[Mirror] Reyes, Julian Roman

Summer 2012


Defacing Philippine websites, a cyber crime?

Facts: Foreign Citizens defaced websites coming from the Philippines. Issue: Do the foreign citizens incur liabilities in defacing such websites? If they do have liabilities, how can you make them LIABLE? There are many questions lingering into my mind in respect to the issue at hand. First, what crime did they commit, if any? ; Second, what law did they violate, if any? ; Third, who has jurisdiction over the crime, if any, they have committed? Can we possibly prosecute them in our own courts?

The world is continuously evolving and its main catalyst is technology. Almost all aspects of humans are affected by the technology, these includes culture, institutions and even the laws governing each state. Indeed, the future’s trend is at par with the cyber technology.With this evolution, each state should formulate its own laws governing cyber transaction and cyber crimes.

Crimes in the cyber community or “netizens” has become more complicated than ever. One concrete example is the hacking of foreign nationals to websites of other states which could result into utmost confusion or false data information to the targeted state. Hacking could even be used in a negative way which could be detrimental to the national security of one state.

I will focus on one instance wherein foreign nationals defaced websites coming from the Philippines.

Under Republic Act No. 8792 entitled An Act Providing and Use of Electronic Commercial and Non-Commercial Transactions, Penalties for Unlawful Use Thereof, and Other Purposes or also known as “Electronic Commerce Act”, Hacking or cracking refers to unauthorized access into or interference in a computer system/ server or information and communication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other similar information and communication devices, without knowledge and consent of the owner of the computer or information and communications system, including the introduction of computer viruses and the like, resulting in the corruption, destruction, alteration, theft or loss of electronic data messages or electronic documents is punishable.

The foreign citizens were not granted any authority to access the websites so they hacked into it to log into and post their personal desire to create a statement regarding certain political issues. This act is definitely within the purview of RA 8792. The aformentioned law has no qualification, whether you hack into a site for a good or bad deed. The mere fact of hacking is a violation of the said law and therefore subject to its penalty. Let us bear in mind also that the said law is a special law, which is mala prohibitum in nature, and wherein intent to hack is immaterial. There are other states which recognizes these cyber crimes. There are also UN Convention and ASEAN e-Commerce regulations such as Electronic Commerce Steering Groups (ECSG) created by Asia Pacific Economic Cooperation (APEC).

Are the Foreign Nationals who defaced the websites incurs liability under any International Law?

Under the Convention on Cybercrimes or Budapest Convention, Title 1 – Offences against the confidentiality, integrity and availability of computer data and systems, Article 2 – Illegal access, each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the access to the whole or any part of a computer system without right. A Party may require that the offence be committed by infringing security measures, with the intent of obtaining computer data or other dishonest intent, or in relation to a computer system that is connected to another computer system.

The Foreign nationals who defaced the websites from the Philippines are also liable under the Convention on Cybercrimes, wherein the Philippines, China, US, and other states are parties thereto. Under such provision, it is very clear that there has been a commission of illegal access. Thus creates liabilities to those violators.

Furthermore, hacking has been universally perceived as a crime, thus violators of such act is liable criminally.

Jurisdiction

Article 22 of the Budapest Convention provides for the jurisdiction of these cybercrimes. To wit:

1. Each Party shall adopt such legislative and other measures as may be necessary to establish jurisdiction over any offence established in accordance with Articles 2 through 11 of this Convention, when the offence is committed: a. in its territory; or b. on board a ship flying the flag of that Party; or c. on board an aircraft registered under the laws of that Party; or d. by one of its nationals, if the offence is punishable under criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State.

………..xxxxxxxx………….

4. This Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with its domestic law.

5. When more than one Party claims jurisdiction over an alleged offence established in accordance with this Convention, the Parties involved shall, where appropriate, consult with a view to determining the most appropriate jurisdiction for prosecution.

The first paragraph expressly provides that each party state has jurisdiction to prosecute cybercrimes, provided that they have adopted legislation and other measures to establish such jurisdiction. RA 8792 Section 4 provides for the scope of the domestic law of the Philippines regarding cybercrimes, including hacking. The sphere of application as expressly provided shall apply to any kind of electronic document used in context of commercial and non-commercial activities to include domestic and international dealings, transactions, arrangements, agreements, contracts and exchanges and storageof information.

Furthermore, since hacking is criminal in nature, and is a risk or is detrimental to national security and public information of these sites, Philippine courts should have jurisdiction under the passive nationality principle, objective territoriality principle and protective theory of international laws. Under the passive nationality principle, jurisdiction can be conferred to the state wherein its nationals were the victim. The Objective territoriality principle, likewise, permits the state to deal with acts which originated abroad but which in part was consummated within its territory. The protective theory is a safeguard when vital interest of the state are at risk and produces a harmful economic, social or political disorder within its territory.

Therefore, whether the foreign nationals hacked the Philippine websites within the Philippines or within the territory of other states, the Philippine court could possibly obtain jurisdiction to prosecute the perpetrators / hackers who defaced websites of the Philippines.


References:


Internet tools and Social media: A vital condition for employment?

Should social media and internet tools essential in the acceptance of an applicant? Can companies and/or institutions us internet search tools and access to social media accounts in determining the most suitable candidate?

With the technology rising and more people are now becoming netizens, internet tools and social media have become a necessary medium for the netizens to share their personal experiences and individual opinions to any issues they are facing. It has become the stress ball for most internet users and a link to participate and connect to their distant friends all around the world.

The world is changing in terms of the social aspect of every community but does the law follows? Now a very challenging question arises. We would limit our discussion to the questions above mentioned.

Labor and the Constitution

Article 3 of the Labor Code of the Philippines speaks of the declaration of basic policy. In sum, the state shall afford protection to labor, promote employment and ensure equal work opportunities regardless of sex, race or creed.

Now, an individual applies for a job and as an employer they would normally check the applicant’s background whether such applicant is fit and suitable to the job. Can the company-employer access the applicant’s social media and internet tools as part of their evaluation? Will it not impair the applicant’s fundamental right to privacy? Does it violate any law in particular?

Article 3 Section 3 of the 1987 Constitution of the Philippines speaks of the right to privacy of communication and correspondence of any individual which shall be inviolable. The problem is this, whether such internet tools and/or social media accounts of the applicant public or private? If it is public then no rights are violated, otherwise, its invasion of privacy.

Social Medias are public by nature. It is the very purpose of such social networks for others to connect to one another, but let us bear in mind that the user or account holder has the option to make it a private one by changing its settings to private and limit the people who could be audiences to his accounts.

There is nothing wrong for a company-employer to check an applicant’s account but they cannot force an applicant who has private settings to make it public in order for the company-employer to monitor the applicant’s behaviour and beliefs.

Such evaluation and access to the applicant’s internet tools is a good way to verify other information about the applicant but should not be the substantial cause to assess whether such applicant is the most suitable one for the job. Normally a resume or curriculum vitae is required of the applicant to produce and submit to check the qualifications of such applicant and other necessary documents as attachment to prove the authenticity of the information contained in the applicant’s curriculum vitae. If private activities of the applicant in his internet and social media accounts will be the basis to see such applicant’s witness, any acts of the account user or his comments to his accounts could be subject to judgment of the company-employer. As long as such judgment is not discriminatory to the applicant and would be necessary to the job applied for it is not violative of the Declaration of policy of the Labor Code.

Social-economic standing

How about if the applicant has no access to the internet since they are financially constrained? If internet sites and social media will be a vital basis for evaluation of his/her fitness to the job, how can they now evaluate those who have no accounts or access to the internet? Is this not discrimination to those who have no money to access of the internet against those who are financially capacitated?

In this line, it would be of the interest of justice and equity to just have a uniform way of evaluating applicants which excludes the usage of internet access and social media.

As of date, no labor regulation is formulated to say whether social media and internet tools should be part of the fitness of an applicant to get employed but let us be mindful that under Art. 19 of the New 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.

Reminder

Internet tools and social media or networking sites are public places. Everyone has a freedom to put anything in their personal internet accounts as long as it does not impair the freedom of another person. Everyone has to be cautious and responsible in using the internet; otherwise it would impede others’ rights and therefore could be use against him/her.

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