Leong, Leslie Ann: Remedies for threats and harassment through SMS

INTRODUCTION

The Philippines is considered as the “text capital of the world.” This is probably because of lower rates of text messages offered by network providers, not to mention services such as unlimited texts. In 2006 alone, there was already an estimate of 35 million cell phone subscribers in the Philippines and about 350 to 400 million SMS (Short Message Service) or text messages are sent daily. [1]

Other than the personal text messages, subscribers are also bombarded with messages on subscription such as quotes, jokes, games, picture messages, multi-media messages, ringtones, and the like. These subscriptions however can be discontinued anytime by the subscriber. But the real threat posts by these most successful piece of technological advancement lies on malicious messages that threatens and harasses the subscribers or recipients. These have been increasing alarmingly in the country and most probably in the rest of the world.

The goal of this paper is to discuss the threats and harassment through SMS and the legal remedies available to the recipients of malicious text messages. It also presented grounds and/or laws violated as bases to institute criminal actions against perpetrators.

The paper will begin with a discussion on short message service or SMS and cyber-bullying, including the characteristics of SMS that facilitate threats and harassment. The paper will discuss the legal remedies that the victims may avail of and the existing laws that are applicable.

SHORT MESSAGE SERVICE (SMS)

Short Message Service or (SMS) is a communication service component of the GSM mobile communication system, using standardized communications protocols that allow the exchange of short text messages between mobile phone devices. SMS text messaging is the most widely used data application in the world, with 2.4 billion active users, or 74% of all mobile phone subscribers. The term SMS is used as a synonym for all types of short text messaging, as well as the user activity itself, in many parts of the world. [2] It is an obvious fact that this is one of the most successful 21st technological gadgets that has provided many benefits i.e. communication convenience and most importantly on communication for emergencies. However, we cannot disregard the few but very damaging disadvantages it brings. One of which is cyber-bullying that has created discomfort to many.

CYBER-BULLYING

Cyber-bullying “involves the use of information and communication technologies to support deliberate, repeated, and hostile behavior by an individual or group, that is intended to harm others. -Bill Belsey” It is defined by the National Crime Prevention Council as a situation “when the Internet, cell phones or other devices are used to send or post text or images intended to hurt or embarrass another person.” [3]

Cyber-bullying can be as simple as continuing to send e-mail to someone who has said they want no further contact with the sender, but it may also include threats, sexual remarks, pejorative labels (i.e., hate speech), ganging up on victims by making them the subject of ridicule in forums, and posting false statements as fact aimed at humiliation. [4]

Cyber-bullies may disclose victims’ personal data (e.g. real name, address, or workplace/schools) at websites or forums or may pose as the identity of a victim for the purpose of publishing material in their name that defames or ridicules them. Some cyber-bullies may also send threatening and harassing emails and instant messages to the victims, while other post rumors or gossip and instigate others to dislike and gang up on the target. [5]

Based on the definition above, the threat and harassment using the SMS or text messages is a form of cyber-bullying. It is however essential to detail the characteristics of such threats via SMS to make a clear distinction between a threat and simply an annoyance.

CHARACTERISTICS OF SMS THAT FACILITATE THREATS AND HARASSMENT

The perpetrators or harassers use text messages in threatening or harassing others because it takes less energy and courage to express hurtful comments using a keypad or a keyboard than with one’s voice. [6]

SMS provides anonymity. Most of the perpetrators prefer concealing their identity from their victims. The mobile phone, specifically its SMS service, is a perfect means to carry out their intention without being caught. They can use a different SIM card, other than what they regularly use, to send the malicious text messages. Their identity cannot be easily traced.

Perpetrators or harassers use SMS because they can harass or threaten their victim without leaving their homes. [7] As long as their mobile phones are with them, the harassers need not leave their homes, work, or school. They need not confront the victim personally.

SMS harassment is cheaply done. [8] The perpetrator may purchase SIM cards, which cost less than 100 pesos. A text message, composing of 160 characters or less, costs only P1. Telecommunications service providers also offer promos which provide free text messages, making it easier.

Another factor is the inseparability of a mobile phone from its owner, making that person a perpetual target for victimization. Users often need to keep their phone turned on, which provides the opportunity for those with malicious intentions to engage in persistent unwelcome behavior such as threatening and insulting statements via the phone’s text messaging capabilities. [9]

REMEDIES

The offended party may file a complaint to the One Stop Public Assistance Center (OSPAC) of the National Telecommunications Commission (NTC). The complaint must contain the complete details of the text messages such as the date and/or time they were received, the cell phone number of the sender, and the contents of the text messages. When the NTC finds merit on the complaint, the Commission shall send warning messages to the complained number. [10]

Since the focus involved is serious in nature i.e. threatening, abusive, and obscene or hoax messages, the victim may institute criminal actions against the perpetrator. The victim may charge the perpetrator with the following crimes:

1. Grave Threats

Art. 282. Grave Threats – Any person who shall threaten another with the infliction upon the person, honor, or property of the latter or of his family of any wrong amounting to a crime, shall suffer:

1) The penalty next lower in degree than that prescribed by law for the crime he threatened to commit, if the offender shall have made the threat demanding money or imposing any other condition, even though not unlawful, and said offender shall have attained his purpose. If the offender shall not have attained his purpose, the penalty lower by two degrees shall be imposed.

If the threat be made in writing or through a middle-man, the penalty shall be imposed in its maximum period.

2) The penalty of arresto mayor and a fine not exceeding 500 pesos, if the threat shall not have been made subject to a condition. [11]

2. Light Threats

Art. 283. Light Threats – A threat to commit a wrong not constituting a crime, made in the manner expressed in subdivision 1 of the next preceding article, shall be punished by arresto mayor. [12]

3. Unjust Vexation

Art. 287. Any other coercion or unjust vexation shall be punished by arresto menor or a fine ranging from 5 to 200 pesos, or both. [13]

The paramount question to be considered, in determining whether the crime of unjust vexation is committed, is whether the offender’s act caused annoyance, irritation, vexation, torment, distress or disturbance to the mind of the person to whom it is directed. (People vs. Gozum, C.A., 54 O.G. 7409) [14]

4. Violation of R.A. 9262 or the Anti Violence Against Women and their Children

“Violence against women and children” refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, … which result in or is likely to result in … psychological harm or suffering, … coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:

C. “Psychological violence” refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, … [15]

5. Violation of R.A. No. 7877 or the Anti-Sexual Harassment Act

Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. [16]

* Senate Bill 1093, which was filed by Sen. Loren Legarda, amends R.A. No. 7877 by expanding the coverage of sexual harassment acts to include sending text messages, electronic mail, internet and similar means of communication that constitute sexual harassment under the law.

The foregoing laws were enacted at the time when text messaging was not yet prevalent. However, these crimes may still be prosecuted, even if committed through SMS, by virtue of the Rules on Electronic Evidence. The pertinent provisions of the law are as follows:

Rule 1.

Sec. 2. Cases covered. – These Rules shall apply to the criminal and civil actions and proceeding, as well as quasi-judicial and administrative cases.

Rule 2

Sec. 1. (g) “Electronic data message” refers to information generated, sent, received or stored by electronic, optical or similar means.

(h) “Electronic document” refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document.

(k) “Ephemeral electronic communication” refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.

Rule 3

Sec. 1. Electronic Documents as functional equivalent of paper-based documents. – Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules.

Rule 4

Sec. 1. Original of an Electronic Document. – An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.

Rule 9

SECTION 1. Affidavit evidence. – All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein.

Rule 11

SEC. 2. Ephemeral electronic communications. – Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. [17]

It is imperative for the victim to keep a record of these malicious messages so that a criminal suit filed may have high probability of being successfully prosecuted. The text messages must be stored in the recipient’s mobile phone. A hard copy of these text messages should also be saved. Documentation of the harassment is important. If these messages were already deleted, the victim may bring his mobile phone to a forensic lab so that deleted messages and other relevant data may be retrieved or recovered. [18] The victim may also ask the assistance of the telecommunications service provider to provide him with the transcript of the malicious messages that were received from the perpetrator’s mobile phone number.

The criminal suit may be filed when the perpetrator or the sender of the malicious text messages is identified. If otherwise, the proceedings will be in vain because no one will be held liable. As mentioned previously, one of the reasons why perpetrators resort to threats or harassment through SMS is the advantage of anonymity. If the sender’s mobile number is unknown to the victim, he should seek the assistance of government agencies such as the National Telecommunications Commission, National Bureau of Investigation, and/or the Philippine National Police. These agencies can help the victim in obtaining the sender’s identification from the telecommunications service providers. These service providers would not easily disclose their subscriber’s information unless compelled to do so by authorities. However, these service providers only keep records of their postpaid subscribers and not of their prepaid subscribers. The prepaid SIM cards can be purchased without the need of presenting any identification cards and proof of address. These prepaid SIM cards are also very affordable. Thus, anyone can just purchase these prepaid SIM cards. Though the identity of the perpetrator cannot be easily determined, his location can be detected. Telecommunication companies use the technology of mobile positioning to approximate where the mobile phone, and its user or bearer, temporarily resides. To locate the phone, it must emit at least the roaming signal to contact the nearby antenna tower, but the process does not require an active call. GSM localization is then done by multilateration based on the signal strength to nearby antenna masts. [19] Multilateration, also known as hyperbolic positioning, is the process of locating an object by accurately computing the time difference of arrival (TDOA) of a signal emitted from that object to three or more receivers. [20] The technology of mobile positioning is available here in the Philippines. One telecommunication company even offers a tracker service wherein a subscriber can track the location of another subscriber, provided the latter gives his consent. [21]

Whether or not the victim knows the identity of the perpetrator, he should report the threat or harassment to the law enforcement agencies when the messages are life-threatening. This is for his own and his family’s security.

RELATED JURISPRUDENCE

At present, there is no jurisprudence on the conviction of perpetrators or harassers using SMS. However, there is a 2009 administrative case wherein a judge was held liable for gross misconduct. In the said case, Judge Alejandro T. Canda sent Anna Jane D. Lihaylihay a text message asking her to stay away from Jesus V. Alimpolo. Taking the text message as a threat, Lihaylihay reported it to the police and requested that a blotter entry be made. Then, Judge Canda sent another text message stating “For maliciously causing it to appear as threatening in the police blotter of what is otherwise a very harmless text message of appeal I consider the same as declaration of war, don’t worry you will have your owned [sic] fair share of trouble in due time.” The court find Judge Canda’s act of threatening Lihaylihay with “her fair share of trouble in due time,” among others, as very unbecoming of a judge.

CONCLUSION AND RECOMMENDATION

As the growing advancement of cellular phones brings many benefits, the case of its downsides is also inevitable. Its short message service or SMS provides the users with a cheap alternative to communicate with each other by exchanges of short text messages between mobile phones. However, it is also being used to cause intimidation, harassment and anxiety to others.

There are remedies available to the victims of these threats and harassment. One of these remedies is the institution of criminal charges against the perpetrators. Though the Philippine Cybercrime Prevention Bill has not been passed into law, these SMS threats and harassments can be prosecuted with the application of existing laws such as the Revised Penal Laws, Anti Violence Against Women and Children, and Anti-Sexual Harassment.

The telecommunications companies should provide assistance to their subscribers who are victims of these malicious messages. The text messages sent are not private between the sender and recipient. These companies have access to these messages and all other data sent through their network. The regulation or policing of these text messages is impractical, if not impossible. There are hundreds of millions of text messages being sent daily. The companies cannot screen all these messages. They can, however, help the victims by acting on complaints reported to them or by cooperating with the law enforcement agencies in their investigation. They should provide the subscriber’s information, when available, to these law enforcement agencies. They should also provide a record of the text messages being complained of. They should also help in identifying and/or tracking the location of the perpetrator. It would not be much of a hassle to companies considering the number of case o such threats; they will in turn be doing public service at the least to their valued subscribers and the society as a whole. The major drawback on these companies’ cooperation is that the perpetrators can hold them liable for claims or damages. Giving out their personal information, the data they send, and their location is a violation of their privacy. This is the reason for recommending the enactment of the Cybercrime Prevention Bill. Through this bill, cybercrime offenses are explicitly punishable. In addition, the law enforcement agencies are given the authority to require the telecommunication service providers to disclose subscriber’s information and other data that are relevant to their investigation. The cooperation of these service providers are guaranteed with penal and pecuniary consequences for non-compliance. [22] Privacy should be redefined for the administration of justice.


Endnotes

[1] http://www.philippinedomain.com/philippine-facts.htm

[2] http://en.wikipedia.org/wiki/SMS

[3] http://en.wikipedia.org/wiki/Cyber-bullying

[4] ibid

[5] ibid

[6] ibid

[7] Harvey, David. CYBERSTALKING AND INTERNET HARASSMENT: WHAT THE LAW CAN DO

[8] ibid

[9] http://en.wikipedia.org/wiki/Cyber-bullying

[10] http://www.ntc.gov.ph

[11] Art. 282 of the Revised Penal Code

[12] Art. 283 of the Revised Penal Code

[13] Art. 287, par. 2, of the Revised Penal Code

[14] Reyes, Luis B. (2006). The Revised Penal Code. Book Two.

[15] Section 3(a) of R.A. No. 9262 or the Anti Violence Against Women and their Children Act of 2004

[16] Section 3 of R.A. No. 7877 or the Anti-Sexual Harassment Act of 1995

[17] A.M. No. 01-7-01-SC or the Rules on Electronic Evidence

[18] Opperman, Ed. Undelete Text Messages and Deleted Pics to Investigate Infidelity. http://ezinearticles.com/?Undelete-Text-Messages-and-Deleted-Pics-to-Investigate-Infidelity&id=1662633

[19] http://en.wikipedia.org/wiki/GSM_localization

[20] http://en.wikipedia.org/wiki/Multilateration

[21] http://www.globe.com.ph

[22] Senate Bill 3553 and House Bill 6794

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