SY 2012-2013, First Semester
- Reaction paper on Data Protection Bill by Senate
- reaction paper on the legality of fan art in the philippines
- Reaction paper on “STOP ON LINE PIRACY” and determine the feasibility of enforcing it in the Philippines
REACTION PAPER ON “AN ACT PROTECTING INDIVIDUAL PERSONAL INFORMATION IN INFORMATION AND COMMUNICATIONS SYSTEMS IN THE GOVERNMENT AND THE PRIVATE SECTOR, CREATING FOR THIS PURPOSE A NATIONAL DATA PROTECTION COMMISSION, AND FOR OTHER PURPOSES.”
1. In the period of modern world, Information Technology has ruled the world and continuously invading people’s lives one way or another, affecting not only the way they do their respective jobs but as well as their personal and family matters. Having said that, issue and problems with regards to securing and protecting data and information has emerged. It is meritous enough to know that the government had taken a big step to control, though not to totally suppress the cancerous effects of this information technology dilemma, that not only put our personal lives in danger, but also the national security of the state.
2. This act considers the supremacy of the Constitutional provision with regard to inviolability of private communication and correspondence as provided by
“Article III Section 3. (1) of the 1987 Constitution; 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.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”
This act considers that it is the policy of the State to protect the fundamental human right of privacy of communication. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected.
3. Though the government wanted to protect the individual’s personal information and communication in the government and in the private sector, this act has its expressly provided defects as the following:
a) Section 3 (h) of this act-Personal information controller-refers to a person or organization that controls the collection, holding, processing or use of personal information, including a person or organization who instructs another person or organization to collect, hold, process, use, transfer or disclose personal information on his or her behalf. The term excludes:
a.1) A person or organization who performs such functions as instructed by another person or organization; and
a.2) an individual, who collects, holds processes or uses personal information connection with the individual’s personal, family or household affairs.
This provision has reminded me of what had happened in the recent impeachment proceedings where in ombudswoman Conchita Carpio-Morales, sent a letter to Anti-Money Laundering Agency under the Bangko Sentral ng Pilipinas which immediately released not only personal information but a highly sensitive information to the detriment of not only an ordinary individual but the Chief Justice of the Philippines. Making me think that if the government cannot even observe the basic restriction as provided by the law, specifically the Bank Secrecy Law that the legislative has enacted with a purpose of encouraging foreign investors to invest in the Philippines and executed by the executive branch, but rather runs counter to the express provision of the law to use all the machinery of the government to oust an influential public officer in position, now then, do you think an ordinary citizen will give high probative value on the information security that they impose. I know that said law has its flaws, such as being couched in a general aterms, but it is the law. More so, will this act give principal importance to the welfare of the people, or just a diversionary tactic to protect every politician’s underlying interest such as business and financial position.
4. SEC. 4. Scope. – This Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency the Philippines subject to the immediately succeeding paragraph: Provided, further, That the requirements of Section 5 are complied with.
This Act does not apply to the following:
Information necessary in order to carry out the functions of public authority which includes the processing of personal data for the performance by the independent central monetary authority and law enforcement agencies of their constitutionally and statutorily mandated functions.
This provision will definitely open doors for possible abuses not only by the government officers and employees may exercise against an ordinary citizen but most especially the law enforcements who can just invoke that they need the said information in line with their function as agents of national security and safety. For me there is a need that proper determination of probable cause as to the need to acquire such information for whatever purpose, from a judge who will determine and weigh the evidence or pieces of evidence for granting such request to process the information. That is the principal reason, and, me personally, do not like the idea of the commission being created by this act be under the office of the president, but rather be an independent body under the supervision and control by the judicial branch of the government to avoid possible violations of the constitutionally provided rights of the people, and be an instrument to protect and secure their persons as individual.
”Article III Section 2 of the 1987 Constitution-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.”
5. As regards section 6 of the act entitled functions of the National Privacy Commission-To administer and implement the provisions of this Act, and to monitor and ensure compliance of the country with international standards set for data protection, there is hereby created an independent body to be known as the National Privacy Commission, which shall have the following functions:
(a)Ensure compliance of personal information controllers with the provisions of this Act;
(b)Receive complaints, institute investigations, facilitate or enable settlement of complaints through the use of alternative dispute resolution processes, adjudicate, award indemnity on mailers affecting any personal information, prepare reports on disposition of complaints and resolution of any investigation it initiates, and, in cases it deems appropriate, publicize any such report, provided that in resolving any complaint or investigation (except where amicable settlement is reached by the parties), the Commission shall act as a collegial body. For this purpose, the Commission may be given access to personal information subject of any complaint and to collect the information necessary to perform its functions under this Act:
This very provision then again will open doors to possible infringement as well as violation of the constitutionally provided right of the people to privacy of their communication and correspondence for the basic reason that it is a ground for the government may look at the personal and sensitive information’s of an individual raising the fact that such act is line with the basic function of the government’s officer or employee. We have to be mindful that such privacy was enshrined by the fundamental law of the land giving such higher importance rather than those conferred by ordinary law. In relation to anti-wire tapping law or Republic Act 4200, the latter provides that the law enforcement officers and employees must not only aver that such tapping or recording of private communication is in line with their function but also to provide grounds for the court or judge be persuade to determine the presence of probable cause for the commission of crimes as provided by the said special law granting issuance of court order to tap the wire of the subject. In the said law there is ground rules for such be made enforceable against the will and consent of an individual, and I find it highly unreasonable that such prior determination by a judge of a presence of probable cause be omitted as a requirement for allowing the use of private individual’s information.
6. Section 7 of the act provides that the commission to be established by this act shall be under the office of the president.
On this note, again my fear of giving too much power to the executive department will put any individual’s right at risk. The president can use all the machinery of the government by destroying every individual that will run counter to his plans in the absence of reasons, an ordinary man should observe. Furthermore, by attaching this commission under his control, will put every man’s secret whether private, personal or public information be at his mercy and discretion to which was principally being protected by the creation of the Constitution, the principal tool to limit the police power of the state, which the government considers as its ultimate weapon.
7. In relation to the preceding paragraph, section 7 of the act further mentioned that “No criminal or civil proceedings shall lie against the privacy Commissioner, the Deputy Privacy Commissioners, or any person acting on their behalf or under their direction, for anything done, reported or said in good faith as a result of the performance or exercise or purported performance or exercise of any duty or power under this Act.
This provision will aggravate the situation of possible abuses government officials that will compose the commission. As a government official, they are bound to serve the public with good faith and fidelity and must be answerable to the people, whom they are serving in the event of derogatory, dishonest and baseless act in whatever degree. They should not forget that as a public servant their acts are consistently under the scrutiny of the public and the community. They should, at all times prevent themselves from losing the trust and confidence reposed upon them by the sovereign people; otherwise they should step down from performing their sworn duty.
This provision gave every public official that will compose the commission every right to do whatever they want in the absence of reasons with a thinking that they are untouchables provided they have to aver that what they are doing are within the ambit of their functions.
8. As regard section 8 of the act The Secretariat. – “The Commission is hereby authorized to establish a Secretariat Majority of the members of the Secretariat must have served for at least five (5) years in any agency of the government that is involved in the processing of personal information, Social Security System (SSS), Government Service Insurance System (GSIS), land Transportation OfJ1ce (LTO), Bureau of Internal Revenue (I3IR), Philippine Health Insurance Corporation (Philhealth), Commission on Elections (Comelec),”
As much as I wanted to have personnel in the said commission to be experienced in the field of information and technology, I wanted to have majority of the commission coming from the private sector. I wanted people that will control and secure everybody’s information to be not part of the bureaucracy and undying politicking. Those that will be coming from the private sector, knows what should be protected and what should be limited and be open for state and public consumption. They will have fresh ideology, to which to my mind the government has to have to have a solid foundation in doing their mandated task.
9. Regarding the provision of section 11 of the act-Sensitive Personal Information and Privileged Information. – The processing of sensitive personal information and privileged information shall be prohibited, except in the following cases:
(a) The data subject has given his or her express consent, specific to the Purpose prior to the processing;
(b) The processing of the same is provided for by existing laws and regulations: Provided, that such regulatory enactments guarantee the protection of the sensitive personal information and the privileged information:
Provided, further, That the consent of the data subjects are not required by law or regulation permitting the processing of the sensitive personal information or the privileged information.
By this provision, especially the last sentence, alerts me of the possible intrusion of government officers to the private information of an individual. I want to then again relate this scenario to Republic Act no. 4200 or the Anti-Wire Tapping Law. Such law specifically provides that the government, especially the law enforcements such as the PNP and the Armed forces of the Philippines, can only be allowed to record, wire tap or overhear private communications of an individual provided an order from the court can be secured after the proper determination of the judge finding probable cause of the existence of crimes specified by the said law. On this note, without such prior determination of the court, in the exercise of their judicial power, transgression to individual rights is apparent. A clear defiance of foundation to which the Constitution of the Philippines was created, to protect each and everyone’s civil rights since state’s powers were derived from the people whom the government should serve and not the other way around.
10. SEC. 23. Accessing Personal Information and Sensitive Personal’ Due to Negligence. –
a) Accessing Personal Information due to negligence shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five Hundred Thousand Pesos (Php 500,000.00) but not less or more than Two Million Pesos (Php 2,000,000.00) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.
b) Accessing Sensitive Personal Information due to negligence shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five Hundred Thousand Pesos (Php 500,000.00) but not more than Four Million Pesos (Php 4,000,000.00) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.
This provision to reminds me of the provision of the Philippine’s Constitution regarding due process clause and the equal protection clause
“Article III Section 1-No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”
It is highly unreasonable that an intentional criminal act and an unintentional act through negligence will be imposed the same penalty. The commissioners have to use graduated scale of penalty to observe the constitutional provision regarding due process and equal protection clause.
There is a need that this office be under the supervision of the Judiciary, if not control, to help them, the government officers, determine the presence of intent to malign an individual or the state, especially doing so a person’s liberty and life are at stake. The act should also provide proper hearing and trial to give a person an opportunity to defend oneself directly in line with the due process clause to which the court and administrative tribunal has to observe. Life, liberty and property as the basic elements why the Constitution was created, to regulate the government to exercise its three inherent powers, such as: police power, eminent domain and taxation by affording due process to every individual.
The government has to always bear in mind that they are created together with the officers to serve the people. To provide general welfare and to observe good faith and fidelity in rendering public service since people’s trust and confidence were reposed on them.
11. As much as I wanted to be glad by the passing of this act before the House and the Senate, I want to reiterate my deepest concern to people’s right. Such rights define who we are as a sovereign state. People created the state as well as the government, all actions of the latter depicts the enormous power conferred by each and every one of us. Such power bestowed to the executive, legislative and judiciary are only part and parcel of what every citizen has. The latter only lent such power to government officials and employees, and not the other way around. Such acts, laws and statutes should always bear in mind the welfare of the people to whom they are created for.
12. Although, the exercise of life, liberty and property are not absolute, but limiting such requires due process and equal protection. We need a government for the people, to the people and of the people.
Intellectual Property Law was enacted with the sole intention of protecting the intellectual talents of Filipinos such as inventions, innovations, development in a product, process or any enhancement on a product of process.
Intellectual Property Law expressly provided to the creator or author of a product or process or enhancement of a product or process sole use or exploitation and exclusive distribution of such, subject to certain limitations as the law provides such as fair use, unless the creator or author assign his right to somebody else for profit or not.
Literary and artistic creations of authors of books, artworks and the like were also within the sphere of protection of the Intellectual Property Law as to encourage artists and those interested and with inclination to art to express themselves in this forum and improve their God given talents.
Such protection of the law allow the creator or author to have exclusive use of their artwork. The emergence of fan art in the Philippines which is based on the premise that amateur artists, who are not earning profits from their fan creations, create fan labor artworks without intention of committing copyright infringement, such as character, costume, collage, item or story.
These fan art indeed is an infringement of the intellectual right of the creator or author, an express defiance of what the law has provided.
We have to ask, why are we promoting this medium of art development in our country?
The simple answer is to have a harmonious relationship for the fan and the creator in terms of art. Such fan arts, is a medium how a fan express his patronage to the creator’s original work. This should not be seen or viewed as a threat to possible profit but should be regarded as avenue for the promotion of his artwork.
A fan who made an art of the original artwork not for profit simply mean the original work, works with him. He was moved by the work for him to express in his own way his awesome likeness to the original work. Of course, such act of a fan has to be controlled by certain limitations as the provide such as not to compete or diminish the possible profit of the creator, author or his assignees. Instead of limiting this fan art in our country why don’t we support these individuals provided certain guidelines has to be imposed.
SOPA or Stop on line piracy bill is an anti-piracy bill introduced in the United States. Its major purpose was to help internet provider better protect their creative and ingenious creations in the virtual world.
This SOFA provide internet provider enormous power such as shutting down all possible infringers from pirating or infringing with their creations, but then again, we are now facing a constitutional problem of what is the limitation of this enormous power and what will be the guiding ground for its implementation?
In the Philippines, provisions of the fundamental law or the Constitution were very much an issue, such as human rights violations and extrajudicial killings. Such issues boil down into one topic, due process. Applying such into the scenario being drawn by this anti-piracy bill, it will highly violative of the due process clause of the fundamental law that a mere letter with a view of possible good faith will be enough to shut an internet provider without even knowing the veracity of such claim and determine who has a better right to the said virtual creations.
Moreover, such unlimitless power can and will end a person or even companies virtual presence without affording the latter due process before the court. On this note, politicking in a virtual world will be highly promoted. The strong and the influential will survive and retain his presence in the virtual world. This will evidently and definitely defeat its purpose of protecting the copyrightable creation of talented and artistic individuals since their works in a virtual world can be deleted by power ones.
SOFA as an anti-piracy bill was envisioned by the framers of the law to protect U.S. from external threats. Having said that, it will be more conducive for our country to focus more in addressing internal issues and determine its ability to solve and cater the country’s need.
In conclusion, for such bill to be feasible in our country, their s a need to determine first the limit of powers to be conferred to internet providers. There is a need for procedure on how to address such problems and should conforme with the provision of the due process clause of the constitution, for the simple reason that such law in itself will violate the most essential right of a person to life, liberty and property.
There is a need for the possible endorser of the bill into the country to expressly provide that the major focus or goal of the bill was to protect first internal issues regarding infringement; and from that point further development on how to better protect and secure each and everyone’s creation in the virtual world can be put in place.