I. FAN SITE AND TWITTER ACCOUNT: A CULTURAL SHIFT ON IDOLATRY
The power of the worldwide web makes it easier for people to access almost anything- giving various and limitless options of any subject imaginable. The proliferation of technology and the people’s continued fascination with entertainment paved the way to a modern idolatry.
Nowadays, there are websites and web pages that feature well-loved celebrities, icons, politicians and other public figures (idols, for brevity). Some are personally maintained by them to satisfy fans’ curiosity over them. However, for whatever intents and purposes, aside from personal satisfaction and freedom of expression, fans started to maintain fan sites or third-party maintained sites turning those websites into a cheap vehicle of advertising.
But it doesn’t end there, fans became so engrossed that they want know almost everything about their idols- what they wear, where they go, what they do, what they believe in and even what is on their minds. The demand for such information and the search for a more credible, real-time, personal way to access it increases, challenging the information and technology to create a new convenient tool of communication. Viola! Then there comes Twitter.
The Wall Street Journal wrote that social-networking services such as Twitter “elicit mixed feelings in the technology-savvy people who have been their early adopters. On the other hand, fans say they are a good way to keep in touch with busy friends.”
What is amazingly unique about Twitter is that, it limits messages (tweets) for only 140 characters. Steve Dotto opines that part of Twitter’s appeal is the challenge of trying to publish such messages in tight constraints. “The qualities that make Twitter seem inane and half-baked are what makes it so powerful,” says Jonathan Zittrain, professor of Internet law at Harvard Law School.
Technology which is vast and fast-changing cannot be immune from legal implications and moreso, from legal violations. In social networking sites like Twitter, user names are made available on a first come first serve basis, without any prior checking or verification. Fan site, fan page and fan listings created and maintained by a fans are mostly unauthorized and unofficial. Both of them become susceptible to impersonation, copyright infringement and other cases of fraud, defamation and libel. This challenges the credibility and reliability of the information on such web sites and web pages.
This research will focus on Possible Remedies on Unauthorized Third-Party Maintained Fan Sites and Twitter Account. The research also attempts to discuss the history and origin of fan sites and Twitter account. It will define technical terms that are needed to further understand how such sites are created and maintained by subscribers. Moreover, incident reports about alleged violation of rights will be discussed with its legal implications. Lastly, it aims to provide an in-depth discussion of laws within our jurisdiction and laws related to such violations in the search for possible future remedies.
II. TERMINOLOGIES LEARNED AND DEFINED
What is a Fan site or Fan Page?
Fan site or fan page is a website created and maintained by a fans or devotees interested in a celebrity, thing, or a particular cultural phenomenon. The phenomenon can be a book, television show, movie, comic, band, sports team, game, or the like. Fan sites may offer specialized information on the subject (e.g., episode listings, biographies, storyline plots), pictures taken from various sources, the latest news related to their subject, media downloads, links to other, similar fan sites and the chance to talk to other fans via discussion boards. They often take the form of a blog, highlighting the latest news regarding the fan site subject. They often include galleries of photos and/or videos of the subject, and are often “affiliates” with other fan sites.
What is Fan Listing?
Fan listings are another common type of fan site, though they are much simpler than general fan sites, and are designed simply to list fans of a certain subject. In fact, many do not contain much information on the subject at all, aside from a small introduction. They are generally made with the thought that visitors will already have knowledge on the subject. However, several are a part of a bigger fan site, used to amplify the fan base’s experience.
What is Twitter?
Twitter is a free social networking and micro blogging service that enables its users to send and read messages known as tweets. Tweets are text-based posts of up to 140 characters displayed on the author’s profile page and delivered to the author’s subscribers who are known as followers. Senders can restrict delivery to those in their circle of friends or, by default, allow open access. Users can follow lists of authors instead of following individual authors. Twitter has gained notability and popularity worldwide and it is sometimes described as “SMS of the Internet” The use of Twitter’s application programming interface for sending and receiving text messages by other applications often eclipses direct use of Twitter. As a social network, Twitter revolves around the principle of followers. When you choose to follow another Twitter user, that user’s tweets appear in reverse chronological order on your main Twitter page.
Furthermore because mobility and fastness are of the utmost importance in micro blogging, twitter allows you to update your status via the web page, IM, mobile phone, blackberry or various other third party applications. It’s been widely proven that twitter can be easily used as a self-promotion tool, to pitch your content, services and products with ease. This is done by broadcasting your message, although short, to your followers. It’s this mixture of blogging, RSS and social networking that makes twitter so appealing.
Twitter collects personally identifiable information about its users and shares it with third parties. The service considers that information an asset, and reserves the right to sell it if the company changes hands. While Twitter displays no advertising, advertisers can target users based on their history of tweets and sometimes may quote tweets in ads.
III. INCIDENT REPORTS ON VIOLATION OF RIGHTS ON FAN SITES, FAN PAGE AND FAN LISTINGS
“Fans like official sites. Fans also like — and many downright need — to build their own spaces where they create the culture.”
A study suggests that unofficial fan sites are often built as an alternative to the “hard sell” approach of official fan sites that carry commercial messages. A classification system developed by Wann breaks down eight motives of fandom. These motives, particularly those related to group affiliation and self esteem, are a driving factor in the creation of unofficial fan sites. Satisfying the social psychology needs of group affiliation and self esteem by visiting fan sites, and in particular participating in the community aspects of fan sites, appear to serve to increase fan behavior.
One of the highly publicized issues on fan site is the case of rock icon, Prince, wherein fan sites dedicated to him have been served legal notice to remove the all rock icon’s images, lyrics and anything related to him because it was allegedly incorrect and misleading to his image. Earlier in 2007, Prince also took action against YouTube to have his clips in a London concert removed from their sites.
It was believed, however, that Prince’s unstated aim, in forcing YouTube (among others) to remove all footage of his performances, is not so much to control his image as to compel fans to come to him (and his own internet portals) for all Prince-related material.
On the part of the fans, it is an alleged violation of their right of expression and freedom of speech and considers it as censorship. This incident poses a problem of a possible human rights violation versus property rights violation.
In the local arena, we lack on sensational cases and jurisprudence pertaining to fan sites because of the advent of Twitter, Face book and other social networking sites which brings fans closer to their well-loved idols.
ON TWITTER ACCOUNTS
“Celebrity can be an interesting thing when distilled to no more than 140 characters.”
This statement holds true in the continued success of Twitter. It definitely defies the usual verbous, complicated and flashy micro blogging sites with just 140 characters.
One posing threat however, is the number of fake accounts updated by impersonators together with plainly fictional accounts.
On January 2009, 33 high-profile Twitter accounts were compromised after a Twitter administrator’s password was guessed by a dictionary attack. Falsified tweets—including sexually explicit and drug-related messages—were then sent from the accounts. Even Twitter accounts of US president Barack Obama, singer Britney Spears and other prominent figures were hacked and fake messages sent out in their names.
A fake account associated with the Tibetian spiritual leader Dalai Lama, attracted a phenomenal rate of nearly 20,000 followers in just two days after its creation. “Welcome to the official Twitter page of His Holiness the Dalai Lama — administered by The Office of His Holiness the Dalai Lama,” the first message read. The account was suspended by Twitter itself.
On May 2009, St. Louis Cardinals baseball team manager Tony La Russa filed a lawsuit against San Francisco-based Twitter over a bogus account set up in his name.
Rocker Courtney Love is being sued for libel by a fashion designer for allegedly slamming the woman on Twitter. The suit claims that after a disagreement over what Love should pay Dawn Simorangkir for the clothes she designed, Love posted allegedly derogatory and false comments about the designer — among them that she had a “history of dealing cocaine” — on her now-discontinued Twitter feed.
Other well-publicized cases of micro blogging impersonation include updates purporting to come from the jail cell of music producer turned convicted murderer Phil Spector. Other celebrities impersonated via fake Twitter accounts have included figures as diverse as Vint Cerf, veteran Labour politician Tony Benn and American rapper and record producer Kanye West.
In his article, Software Insecurity: Twitter Security, Gary Mc Graw, the biggest issue Twitter turns out not to be a security issue, but rather a content issue. He further explains that Twitter carries on in the long tradition of Internet spoofing by allowing someone to masquerade as just about anyone they want.
The first criminal prosecution arising from Twitter posts began in April 2009. Agents of the FBI arrested Daniel Knight Hayden. Hayden was accused of sending tweets threatening violence in connection with his plan to attend a Tea Party protest in Oklahoma City, Oklahoma.
IV. LEGAL IMPLICATIONS ON VIOLATIONS AND REMEDIES
Intellectual Property Violations
Most fan sites are unofficial, and this will be apparent and expressly stated within the web site itself. To state that they are unofficial, many fan webmasters put a disclaimer on a visible place on the website, which sometimes also includes the copyright of the site. Moreover, when an unofficial fan site post pictures, music, videos or lyrics at their site or distributes merchandise, it may or may not encroach and violate intellectual property laws.
In Philippine law, the distinction of infringement and fair use will be helpful on determining the demarcation line between freedom of expression and infringements of copyrights. Section 177 of Republic Act 8293, otherwise known as the Intellectual Property Code of the Philippines, provides for the copy or economic rights of an owner of a copyright as follows:
Sec.177. Copy or Economic rights. – Subject to the provisions of chapter VIII, copyright or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following acts:
177.1 Reproduction of the work or substantial portion of the work;
177.2 Dramatization, translation, adaptation, abridgement, arrangement or other transformation of the work;
177.3 The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
177.4 Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)
177.5 Public display of the original or copy of the work;
177.6 Public performance of the work; and
177.7 Other communication to the public of the work
Moreover, Section 185 of the same law provides for the concept of fair use on copyrighted work, to wit:
185.1 The fair use of a copyrighted work for criticism, comment, news reporting xxx research and similar purposes is not an infringement of copyright… xxx in determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:
a. The purpose and character of the use…
b. The nature of the copyrighted work;
c. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
d. The effect of the use upon the potential market for or value of the copyrighted work.
185.2 The fact that a work is unpublished shall not by itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
It is safe to say that as long as the use of information and data posted in a fan site is within the ambit of fair use as defined above, as far Philippine law is concern it is legal and not an infringing act. As such, posting of lyrics, personal information, articles and the likes by unauthorized third party maintained fan sites can fall under the concept of derivative work which shall be protected as a new work, it includes under Section 173.1 (b):
(b) Collections of literary, scholarly or artistic works and compilations of date and other materials which are original by reason of the selection or coordination or arrangement of their contents.
This is under the premise that the new work shall not affect the force of any subsisting copyright upon the original works employed or any part of it, or be construed to imply any right to such use of the original works, or to secure or extend copyright in such original works. (Section 8, Presidential Decree 49; Article 10, TRIPS)
As for Twitter, it recognizes that their web site can be a possible venue directly or indirectly on copyright infringement. In their copyright conditions they reiterated that:
Whenever somebody tweets or posts a tweet, he or she is actually authoring something in a tangible concrete manner. However mundane useless irrelevant or diverse the said 140 characters combination could be, that itself constitutes an original literary work within the meaning of law and as such any tweet that is tweeted upon by any Twitterer is protected by copyright protection as per law prevailing in different jurisdiction.Thus if any person unauthorizedly copies your tweet and commercially exploits the same, you have a right to sue that person.
Furthermore, in anticipation of future violations, Twitter provided copyright conditions:
Twitter believes that the content that you post is yours and all Intellectual Property in the said content belongs to you. However Twitter only recognizes the rite to be produced on and redistributed to other users. The following are the copyright conditions laid by Twitter:
- We claim no intellectual property rights over the material you provide to the Twitter service. Your profile and materials uploaded remain yours. You can remove your profile at any time by deleting your account. This will also remove any text and images you have stored in the system.
- We encourage users to contribute their creations to the public domain or consider progressive licensing terms.
- Twitter undertakes to obey all relevant copyright laws. We will review all claims of copyright infringement received and remove content deemed to have been posted or distributed in violation of any such laws.
Twitter provides for the procedure on how to make a claim on alleged copyright infringement violations by providing the following pertinent information:
- A physical or electronic signature of the copyright owner or the person authorized to act on its behalf;
- A description of the copyrighted work claimed to have been infringed;
- A description of the infringing material and information reasonably sufficient to permit Twitter to locate the material;
- Your contact information, including your address, telephone number, and email;
- A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and, under the pains and penalties of perjury, that you are authorized to act on behalf of the copyright owner.
Section 216 of the Intellectual Property Code of the Philippines provides for specific remedies for copyright infringement. Among which is injunction restraining such infringement with an order to desist from infringement, award of such damages including legal cost and other expenses including moral and exemplary damages. The court can also order destruction of such information.
Twitter can also be used for the purposes of further infringing upon trademarks of legal entities. Twitter recognizes that there are different laws on trademark on different jurisdiction. This was emphasized on their conditions and suggested for remedies available, which are as follows:
“ xxx Twitter would also be subject to all laws of different jurisdiction pertaining to protection and preservation of trademarks. Thus if any person deliberately or fraudulently takes on the brand name of a leading entity as a user name on Twitter, and starts using or misusing the same, then the actual owner of the said trade mark could sue the imposter for appropriate reliefs in a court of law…”
In Philippine law, Republic Act 8293, otherwise known as the Intellectual Property Code of the Philippines, consolidates the provision on Trademarks. In Section 155, it provides for remedies for trademark infringement. It enumerated that any person is committing an infringing act, if without the consent of the owner of the registered mark:
155.1 Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark… xxx in connection with the sale , offering for sale, distribution, advertising of any goods or services including other preparatory steps necessary to carry out the sale…xxx
155.2 Reproduce, counterfeit, copy or colorably imitate a registered mark or dominant feature thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints…or advertisements … xxx which such use is likely to cause confusion or to cause mistake or to deceive…
Section 156 provides that the aggrieved party or the owner of a registered mark may recover damages for any person who infringes his rights. The court may also award as damages a reasonable percentage based upon the amount of gross sales of the defendant or the value of the services in connection with which the mark or trade name was used of the infringement of the rights of the complaining party. (Section 23, First Paragraph, Republic Act 166).
Furthermore, the court may order the infringing material be destroyed and be released into channels of commerce. The court may also exercise its discretion and double the award for damages, in cases where actual intent to mislead the public or to defraud the complainant is shown.
SMS Spoofing, Impersonation and Cyber Squatting
Twitter admits its vulnerability and susceptibility on various internet and personal privacy and security violations. In response and in anticipation of the growing need to protect their web site’s integrity, Twitter provides for conditions and remedies available for such violations.
Since Twitter used the phone number of the sender of an SMS message as authentication, malicious users could update someone else’s status page by using SMS spoofing. The vulnerability could only be used if the spoofer knew the phone number registered to their victim’s account. (Nitesh Dhanjani and Rujith, 2007)
As mentioned on their Privacy and Security policy, one of the safeguarding measures being done by Twitter includes employment of administrative, physical and electronic measures designed to protect your information from unauthorized access. In fact, within a few weeks after the discovery of SMS spoofer, Twitter introduced an optional personal identification number (PIN) that users could specify to authenticate SMS-originating message.
Twitter became a vehicle of proliferation of numerous fake and fictional accounts and cyber squatting incidents. Twitter admits and explains in their impersonation policy that this is due to convenient and easier sign up procedure of their services.
Lot of people using twitter, impersonate as others. Since the user names of twitter are made available on a first come first serve basis, without any prior checking or verification of any kind whatsoever, it is easy for any person to go ahead and take or effectively cyber squatting upon the twitter user name or twitter identity of any well known entity personality legal company association or organization. Further the said impostor could then misuse the said user name for the purposes of tweeting tweets which could show the said legal entity in a wrong or negative light by defaming or destroying its reputation.
Biz Stone, a co-founder of Twitter, said in an e-mail: “Fake accounts can be inconvenient and impersonation is against our terms of service. Providing account verification might (be a) good opportunity to enhance the Twitter experience for everyone — that’s something for us to think about.”
Twitter on its Impersonation policy provides for the following procedure for alleged victims of impersonation, whether they have an existing account or not, in order to conduct investigation:
In order to investigate impersonation, we need the following information:
Username of the person impersonating you (or the URL of their profile page):
Your First and Last Name:
Your Twitter username (if you have one):
Brief description of the impersonating content:
If you are not the person involved in the impersonation, but are legally authorized to act their behalf, please include the information above in addition this information:
Company domain email address:
Your title and legal relationship to the person/entity involved:
How do I report an impersonation violation?
To report an impersonation, please submit a ticket request with the information requested above. Be sure to select ‘impersonation’ from the drop-down menu. If you submit while logged into your Twitter account, you’ll be able to check on your ticket status anytime by visiting your Twitter Support home page and clicking on “check on your existing requests.”
If you don’t have a Twitter account or are unable to log in to reach the form, please just visit the ticket request form and click the blue “No account? Login problems?” link in the lower-right. Once you’ve submitted your ticket, we’ll email you a ticket confirmation with more information.
Moreover, the launched of the beta version of its Verified Accounts service June 2009, allows famous or notable people to make it clear which Twitter accounts belongs to them. These verified accounts become identifiable on their respective home pages with the display of a badge to indicate this special status.
On the other hand, cases of cyber squatting is one of the merging problems nowadays in the internet world. It is defined as registering, trafficking in or using a domain name in bad faith, meaning with the intent to profit from a trademark or “famous mark” owned by someone else.
According to World Intellectual Property Organization (WIPO), the most common business sector in which complaints arose was pharmaceuticals, due to websites offering sales of medicines with protected names. Other top sectors for complaints were banking and finance, Internet and telecommunications, retail, and food, beverages and restaurants. They admit that they already handled various cases under its dispute procedure for Internet page names.
The Internet Corporation for Assigned Names and Numbers (ICANN), which manages the system of Web addresses with endings like .com and .gov, is preparing to launch many new series of suffixes. These new generic top-level domain names (gTLDs) will allow a vast increase in the number of Web addresses, providing new scope for trademarked names to be abused — or at least making it harder for the trademark owners to monitor them.
Legislations are still on going in the Senate about cyber squatting law. In 1999, Sen. Vicente C. Sotto III has filed Senate Bill No. 2083 or the Anti-Cyber Squatting Act of 2000. Consequently, the Senate Bill No. 2480 or the Anti-Cyber Squatting Act of 2008 was filled again last July 24, 2008, this time authored by Sen. Mar Roxas and has done on its first reading.
Twitter can also be a perfect venue for the crime of libel. The content of websites and other electronic communications may be distasteful, obscene or offensive for a variety of reasons. In some instances these communications may be illegal. Fan sites may directly or indirectly defames the idols they claim to love and support. The posing question is that when do you draw the line between freedom of expression and libelous remarks?
In one study about libel on the internet, it suggests that service provider may only discontinue the service if the user violates the Terms of Service as agreed upon by their registration with the provider. Hence, any liability for libellous statements or remarks that may be coursed through or communicated through the websites that it is hosting will solely devolve on the part of the authors. In this case, Twitter continuously warns its subscribers about the legal implications of libel or defamation:
A lot of people still do not know that posting of a tweet on Twitter could be used against them in a court of law in legal proceedings. What you publish on Twitter is public information which is available on public computers and could be used in legal proceedings xxx.Therefore people would need to be extremely cautious and careful of what they post on Twitter. Twitter as a phenomenon will evolve from a casual phenomenon to a more serious micro-blogging platform as time passes by.
Many jurisdictions place limits on certain speech and ban racist, blasphemous, politically subversive, libelous or slanderous, seditious, or inflammatory material that tends to incite hate crimes. The extent to which these communications are unlawful varies greatly between countries, and even within nations. It is a sensitive area in which the courts can become involved in arbitrating between groups with entrenched beliefs.
Consequently, the protection of any person whether natural or juridical for any interference on his privacy or attacks on his honour or reputation is protected under the United Nations Universal Declaration of Human Rights as provided in Article 12:
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
In the case of Worcester vs. Ocampo, 22 Phil. 42, the Supreme Court of the Philippines held that the enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. The law recognizes the value of such reputation and imposes upon him who attacks it, by slanderous words or libelous publications, the liability to make full compensation for the damage done.
Libel is defined by Article 353 of the Revised Penal Code as
“A libel is a public and malicious imputation of the crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonour, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”
In the landmark case of Diaz vs. Court of Appeals, G.R. No. 159787, the Supreme Court enumerated the following element in order for libel to attach in Philippine Law:
- It must be defamatory
- It must be malicious
- It must be given publicly
- The victim must be identifiable
All the four (4) elements of libel must be present, for an absence in any one of those previously enumerated; the case for libel will not prosper.
EXHAUSTING ALL POSSIBLE REMEDIES: PRIMARY JURISDICTION
Fan sites, fan pages and fan listings varies in terms and conditions, an alleged violation of copyright, trademark or an imputation of malicious and libelous remarks can be initially resolved by amicable settlements between parties. It is important to note that to a celebrity, bringing an action to court will be of their last resort because it is their fans they are suing in the first place.
In the article, entitled You Can’t Force Them To Come To You, which a response to the highly publicized rock star Prince threatening legal action to fan sites, it explains that “If compelling your fans to come to you rather than building sites of their own isn’t control, what is? He may well “get away with it” but it would take some pretty hard evidence to convince me that he did not do damage to himself compared to where he would have been if he respected the fans’ dedication and let them do their thing”
As to Twitter, it recognizes that the increase in usage and patronage of their micro-blogging service also has a downside as it becomes a venue for committing cyber or internet crimes and violations. It further explains that:
Twitter could be made the platform for committing various kinds of white collar crimes including crimes like defamation, nuisance, harassment, stalking, mischief and many other crimes. At the present time, these crimes have not yet emerged in a manner that we anticipate. However as more and more usage of twitter takes place, it is but natural to expect that there will be more and more twitter crimes as we go long.
Twitter provides for several remedies that be exhausted and this was discussed earlier. Moreover, Twitter Names Dispute Resolution Center was created for the purpose of facilitating settlement on name disputes. In contrary, the need for a more expeditious resolution is still to be addressed and Twitter admits the insufficiency of such process:
Needless to say, since these are still early days yet, the modalities for the resolution of Twitter Domain Names Disputes is currently under a period of evolution. Twitter Names Dispute Resolution Center is involved in the said process and is closely monitoring the emerging legal trends connected therewith. We would be happy to share with you more details pertaining to Twitter Domain Names Dispute Resolution Center as and when the same are finalized.
Moreover if resolution and settlement was not reached, then the matter would need to be escalated to relevant court of law in a competent jurisdiction.
Twitter cooperates with government and law enforcement officials or private parties to enforce and comply with the law. We may disclose any information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims, legal process (including subpoenas), to protect the property and rights of Twitter or a third party, the safety of the public or any person, to prevent or stop any illegal, unethical, or legally actionable activity, or to comply with the law.
The main question will be is who has jurisdiction in violations of right committed in the internet? The principle in Private International Law of Lex loci delicti commissi comes into play. This Latin principle means ‘law of the place where the tort was committed’. The principle applies when the two contending parties are domiciled in different countries. Moreover, in Philippine law, the case may be filed in the place where the act was committed or the place of residence of either parties. Thus in international law, abiding by the principle of lex loci delicti commissi, the laws of the place where the tort was committed shall govern, and the same acquires proper jurisdiction.
A LOOK ON PHILIPPINE LAW AND ITS APPLICATION ON INTERNET VIOLATIONS
The modern world and the fast-paced transition of technology and the lack of legislation on laws to curb the evils of internet violations is one aspect the Philippine Congress should take into a lot of consideration.
In 2000, Republic Act 8792, otherwise known as the E-Commerce Act paved the way to A.M. NO. 01-7-01-SC – RE: Rules on Electronic Evidence that was made applicable in the Revised Rules of Court. The said act with Republic Act 8484 or the Access Devices Regulation defines online crimes which consist of, among others, credit card fraud, cyber pornography, copyright infringement, and computer crimes.
However, since the passage of the E-Commerce Act only two Filipino hackers have been convicted of violating the e-commerce law. The main achievement of the law, up to this date, remains to be, to make electronic documents admissible as evidence in court cases. It sought to penalize limited online crime, such as hacking and copyright violations.
Many legal critics thinks that laws on technology needs to keep up with technology in order not to be mere surplusages and obsolete. In an article by Marlen V. Ronquillo published in The Philippine Daily Inquirer, by:
This is the right time to amend the country’s E-Law and put in place a legal infrastructure for information and communication technology that answers to the times. The existing E-Commerce Law, written and passed before the first legal blog was viewed on cyber space, is in urgent need of revision.
Even technology Neanderthals like this typist cannot but notice the gap between technology in this time of Twitter and Facebook, with the definitely outmoded E-Commerce Law.
Problems keep popping up on the technology front, and these problems are mostly outside of the ambit and mandate of the existing E-Law. How do we deal with these? Most likely, the answers and legal remedy cannot be sourced from the E-Law itself. The courts and the lawyers may be clueless as well.
Other criticism of the present E-Commerce Act is its generality and broadness. Ryan Flores, team leader of TrendLabs Philippines, says one deficiency in the e-commerce law is its vagueness.
“Something has to be done about the breadth of the law as well as its vagueness. We need to pinpoint more details on what a cyber crime is and put a little more technicality in the law. If it’s too vague, the hacker can just use that vagueness to his advantage. We need the law to be more technical,” he says.
Moreover, if the present law does not address and expressly cover existing and future internet crimes then as an accepted principle in criminal law that “there is no crime if there is no law punishing it.” Without a specific law to criminalize such acts, aggrieved parties may be left with no other recourse but to file for civil damages using the general law on human relations under Article 19 of the Civil Code of the Philippines:
Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.
New legislation could be useful once the Philippines becomes a signatory of the Council of Europe Cyber crime Convention of 2001. The treaty, which has been ratified by 29 countries including the United States, sets guidelines for laws and procedures for dealing with Internet crime. The Convention is the first international treaty on crimes committed via the Internet and other computer networks, dealing particularly with infringements of copyright, computer-related fraud, child pornography and violations of network security. It also contains a series of powers and procedures such as the search of computer networks and interception.
Its main objective, set out in the preamble, is to pursue a common criminal policy aimed at the protection of society against cybercrime, especially by adopting appropriate legislation and fostering international co-operation.
The Convention is the product of four years of work by Council of Europe experts, but also by the United States, Canada, Japan, Philippines and other countries which are not members of the Organisation. It has been supplemented by an Additional Protocol making any publication of racist and xenophobic propaganda via computer networks a criminal offence.
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