[Mirror] Pedrajas, Christine

SY 2011-2012, First Semester


Follow us – Where???

There has been a big buzz on the web on a ruling by a French court banning the explicit mention of facebook or twitter on television. This means that people on television cannot say “follow us on twitter” or “be a fan of the show on facebook”. This very much runs counter to the American rule wherein you can say and or endorse twitter or facebook, or any other service for that matter and it’s completely legal. For hardcore twitter and facebook users, this may be a bit ridiculous, but for others, it’s but a fair way of ensuring healthy competition among social networking service providers.

Here in the Philippines, in practice, as seen in different forms of media, we seem to be geared more towards the American rule. Say “follow us on twitter” or “be my fan on facebook” all you want and there’s no issue. But is there really no issue on this?

The Philippine government’s IT policy is expressed in the Declaration of Policy of the E-Commerce Act. It states that the government’s role in encouraging growth of e-commerce lies in creating the necessary economic conditions that will be conducive to this growth, and in establishing the legal framework for information and communications technology industries. [1] The development for e-commerce shall be led primarily by the private sector in response to market forces. Participation shall be pursued through an open and fair competitive market. [2]

The variety of topics, laws and issues on the ban by the French court may be endless, but here in the Philippines, we do have an applicable provision of law that somewhat hits the issue. If we look under Article 28, of the New Civil Code of the Philippines – it provides that unfair competition in agricultural, commercial or industrial enterprises, or in labor through use of force, intimidation, deceit, machination, or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage. [3]

So, it seems that the Philippine government already had the condition and legal framework laid down for the IT sector (some of it). The question here is whether or not facebook, or twitter, or any other service for that matter, may be considered to be committing unfair competition with similar businesses, by being singled out or being explicitly mentioned in television, thereby having more exposure than services of similar nature? There hasnt been any controversy on this yet on our turf, but we’ll never know – only time will tell.


Endnotes

[1] The E-Commerce Act and Other Laws@Cyberspace, Vicente B. Amador, 2002, p.169.

[2] Supra., p.5.

[3] Article 28, New Civil Code of the Philippines.


can ordinary citizens create their own versions of wikileaks?

I only have a couple of minutes to meet the deadline for the submission of this reaction paper – so I’ll fire away! As the topic to which a reaction is in order deals about a very fundamental right, freedom that is, I would go on and conduct this with as much spontaneity and freestyle as possible.

The question is – “Can we as ordinary citizens create our own version of wikileaks, and post therein anomalies of the government and major corporations?”

The answer is – “Hell yeah!!!”

The right of every person to freedom and access to information and freedom of expression is a fundamental right. Not only here in the Philippines but all over the world. It is a universal right that is enshrined in the Universal Declaration of Human Rights, which tells us that people have the right “to seek, receive, and impart information and ideas through any media and regardless of frontiers” [1] Likewise, it is also recognized and guaranteed under Article III, Bill of Rights, Sec.7 of the 1987 Constitution, which states that “the right of the people to information, on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development shall be afforded the citizen, subject to such limitations as may be provided by law”.

With that, ordinary citizens can come up with their own version of something as revolutionary as wikileaks. It is our right as a citizen and more importantly, it is our right as a human being. We live in a very different world nowadays. Freedom of information and freedom of expression is not only limited to manifestations in traditional media like newspapers, radio, television, or by marching on the streets, rallies and demonstrations. Now every post that we make, every update in status in social networks, every blog that we publish in the internet constitute an exercise of these vital freedoms. [2] Strengthening and guarding them is one of the most effective ways of ensuring the free flow of ideas and information. So that governments, people in power and almost everyone may be kept in check and may be held accountable.

True that there are pros and cons to giving people the liberty to information, especially in the internet, that we deserve. But as what we are seeing in the country with the corruption inquiries, in China with the protests for arrests for activists, with the Arab Spring in Egypt and now in Libya, and in many more countries whose people have been awakened to demand for equality, democracy and change – the benefits far exceed the costs. [3]


Endnotes

[1] US State Department, Remarks on Internet Freedom, Hillary Rodham Clinton, The Newseum, Washington DC, January 21, 2010.

[2] Supra.

[3] US State Department, Internet Rights and Wrongs: Choices and Challenges in a Networked World, Hillary Rodham Clinton, George Washington University, Washington DC, February 15, 2011.


Right to Information and Right to Privacy

The right to information and right to privacy of an individual are two fundamental rights that are characteristic of a democratic state. Both should be upheld and protected, and neither neglected. But like in so many issues on rights, there comes a time when there is conflict on the same. To further illustrate, let us take for example a hypothetical case of a person who is a party in a decided case in court. Dynamic information technology brought about different innovations on the internet. One of these innovations – repositories of information containing laws and jurisprudence made available on the internet such as, but not limited to the following: Chan-Robles Law Library, LawPhil Foundation Library, Batas-Natin.Com, etc. May said repositories of information be compelled by a person who is a party in a decided case, whose name appears in a case made available on-line by such repositories, to remove such person’s name thereon for the reason that it violates his right to privacy? How does one harmonize the right to information of the public in general, and the right to privacy of an individual?

Personally, as a human being who believes in both the importance of the right to information (guarantees free flow of ideas), and the right to privacy (guarantees protection of information), I would say that as long as the information doesn’t have a detrimental effect on myself, and my family – then go crazy! I have no qualms on such being made available on such repositories of information. However, if the posting of my name in a decided case on such repositories already produces a detrimental effect on me and my family – then I will invoke my right to privacy and present evidence to the appropriate forum to have such repositories be enjoined from posting my name. But that’s just me. As what my professor always says, what is your legal basis? With this, let’s try to come up with an answer on the conflict above based on applicable laws and jurisprudence.

Freedom of Expression and Access to Information is provided for under Article 19 of the Universal Declaration of Human Rights (UDHR) that says that: “Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” [1] The International Covenant on Civil and Political Rights (ICCPR), meanwhile laid down the general restrictions on such freedoms which are: a. respect for the rights and reputation of others; and b. for the protection of national security or of the public order, or of public health and morals [2]. As a complement to freedom of expression and access to information, the ICCPR also provided attention to privacy of an individual under Article 17 which states that: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence or to unlawful attacks on his honour or reputation.” [3]

Under Philippine Law, the right to information of an individual is enshrined under Article III, Section 7 of the 1987 Constitution which states that: “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to limitations as may be provided for by law.” [4] Furthermore, the 1987 Constitution also states under Article II, Section 28 that: “Subject to reasonable conditions prescribed by law, the state adopts and implements a policy of public disclosure of all its transactions involving public interest.” [5]

As to privacy of an individual, the 1987 Constitution provides under Article III, Section 2 that: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.” [6] The Constitution also states under Article III, Section 3(1), that 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.” [7] Provisions on privacy are not limited to the Constitution. The New Civil Code provides under Article 26 that: “every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons.” [8]

The Supreme Court was able to apply such laws on the right to information and privacy in resolving issues involving these competing rights. In Ayer Production Pty, Ltd. vs. Capulong, the court ruled on the petition of Senator Juan Ponce Enrile in seeking a court order to stop Ayer Production from producing a movie entitled “The Four Day Revolution”, as it allegedly violates his right to privacy. The Supreme Court said that: “the right of privacy like freedom of expression is not an absolute right. A limited intrusion into the person’s privacy has long been regarded as permissible when the person is a public figure and the information sought constitutes matters of public character. The right of privacy cannot be invoked to resist publication and dissemination of matters of public interest.” [9] Another privacy related case is that of Administrative Order No. 308 that was introduced by then President Ramos in 1996, otherwise known as the National ID System. The Supreme Court ruled that such order was unconstitutional because it would put the people’s right to privacy in clear and present danger. It also said that laws that are invasive of privacy would be subject to “strict scrutiny”, but noted that the right to privacy does not bar all incursions to privacy. [10]

In answering the issue at hand considering the applicable laws and jurisprudence on right to privacy and right to information, I would say that a person’s right to privacy and right to information should not be viewed as competing rights. Rather, both should be viewed as complementary rights. The public has a right to access to information on cases decided by the Supreme Court. Such has been provided for by law. However, if such publication of his name would prove to be detrimental to the person concerned and affects himself, his family and his dignity as a person, then he should be afforded the opportunity to invoke his right to privacy and have his name removed from the published case online. Indeed, there is great difficulty in resolving issues such as these. A balance should always be aimed at, and willingness towards complementing and harmonizing issues based on a case by case basis should be developed in appreciating these rights.


Endnotes

[1] Article 19, Universal Declaration of Human Rights, UN General Assembly Resolution 217A (III), Adopted December 10, 1948.

[2] International Covenant on Civil and Political Rights (ICCPR), UN General Assembly Resolution 2200A (XXI), Adopted December 16, 1966.

[3] Article 17, International Covenant on Civil and Political Rights (ICCPR), UN General Assembly Resolution 2200A (XXI), Adopted December 16, 1966.

[4] Article III, Section 7, 1987 Constitution of the Philippines.

[5] Article II, Section 28, 1987 Constitution of the Philippines.

[6] Article III, Section 2, 1987 Constitution of the Philippines.

[7] Article III, Section 3 (1), 1987 Constitution of the Philippines.

[8] Article 26, New Civil Code of the Philippines.

[9] Ayer Production Pty, Ltd. vs. Capulong (160 SCRA 861, 1988).

[10] Ople vs. Torres, G.R. No. 127685, July 23, 1998.

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