion on which of the two is better.

New Life, New Hope!

Worry not my friends and fellow netizens, with the advent of SB3327 an act establishing magna carta for Philippine internet freedom, cybercrime prevention,and law enforcement, cyberdefense and national cybersecurity, which was introduced by Senator Miriam Defensor Santiago, there is a window of opportunity waiting for us. And if this becomes a law, there would be, indeed, new life and new hope for the Filipinos.

Let’s backtrack a little; this senate bill was passed by Senator Santiago to address the problem in RA10175. It is said to be the first law, if ever, to be crafted through crowdsourcing, which she describes as a process of getting the job done by tapping people on the Internet.

According to Santiago, it was concerned netizens that include software designers, information technology experts, academics, bloggers, engineers, lawyers and human rights advocates who went to her with a draft of the MCPIF. She said the group formulated the MCPIF through discussions in an open Facebook group, e-mail, Google Hangout teleconferences and social media channels like Twitter.

Salient Features

After going through the bill, I noticed this outstanding provision waving at me. Section 23 of the bill expressly repealed RA 10175 in its entirety. It only means that, if this would become law, Filipinos should not be afraid anymore. Their rights to freedom of speech and right to privacy are fully protected by the bill. Senator Santiago said:

“While it is important to crack down on criminal activities on the Internet, protecting constitutional rights like free expression, privacy and due process should hold a higher place in crafting laws.”

Another provision that caught my attention is section 6 paragraph 2. It states that no person shall be deprived of internet access until and unless there is an order issued by a court of competent jurisdiction. This provision clearly upholds our Constitutional guaranteed right to due process. Section 1 of Article III of the 1987 Constitution provides:

“No person shall be deprived of life, liberty or property without due process of law”

Contrary to the provision of RA 10175, particularly section 19 thereof, it provides that when a computer data is prima facie found to be in violation of the law, the DOJ has the power to issue an order to restrict or block access to such computer data. The provision of the law gives the government the blanket authority and wide discretion to determine whether or not there is violation of the law. It gives the DOJ a power that may be abused if not used or exercised properly.

Another interesting provision of the bill is section 36 thereof. The proposed bill took a big step in decriminalizing libel through the use of internet. The provision provides that libel will only give rise to civil liability and the amount shall be commensurate to the damages suffered. Unlike in RA 10175, libel is a criminal offense and the penalty to be imposed of is one degree higher than that provided in the Revised Penal Code. This is absurd and alarming at the same time, the only qualifying circumstance for the higher penalty is the use of information and communication and technology.

Worthy to note is section 33 (A.4) and (A.5). Netizens, especially journalist, would have the freedom to express their sentiments against the government without the threat of being prosecuted or to be held liable for their acts. Section 33 (A.4) provides for the exceptions to internet libel. Some are: a.) Expressions of protest against the government; b.) Expressions of dissatisfaction with the government, its agencies or instrumentalities, or its officials or agents, or with those of foreign governments. On the other hand, if in case an individual is prosecuted or being held liable for internet libel, Section 33 (A.5) comes into play. This particular provision provides netizens with a defense. Internet libel will not lie not lie if the content of the expression is proven to be true, or if the expression is made on the basis of published reports presumed to be true, or if the content is intended to be humorous or satirical in nature, except if the content has been adjudged as unlawful or offensive in nature in accordance with existing jurisprudence.

Furthermore, a prosecution under the proposed bill will bar any further prosecution of the act as a violation of the Revised Penal Code and other special laws. This is expressly stated in Section 40 of said bill. Contrary again to Section 7 of RA 10175 in which prosecution under the said law shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. The provision of the proposed bill upholds the rule on double jeopardy which is mandated by our Constitution. Section 21 Article III of the 1987 Constitution provides:“No person shall be twice put in jeopardy of punishment for the same offense.”

Conclusion

“A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill, having no legal effect, violates no constitutional right or duty.”

-Montesclaros vs COMELEC GR No. 152295

Having said that, the proposed bill has no legal effect, it confers no rights, it imposes no duties and it affords no protection. Regardless of how perfect it was crafted or how beautiful the intention is, still, we cannot rely on it.

However, as a nation and as responsible netizens, we cannot just sit. We can do something just like what we did when RA 10175 took effect. We once raised our voice to protect our rights. We can do that again now so that this SB 3327 may be given importance. In my humblest opinion, the proposed bill is almost perfect compared to RA 10175, and if it becomes law, it will change the entire future not only of the Philippines but its people.


Sources

1987 Constitution

http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet

http://www.lawphil.net/judjuris/juri2002/jul2002/gr_152295_2002.html

http://www.gov.ph/2012/09/12/republic-act-no-10175/

http://www.senate.gov.ph/lisdata/1446312119!.pdf

SY 2012-2013, Second Semester


How the Data Privacy Act Impacts Me Personally

I am studying Law but I did not bother to read this Act until this was required in my subject, Technology and the Law. Indeed, it deserves to be given a closer look and how this Act will impact me as a person, in the legal profession and in the society to which I live in.

1. Personally

I know that personal information submitted to government agencies such as PAG-IBIG, SSS or LTO or NSO are not totally private or personal information exclusive only to the access of staff of said government agencies. It can be made available as public records to anyone who has a legal purpose, right connection and money to buy such information. Before one knows it, it has already been sold to an advertising company, or to a credit card company and one begins to wonder why one suddenly receives phone calls from strangers who pretend they know them personally. To one’s surprise they have an accurate personal information of the person and all he needs to do is to confirm it with them! You start thinking if someone just sold your personal data? Or did you just lost an ID card and somebody found it and your personal information has gone public? Or having to experience that there is a record of a current Loan in SSS or PAG-IBIG when the member has not really availed of such loan. This shows that somebody had an access of the SSS/PAG-IBIG details of the subject and it was used by somebody else. But the member/subject has to pay it and he cannot do anything otherwise his alleged outstanding loan will balloon or his retirement benefit will get affected! If none of these make sense, then you realize, nothing is safe now these days including safeguarding one’s own identity! Before this Act, one is as helpless as anyone else on what to do if these things happen.

Personally, I think the Data Privacy Act is an answer to the growing violation against the basic human right, the right to privacy. Privacy to personal data information is what this Act is aimed to protect. It protects and safeguards personal information of private individuals like me so that personal information are not readily available and accessible to the public or to anyone who may just want to access personal information, misuse or steal an identity. The coming of this policy must have been adopted in the United States or other countries where digital technology is far more advanced and security of personal data is of prime importance. The Philippines, which is a little bit behind is just catching up. Many controversies pertaining data privacy must have been encountered, either recorded or unrecorded, thus the birth of this Act. Indeed, it will protect private invidual’s right to privacy, the right to life and the freedom to live in the way one wants without it looking at one’s shoulder that one is watching his/her life! I hope that the Implementing Rules and Regulations will clarify provisions of the Act that may be vague.

Before one could have process personal or data information, or process sensitive information, the request must pass through several layers of approval which to me indicates that getting access to personal data or information of the subject is indeed difficult. This assures the subject that before one could have access to his personal details, on top of the layers of approval, it further needs the subject’s consent. So before one could access to my personal data information, I need to be informed and my consent will be needed before any information will be released to any requesting party. The Act puts limit to the extent of personal information that one can only gained access thereto.

I believe this Act will protect my right to privacy and will prevent any difficult situation for identity theft or from misuse which will put me in danger. I just hope that Implementing Rules and Regulations will have a clear-cut procedure so that unscrupulous individuals will not use it to their advantage and benefit from it.

The limitation that the Act does not apply to any officer or employee of a government institution is welcoming in line with the transparency of the government employee or official in charge of processing or keeping of personal data information. This will deter the government employee to hide information that will pertain to any conflict of interest or financial interest that he or she may be protecting and might just be using the Act to protect his own interest.

II. As to the Legal Profession

I will still discuss my opinion in line with the legal profession as this is personal to me, being a student of law. Personally, it protects and safeguards my personal data information and it puts integrity to the goverment agencies who collect personal data. However, I think that this Act will provide a shield to the criminal offenders, recidivists, accused or those who were already convicted. Before the information commission may release data information to the Court, one needs the consent of the accused, convict or criminal. Who in his right mind will incriminate himself and permit anyone to collect information that maybe later be used against him? Speaking of the fruit of the poisonous tree, any information obtained that will violate the human rights or without affording due process to the individual cannot be used as an evidence against him in any court, administrative body or tribunal. How will this be addressed in the Act’s Implementing Rules and Regulations? Will this be taken into consideration?

The restriction to the access and processing of personal data information have no exemption like giving authority to validate the identity of a criminal, bank transactions that will prove he has been involved in anti-money laundering activities or has assumed another person’s identity. He will be able to hide and disguise his identity and be scot free. Access to sensitive information such as bank deposits and transactions, civil status, blood type, etc. cannot be secured because one needs his consent in order to be able to access and process such personal information. Any person who has committed a crime and may not want anyone to gain access of his person data information may just properly invoke this Act. At worst, the subject can even file a complaint against the individual who secured sensitive personal information when he should be the one to be charged for the crime he has committed.

One that is also pointed out in this Act is the level of approval that needs to be sought before one could have access to the data information needed and it has also certain limitations to the number of personal information allowed. Consent of the person is required before one have an access to it. Again, this will reinforce the doctrine against self-incrimination.

Will this Act cover the ‘General Waiver’ being signed by applicants who seek employment in companies? An example of a General Waiver will state the following:

By my signature on this application, I:

a. Authorize the verification of the above information and other necessary inquiries that may be necessary to determine my suitability for employment.

b. Affirm that the above information is true.

________________________________
Applicant’s signature

Can the employer in private corporatations invoke this ‘General Waiver’ to check on the employment background and history, personal information of an applicant such as, existing loans in any government agency or bank, criminal records? If this cannot be invoked and the Act prevails, how will the employer protect its business? How do you safeguard the right of the employer to their right of information pertaining to the people that they hire or do you take into consideration the ‘General Waiver’ signed by the applicant? Can the employee invoke and take advantage of the provisions of this Act to cover his illegal activities, his past wrongdoing in the previous employment? Is the ‘General Waiver’ clause unconstitutional? Should it be stricken out from the employer’s hiring application form?

The pyramiding scam, the most recent ‘Aman Futures’, victimized so many people and robbed them off of their livelihood in Mindanao. The persons involved may be charged with syndicated estafa if their guilt is proven. They claimed that they were issued with the Certificate of Registration by Securities and Exchange Commission. If their personal data were accessed prior to the establishment of the organization, will the Securities and Exchange Commission issue the Certificate of Registration?

The Penalty for unauthorized processing of personal information range from one year to three years with a fine of not less than P500,000 but not more than P2,000,000 while the processing of sensitive information is penalized by imprisonment ranging from three years to six years and a fine not less than P500,000 but not more than P4,000,000. Even access due to negligence is also being penalized in this Act. The fine in this Act is a lot higher compared with other offenses in the Revised Penal Code. To me, it does not commensurate to the special law violated. Although penalties in the Revised Penal Code really need to be revisited since those were still made during the Spanish regime or adopted from the Spanish Penal Laws, the penalties of this Act seem too harsh for such violation/s.

What provisions in the Act which shall be in conflict with the provisions of the Revised Penal Code? Were these reconciled? Will the Implementing Rules and Regulations clarify any provisions in conflict with other Laws?

I also think that this Act will curtail the freedom of speech of Journalists. They will not be able to collect or gather personal information or gain access to sensitive information and cannot just publish it as they will be penalized for gaining access to. Again, the unscrupulous individuals can use this Act to protect themselves . What if the Journalist’s reports open the pandora’s box and will uncover more illegal activities involving powerful and influential people or even extend to our territorial waters, can this Act just be invoked so their right is protected?

The society or community must also be informed and educated about this Act so they know their rights. It must be relevant and should cover many areas including employment, etc.

III. Conclusion

To conclude, this Act definitely protects public interest and safeguards a person’s basic right to privacy. One feels safer and secured that nobody will assume or steal your identity or that your data information you have submitted for any legal purpose is not accessed or misused or changed unless you consent or authorize it. With proper implementation, this Act will be used for a more orderly, safer society.


RA 10175 or Magna Carta for Philippine Internet Freedom?

Is the Magna Carta for Philippine Internet Freedom better than the Cybercrime Law?

The controversial Republic Act 10175 or known as Cybercrime Law of 2012 was signed by President Benigno Aquino III on September 12, 2012 [1] and was made effective last October 3, 2012, fifteen (15) days after its publication. Since then, it has been the subject of hot debates and protests questioning about its constitutionality. Media claims that it curtails press freedom. Invitation to sign up the petition against it was posted in the internet. [2] Every internet user who has the opportunity to voice out their opposition against said law made it as a shout in their ‘FB’ or Facebook account or some have spoken out in chanced television interviews. Every reaction is based on a person’s personal interpretation [3] of the law as the implementing Rules and Regulation is yet to be issued.

In response to petitions filed, the Supreme Court issued a temporary restraining order (TRO) to stop the the implementation of Republic Act No. 10175 Act of 2012 for 120 days. The SC, in its regular full court session, also set oral arguments on the cases on January 15, 2013. [4] Senator Miriam Defensor Santiago authored the Senate Bill 3387 or the Magna Carta for Philippine Internet Freedom.

The law and the senate bill shall be dissected and understood in the light of my own understanding and appreciation of the law and the bill.

1. Scope- The scope of Republic Act 10175 is limited to the definition of cybercrime, providing for its prevention, investigation, suppression and imposition of penalties and used the “all catch” phrase, for other purposes. Whereas, the Senate Bill 3327 or Magna Carta for Ineternet Freedom is wider in scope as stated in its long title and to quote, “An Act Establishing a Magna Carta for Philippine Internet Freedom, Cybercrime Prevention and Law enforcement, cyberdefense and national cybersecurity.” From the title of the Magna Carta alone, it respects the right or freedom to use the internet but it puts a limitation to this for those who will misuse, abuse or disuse it. Magna Carta as defined By Merriam-Webster dictionary is a charter of document consituting a fundamental guarantee of rights and privileges. Indeed, the bill authored by Senator Miriam Santiago did not just simply made a definition of what a cybercrime is but it emphasized that is both a right and privilege. As a right, the State recognizes it but as a privilege, such right will need to be regulated. The scope also covered Cyberdefense and National Cybersecurity. In the Cybercrime Law, it defined only cybersecurity in its definition of terms and referred to all the provisions in the Revised Penal Code for other violations related to the national security. The Revised Penal Code was made effective way back in January 1, 1932 [5] and there are no computer or cybercrime to speak of at that time. This, did not fill in the missing detail of the law.

2. Declaration of Policy – Both the Cybercrime Law and Magna Carta in the declaration of policy recognized the vital role of communication and information in nation building. However, the policy in Magna Carta is all-encompassing and reiterates that the laws and implementing rules and regulation is in accordance with the 1987 Philippine Constitution. It affirms the State’s commitment to the Filipino people for the observance of constitutional rights and the implementation of constitutional law, which is supreme to all other laws. It guaranteed that the constitutional rights of the people are given primary importance, which was not stated in the Cybercrime Law. The policy of the Magna Carta is very detailed and comprehensive. It tries to show that it will take a balancing act considering all the interests of the people, from the impact to its users, down to the respect for the basic rights and even to the innovation and development of programs to enhance the Philippine economy by harnessing information and technology. Whereas, Cybercrime Act focused on the detection, facilitation and prevention of cybercrime.

3. Definition of Terms – Obviously, the definition of terms in the Magna Carta is much wider in scope as it enumerated, clarified and standardized computer lingo by using world wide web and technically accepted terminologies. While Cybercrime Law limited itself with only 17 definition of terms, Magna Carta has 60 terms, excluding sub-definitions. A technical terminology per se is already difficult to undertand especially for a layman or non-information technology person and not all computer users are technical savy. With more terms being defined in the Magna Carta, it will set a common understanding of the technical terms and this will minimize misinterpretation and remove vagueness of the provisions of the law.

4. Law versus Bill –In Section 16 of Chapter IV (Duties Related to the Promotion of Internet Freedom) on duties and state agencies and instrumentation, it designates that the Department of Information and Communication as the lead agency, for overseeing the development and implementation of plans, policies and programs on the use of internet and information and technology in the Philippines but in coordination with other agencies which are likewise responsible with other related laws of the land. In the same way in the Cybercrime Law, the lead agency in charge for the implementation of the law is the Office of the Cybercrime which will be under the Department of Justice. I think the Department of Information and Technology is the proper agency to do the job since it will have experts(lawyer, technocrats or Information Tehcnology practioners or Computer Engineers) , the very people who understand science and technology hamornizing with the Constitution and other laws of the land as well as with international law. Changes with the Rules of Court shall also be effected as this produces a new classification of evidence. With a clearer Implementing Rules and Regulations, the Magna Carta will establish which evidence are relevant or irrelevant. Since Technology is dynamic and evolving, it will also be the right agency to prepare the Implementing Rules and Regualtions and draft Special Procedures, update new information, etc.

The Magna Carta also proposed the creation of a special court for cybercrime cases which I agree. The said court will handle all cybercrimes cases just like tax cases for Tax of Appeal, or Family Courts for domestic cases. The procedures may be incorporated under Special Proceedings of the Rules of Court.

In the Magna Carta6, it proposed an amendment in the Intellectual Property Law, In Chapter 3, Section 18 of the Magna Carta for Philippine Internet Freedom, it defined intellectual property rights over internet based creation which was not yet defined in the Intellectual property Code. The proposed amendment in the Intellectual Property Law as quoted below:

(n) CODE, SCRIPTS, COMPUTER PROGRAMS, SOFTWARE APPLICATIONS, AND OTHER SIMILAR WORK, WHETHER EXECUTABLE IN WHOLE OR AS PART OF ANOTHER CODE, SCRIPT, computer programs, SOFTWARE APPLICATION OR OTHER SIMILAR WORK;.

Without this specific provision, it will be broad and vague as to classify the form of intelellectual creation or if the Intellectual Property Law can define it – how does this creation be protected by the said law, the same way that industrial design or utility model is. This form of intellectual creation already abound but the right of the creator remains unprotected. This adds to the enumeration of the different forms of intellectual creations and remove vagueness and misinterpretation of the law. The Cybercrime Law is supposed to protect technology inventions or intellectual creation but such was not made clear in the Cybercrime Law of 2012. The Cybercrime Law provides for the penalties for its violation but limited the different cybercrimes to cybersecurity, violation against integrity of the information, cybersquatting without including the protection of intellectual creation and those to be considered as intellectual creation under this form.

The Magna Carta also proposed to amend Section 172 of the Intelellectual Property Code,

172.2. Works are protected by the sole fact of their creation, irrespective of their mode or form of expression OR PUBLICATION, as well as of their content, quality and purpose.

If any work is protected by this proposed Magna Carta regardless of any form of publication, does it mean that any audio-visual presentation or article written or videos uploaded in the internet will be protected by this Magna Carta? Is the sexual act or any similar act videotaped be considered as an intellectual creation? Will an intellectual creation of a sexual act taken/videotaped by the parties, one of them uploaded it in a social network and was downloaded by another internet user be considered a violation of an intellectual property on the basis of the proposed provision? Of course, this is protected by the Republic Act 9995 or Anti-Photo and Video Voyeurism Act of 2009″, as stated in the prohibited act, (d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device. [7] But how do this law be harmonized in the Magna Carta?

Section 11 of the Magna Carta also covered local Internet Service provider which protects the consumers of internet service and the providers alike. Right now, there is no direct agency where complaints can be filed against internet service providers which charges expensive fees but quality of cable connection is not satisfactory. Complaints are passed on to the Customer Service Relations Officer of a subcontracted agency but more often no feedback are given to consumers or if there is, no solution is offered to them. An irate consumer may just decide to shift to another provider but there are only few players in the market which leaves the poor consumer to just get used to the bad service. The agencies that assist customer complaints can be the Department of Trade and Industry for consumer products or the National Telecommunications commissions for calls or SMS related concerns. However, because of the volume of complaints, it is difficult for these agencies to act on all these. The Magna Carta stipulated one important and relevant concern of consumers when it comes to postpaid users of SMS, cable or cellular phone usage that is the correction of errors [8] in the billing statement issued by the service providers. To wit,

Section 20 (E) TIMELY CORRECTION OF ERRORS IN BILLING AND THE IMMEDIATE PROVISION OF REBATES OR REFUNDS BY THE UTILITY WITHOUT NEED FOR DEMAND BY THE USER;

With the Magna Carta, the right of the consumer on rebates and refunds without need of refund is protected.

It clarifies ambiguous provisions of the Anti-Trafficking in Persons Act of 2003 but how will a foreign national based in his country and is involved in human trafficking by advertising, promoting Filipino women or prostitute in the internet? Will this not be beyond the jurisdiction of the Philippines even if Article Two of the Revised Penal Code provides this as an exemption? Is this considered an international law? Is this covered by a treaty?

Under the Revised Penal Code, Libel is defined as public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead [9]. The Magna Carta introduced a new genre of libel – that is internet libel. However, it is defined in the same way as libel is defined in the Revised Penal Code.

Internet libe1 [10]. – Internet libel is a public and malicious expression tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead, made on the Internet or on public networks.

There is really no need to introduce this term as this will be covered under the Revised Penal Code’s definition of Libel.

The Cybercrime Law seemed to have been ‘half-baked’, just for the purpose of having a law to penalize cybercrimes than none at all. The increasing issues on cybercrimes or violation against internet use must be the driving force why the lawmakers have rushed into legislating for one. However, the law has vague and broad areas that invite many misinterpretation. While, the Cybercrime Law appears to be a shortened or an abridged form of a copied law, the Magna Carta is so comprehensive in its provisions that one may get ‘lost in translation’ and you may wonder if you are reading the provisions of Intellectual Property Law or still the Magna Carta of the Internet Freedom Use. Nevertheless, it is a better and comprehensive version of the Cybercrime Law. Therefore, the Cybercrime Law must be repealed by this Magna Carta of Intenet Freedom authored by Senator Miriam Santiago!


Endnotes

[1] Republic Act 10175, Section 31, Page 17.

[2] “I will not be silenced….NO TO RA 10175”, http://www.nujp.org/no-to-ra10175/. 08 January 2013.

[3] Toral, Janette, Digital Filipino, http://digitalfilipino.com/introduction-cybercrime-prevention-act-republic-act-10175/. 09 January 2013

[4] Panaligan, Rey G. “Cybercrime Law Stopped”. Manila Bulletin Publishing corporation, http://www.mb.com.ph/articles/376433/supreme-court-issues-tro-against-ra-10175-or-cybercrime-prevention-act-2012#. 09 January 2013.

[5] Republic Act 3815, Article 1.

[6] Santiago, Miriam Defensor. S. B. 3327, Magna Carta for Philippine Internet Freedom.

[7] Republic Act 9995, “Anti-Photo and Video Voyeurism Act of 2009”, Section 4. d.

[8] Santiago, Miriam Defensor. S. B. 3327, Section 20 (E), Magna Carta for Philippine Internet Freedom.

[9] Revised Penal Code. Title 13, ‘Crime Against Honor’, Chapter 1, Section 1, Article 353.

[10] op. cit. Section 33, A.1.

SY 2012-2013, Second Semester


“Data Privacy Act of 2012″

Let me begin, by mentioning Section 5 of the 1987 Philippine Constitution. The law provides that “The privacy of communication and correspondence shall be in violable except upon lawful order of the court or when public safety and order require otherwise.” (Article III, section 1 [5] of the Constitution. This provision cited refers to privileged communication. Privilege communication is defined as a private communication made by any person to another, in good faith, in the performance of any duty, whether legal, moral, or social, solely with the fair and reasonable purpose of protecting the interests of the person making the communication or the interests of the person to whom the communication is made, is a privileged communication.” (Sec. 9, Act. No 227). Likewise a communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained incriminatory matter which without this privilege would be slanderous and actionable.’ (Harrison vs. Bush).

Privilege is classified as either absolute or qualified. For the sake of clearness of application privileged communications are often divided into two classes: Absolute privilege; and conditional or qualified privilege, the second sometimes being called ‘quasi privilege.’ In cases of absolutely privileged communications, the occasion is an absolute bar to the action; whereas, in cases of conditionally or qualifiedly privilege communications, the law raises only a prima facie presumption in favor of the occasion. In the former class the freedom from liability is said to be absolute or without condition, regardless of the existence of express malice, as contrasted with such freedom in the latter class where it is said to be conditioned on the want or absence of express malice.” (53 C.J.S., 141-142.) An absolutely privileged communication is one for which, by reason of the occasion on which it is made, no remedy is provided for the damages in a civil action for slander or libel. It is well settled that the law recognizes this class of communications which is so absolutely privileged that even the existence of express malice does not destroy the privilege, although there are some dicta denying the rule, and some eminent judges, in dealing with particular applications of the rule, have doubted or questioned the rationale or principle of absolutely privileged communications. As to absolutely privileged communications, a civil action f or libel or slander is absolutely barred.” (53 C.J.S., p. 142.) Qualified privilege exists in a larger number of cases than does absolute privilege. It relates more particularly to private interests; and comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has an interest, or in respect to which he has a duty, public, personal, or private, either legal, judicial, political, moral, or social, made to a person having a corresponding interest or duty. Briefly stated, a qualifiedly privileged communication is a defamatory communication made on what is called an occasion of privilege without actual malice, and as to such communications there is no civil liability, regardless of whether or not the communication is libelous per se or libelous per quod.” (53 C.J.S., pp. 143-144.)

Public policy is the foundation of the doctrine of privileged communications. It is based upon the recognition of the fact that the right of the individual to enjoy immunity from the publication of untruthful charges derogatory to his character is not absolute and must at times yield to the superior necessity of subjecting to investigation the conduct of persons charged with wrongdoing. In order to accomplish this purpose and to permit private persons having, or in good faith believing themselves to have, knowledge of such wrongdoing, to perform the legal, moral, social duty resulting from such knowledge of belief, without restraining them by the fear that an error, no matter how innocently or honestly made, may subject them to punishment for defamation, the doctrine of qualified privilege has been evolved, under which, “the occasion on which the communication was made rebuts the inference of malice prima facie arising from a statement prejudicial to the character of the plaintiff, and puts upon him the burden of proving that the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made (US vs. CAÑETE).

Indeed, our constitutional guarantee of privacy of communication and correspondence will not be violated, because the trial court has power and jurisdiction to issue the order for the production and inspection of the books and documents in question in virtue of the constitutional guarantee making an express exception in favor of the disclosure of communication and correspondence upon lawful order of a court of justice. As the law stands now, there are two ways that this guarantee may be limited that is by lawful order of the court or when public safety and order. Lawful order means that there is a mandate coming from courts in their exercise of their judicial power to limit such right. The other when public safety or order requires. This is a mandate by the very existence of the government. When the government deems it fit to enact laws, they may enact laws, in order to promote and preserve the government as well as its citizenry.

The enactment of Republic Act 10173 or known as the “Data Privacy Act of 2012″ is a living example of such authority of the government to preserve, promote and improve the government itself. This law accordingly is deemed necessary to safeguard the rights of its citizenry. Basically, this law will try be protecting personal information in the information and communication systems in the government and the private sectors. Personal information is refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual. The policy is embodied in section 2 to wit, “it is the policy of the State to protect the fundamental human right of privacy, of communication while ensuring free flow of information to promote innovation and growth. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected”. The said provision is the root of its enactment. The wise men and women of Congress, to me had anticipated the fast changing era, the so called postmodernism. Accordingly, postmodernity implies flexibility and changes. For Lyotard, postmodern would be that which in the modern invokes the un-presentable in the representation itself. That which refuses the consolation of the correct forms, refuses the consensus of taste permitting a common experience of nostalgia for impossible and inquiries of the new un-presentable (Lyotard, postmodern condition). The pronouncement made by him ignites changes in the first world countries. U.S.A, Germany, France and other countries begin to improve their laws concerning communications in relation participation in the political sphere. They now acknowledge, what was before unrepresented and/or un-captured to their minds, the birth technology matters in the political hemisphere.

Quite interesting to point out that its applicability is encompassing. Section 4 of the said law provides that “Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines. It does include juridical and those other person that may be authorized by law. Furthermore, it did not limits its application herein the Philippines as section 6 points out that it may be made applicable to acts done or practices engaged in and outside of the Philippines by an entity if relates to personal information about a Philippine citizen or a resident entity that has a link with the Philippines, and the entity is processing personal information in the Philippines or even if the processing is outside the Philippines as long as it is about Philippine citizens or residents such as, but not limited to, the following: (1) A contract is entered in the Philippines; (2) A juridical entity unincorporated in the Philippines but has central management and control in the country; and (3) An entity that has a branch, agency, office or subsidiary in the Philippines and the parent or affiliate of the Philippine entity has access to personal information amongst other. For me, this shows more significant to Filipinos working anywhere other than our country. In order to classify what may be included as personal information, the law specifically provided its criteria. The processing of personal information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:(a) The data subject has given his or her consent; (b) The processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract; (c) The processing is necessary for compliance with a legal obligation to which the personal information controller is subject; (d) The processing is necessary to protect vitally important interests of the data subject, including life and health; (e) The processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or (f) The processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a third party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.

One important feature of this law is the creation of National Privacy Office. This independent body is likely to assure that the purposes of this law will be attained. Without which, no instrumentality of the government can focus specially the mandates of this law. The Commission shall be attached to the Department of Information and Communications Technology (DICT) and shall be headed by a Privacy Commissioner, who shall also act as Chairman of the Commission. The Privacy Commissioner shall be assisted by two (2) Deputy Privacy Commissioners, one to be responsible for Data Processing Systems and one to be responsible for Policies and Planning. The Privacy Commissioner and the two (2) Deputy Privacy Commissioners shall be appointed by the President of the Philippines for a term of three (3) years, and may be reappointed for another term of three (3) years. Vacancies in the Commission shall be filled in the same manner in which the original appointment was made.
The powers and functions of the commission is enshrine in section 7, to wit the assurance compliance of personal information controllers, exercise quasi-judicial power within its scope and limitations as well as lawful order to rendered the law effective, issue cease and desist orders, impose a temporary or permanent ban on the processing of personal information, upon finding that the processing will be detrimental to national security and public interest, compel or petition any entity, government agency or instrumentality to abide by its orders or take action on a matter affecting data privacy, monitor the compliance of other government agencies or instrumentalities on their security and technical measures and recommend the necessary action in order to meet minimum standards for protection of personal information. The Commission is itself mandated to coordinate with other government agencies and the private sector on efforts to formulate and implement plans and policies to strengthen the protection of personal information in the country, to publish on a regular basis a guide to all laws relating to data protection and publish a compilation of agency system of records and notices, including index and other finding aids. Likewise it may recommend to the Department of Justice (DOJ) the prosecution and imposition of penalties. The commission is also task to ensure proper and effective coordination with data privacy regulators in other countries and private accountability agents, participate in international and regional initiatives for data privacy protection, negotiate and contract with other data privacy authorities of other countries for cross-border application and implementation of respective privacy laws, to assist Philippine companies doing business abroad to respond to foreign privacy or data protection laws and regulations; and to generally perform such acts as may be necessary to facilitate cross-border enforcement of data privacy protection.

To me, the Republic Act 10173 or known as the “Data Privacy Act of 2012″ is very timely. Now is a good time for such law. Our country needs to update itself to the current changes of the world. Not only that it needed to be updated but also to ensure that situations be suitable and appropriate for it so that life, liberty and property of its citizenry will not be prejudice.


What Now?

Society is reaping the results of our failure to give priority to life. What now? Children are growing contrary to god’s plan that is without knowledge what true love is. They lack basic understanding of what is supposed to be done. As a result thereof, we are improperly prepared to face issues of today. In the Philippines, the issue is noticeable. All roads lead back to the fundamental character of the Filipino and the dis-functional culture it spawned to the tune of a nation of 100 million. Filipinos are unable to control and police themselves. These kinds of performance expected of a modern society are simply beyond the intellectual reach of the average Filipino minds. It is evident in the way the simplest of rules and the most basic of courtesies simply escape the grasp of Filipino thinking. To such a society, the very modern privilege of freedom of speech and the right to elect their leaders have been granted. But questions remain as to whether Filipinos have truly earned these privileges.

The enactment of the Republic Act 10175 also known as the Philippine Cybercrime Prevention Act of 2012 became a celebrated event in our nation. It became a pre-new year celebrations for us! Filipino antagonists started, questioning people behind the said law. What now? They mocked some legislative personae. They are in the position that, the enactment of such law is, for protection of the administrators of the government against public disclosure of their shit! They protested publicly, through online forum and social discussion in the newspaper. For example, in a news column, a contributor expressed that, “unprecedented freedom, anonymity and democracy allowed by the Internet may have come to a screeching, crashing halt”) has caused quite an amusing hysteria in the online commentary community. [1] Some of the many antagonists brought the same to the judiciary and asked the high court concerning its applicability without disregarding basic constitutional rights. My perusal readings in the cyber world and in some newspapers, including reporters’ discussions after the aftermath one thing has quite evident amongst the social networker: they have been terrified by the passage of the law!

What now? Quite interesting to depict, are the reactions of networkers who, by evident dissatisfaction of the law personally disarmed some political figures. Even the law provides penalty against violators, they never hesitated bringing some comments against them. For example, a provocative statement by someone against the law, speak against a senator. I quote, “Heard [Philippine Senator] Tito Sotto was cruising a gay bath house in Quezon City last week. Spread your own truth about Sotto today!” and “Senator Tito Sotto is not only a plagiarist and misogynist, but he is also a coddler of rapists, drug dealers”. [1] Various networkers expressed their sentiments against the law saying “that who cares about this cybercrime law!?hindi pa rin maitatago ang KATOTOHANAN na ABNOY! BAKLING! PANOT! BAD BREATH (TALSIK LAWAY)! TAMAD at B0B0 si NOYNOY! hindi rin nila MAIKAKAILA na MAKATI pa sa GABING BICOL, MANGWAWASAK ng PAMILYA (mahilig KUMABIT!), MALANDI at MAY STD yang si KRIS AQUINO!” [3]

The outbreak of this kind of character, to me is too personal. This must not be done. We should learn to exercised rights granted by the government, in such a manner not injurious to others. Not the other way around. That is why I mostly admire Senator Santiago, for trying to come up a suggestion to push for the passage of a bill dubbed as anti-cybercrime law version 2.0 that would replace the controversial Republic Act No. 10175. In a way it may solve the impasse brought about by the passage of the law and to reasonably fulfill the purpose of the law for which it was in the first place created. The purpose of the law is express in section 2 of R.A. 10175. [4] Santiago said her Senate Bill 3327, known as the Magna Carta for Philippine Internet Freedom (MCPIF), will guard the rights and freedoms of Filipinos in cyberspace, while defining and penalizing cybercrimes. While it is important to crackdown on criminal activities on the internet, protecting constitutional rights like free expression, privacy, and due process should hold a higher place in crafting laws,” she said.

Is the proposed bill better than the law passed? What now? The antagonists argued that the law, the Cybercrime Prevention Act of 2012 or Republic Act No. 10175 threatens our basic rights and freedoms. This law works against ordinary citizens, bloggers, freelance writers, website owners, social network users and disregards, among other things, our right to privacy and freedom of expression.

I agree with Senator Santiago that the bill being push be her is quite better than the other. Here are my reasons:

First, the policy of MCPIF does not suffer from over breadth and vagueness. It expressly affirmed the rights contained in the Constitution and guarantees its observance and protection. This confirmation is not present in the said law. It likewise acknowledge the potential harm which the internet may bring, which she herself coined as cyber weapons, which to her is inimical to national interest. I quoted (some portion of section2), the State reaffirms its renunciation of war as an instrument of national policy. Therefore, consistent with the national interest, the State shall pursue a policy of “no first use” of cyber weapons against foreign nations and shall pursue a policy of cyber defense, and shall endeavor to develop plans, policies, programs, measures, and mechanisms to provide security for Internet and information and communications technology infrastructure for and in the defense of the Filipino people.

Secondly, R.A. 10175 violates the right to privacy and the Constitutional guarantee against illegal search and seizure through allowing the warrantless real-time collection of traffic data. Section 12 [5] of the law is not clear when may be the real time to collect on such potential data. Although the section produced, enumerate the elements when this section is applicable, the wordings of the said enumerations is ambiguous that would lead a reasonable man to evident mistakes. In contrast, the MCPIF ensures due process by providing strict guidelines for any collection of any data, including the securing of warrants, obligating notification, and limiting seizure to data and excluding physical property. Santiago’s bill differed from R.A. 10175 as it guaranteed the right against illegal searches and seizures. The internet rights and privileges 6 are contained in articles 4-12 of the proposed bill. A feature outstanding in the proposed bill is the acknowledgment of the internet as an open area, where ideas is shared and passed. The law contained no provision in this respect.

Thirdly, the MCPIF authorized government agencies to provide security for the data they collected from citizens to ensure their right to privacy. This provision is absent in the law signed by President Aquino. As an illustration, The dangerous ‘takedown’ clause of R.A. 10175 where the government may have a website or network blocked or restricted without due process of law, is not present in the MCPIF. The bill provides for court proceedings in cases where websites or networks are to be taken down, and prohibits censorship of content without a court order. It connotes that the judicial power to decide any existence controversy pertaining to the subjects covered by the law is retained by the courts and courts alone and not to be transfer to any government agencies which are not competent to decide the case.

Fourth, the MCPIF did not curtail the freedom of expression via internet. This is expressed in section 8 of the bill. It provides that the State shall, within its jurisdiction, protect and promote the freedom of speech and expression on the Internet. In connection thereto, The State shall, within its jurisdiction, protect the right of the people to petition the government via the Internet for redress of grievances. The State shall, within its jurisdiction, protect the right of any person to publish material on or upload information to the Internet. This right as granted by the constitution was never touch by the legislature.

Fifth, the MCPIF also prohibits double jeopardy. R.A. 10175 allows double jeopardy through prosecution of offenses committed against its provisions and prosecution of offenses committed against the Revised Penal Code and special laws, even though the offenses are from a single act. Double jeopardy is a prohibition against second prosecution after a trial for the same offense. The evil sought to be avoided is the double trial and double conviction and not the double punishment. Right against such cruel punishment is being affirmed in the bill proposed by Senator Santiago.

Sixth, Santiago’s bill also seeks to clarify the mandate and organization of the proposed Department of Information and Communications Technology (DICT), the creation of which is currently pending before Congress. Because of the broad range of responsibilities related to the enforcement of laws governing ICT, a department-level office should be established and its functions and jurisdiction should be clear-cut. There is no said the matter concerning the new law. To me, there must be a clearly established body that oversees the enforcement and applicability of law. A body which its primordial concern it to see to it, that, the law is use to fulfill its function and not otherwise. In connection thereto, the MCPIF prepared the proposed DICT, law enforcement agencies, and the military with provisions for handling cybercrimes. Section 47 of the bill provides amendments to the AFP Modernization Act to ensure the country has weapons and defenses against cyber-attacks by terrorists, violent non-state actors, and rogue or enemy nation-states. Cyber-attack means An attack by a hostile foreign nation-state or violent non-state actors on Philippine critical infrastructure or networks through or using the Internet or information and communications technology. The term may also be used to mean an assault on system security that derives from an intelligent threat, i.e., an intelligent act that is a deliberate attempt to evade security services and violate the security policy of a system. Also, the bill’s Section 48, on the other hand, mandates the Philippine National Police and the National Bureau of Investigation to combat cyber terrorism. It is proper to recognize that child pornography, child abuse, and human trafficking can be committed through the internet, as much as hacking, piracy, and copyright infringement. Santiago’s bill also enables the country to harness ICT for national development by ensuring government agencies are keeping up with the realities of and advances in information technology, such as those involving consumer welfare and copyright laws.

Seventh, if passed into law, S.B. No. 3327 will be the first law to be created through “crowdsourcing.” Crowdsourcing is an online process of getting work done by tapping people on the Internet who volunteer their talent and skills. This is not tackle even by glance in the law. This is an emerging epidemic in the internet and lastly,

“The MCPIF does not suffer from over breadth and vagueness in its provisions on libel, unlike the law it tries to replace. The law provides that, 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. In fact, it treats libel as a civil liability rather than a criminal act, which is a step forward in the move to decriminalize libel.

Although the proposed bill quite long, to me it is better than the law. I suggest that it be acted upon, in order that to safeguard the law will bind us all. And to stop the inimical dialogue amongst man concerning the unconstitutionality of the law, let us be reminded that, legislature are also humans such that, they are may insist on setting up standards which may in the end violates any right, this is not a permission upon us to mocked them. They are also entitled to what we post on our blogs or on our pager, or in the new column, which is due process. No one is above each other.

Freedom and right must not be curtailed. That slogan, are cries of all walks of life and yet, they remain useless in my ears. It must not be a one way thing to do! Government and its inhabitant must do their stuffs. No one is to be blame. We must resolve to follow the uniform standard to keep up with the rest of the western world and put order in our communities. We cannot continue to run our organizations or communities like the Wild, Wild West and expect progress to happen.


Endnotes

[1] MANILA STANDARD ARTICLE by Jojo Robles,

[2] Carlos Cledran, on his TWITTER

[3] The latest outrage fad: Protests against the new Philippine anti-cybercrime law have become personal. This article is posted by one Benigno on September 19, 2012.

[4] SEC. 2. Declaration of Policy. — The State recognizes the vital role of information and communications industries such as content production, telecommunications, broadcasting electronic commerce, and data processing, in the nation’s overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of computer, computer and communications systems, networks, and databases, and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal access by making punishable under the law such conduct or conducts. In this light, the State shall adopt sufficient powers to effectively prevent and combat such offenses by facilitating their detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation.

[5] SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system. Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information. The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

[6] A right that, when granted to an entity, permits the entity to perform a privileged access that is the completely unrestricted access of a user to the resources of a device, computer, system, or network, and the privileged control which means The completely unrestricted ability of a user to use the resources, modify the configuration, and otherwise exert a directing influence on the operation of a device, computer, system, or network.

SY 2012-2013, Second Semester


How does Republic Act 10173 affect me? Is there benefit or flaw in the law?

As I sit in front of the computer trying to figure out how I would answer these questions, I assessed myself, am I pro to this new law? The title helped me sort out my confusion – “An Act Protecting Individual Personal Information In Information and Communications System in the Government and the Private Sector, Creating For This Purpose A National Privacy Commission, And For Other Purposes.”

Honestly, I asked myself, “What the heck is this?!” “What does it REALLY do?”

It might be a wonder to many why this sound out of this world to me, well, for everybody’s information, I am not a computer GENIUS… yes, I am literate as it is noticeable I am able to type, and send this blog. But it does not follow that I understand everything that I do NOT do – obviously, I don’t do it because I do not intend to, and I don’t want to commit mistakes. Like the use of facebook, twitter, blog or however else any modern person of this era will want to communicate and reach out to many souls as easily as sending their messages without having to do it the old fashioned way… such as : letter-writing (as in like IN THE TESTATOR”S OWN HANDWRITING!), notice messaging via any post office, LBC, JRS or even the FedEx. Well I do that still. Am still in the Jurassic era, if that is how it is called nowadays. I prefer to commit less mistakes- with that, it is less headache. If modernity through technology will complicate my already complicated life, then I prefer to live in the Jurassic era where things are a little slower but less risk. HOWEVER, am now putting my opinion on a blog-seems like I have no choice. But, I understand why I need to be tech literate- as this not only refer to tech geniuses but in the profession that I intend to be a part of a few years from now. I must understand how it works- you know this techy thingy majigs!

First question : How does the law affect me intimately?

Skeptical!

The law says, xxx to protect the fundamental human right of privacy xxx

First, can this law protect me from invasion of my privacy? This law will be tested only when the harm is done already… and my privacy has already been violated.

Second, this law came about when there was already breach of this so-called privacy.

What it only does is that it serves as a warning to those who are in possession of any personal information about an individual. Just like any other law, it gives warning only, not a full-proof protection of what it seems to impart to the netizens.

Before anything else, it is important to know how and where our personal information go as we send them. It is a worldwide web out there!
I have watched a movie where a person’s personal information was used by another individual pretending to be her and the very ones who caused this trouble are the ones in the government! It may be JUST A MOVIE, but come to think of it, it can be anybody else’s reality once our information has landed onto the hands of the crooks. It is not sci fi, it is a fact!

On the question, “how does it affect me intimately?” it scares me because I know there is nothing in this world, not even a law, can protect me 100%. But, I reserve some respect to this law- 50% max that at least, when my privacy has been violated, there is a basis for my cause of action. It will somehow give me the relief needed by a netizen knowing that I am not totally abandoned in my quest for privacy, even just a little.

One look at the language of the law, it seems encompassing, full-proof.. that any violation regarding my privacy, the National Privacy Commission is there to seal my wound. But as I read it again, just like our courts, it is just there to help a little, impose a big fine upon those guilty as we say – IF PROVEN. What if not? Then we leak our own wounds.

Second question : Is there benefit or flaw in the law?

Section 4 of the topic law provides,

Scope- “This Act applies to the processing of all types of personal information and to any juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines, subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.”

However, there are exceptions, meaning, there are circumstances that this law does not afford protection to. Reading those that are not included from protection of this Act, I find it justifiable, rightly excluded , and fair enough as there are many in our jurisdiction who take refuge in our own laws to circumvent the spirit of it and take it to their side and escape penalty in broad daylight. An example of this is the Secrecy of Bank Deposits Act which, as divulged through the media in many events, are taken as shield by those seated in power. But this RA 10173 will somehow tame the abuse of Secrecy of Bank Deposit Act.

Section 16 – Rights of the Data Subject –

When I read the contents of this particular section, it does not cover all that can be given as a right to one data subject. When an information is asked, the system does not accept what is entered into if the data subject omits some information he or she would want to skip – simply, for fear of violation or breach of privacy. So, the right to skip, omit for purposes of protection is not respected.

(f)Be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.

Under normal circumstances, this does not have any tooth in regard any damages filed by a data subject. More often than not, this leak or unauthorized use of personal information usually goes ignored and hard to prove as to who the culprit really is. And Filipinos as we are, we often let it go as any suit will only take our precious time, moreover, costly.

Section 21 Principle of Accountability –

(a) xxx

(b) The personal information controller shall designate an individual or individuals who are accountable for the organization’s compliance with this Act. The identity of the individual(s) so designated shall be made known to any data subject upon request.

The above section is not yet tried. Say on jobstreet.com, it is system generated. All it does is get an information of data subject. It cannot even be asked. It is a one-way trip to Ohio where I GIVE DATA, IT RECEIVES DATA, AND I JUST WAIT WHAT HAPPENS NEXT.

Section 25- Unauthorized Processing of Personal Information and Sensitive Personal Information- (a) The unauthorized processing of personal information shall be penalized by imprisonment ranging from one (1) year to tree (3) years and a fine of not less than Five Hundred Thousand Pesos (500,000) but not more than Two Million Pesos (2,000,000) shall be imposed on persons who process personal information without the consent of the data subject, with or without being authorized under this Act or any existing law; (b) The unauthorized processing of personal sensitive information shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine not less than Five Hundred Thousand Pesos (500,000) but not more than Four Million Pesos (4,000,000) shall be imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.

Oftentimes, when a law has been passed, we look into the scope- we see to it we are not subject to it, and if we are, we take precautions. Next thing we look upon is the penalty. Section 25 is securing that this law will be implemented properly basing on the imposition of fines which are quite high as compared with other laws. What I do not read from any of the penalty provisions is the penalty in case of insolvency of the data or personal information controller.

Section 26 – Accessing Personal Information and Sensitive Personal Information Due to Negligence – (a) accessing personal information due to negligence shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (500,000) but not more than two million pesos(2,000,000) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law; (b) Accessing sensitive personal information due to negligence shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine not less than Five Hundred Thousand Pesos (500,000) but not more than Four Million Pesos (4,000,000) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

What I understand on this provision is that, say, I, an ordinary netizen, negligently accessed a personal information. Does this mean, any person? Like you and I? who, due to negligence, provided access to personal information? How will that happen? Educate me. Like when I tinker on my computer and upon doing such, I get an access code without really knowing and understanding it, and suddenly, wallahh! There appears the personal or sensitive information of another. I think this must be cleared- the language of the law is ”ACCESSING personal information” and “PROVIDED information xxx,”

which must be negligently done. There is no clear comportment as to how negligence is to be made so as to be held liable under this provision. Negligence must be accompanied by the intention and the surrounding circumstances that go about the so-called negligence. It does not come straight and alone, more often, it is not what we judge it is.

Have I understood PRIVACY the way this law would want me to?

What does PRIVACY mean? – a state of being apart from the company or observation of others; freedom from undesirable intrusions; esp. avoidance of publicity.

Article III BILL OF RIGHTS 1987 CONSTITUTION

Sec.3 (1) The privacy of communication and correspondence shall be inviolable xxx.

(2) xxx

Based on the penalties imposed and the functions of the National Privacy Commission, what I understand is that my right to privacy of any information sub-qualified into personal and sensitive information is as valuable as my own life that it is safeguarded like a precious gem.

Like any law, there are pros and cons for its enactment. There are advantages and disadvantages of Republic Act 10173, and as quoted from other sources, are as follows:

“The Advantages of this Act is that it aims to protect the individuals in personal information. the effects of this in our country’s e-Commerce security infrastructure, especially on the e-entrepreneurs. It helps the entrepreneurs in terms of their privacy when talking about the their business. On the other hand, R.A no. 10173 helps to prevent the theft of intellectual property and the privacy of each individuals.

The disadvantages of this act is that it minimizes the Information and Communications System generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar device by or which data is recorded, transmitted or stored and any procedure related to the recording, transmission or storage of electronic data, electronic message, or electronic document.” [1]

“Benedict Hernandez, Director of the Business Processing Association of the Philippines (BPAP) and President of the Contact Center Association of the Philippines (CCAP), said the local BPO sector must and will abide by the new law’s provisions. It is also predicted to attract more investors as it is set to reinforce protection of private data.

In an interview, Hernandez also highlighted several uses and benefits of the law to the outsourcing industry and other sectors as well. He added that private information should be handled with outmost confidentiality.

Moreover, he said having reinforced data privacy processes will help pave the way for better business practices in companies and more opportunities in attracting potential investors. He reiterated that BPAP will strive to work with the government in implementing and establishing the provisions of the Data Privacy Law.”

“While the disadvantage of RA 10173 poses an equally if not more than alarming penalties not only for the long-time netizens but moreso for those who are newbies in using the internet or any kind of information technology media. Ordinary Filipinos, especially those who are computer illiterate, those with no access to, or seldom use the computer or any device that have the capabilities to store and transfer sensitive personal information may be prosecuted in courts of the Philippines due to improper handling of information or negligence.

“What alarms me the most are the penalty clauses stating that anyone can be penalized by imprisonment and will be fined in gargantuan proportions for accessing personal information of another individual or entity. Even if she/he did not mean to”. [2]

With all these presented – my preference for the old route, my need for what new techs offer just to be able to dance well with the fast paced life we have right now, it can be well said that this Republic Act 10173 is a balancer of the inevitable and its remedy.


Endnotes

[1] The Penguin English Dictionary, 2d Edition p.1108; Sec.3 Article 3 Bill of Rights; Lainemejos.wordpress.com, visited dec.1,2012

[2] Kristinepetagra.wordpress.com visited dec1,2012


RA 10175 and the Magna Carta for Philippine Internet Freedom

An Act Defining Cybercrime, Providing for the Prevention , Investigation, Suppression and Imposition of Penalties Therefore And For Other Purposes [ Republic Act 10175]; as against
An Act Establishing a Magna Carta for Philippines Internet Freedom, Cybercrime Prevention & Law Enforcement, Cyberdefenses & National Cybersecurity [SBN 3327]

First, it must be clarified that, before I continue on with my blog, I am inclined to dwell on neither side. My view is from a standpoint where people see it in black and white, unclouded by personal desires. Just plain and simple knowledge of the use of the internet.

I have read a running commentary on the Anti-Cybercrime Law, and they are not pointless to be ignored. Some articulate of their fight for their online rights before they may even be peddled, regulated, and scheduled away. It must be understood that the exercise of power in our physical world is rather a dangerous act as it entails more of what we can do rather than what we cannot do.

I have always believed that freedom comes with great responsibility. We are to be held accountable for what we say in print as well as online without really being suppressed of our so-called freedom. The barrier clouding our mentality to ever psych out the need to demarcate liberty from self-rule has to be deleted. In other countries such as China, “self-discipline” on the use of the internet is being rewarded, although it blocks content very directly, so does Iran; Russia does not directly block websites, as they simply introduce order to place the weight on the internet site themselves. However, not all regulations are applicable to all kinds of people. Those of what Russia, China and Iran implement may not be useful to our kind of people. But the common denominator of the aforementioned countries and the Philippines is that citizens ó government. It takes two to tango. We must admit, we tend to abuse the little power that we are granted, therefore, a little help from our government to tame us a bit will not hurt. I love freedom much as anyone else here on earth! So I must not be misquoted for saying that we need “a little help from the government.”

The internet, for all its good purpose, should help the good guys rather than the bad guys. But, for some reason or another, the bad guys tend to monopolize such good use and convert it to their glory, the ratiocination for the effectuation of the now questionable RA 10175 and its maybe replacement SBN 3327. It is somehow forgotten that the legitimate purpose of technology is to better our continuance here on earth and not to maneuver or enthrall us human beings. The government and technology work for the people and not the other way around.

It can be regarded that we are such in a sullen state because we cannot school ourselves that we need to be reproved by some law or laws. Discipline emanates from the person within and not from the castigation our government saddle upon our people.

What motivate people to do things? Perhaps, the urge to let their feelings flow through; the moment of emptiness that they so want to be filled with just anything. There is nothing wrong about going through any of these, in fact, these blogs, twitter or any social media effects, are one of the great geniuses of our time – where people come together, comment about anything; there is expansion of brilliant ideas; there is collective intelligence so to speak. The best part of all these is, it is for free! The positive side of blogging is that we have the citizen journalism where there is no need for formal training to be one. However, again, if there is positive side, there is always the dark side. Some say, it is very easy to fall in love with the internet. Really? When I heard this, I could hardly fathom if there is indeed any depth into that statement. Another is, the paradox of collective intelligence. The more ties we construct, the thornier it gets, the harder it is to be individualistic. Oh yeah!

President Noynoy Aquino III signed the Anti Cybercrime Law or RA 10175 on the 12th of September 2012, however, the Supreme Court discharged a Temporary Restraining Order for 120 days from the 9th of October to grant our Congress an opportunity to come about a substitute step.

RA 10175 sought to scourge cybercrime offenses such as spamming, identity theft, online pornography, hacking, online libel and other similar offenses committed through the use of the internet. This law has been reviewed, ridiculed and was given a chance but its objectives were not cogent enough in terms of freedom of expression, and of speech. People who are adept to the ins and outs of the internet enunciate their mettlesome sentiment about the provisions of this law.

In this law, the Department of Justice and not the court who investigates and castigates bad elements; collection of traffic data without warrant or court order is another flaw of this law. The other problem that this law presents is the Take down clause which is not well defined as there is a take down of computer data alone and taking down of a blog is another thing. The Department of Justice must secure a court order before the take down takes effect unless there is a clear and present danger that there could be no more waiting another second. The legal field employs the terminology “clear and present danger” as a standard to allow for the constitutional right of freedom of speech and expression be curbed. Tsk! Tsk!

This law that avow to protect us Filipinos against those who do us injustice though the internet is also threatening to march away our constitutional rights of freedom of speech and of expression. Tsk! Tsk!

On the Libel clause, it imposes a higher penalty which amended the Revised Penal Code because of the harmful nature of the internet if on the hands of a debauched internet user. One statement that is considered libelous and is posted, it becomes obtainable forthwith to everyone without obstruction and charge. A complainant who is libeled need be advanced as the new agency will not be capable of monitoring all the tweets, blogs or shout-outs in all networking sites. The good thing about this law, as they claim, is that when the person who commits cybercrime is outside the Philippines, he can still be held answerable since the person libeled may still file a case against its oppressor – and can still be arrested so long as there is a warrant against that person. As skeptical as I am, I wonder if this will be implemented as smoothly as it portrays to be easy.

Why it is a summon to all internet users to overrun too much use of the net in order to project selfish desires. Amen to that!

Here comes the SBN 3327.

One of the lady senators filed a bill crafting a Magna Carta for Philippine Internet Freedom that would take a crack supplanting the recently enacted but very controversial RA10175. It was argued that RA 10175 was unconstitutional because of its over breadth and vagueness to the effect of making some internet undertaking punishable. The bill filed seems to be more extensive providing not just disallowed acts and stern chastisement but more importantly, it assures the rights and protection of our netizens. This bill promises castigating internet libel and hate speech while it engenders freedom of speech and expression on the internet. On this proposal, the lady senator vouches for citizen’s rights against illegal search and seizure through letting the warrantless real-time collection of traffic data. It also warrants due process by catering meticulous guidelines for any data collection including the securing of warrants, obligating notification and limiting seizure to data while excluding the physical property. This bill likewise commands government agencies to procure security for the data they collect from netizens to ensure their rights to privacy. Also, there is no provision for ”take down clause” (which has raised a lot of questions in RA10175), instead, it provides for court proceedings in cases where websites or networks are to be taken down. There is also a provision wherein it prohibits censorship of content without first securing a court order. Said bill bars double jeopardy. On the Cybercrime law, it does not provide blockade for double jeopardy through prosecution of offenses committed against its provisions as well as those against the Revised Penal Code, Special Laws, considering the offenses are from a single act.

This bill grooms the propounded Department of Information and Communications Technology, law enforcement agencies, as well as the military with provisions for taking care of cybercrimes. It ensures that the country has suitable defenses against cyber-attacks by terrorists, violent non-state actors and rogue or enemy nations. The Philippine National Police and the National Bureau of Investigation are likewise directed to antagonize cyber-terrorism. There is a spadework for exploiting ICT for national development by assuring that government agencies hold fast with realities and advances in information technology like the copyright and consumer welfare laws.

SBN 3327 not only aspires to pitch into the protection of but also the institution of the rights of the internet users in our country. It is worthwhile noting that this bill claims to be escorted by the proficient, qualified knowledge in the IT and legal expertise. This bill is the first to be created through “crowdsourcing.” It says that in its drafting, a group of IT Specialist, software designers, bloggers, academics, engineers, human rights advocates, and lawyers were involved. They also claim that such draft was formulated through discussions in an open facebook group, email, google hangout teleconferences and twitter. It somehow pacifies the fear growing inside of me that my utilization of the internet will not land me into detention or be inflicted of hefty fines for simply letting out my sentiments unto the government, some public officials or some circumstances that are likely to happen to vocal people like me. Its quest is to implant a sensible, fact -oriented and stable environment that defends Philippine nationals against cybercrimes and cyber-attacks. It pursues to benefit netizens as they meet threats and challenges of piloting cyberspace.

For journalists, this could be favorable because it does away with imprisonment for libel through the internet as there only arise civil liability. Moreover, malice is not a presumption in internet libel in comparison with that punishable under the Revised Penal Code wherein such is presumed with every defamatory imputation if no good intention and justifiable motive is shown. As may have been raised by critical thinkers – a reporter being sued under both the Revised Penal Code and the Magna Carta if his article in print is also posted on the net and end up with two separate crimes. But it seems that SBN 3327 has foreseen this possibility of indicting a blogger with two charges in a single act. One of the lawyers behind Magna Carta said, that no journalist who has disputatious article published online and on a print is at risk of separate indictment.

On account of libel, it treats such only as a civil liability rather than a criminal act, as can be gleaned from my view, this is a step forward in the instigation to de-criminalize libel. However, it is not congruent with the libel punishable under the Revised Penal Code. This will become subject to questions later on as what should have been done first is to harmonize the two laws.

This bill, as the proponent sees fit, is anchored on rights, governance, development, and security upon which, qualms will arise, for sure!

Despite all the fears any netizen is facing with the enactment of the RA 10175 and the possible enactment of the Magna Carta, Philippine cyberspace is still unregulated and the need for one is calling louder. Yes, there are more priorities that our lawmakers should attend to, but this may become one of them if not given publicity right now.

In a country with more than thirty million internet users, how can cybercrime law be enforced in the Philippines? The enacted law and the proposed law are good push to resist cybercrimes, but, there is an exigency to take up any ambiguity or omission in a text through which its intent may be evaded. There are internet crimes which are vaguely covered or not at all, and this dilemma, for all we know, will not only create bigger problems that an amendment or repeal or imposition of another law may be needed, AGAIN!

Bloggers are beholden to what they say, comment, post, publish or whatever a social media user does. Yes, these SMU are not journalists as they are not trained as one, but when they nab the poncho of publicizing, they should be regarded and be burdened of the duty and responsibility of a journalist. They cannot excuse themselves simply because they are not licensed journalist thus leaving them unaccountable for the mess they created. Bloggers who are not in favor of being regulated by any outside law aside from their clout to their own morality, ascertain that even absent of any defining rules, a devious blogger may still be castigated by the community of bloggers through their comments online. But of course, there is no certainty as to the reprimand that an errant blogger is to be subject to if without any clear law that all social media users should abide. I see no reason to be uncomfortable about bloggers being regulated.

As what the government claims, the information and communications technology and the internet are drivers of economic growth, thus the country is all the more in need of a really adequate, competent and efficacious cyberlaw that will put to reality such a claim. Safeguarding our nation against cyber-attacks has become one of the nation’s topmost priority. To effectuate this objective, trained operations team must ardently protect against internal and external threats. And for those consummated attacks on our cyberspace, our defense must be adequate of kicking off follow-on attacks on internal networkers. Knowledge of actual attacks that have conciliated systems engenders the cardinal armature on which to erect sufficient defenses because our government agencies tasked to supervise such condition are not unlimited in budget, and the only sensible way to conform with these requisites is to entrench a baseline of information security device and controls that may be monitored without ceasing through automated mechanisms. It shall be understood that cyber attacks milk on the vulnerable areas in a project or program to procure entrée to other enterprise facility. The government agencies will surely continue to explore interconnectivity across agencies to improve its support upon its netizens and own operations. Defenses should center on addressing the most prevalent damaging attacks transpiring nowadays as well as those that likely to occur in the future. The government agencies assigned with this job must warrant congruous controls to effectively negative any attack. In short, a multiplicity of explicit technical activities must be assumed to bring forth a more consistent defense.

Another inconsistency I have encountered is on the government’s assumption of internet security when and well in fact, it cannot even secure its websites. Cyberspace has become the soapbox of the best and the unpleasant whatever that any person can think of. It should have a been a place at an opportune time to exchange ideas and artistic expressions if not for the cyberbullies that make it such an unhealthy environment to even bother visit.

I must admit that although I support a competent, efficient and unbiased cybercrime law, I am scared of what is laid before us after any of the two (RA 10175 and the Magna Carta) is in implementation. Until they are tested, I will not breathe in relief yet, if, after I have published and told the truth online, I won’t be damned. Most of the social media users are the young people and I bet they are not cognizant about the cybercrime laws so much so about its implications. These juveniles could be charged of libel even before they would even know its meaning.

As I have earlier stated, I do not promote the law and the bill. Until it is on testing ground, and has not in any way infringed my bill of rights granted by the constitution, then I will take side and succumb to whichever has preserved my freedom of speech and expression through the internet.

SY 2012-2013, Second Semester


How “Data Privacy Act of 2012” affects the life of every individual?

RA 1O173 will give so much impact not just to me personally, but also to those people who are covered by this law. To begin with, personal information is defined as “any information whether recorded in material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information.”

We all know that personal information of a person reflects to the identity of a person, whatever details that are incorporated to that personal information must be properly managed and well handed, otherwise it may be used against and may destroy to the dignity and reputation of a person who owns such details.

It is a right of a person to secure his/her own personal information, and no one has the right to use it against him/ her. Although there are instances wherein personal information of a person may be used against him, provided that such use is in accordance and permitted by the law, otherwise it will constitute to a violation of his human rights, specifically his right to privacy.

Nowadays, some people don’t know the real meaning of right to privacy, because unintentionally and intentionally they tend to invade the privacy of others. They invade the privacy of others through unauthorized collection, gather and use of others information. Everyone is vested of its own Constitutional rights, however in exercising our rights, we should take into considerations some factors and limitations in order not to violate or invade the others rights. Every right that is vested by our Constitutions and laws correspond to responsibilities. For example, I have the right to privacy; I can exercise such right to others who want to invade my privacy. In the same manner, while others exercising their right to privacy, out of due respect, I must also observe their rights, by not intruding or any action that may constitutes a violation to such right.

It is very easy to get the personal information of others, because of the availability in the internet. Some people do not know that putting their respective personal information in the internet may be used against them, and they don’t even know that such information is unsecured. Some websites that provide the personal information of a person are, facebook, twitter, and any other social websites, however, the said websites do not automatically generate the personal information of a person, it relies on the end user of such websites, meaning, the end user may control a certain information that may appear in a definite website. Being an end user of a certain website, we must know as to what extent of information are we going to use and put in a website, only those information that are relevant to our purpose that should appear in the website, otherwise too much information that are not relevant to our purpose may be used by some that may destroy our reputation and personality as a person.

Sometimes we can’t control or secure our personal information because our respective employers have the control and management over it; they may give our personal information to those interested parties even without our authorization. By reason of a good consideration either money or anything that has a value in exchange for the personal information of the employee, the employer tend to offer to an interested party, even the fact that the said employer knows that it will constitute to a violation of privacy of a person who is the subject the of the swap over.

The law must provide a something that will protect our personal information through the rules and regulations and laws that our government must implement for the protection of every individual against to those violators of privacy.

Is it necessary for us to have a specific law that will manage and control the data processing. As we look at the old setting regarding the collection and distribution of information, anyone can access others information whenever they want, without observing the privacy of others in connection with their information. It is like saying, my information is open for everyone whether I give my consent or not, because anyone can access it and distribute it to those who need my personal information. This kind of set up which happened prior to the enforcement of the law (RA 10173) caused so many problems for the government and to individuals; it resulted to number of crimes in connection with the unauthorized gathering and collection of personal information of others.

Now that there is a specific law in regulating the personal data of individuals in information and communications system in the Government and private sectors, the RA 10173 or also known as “ Data Privacy Act of 2012” will strictly control the distribution and collection of personal information. The use of internet by the end users should be in line with the said law; otherwise there is a corresponding penalty in violation of the RA 10173.

The law has its specific coverage wherein the said law may be enforced, under section 4 it provides that “This Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph: Provided, That the requirements of Section 5 are complied with.” However, the said law is not absolute, meaning there are exceptions wherein the personal information may be retrieved even without the consent or authorization of the person subjected for the personal information retrieval. According to the law, this will not apply to the following circumstances:

a) Information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, including:

(1) The fact that the individual is or was an officer or employee of the government institution;

(2) The title, business address and office telephone number of the individual;

(3) The classification, salary range and responsibilities of the position held by the individual; and

(4) The name of the individual on a document prepared by the individual in the course of employment with the government;

(b) Information about an individual who is or was performing service under contract for a government institution that relates to the services performed, including the terms of the contract, and the name of the individual given in the course of the performance of those services;

(c) Information relating to any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit;

(d) Personal information processed for journalistic, artistic, literary or research purposes;

(e) Information necessary in order to carry out the functions of public authority which includes the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions. Nothing in this Act shall be construed as to have amended or repealed Republic Act No. 1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act No. 9510, otherwise known as the Credit Information System Act (CISA);

(f) Information necessary for banks and other financial institutions under the jurisdiction of the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the Anti-Money Laundering Act and other applicable laws; and

(g) Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines.

According to the law, when this law is violated, there will be corresponding penalties to be imposed against such violators. The law provides that under section 33 “ Any combination or series of acts as defined in section 25 -32 shall make the person subject to imprisonment ranging from 3 -6 years and a fine not less than 1 Million but not more than 5 Million pesos “ . The penalties to be imposed are serious, considering the number of years of imprisonment and the value of fine that is why the people must take it into account.

The law provides for penal provision that will violate this law. The following are the different kinds of penalties as provided in RA 10173:

1.) The unauthorized processing of personal information or personal sensitive information – penalties are imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.

2.) Accessing Personal Information and Sensitive Personal Information Due to Negligence – penalties are imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

3.) Improper Disposal of Personal Information and Sensitive Personal Information – penalties are imposed on persons who knowingly or negligently dispose, discard or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection.

4.) Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes – penalties are imposed on persons processing personal information for purposes not authorized by the data subject, or otherwise authorized under this Act or under existing laws.

5.) Unauthorized Access or Intentional Breach – penalties are imposed on persons who knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored.

6.) Concealment of Security Breaches Involving Sensitive Personal Information – penalties are imposed on persons who, after having knowledge of a security breach and of the obligation to notify the Commission pursuant to Section 20(f), intentionally or by omission conceals the fact of such security breach.

7.) Malicious disclosure – penalties are imposed on any personal information controller or personal information processor or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her.

8.) Unauthorized disclosure – penalties are imposed on any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject.

The primary purpose of this law is to give security of the personal information of private individuals and also the public entities. I think this law is good, if it can be enforced properly and there must be strictly enforcement of this kind of law in order to attain its purpose. The law is created to provide a good effect and not deteriorate the life of individuals.

There are certain procedures and requirements to be followed in order to have a processing of others personal information without violating the right to privacy. A person has the right to be protected on his personal information, because it is vital to someone’s identity. Let us say there is no law providing for the protection of every individual in relation to their particular personal information, if the personal information of a person is not protected or secured, the tendency of it, such person with respect to his identity, he will have no preservation on his personal information, because anyone may access it and use it to their respective purposes, as a result the person is deprive to have his identity to be secured.

The enforcement of this law will give benefits not only to individuals but also to other juridical entities as well. Like in the case for Business Process Outsourcing (BPO) sector in the Philippines, the enforcement of RA 10173 will provide protection for the personal digital data of private and public entities, because no one can easily retrieve or get some information on private individuals and also the public personalities. If one person wants to have information of the private or public entities, it must be reasonable and the law allows him to do so, otherwise there’s no way he can retrieve such information without violating the law.

Because of RA 10173, it will give a better business practices in companies and it will also attract local or foreign investors, because they know that their investments will be protected in a manner that the said law will provide a full security. Personal Information of private and public entities is available anywhere in the internet. Even without the authorization of the owner of such information, you may access it through of the use of the internet, as long as such information is readily available.

In observance of this law, I personally in favour of this law, considering the advantages that everyone will get, not as an individual but also to other businesses that manage and have the control on information processing. If all the information is protected and secured by our government, it will lessen crimes that may occur and such crimes shall be properly monitored by the appropriate government agency.

The enactment of law may be bad for some, because those people can no longer access the information of others at anytime they want due to the fact that the law prohibits and provides penalties like imprisonment or fine, or it can be both depending on the gravity of the act in which the said law is violated. Come to think of the total effect of this law, it will definitely improve the life of each individual because of the primary purpose why this kind of law is enacted. It depends on a person on how he/she is going to interpret it, whether he/she takes it as a good law, or on the other way around.


Sources:

http://www.gov.ph/2012/08/15/republic-act-no-10173/


Is the Senate bill introduced by Senator Santiago, relevant to Magna Carta for Internet User, a better law than the Cybercrime Law RA 10175?

We all know that Computers have the power to make things easier, such as transmission of information, making things possible as the product of our imaginary minds, and other possible things we could ever imagine. The combination of computers with the internet give us the advantages to do things easily, however, for every advantage we get, there is a corresponding disadvantage also. Like for example, the dissemination of certain information easily can be considered an advantage, because we can easily disseminate information to respective recipients, but there is a disadvantage in the given scenario, like, it is true that we can disseminate information easily, but come to think of it, we can also destroy a person’s dignity or reputation by simply publishing false information against the person is concerned, at the same time we can also release false information anytime and anywhere at our own convenience. For every great convenience comes with a greater responsibility.

Observing the Cybercrime Law, known as RA 10175, and Senate Bill No. 3327, known as the Magna Carta for Philippine Internet Freedom (MCPIF), the expression of the Legislature is to protect the rights and freedoms of every Filipino in the world of cyberspace, by providing a corresponding penalty for criminal activities. However, the expression of the Legislature through passing a law, should be in accordance with the Constitutional rights guaranteed by the Constitution, such as right of expression, right to privacy and right to due process. The Constitution mandates these rights in order to protect the mankind, in cases there are abuses of authority on the part of the Congress in passing laws that will regulate and manage the people by the government.

If a certain law passed by the Congress which is not in line with the Constitutional rights guaranteed by the Constitution, such law or expression is not effective and it will constitute as in contrast as to what the law should be. The role of the Congress is very important in the government, because without Congress there will be no government.

The main function of the Congress is to craft laws and they should take into consideration the benefits that it will give to the Filipino People, and to protect their respective rights, however, such right must be regulated in order not to be abusive in exercising their rights. In regulating the rights of the people must be in accordance with the Constitution, so that it will not violate the Constitutional rights of people and the enforcement of the law will not become abusive.

Looking at the provisions in Cybercrime Law or also known as RA 10175 and comparing it in the provisions found in Senate Bill No. 3327 or also known as the Magna Carta for Philippine Internet Freedom (MCPIF), we can see the difference between the two;

According to Senator Miriam, RA 10175 is vague in its provisions in libel, while the proposed Senate Bill Senate Bill No. 3327 or also known as the Magna Carta for Philippine Internet Freedom (MCPIF) by Senator Miriam, it clarifies by treating the libel as a civil liability rather than treating it as a criminal act.

The RA 10175 provides criminalizing the libel by imposing an imprisonment and civil aspect, while in the latter provides a civil liability only without subject for imprisonment against the offender. The purpose of the bill is not to put the offender to double jeopardy, because it is a violation to our Constitution to subject a person to double jeopardy for a single act. Unlike in RA 10175, the libellous act of a person in the internet can be penalized by the said law without being prejudice the penalties provided by the Revised Penal Code and other special matters. To clear on the matter, the RA 10175 may impose penalties against the person who violates the provisions of RA 10175, at the same time can be also penalized by other laws for same act, unlike in the proposed bill, it is not applicable.

Another distinction between R.A 10175 and Santiago’s bill, it secures against illegal searches and seizures, unlike in R.A. 10175, wherein it violates the right to privacy and right against illegal search and seizure allowing warrantless in collecting information. While the Santiago’s bill, it guarantees due process in order to protect the Constitutional right of the person concern, and it provides rules, regulations, and guidelines in collecting a certain data. The Constitution provides a person has the right against illegal searches and seizures unless there is an order from a competent court.

According to Senator Miriam, her bill repeals the Cybercrime law, considering the Cybercrime law, may be considered as unconstitutional, as the Supreme Court has been suspended the implementation of the law through acting on at least 15 petitions questioning the constitutionality of RA 10175. The Supreme Court issued a 120 day Temporary Restraining Order in October.

The proposed Senate bill of Senator Santiago is addressing the certain issues or problems in RA 10175, known as Cybercrime law. It doesn’t mean that RA 10175 is not a good law, it is a good law, and however, there are things that need to be revised in the provisions of the said law in order to achieve a greater purpose of the law. Like in one of the provisions in RA 10175, giving the government the authority to restrict or block a website without due process of law. Such authority violates the Constitutional guarantee of due process, unlike in the proposed senate bill of Senator Miriam; it provides court proceedings in cases where the websites are subject for restriction or censorship.

In one of the provisions in the proposed Senate bill, it provides that “no person shall be deprived of internet access until and unless there is an order issued by a court of competent jurisdiction”. From this provision, we can see how the said bill upholds the Constitutional guaranteed right to due process as found in Section 1 of Article 3 of the 1987 Constitution, wherein it states that “No person shall be deprived of life, liberty, or property without due process of law”.

In contrast to one of the provisions in RA 10175, it says that “when a computer data is prima facie found to be in violation of the law, the DOJ has the power to issue an order to restrict or block access to such computer data”, in this provision it gives the government the apparent authority and the discretion to determine whether or not such computer data violates the law. The DOJ at its own convenience may exercise grave abuse of authority because of the fact that determination of violation lies on the discretionary power of the said agency.

Another flaw in one of the provisions in Cybercrime law, is that it allows double jeopardy through constituting a violation in its provisions at the same time prosecuting offenses in Revised Penal Code and other special laws, though the offense constituted a single act. It would be unfair on the part of the offender to be subjected to several penalties even though he only constituted a single act.

Under section 21 of the 1987 Constitution, it provides that “No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”

As to the Constitutional guarantee, a person should not be placed under double jeopardy, unfortunately, the RA 10175 did not uphold this kind of right instead it stands against it.

The proposed Senate bill by Senator Miriam protects the Constitutional guarantee of freedom of speech and the right to express respective thoughts on the internet provided it is in compliance with the proposed senate bill by Senator Miriam.

The interesting part of the bill in giving the internet users especially the journalist the freedom to express their opinions or sentiments against the government without being subjected to prosecution or be held liable for their acts.

Conclusion

Knowing the differences between RA 10175 and the proposed bill by Senator Miriam, as per my opinion, the proposed Senate bill of Senator Miriam is better compare with the former, based on how it was crafted by Senator Miriam. However, considering that it is still a bill, it has no effect at all, only when such bill is raised and passed as a law.

We as Filipino people have the right to raise our own voices regarding how we want our rights to be protected and how things will be regulated by our own government. The passing of this senate bill into a law will not only benefit the present but also the future.

Laws that were passed by the Congress serve a big role in our economic growth, because the laws determine what should be regulated and restricted. If the laws were crafted well, it will help the economy grow; as a result it will also help the people.

References:

1987 Constitution

http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet

http://www.gov.ph/2012/09/12/republic-act-no-10175/

http://www.senate.gov.ph/lisdata/1446312119!.pdf

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