[Mirror] Mangune, Jeffrey

SY 2012-2013, First Semester


Data Privacy Law of 2011

Salient Parts of the Law

Data Privacy Act of 2011 established a set of privacy rules to protect the security and confidentially of private and sensitive information of an individual.

“Personal information” is anything, recorded or not, that identifies a person or makes one’s identity apparent or ascertained. Sensitive information, on the other hand, is more specific such as one’s race, gender, political affiliation and those other enumerated under the law. Mere implied consent is sufficient to process any personal information while processing of sensitive information is only allowed when express consent is given.

The personal information controller which may be an individual or organization can be held liable for any contravention set forth in the Act excluding the controller’s subcontrators.

How would it affect me?

My current employer follows a captive business organization where certain information are centralized and processed offshore. Our payroll department is located in Malaysia. My requests for gas reimbursement, optical allowance and subsidized warts cauterization (still unused) are submitted to our office in Krakow, Poland.

What if I had been treated for sexually transmitted genital warts and such fact had been submitted and received for reimbursement by our office in Krakow. Say, the department in charge inadvertently caused an email blast detailing the facts of my condition to all employees worldwide. No doubt, it would be humiliating in epic proportion.

Prior to the enactment of law, my cause of action would be hinged to Article 26 of Civil Code pertaining to the inviolability of privacy but favorable judgment does not warrant exemplary damages absent any bad faith on the part of the defendant.(Manaloto vs Castro, GR 171365).

With the advent of data privacy law, I am afforded with greater protection against privacy torts as the new law provides for concrete measures such as the requirements of consent pertaining to personal information and express consent for sensitive information. It also laid down clear cut penalties of imprisonment and fine depending on how the violation of privacy is committed ranging from violations through negligence to intentional and malicious disclosure of information

How would it affect my community?

Aside from aforementioned advantage, the community will enjoy top notch kind of privacy law comparable to that of privacy laws of European Union and India with the latter experiencing exponential economic growth attributed to their privacy law**. The outsourcing industry of the country will reap benefits as the new law would attract more investors into the country. The Data Privacy Act of 2011 explicitly recognizes foreign privacy laws or the absence thereof to information pertaining to foreign entities. This assures a new level of independence of local and foreign corporations aligned primarily in the outsourcing business away from the ambit of restrictive domestic policies and laws.

Aside from speculation of growth, the new privacy law may obviate the possibility of misusing collated information as a tool of oppression and harassment such as in the case of Faeldonia vs. Civil Service Commission where a postmaster opened an envelope addressed to a widow containing the benefits of the deceased to pay for the latters obligation to postal office (Faeldonia vs CSC, GR 143474) or those possible infractions of National ID system as discussed in Ople vs Torres.


Reference: http://www.huntonprivacyblog.com/tag/cross-border-data-flow/


Fan Art… Legal? Maybe.

Generally, everybody is a fan of something. May it be sports, tv shows or movies – as long as there exists an undeniable strong liking or support, a person is deemed a fan. How I see it is that there are two kinds of fan. Either you’re passive or active.

I consider myself as a passive fan since my enthusiasm is only within the confines of my mind. While active fans take their zeal to a higher notch by deriving a new work from the original such as writing fanfiction (http://www.fanfiction.net/), cosplaying (http://www.cosplay.com/) in a comicon (http://www.comic-con.org/), making fan-arts and whathaveyou.

The advent of technology especially in multimedia arts has contributed greatly to dissemination of protected works culminating in growing numbers of fan created arts. With the sophistication of local intellectual property law, a question looms over fan art’s legality.

[Images included in original]

Ugly? Yes. Legal? Maybe. (via Team Fugly; http://www.regretsy.com/2012/04/17/team-fugly/)

Is it legal? The answer needs to be qualified.

Fan arts, in the nature of derivative works, tread a narrow line in copyright infringement since fair use doctrine found in Section 185 of Intellectual Property Code (http://www.lawphil.net/statutes/repacts/ra1997/ra_8293_1997.html) is susceptible to different or contradicting interpretations. There’s no simple formula to determine whether a fan art is in contravention of the copyrights law. It relies on the appreciation of enumerated factors of fair use doctrine and its effect on the value of the original work.

What is true though, is that in Habana vs Robles (http://sc.judiciary.gov.ph/jurisprudence/1999/jul99/131522.htm), the Court emphasized the non-quantifiable contributing factors of copyright infringement. If applied within the realm of derivative works, it’s an infringement when the value of its original has been negatively affected regardless of the quality and quantity taken from the original. The plaintiff’s failure to attribute is already deemed injurious to the copyright owner.

For instance, a fan created gown (above) inspired by the dichotomy of Edward and Jacob as characters in the Twilight novel, does not instantaneously infringe the original author’s copyright. Copying alone, even if it’s substantial, is not outright unlawful. The copyright owner must allege that it was done to his detriment such as when there’s preponderance of evidence showing an appropriation of the original work to the benefit of a fan fiction writer.

Since it treads a fine line in copyright infringement, how should we resolve the issue? Under Rule 131 of Rules of Court, the burden of proof is on the person alleging the infringement whereas the burden of evidence shifts during the course of the trial. Equipoise rule dictates that should there be any doubt on where the adduced evidence preponderates it must be resolved in favor of the defendant.

Constitutional protections afforded to speeches, articles, parody should also extend to fan arts. No matter how ugly an art is, a fan art is still a form of expression. It likewise enjoys the presumption of validity unless there’s proof and evidence to the contrary.


Keeping Downloads on a Down-Low

Internet connectivity is becoming increasingly ubiquitous. Gone are the days of 56 Kbps connection and the screeching and garbled sound when dial up modem reigned supreme. We are now in the era of 4g and gigabit internet where mp3 files are literally downloaded in a heartbeat; movie files in just a matter of minutes.

According to my friends, there are a number of ways to download bootlegs such as but not limited to:

  • Torrents (utorrent.com)
  • Ripping videos from streaming sites such as fastpasstv.ms or ineedpopcorn.com
  • Blogs containing links to RapidShare and other file sharing sites.

Now, what if a sorrow laden Mother Lily Monteverde complained of copyrights infringement that her dog walker with a measly pay downloaded a bootleg copy of “Masikip Mainit Paraisong Parisukat” into his Cherry mobile?

It looks like Philippine copyright laws don’t afford her sufficient protections. An act of an end user who downloads and keeps a bootleg copy of a movie in his hard drive for personal use is not liable for copyright infringement. Alas, the wrongs are left without redress. My heart breaks for her.

Absent any positive law attaching liability to Mother Lily’s dogwalker for copyright infringement, does it warrant legislation similar to that of website watchdogs like SOPA and IPPA or pirate hunting under ACTA (http://en.wikisource.org/wiki/Anti-Counterfeiting_Trade_Agreement), UK’s Digital Economy Act of 2010 (http://www.legislation.gov.uk/ukpga/2010/24/contents), France’s HADOPI (http://www.senat.fr/dossier-legislatif/pjl07-405.html) or NZ’s Copy Right Amendment Act (http://www.legislation.govt.nz/act/public/2011/0011/latest/DLM2764312.html)?

N-O!

Pirates should never get away scot-free by taking refuge under the protection of freedom of expression as it is not absolute. However, I won’t condone the broad sweep of such laws for the following reasons:

  1. Households and commercial enterprises are at great risks. Infringement is presumed and the paying subscriber suffers. Parents, business owners and employers may be wrongfully held liable for acts committed by their children, customers and employees.
  2. Those with unsecured LAN or WIFI connection are vulnerable by reason of unauthorized piggybacking.
  3. Website blocking of torrent hosts limits freedom of expression as it could deprive producers of independent films the opportunity to share their works due to indiscriminate banning of P2P sharing.
  4. There’s no assurance that traffic monitoring would not infringe our rights to privacy. In Ople vs. Torres (http://sc.judiciary.gov.ph/jurisprudence/1998/jul1998/127685.htm), the Court held that intrusions require scrutiny and without proper safeguards privacy torts are inevitable.
  5. Such laws are merely to set examples, never intended for general application. Two years after the enactment of HADOPI, only one (http://www.techworld.com.au/article/436390/french_court_levies_first_fine_under_three-strikes_law_illegal_downloads/) was made liable. NZ’s three strike rule has minimal impact affecting only a small portion (http://www.stuff.co.nz/dominion-post/business/technology/7327383/Kiwis-are-still-internet-piracy-cheats) of those liable for piracy.
  6. A person who unknowingly or through mistake of fact downloaded a copyrighted video cannot raise good faith as a defense since the law partakes the nature of mala prohibitum where intent is immaterial.
  7. Border measures under Article 16 of ACTA could delay or hinder exportation and importation of generic drugs since a patent holder can cause the seizure or destruction of unregistered generic drugs (http://www.guardian.co.uk/technology/2012/feb/01/acta-goes-too-far-kader-arif) by custom officials even without any judicial process. This is contrary to the jurisprudence laid down in Roma Drugs vs RTC of Pampanga (http://sc.judiciary.gov.ph/jurisprudence/2009/april2009/149907.htm) pertaining to the provisions of Special Law on Counterfeit Drugs (SLCD) that criminalized and restricted the importation of unregistered yet cheaper drugs. The Court described the repealed law as “heartless, soulless legislative piece” ( …of $hit).

It seems to me that Congress has predilection to addictive legislation. The focus on policy making eclipses what seems to be a growing trend replete with ineffective laws. Law, without force, is impotent. It is preposterous to encroach on the privacy of individual’s hard drives and internet activities when illegal selling of pirated DVDs plagues the Circle C Mall In Congressional Avenue in QC. Right, Ronald Llamas (http://newsinfo.inquirer.net/133563/aquino%E2%80%99s-man-no-poster-boy-for-antipiracy-drive)?

Ultimately, no law formulated to mitigate piracy should go forward when it indiscriminately bulldozes other civil liberties. Two wrongs don’t make it right. Copying foreign laws that could theoretically address domestic cases of copyrights infringement almost feels like a joke. It`s high-time that we rally against rehashing foreign laws to disguise their unoriginality. Local legislation must pioneer laws that are truly custom tailored to the local and contemporary setting. But I shall leave this topic to the wisdom and brilliance of the star-studded legislative body spearheaded by Senator Sotto (http://technology.inquirer.net/15540/its-just-a-blog-and-has-no-copyright-says-sotto).

After all this is just a blog (http://technology.inquirer.net/15540/its-just-a-blog-and-has-no-copyright-says-sotto).

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