Aton, Jonelyn Jan

SY 2012-2013, Second Semester


Tech & the Law: Republic Act No. 10173 – Data Privacy Act of 2012

When I first read the lengthy provisions of Republic Act No. 10173 or otherwise known as the Data Privacy Act of 2012, I honestly could not make any comment about it. Not that I find it very impressive, but because I was lost with the words and terminologies used in that law. All that I could understand while reading the new law is that it is a consolidation of the bills of both the Senate and the House of Representatives which was finally passed last June 6, 2012, and eventually, approved by the president of the Philippines on August 15, 2012.

I could not clearly appreciate what this law, more so its framers, desire to convey to the public, who will be subjected to such law, not until I read it over and over again, and searched, browsed, and read the explanations and justifications of the public officials involved in the creation of such law. Only then that I was enlightened of the functions, objectives and purposes of this law; that it shall be for the benefit of every individual and of the country as well.

After reading what the framers and supporters had to say about this new law, I started to have some random thoughts and realization about it — how will this new law affect the government, the private entities, the individuals, and myself as well; was it really necessary for the country and its citizen to have this kind of law; if it is, then why is the legislative department created this law only now when there are private entities and a few government agencies which has been, for quite some time now, using Information and Communications System in processing personal information of their data subject; how will the government implement this new law; how soon can the government implement this new law; will the government be able to apply this new law equally to everyone; and so on and so forth.

As projected, one of the purposes of its creation is to protect the personal information of every person, whether natural or juridical, against any unauthorized release or publication. In line with such purpose, a National Privacy Commission shall be created with the mandate of monitoring the implementation of this new law, and that any violators shall be penalized accordingly. And unlike the other recently approved law by the president, Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act, this law has no existing official opposition having no Temporary Restraining Order, which would mean that it can take effect after fifteen (15) days of its publication in at least two (2) national newspapers of general circulation, as provided in its “Section 45. Effectivity Clause” of the said Act (http://www.gov.ph/2012/08/15/republic-act-no-10173/).

“SEC. 44. Repealing Clause. – The provision of Section 7 of Republic Act No. 9372, otherwise known as the “Human Security Act of 2007″, is hereby amended. Except as otherwise expressly provided in this Act, all other laws, decrees, executive orders, proclamations and administrative regulations or parts thereof inconsistent herewith are hereby repealed or modified accordingly.

SEC. 45. Effectivity Clause. – This Act shall take effect fifteen (15) days after its publication in at least two (2) national newspapers of general circulation.”

This new law, as embodied in its “Section 44. Repealing Clause” from the same source mentioned above, is also intended to repeal or amend Section 7 of Republic Act No. 9372, otherwise known as the “Human Security Act of 2007”, an act which is established to secure the country and to protect its citizens from any terrorism. It would denote that the surveillance of suspected terrorists, and interception and recording of communications of such suspects, shall no longer be allowed, whether with or without approval or order of the law enforcement officials.

Here, I think that the intention of Republic Act No. 9372 to prevent terrorism and/or to capture any suspected terrorists will be impeded if not halted because the government and the law enforcement officials’ means to carry out their functions in fighting against any possible terrorist attacks will be restricted. But at some point, this amendment to Section 7 of Republic Act No. 9372 will be beneficial to most citizens who are certainly innocent but are being considered suspected terrorists because they will be able to exercise their right to privacy, a right which is mandated in “Section 3, Article 3: Bill of Rights, of the 1987 Philippine Constitution (http://www.lawphil.net/consti/cons1987.html)”.

“Section 3 –

1. 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.”

Further, based on the statement of Department of Science and Technology-Information and Communications Technology Office Executive Director Louis Casambre in an August 28, 2012 article in the official website of the Philippine Information Agency (http://www.pia.gov.ph/news/index.php?article=1781346143986), the new data privacy law is intended to bolster the growing Information Technology-Business Process Outsourcing (IT-BPO) industry in the country. The new law would appear to, by some means, promote the idea of “Information to Empower Filipinos”. The President and CEO of Business Process Association of the Philippines, Benedict Hernandez, also had to say that this new law will “bring the Philippines to international standards of privacy protection”.

Additionally, according to the supporters of this new statute, it is intended to make the Philippines in line and in compliant with the international data security standards, which would establish measures that will protect and preserve the integrity, security and confidentiality of personal data collected by government and private entities in their operations. In a press release published by the Senate of the Philippines last August 23, 2012 in its official website (http://www.senate.gov.ph/press_release/2012/0823_angara2.asp), a “statement of the passage of data privacy act” elucidated that the passing of this new law is necessary for the country and its citizens “to become a functioning knowledge-based, ICT-driven economy”. Further, according to the Senate, all enterprises, whether public or private, shall be mandated to safeguard the confidentiality and integrity of personal information collected in the course of their operations. Not only that this new law will boost confidence of potential investors in the country’s growing Information Technology and Business Process Outsourcing industry, but the trust of the ordinary citizens as well in the e-governance initiatives.

Recently, it is evident that the IT and BPO industry the country is growing, a proof that foreign corporations have become more interested in investing the country. As a result, the IT and BPO industry now plays an important role in the country’s economy at it serves as a job and income generator as it opened opportunities to many Filipinos. As our country caters to the demand of IT and BPO industry, it is, I think, better if we have laws existing to protect the security and confidentiality of the information being processed by the IT and BPO companies. Having worked in a documentation center of a certain BPO company, I was able to see and experienced firsthand how rigid the security policies are of the company, and how they value the confidentiality of any information regarding their industry in order to protect the clients, the employees, and the company itself. The approval of Republic Act No. 10173 should be a good effort on the part of the government to implement laws that would assist in continuously developing the country into having high quality services that are in line and in compliance with the international standards of privacy protection. In this way, more and more investors will be interested in investing in the country because they will be confident that the security of their businesses will be protected from any violation.

I also observed that in Section 5 of Republic Act No. 10173 (http://www.gov.ph/2012/08/15/republic-act-no-10173/), it continues to afford protection to journalists and their sources. That they shall not be compelled to reveal their sources for whatever news-report or information they disseminated to the public, with the exception of course, that the court or the Congress may demand them to disclose their sources should the interest and general welfare of the public is concern.

“SEC. 5. Protection Afforded to Journalists and Their Sources. – Nothing in this Act shall be construed as to have amended or repealed the provisions of Republic Act No. 53, which affords the publishers, editors or duly accredited reporters of any newspaper, magazine or periodical of general circulation protection from being compelled to reveal the source of any news report or information appearing in said publication which was related in any confidence to such publisher, editor, or reporter.”

This is a worthy protection for the journalists because they will be able to freely exercise their freedom of speech without being anxious of their safety and security, provided, that they publish the correct information to the general public. However, journalists should still keep in their minds that they have to be responsible to the information they divulge to the public because it would reflect their professional values, and that the protection they receive from the law is not an absolute one, as they can still be subjected to legal complaints from the subjects of their publications and reports.

Initially, how will this new law affect the government, its efficiency in serving the public, is it beneficial to the public and how will it affect me. I can see that, if not all, at least some of the government agencies I had experienced dealing with like the Land Transportation Office, the Social Security System, the National Bureau of Investigation, the Home Development Mutual Fund (Pag-ibig), the Philippine Health Insurance Corporation (Philhealth), the National Statistics Office, the Department of Foreign Affairs, and the Bureau of Internal Revenue, are now embracing the power of technology because from paper-based databases and documents, they are now capable of serving the public using online communications and they now have centralized online database, which means, although they are from different locations, they will be able to search any information and would get the same results, even if the information would come from such other location. At some point, I think it is beneficial both on the part of the citizens and the government and its employees.

On the part of the government and its employees, they no longer have to deal with loads of files and papers, and manually searching each and every paper in order to serve each and every client’s requests and demands. They only need to search in their central database and in just one click; they would get the result – better and faster service to the citizens. And on the part of the citizens, like myself, I will be able to appreciate our government more because of their better services. I would no longer need to fall in line for ten hours just to get my NBI clearance; I no longer have to go to the NBI main office to get a clearance, which is too far from my home, because they now have satellite offices in different locations, to better serve the public; I no longer have to go to the DFA thrice just to have a passport or renew it because I can now apply for a passport online and just go there for the appearance date; I no longer need to go back to the LTO office where I first applied for my license because I can now renew my license in any of their satellite offices. These are some of my experiences where I can say that there was an improvement in the services of some of the government agencies because of having a better information and communications system, and filing system in storing and processing the personal information of their data subjects.

However, not because the government is starting to adjust to apply the modern technology, it would mean that everything will be easy and very efficient. Of course, there will be, at some point, difficulties and challenges that will be experienced in applying the modern technology. The government may have a better information and communications system, and filing system by storing and processing the personal information of their data subjects in a central database where they can uniformly look at it regardless of their location, however, we should be reminded that the government may still be not using the kind of technology with the best quality.

There would be times when you are in a certain satellite office of a government agency, falling in line to get a clearance or a license, thinking that since the government is now more efficient, you are expecting and anticipating that in an hour or two you will complete the necessary procedures and have your license or clearance, but while waiting for the clearance or license, they would announce that you and the others need to go back some other time because there was a system failure and/or their system turned offline, therefore, they can no longer process your personal information in their database, and they will not be able to print the license or the clearance. Further, when you ask if it is possible to just go to another satellite office since you urgently need the clearance or license, to your disappointment, they will say that the system error and/or system offline is being experienced not just by their office but by all satellite offices of that certain government agency. And to your further disappointment, they cannot give you an exact date when you should come back because they themselves do not know as well when their system or server will be fixed because it would all depend on how fast or how slow their service provider can fix or troubleshoot the system error.

The scenario above is a reality because I have experienced it before. Now that I am thinking back on what happened, I realized that although our government is giving an effort to modernize their filing system by having a central electronic database, difficulties and challenges will still come on the way. Moreover, I was also thinking that, since the government has a service provider for the systems they use for their central electronic database, does it mean that the personal information they get from each citizen and stored in such database can also be seen by such service provider? I cannot exactly discern whether the personnel of the service providers of the government can actually see and/or access the personal information of the data subjects stored in the database, but one thing is for sure, we do not know precisely how secure our personal information is in the database of the government.

Person/s in bad faith can bribe the service provider personnel or the government employee to access the database and assist them to give some personal information about certain data subject/s and/or hackers who are also in bad faith can hack the database of the government and make a mess with the personal information stored in their databases. Both instances are most likely probable to happen because we have to admit that we live in a country with numerous corrupt people, whether in the government or just a civilian with an access in the government. Also, we should remember that recently, when the other law, the Cybercrime Prevention Act, was approved, certain group of hackers tried to hack some government websites to show their opposition to the new law. If these people were able to do that, then it could mean that anyone who is an expert in hacking websites can do that as well, especially if there is an equivalent reasonable price, in just obtaining some confidential and personal information of certain data subject/s.

With that, I can say that we must appreciate the efforts of our government to modernize their filing system, and information and communications system by having a central electronic database where they can uniformly store the personal information of their data subjects. However, we, citizens, being the data subjects, must also be aware that entrusting our personal information to the government may have consequences whether favorable to us or not.

Nevertheless, with the enactment of Republic Act No. 10173, we should, I think, feel more secure that our personal information will not be tampered neither will it be disclosed without our consent or without any legal purpose for its disclosure, and that we will have the right to know what personal information pertaining to us is being processed because under the said law, provisions pertaining to the principle of data privacy, the rights of the data subject, the security of personal information, the accountability of personal information controllers, and the responsibility of heads of government agencies were provided. More so, penalties for any violation of the Act and/or unauthorized processing and accessing, and improper disposal of personal information were afforded to protect the data subjects from any substantial violation of their right to privacy, a right specifically provided under our Bill of Rights in the Constitution. This effort, as I believe, shall as well be construed as a support in competent detection, investigation, apprehension and prosecution of crimes which involves the internet and the cyber world. An initiative on the part of the government to resolve the increasing crimes against natural and juridical persons in terms of identity theft, hacking, spamming, spread of virus, phishing, among others.

This new law shall also be applicable to private entities, except of course, those specifically mentioned in the provisions. I wonder then, if this should also be practiced by banking institutions, especially those with credit card services. More than three years ago, a few weeks after availing the credit card services of a certain bank in our country, I received a call from a certain “company” offering me a health card membership wherein the payment to such membership, which is more than Three Thousand Pesos, will just be credited to my credit card account, and to my surprise, this person I am talking to knows my credit card account number. When I asked him how come he knows my credit card account number, he says that they have access and can see the database of credit card companies, and from there they choose individuals who will be offered of their products and services. And since I already have my own health care provider, which is more credible and known to the public, I declined their offer.

I thought, after that conversation, I will no longer receive any more offers but I guess, I thought wrong because for another few weeks, I received another call, this time from a different “company”. And once again, the sales person claimed that he got my information from the database of the credit card company where I have an account, and that they have access to the database of all credit card companies. He offered me a membership card wherein according him, will give me big discounts to different establishments, including those high-end establishments. The offer was somewhat tempting but of course, I was reminded of the previous offer I received, hence, I strongly declined his offer. He was so persistent that he even suggested that the membership fee in the amount of more than Eighteen Thousand Pesos can be paid in an installment basis for six months using my credit card account. He even said that he will be the one to transact with the credit card company. I kept on declining him and insisting that there are more important expenses I should consider before giving in to his offer. Because huge amount of money is already involved, I immediately called the credit card company and confronted them about the experiences I had involving my credit card account. I asked them how come these people or “companies” knew my information – my credit card number, my company address, my contact number. I could remember that these credit card personnel would keep on telling their clients during the negotiation and convincing stage that their personal information will be kept confidential. To my dismay, they only answered that apparently, they do not know how those people or “companies” knew about my personal information because it is not their practice to disclose their clients’ information without the client/s’ consent.

I do not exactly know if this new law shall apply to them or if they will be covered by the proper and legal procedure of disclosing the personal information of their clients but I am hoping that they are so citizens like myself who avails the services of the credit card companies will be protected from any unauthorized disclosure of my personal information. At that time, I was not aware yet of any statute which could protect me from such incident so I just let it passed by. However, at present, should this happen again, I think, I can be more vigilant and would be able to have the courage to confront and would make a complaint against the credit card company that would disclose my personal information to others without obtaining any authorization or consent from me.

I am just hoping that the framers of this new law and those who will implement it will be able to create its implementing rules as soon as possible, and that the planned National Privacy Commission will be effective enough to strictly enforce the provisions of this new law, and would be able to properly and legally detect, apprehend, investigate, and prosecute any violators. And of course, that the constitutional right to privacy of every individual will not be put at risk because of the implementation of this new law. That even if the government and the private entities will be given the right to gather personal information of their data subjects, they will still respect the privacy of the data subjects by not disclosing their personal information without obtaining the consent or authority of the data subjects or without any legal purpose to do so.


TECH and the LAW: Republic Act No. 10175 vs Senate Bill No. 3327

The Recently Proposed “Magna Carta for Philippine Internet Freedom” (Senate Bill No. 3327)
VS
The Recently Approved “Cybercrime Prevention Act of 2012” (Republic Act No. 10175)

Towards the last quarter of the year 2012, the Philippines was confronted with yet another controversial issue involving the Legislative Department (both the Senate of the Philippines and the House of Representatives), and the President of the Philippines himself, with the passage of one of the most disputed recent bills, Republic Act No. 10175 [1], otherwise known as the Cybercrime Prevention Act of 2012 (aside from the Reproductive Health Bill of course, which are now both approved and turned into laws), which was approved by the President last September 12, 2012.

While the said Act was still a Bill in both the Congress and the Senate, a lot of Filipinos, may it be groups or organizations of internet users such as the netizens and bloggers, the members of the media, human rights groups, and even concerned individuals, have already expressed their dissents and oppositions to the potential implementation of what they believe to be an impending unjust and unconstitutional law which will likely violate numerous rights and freedom guaranteed under the Bill of Rights in our 1987 Philippine Constitution, such as the Freedom of Expression and Speech, Freedom of the Press, Right to Privacy, Equal Protection, Right to Due Process, among others. However, no opposition could stop both the Senate and Congress in passing the Bill because it was able to reach the President for his approval.

Under Section 31 [2], the Act shall take effect fifteen (15) days after its publication in the Official Gazette or two (2) newspapers of general circulation, and having been published on September 18, 2012, the Act had become effective since October 3, 2012, and the government agencies assigned to formulate the necessary “Implementing Rules and Regulations” [3] should have been starting their drafts since they were given only ninety (90) days from approval to accomplish their task in order to effectively implement the Act. However, because of the adamant oppositions of the individuals and groups of people mentioned above, a total of fifteen (15) petitions for temporary restraining order against the implementation of the Act were filed before the Supreme Court, which made the high court, as an exercise of their power of judicial review, instantly respond to on October 9, 2012, almost just a month after its approval and a few days after its effectivity, by unanimously voting to issue the 120-day Temporary Restraining Order [4], which shall be effective immediately, not only of those refuted provisions of the Act, but the entire Act itself, with the condition that there will be an Oral Argument on the matters and issues raised in the petitions on January 15, 2013, less than a month before the estimated expiration of the order.

And just before the year 2012 came to an end, we have witnessed the action and response of Senator Miriam Defensor Santiago to the controversies surrounding the halted Cybercrime Prevention Act. The said Senator on November 12, 2012, filed before the Senate of the Philippines’ Fifteenth (15th) Congress her “version 2.0” of the Cybercrime law, the Senate Bill No. 3327, otherwise known as the Magna Carta for Philippine Internet Freedom [5]. According to Senator Santiago in the last part of her “Explanatory Note”, she envisions that her Senate Bill will ensure that everyone will be benefited and be able to overcome any cyber challenges [6]. A day after the Bill was introduced, it had already been read on First Reading and referred to the Committees on Science and Technology; Constitutional Amendments, Revisions of Codes and Laws; Ways and Means and Finance.

We now welcome the year 2013 with yet new matters to discuss about – the upcoming Oral Arguments before the Supreme Court between the supporters of the Cybercrime Prevention Act and the petitioners of the temporary restraining order, to determine the constitutionality of the provisions of the Act and the Act itself, and whether or not it shall be just to continue the implementation of such contested law. But of course, assuming that this controversial law be declared constitutional and its temporary restraining order be lifted, and be effectively implemented, the lifespan of its implementation and enforcement will still depend on the strength of the introduced Senate Bill of Senator Santiago, another matter which seems to be worthy of our concerns and time.

Should the said Bill be able to surpass all the stages in the passage of a bill both at the Senate and House of Representatives, and would reach the President for approval, and eventually, be approved by the President, and be effectively implemented without any opposition, then that moment, as they say, would be the end of the Cybercrime Prevention Act. On the other hand, should the Bill be unsuccessful, and the Act would be declared constitutional, then said Act will be continuously implemented and enforced.

Why such Senate Bill would dictate the length of enforcement of the Cybercrime Law, considering that the latter has just been approved and its temporary restraining order may be lifted anytime soon? It is because, as previously mentioned, the passage of the Bill is with the intention of repealing the provisions that would be declared unconstitutional or the Act itself, embodied in Section 65 [7], which is an action on the part of Senator Santiago, in her most legislative judgment and knowledge, to settle any and all controversies that were very apparent in the Act – a prospective solution and response to the continuous complaints and criticisms against the Act.

Which then between the Cybercrime Prevention Act of 2012 and the Magna Carta for Philippine Internet Freedom is the more just and constitutional statute? Which between the two would be more beneficial to everyone? Which is more in compliance with the guaranteed equal protection by the Philippine Constitution? Which is more aligned with the Freedom of Expression promised by the Bill of Rights in the Philippines Constitution? Which would harmonize the perception of the government and its law enforcement agencies, the information and communications industries, and the internet users?

I am not entirely opposed to the Cybercrime law because I know that I am not doing anything to cause me any trouble under the said law. In fact, I thought it was a nice idea to come up with a law which is aligned with our now modern world, and which answers to all the abuses and offenses committed in the cyberspace, which in reality is very adamant. However, after reading the Act and incorporating the assertions of its critics, I could not help but think whether the legislators have really deliberated on the contents of the Act, and why does it gives me an impression that they did not even mind organizing it in a reasonable and rational manner. Some provisions seem to be misplaced and were not stated profoundly. It appears as if it was rushed to be created and be put into law. Some provisions were also contradictory to each other. And the worse is the excessive penalties provided in the Act. I remember a lot of the critics of the Act are asserting that the reason why the Act appears disorganized and why the penalties are excessive is because of the controversy to which Senator Vicente Sotto III got involved into. He was accused of plagiarizing a blog post and a speech, and was “cyber bullied” as he claimed it because too many comments and criticisms against him were posted on different social networking sites. And as the critics of the Act alleged, to prevent people, in the future, from doing the same thing to government officials and other individuals as well, certain provisions were inserted in the Act, such as the provision on libel. The purpose could be to avoid the government officials and the agencies as well from being “bashed” on the networking sites.

By reading section 2 of the Act [8], or its “Declaration of Policy”, I observed that it was very much concentrated on the State’s recognition on the role and importance of the information and communications industries, to achieve fast and reliable international cooperation, and to adopt sufficient powers to implement the Act at both the domestic and international levels. I thought then that it could be the reason why it gave the impression of taking the constitutional rights for granted. The Act appears to be a protection more on the part of the information and communications industries, and undervaluing the protection of the rights of many individuals, thereby not promoting the equal protection principle under the Constitution.

On the other hand, on the “Declaration of Policy” in section 2 of the Senate Bill [9], I have viewed that it is much longer because it seems to convey an intention to guarantee recognition and protection of the rights and privileges not only of the information and communications industries, but the people as well and that of the State and the government, all together. On one part, the State affirms its cooperation with other nations and international bodies in promoting laws and regulations against abuse of the internet, information and communications technology. On another part, the State as well affirms its commitment to the people on the full respect for human, civil and political rights by recognizing the development and flourishing of “information society” where the people are protected in freely exercising their rights in creating, accessing, utilizing and sharing information and knowledge. Further, the policy also declares the right of the State and the government to develop plans, measures and mechanism to prevent information and communications technologies being used as weapons of mass destruction, with the intention of protecting the Filipino people, providing security for information and communication industries, and consistent with the national interests. In here, we can see that definitely, there is an effort to gratify not only the information and communications industries but the people the well. This declaration of policy now intends to elucidate that the Bill is intended to apply the equal protection guaranteed by our Constitution.

With the declaration of policy alone, we can immediately perceive the difference between the Act and the Bill. We can suppose that the Bill, should it be approved, is more worthy of implementation because it will be a better law compared to the Act. That the Bill is more cognizant on the promotion and protection of the rights of all, whether it be the internet and technology users or the information and communications industries, or the national interest which the State and the government has to look out for as well.

Further, with the comparison of the provisions on definition of terms of both the Act and the Bill, we can notice that in the former, the terms defined are only those of the technical matters, somewhat alike to the Data Privacy Act of 2012. The kinds of cybercrimes punishable under the Act were not even defined, they were just enumerated in other provisions, hence, by just reading the preliminary provisions of the Act, a person will not immediately, in a nutshell, get a glimpse of what the Act is really all about. Unlike with the Senate Bill, with its lengthy provision on the definition of terms, from the definition of technical terms to the definition of the different cybercrimes and to the definitions of any other terms you will encounter in the entire Bill, by just reading them, you will get the idea of what the Bill want to promote and protect.

In addition, we can observe that right after the preliminary provisions of the Act, it instantly shifts to the punishable acts by enumerating all the kinds of acts and omissions which can be classified as cybercrimes. As compared to the Bill (which is ought to be a Magna Carta, or a charter or document that constitutes the fundamental guarantee of rights and privileges of all those subject to such, and in this instance, the information and communications industries and users), right after the definition of terms, the internet rights and freedoms of everyone are emphasized and explained in a separate chapter. The Bill is intended to promote and protect the internet as an open network, that there shall be network neutrality and universal access to the internet, right to privacy and security of data, and that there shall be right to freedom of speech and expression on the internet, which can be considered as an assurance to the critics of the Act that the freedom of speech and expression which worries them that might be violated, is now explicitly recognized and stated in the proposed Magna Carta for Internet Freedom.

On the issues of excessive penalties, as prescribed by the Cybercrime Act, a person who can be found guilty of any of the cybercrimes in the Act can be punished with an imprisonment of arresto mayor or prision mayor or reclusional temporal. Further, such person can also be fined from Fifty Thousand Pesos (Php 50,000.00) to One Million Pesos (Php 1,000,000.00). There are even penalties imposed which shall be one (1) degree higher than that of provided under the Revised Penal Code for all crimes defined and penalized by the Code, which committed with the use of information and communications technologies. These kinds of graver penalties would seem to project an impression that cybercrimes are more severe than the crimes defined under the Code. While under the proposed Magna Carta, the provisions of the Revised Penal Code shall now apply suppletorily to the provision of the Bill, whenever applicable. The Bill was drafted with penalties that cannot be considered as excessive unlike with the existing Act.

One of the most opposed penalties is that of the cybercrime of libel. Libel and its penalty is already defined under the Code [10] and its penalty is only an imprisonment of prision correctional or a fine ranging from 200 to 6,000 pesos, and it can be committed by means of writing and other similar means. “The other similar means” should therefore connote that by means of information and communications technology such as the networking sites, libel already falls under the Code. But the Act provides another definition for libel, it made distinct the use of computer system and that it shall be penalized with one degree higher than that of the Code. This I do not think is fair because libel, whether written or printed or in radio or in computer system, should all be treated as the same and should be penalized as the same. The means committing libel may be different but the intent is all the same, to cause a dishonor or discredit against a natural or juridical person. I remember during the first few days after the Act was approved, it has been a topic of many programs, whether on TV or AM radio or FM radio. Once on my way to the office, a radio caller in the FM station I’m listening to said that if he has an enemy whom he wants to do revenge, instead of saying bad things about his enemy on social networking sites, he would rather beat up that person, causing physical injuries. This is his view of the implementation of the Act, that saying malicious things about his enemy through social networking sites would penalize him more than beating up his enemy. If this would be the thinking of many people towards the Act, then it would mean that the Act can possibly encourage people to attack their enemies physically than to bash them on the social networking sites.

Further, because of the criminal liability of libel under the Act, people will be definitely be terrified to say anything against any government agencies and officials. No one can possibly freely exercise their right to express, in good faith, their comments, protests, dissatisfactions against our government or foreign government or any commercial establishments and their products. Everyone can be restricted to do such because doing otherwise can put them in jail or be fined with a large amount of penalty.

It was also provided in the Act that any prosecution shall be without prejudice to any liability for violation of any provision of the Code [11]. With this kind of provision, it sounded like a promotion of double jeopardy, which our Constitutional specifically prohibits. Because of the insertion of such provision, a person accused and/or penalized of committing offenses under the Revised Penal Code may still be accused and/or penalized of committing offenses under the Act, even if such offense is committed from one and the same act. A conviction or acquittal from an offense under the RPC will not bar the filing of a new complaint, this time under the Act. And it appears to be a violation of our guaranteed right against double jeopardy. And the Act can be used by others abusively for their own convenience; to keep on pressing the other party whom they think committed an offence against them.

But with the possible implementation of the Magna Carta, people no longer need to worry whether they will be put to jail for a long time just because they expressed what they want to say, done in good faith and just for the sake of letting others know what they have experienced. With the Magna Carta, libel is clearly defined as to what constitutes a crime and what are exempted. Hence, people will be more aware whether they will be violating a law or not. In addition, libel committed using computer systems, does not of itself produces a criminal liability, but instead, only a civil liability, wherefore, the criminal liability under the Revised Penal Code and the criminal liability under the Cybercrime Act is no longer possible because of the Magna Carta. Hence, there can be no double jeopardy.

At one point, although the Act tries to promote due process of law by stating that court orders are needed before doing any action against those who are suspected of violating the Act, it has however, a provision which is deemed to be a violation of the right to due process because under its Section 19, the Department of Justice can issue an order to restrict or block access to a computer data which is deemed to be “prima facie” found to be in violation of the provisions of the Act. It means that a computer data can be blocked or restricted just by its appearance, if the DOJ assumes that it is violative of the Act, without even first investigating whether or not it indeed violates the Act. But with the Magna Carta, Senator Santiago assures that no provision similar to that of the Act shall appear in the Magna Carta because its provisions guarantee due process by obtaining first court proceedings and orders before any network or computer data will be restricted or blocked. Any action against suspected violators of the Magna Carta will always have a day in court.

Another good proposal under the Magna Carta is the creation of a separate government agency which will be taking stewardship of the information and communications sector of our country. The Magna Carta proposes that a Department of Information and Communications Technology shall be the government agency to oversee any and all developments and implementations in relation to information and communications. In which case, this sector will be taken cared of first hand by the officials who will be assigned to the responsibilities, with the help of course of other government agencies who were also given supporting responsibilities to implement the Magna Carta. Unlike with the Cybercrime Act, no proposal of a separate government agency was ever mentioned, instead, different major responsibilities to implement the Act is lodged to different government agencies.

To conclude, I would like to share what a professor in one of my subjects once told our class. He said that laws are created with the ends of attaining justice. He continued by asking us – if that is the purpose, then does that mean that all laws are just? He even mentioned the halted Cybercrime Protection Act and the newly approved Reproductive Health Bill as examples of laws being asserted to be unjust and unconstitutional. He further asks – if there are laws created to be unjust, does that mean that not all laws are just, and therefore, the purpose of attaining justice cannot be achieved? As my professor continued his discussion in class, he clarified that all laws are presumed to be just. Benefit of the doubt on the part of our legislators should be presumed when they framed the laws, having the intention of attaining justice. The justness or unjustness will be determined when the laws are already enforced and implemented. Its interpretation will depend on the perception of those implementing it and those on whom it is being implemented to. Some laws may seem unjust but if properly interpreted and implemented, they may prove otherwise. On the other hand, some laws may also appear to be just but if not properly interpreted and implemented, will as well prove otherwise.

As a realization, our laws are indeed supposed to be just and constitutional; otherwise, it would violate the rights guaranteed to us by our Constitution. Certainly, the rights, even if guaranteed by the Constitution, are not absolute as there can be justifiable and valid reasons to prevent us from exercising such. In those exceptional instances, we definitely would acknowledge such and will not assert any violation of our rights. To give benefit of the doubt to the framers of our laws, such laws, upon their passage, shall be presumed just and with the intention to promote and attain justice. And their constitutionality and justness can be questioned once they have been implemented.

Having said so, by giving benefit of the doubt to the framers of the Cybercrime Prevention Act, the Act can be said to have been correctly approved by the Legislative Department and the President. But since its constitutionality is now subject for deliberation by the Supreme Court, let us leave it up to them to properly exercise their power. Should it be declared constitutional by the high court, let us just hope that it will not be abused, and will be implemented with the intention of attaining justice. But of course, should the Senate Bill of Senator Santiago be approved, we hope that it shall repeal all that are deem unconstitutional on the Cybercrime Act, and it shall as well not be abused, and instead, be properly implemented to attain justice, which above all, is the reason for creating laws.


Endnotes

[1] http://www.gov.ph/2012/09/12/republic-act-no-10175/. Republic Act No. 10175 – “An Act Defining Cybercrime, Providing For the Prevention, Investigation, Suppression and The Imposition Of Penalties Therefor And For Other Purposes”. This Act which is a consolidation of Senate Bill No. 2796 and House Bill No. 5808 was finally passed by the Senate and the House of Representatives on June 5, 2012 and June 4, 2012, respectively; and Approved by the President of the Philippines on September 12, 2012.

[2] http://www.gov.ph/2012/09/12/republic-act-no-10175/. Republic Act No. 10175, Chapter VIII – Final Provisions, SEC. 31. Effectivity. — This Act shall take effect fifteen (15) days after the completion of its publication in the Official Gazette or in at least two (2) newspapers of general circulation.

[3] http://www.gov.ph/2012/09/12/republic-act-no-10175/. Republic Act No. 10175, Chapter VIII – Final Provisions, SEC. 28. Implementing Rules and Regulations. — The ICTO-DOST, the DOJ and the Department of the Interior and Local Government (DILG) shall jointly formulate the necessary rules and regulations within ninety (90) days from approval of this Act, for its effective implementation.

[4] http://sc.judiciary.gov.ph/jurisprudence/2012/october2012/203299.pdf. Supreme Court of the Philippines, En Banc Decision on the fifteen (15) petitions for Temporary Restraining Order against Republic Act No. 10175:

“WHEREAS, the Supreme Court, on October 9, 2012, adopted a resolution…

xxx xxx xxx

(a) CONSOLIDATE the petitions;

(b) REQUIRE the respondents and the Office the Solicitor General to COMMENT on the petitions within ten (10) days from notice hereof;

(c) SET the cases for ORAL ARGUMENTS on January 15, 2013, Tuesday, at 2:00 p.m. at the New Session Hall, New Supreme Court Building, Padre Faura St., Ermita, Manila; and

(d) ISSUE a TEMPORARY RESTHAINING ORDER, effective immediately and for a period of one hundred twenty (120) days, enjoining the respondents from implementing and/or enforcing Republic Act No. 10175 (Cybercrime Prevention Act of 2012).

NOW, THEREFORE, effective immediately and for a period of one hundred twenty (120) days, You, Respondents, your agents, representatives, or persons acting in your place or stead, are hereby ENJOINED from implementing and/or enforcing Republic Act No. 10175 (Cybercrime Prevention Act of 2012).

GIVEN by the Supreme Court of the Philippines, this 9th day of October 2012.”

[5] http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-3327. Senate Bill No. 3327 – “An Act Establishing A Magna Carta For Philippine Internet Freedom, Cybercrime Prevention And Law Enforcement, Cyberdefense And National Cybersecurity”. This Bill was passed by Senator Miriam Defensor Santiago on November 12, 2012; and is still pending in the Committee.

[6] http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-3327. Senate Bill No. 3327, Page 3, Explanatory Note, Senate Bill No. 3327, Introduced by Senator Miriam Defensor Santiago – “The Magna Carta for Philippine Internet Freedom is envisioned to ensure that the Philippines and its individual citizens are able to meet the challenges posed by ICT and cyberspace, able to wield it and benefit from it in charting a better future. The urgency of this legislation cannot be gainsaid, and we trust that the legislators will see the wisdom of this law.”

[7] http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-3327. Senate Bill No. 3327, Chapter XVII, Section 65. Repealing clause – Any law, presidential decree or issuance, executive order, letter of instruction, administrative order, rule, or regulation contrary to, or inconsistent with, the provisions of this Act is hereby repealed, modified, or amended accordingly.

[8] http://www.gov.ph/2012/09/12/republic-act-no-10175/. Republic Act No. 10175, Chapter I, Section 2. Declaration of Policy. — The State recognizes the vital role of information and communications industries such as content production, telecommunications, broadcasting electronic commerce, and data processing, in the nation’s overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of computer, computer and communications systems, networks, and databases, and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal access by making punishable under the law such conduct or conducts. In this light, the State shall adopt sufficient powers to effectively prevent and combat such offenses by facilitating their detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation.

[9] http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-3327. Senate Bill No. 3327, Part 1. Preliminary Provisions, Chapter 1. General Provisions, Section 2. Declaration of Policy. –

1. The State reaffirms its recognition of the vital role of communication and information in nation-building, as stated in Article II, Section 24, of the Constitution.

2. The State affirms that all the rights, guarantees, and privileges provided by the 1987 Constitution, especially the rights guaranteed by Article III, and the rights, guarantees and privileges provided by treaties and conventions to which the Philippines is a signatory and general principles of international law, shall apply to the Filipino people in their use, development, innovation, and invention of information and communications technology (ICT) and the Internet.

3. The State affirms its commitment to the people and to all nations that, in the crafting of laws and regulations governing the use of the Internet and of information and communications technology, these shall be subject to Article I, II, III, and IV of the Constitution.

4 Recognizing that art, beauty, and culture can be created on devices, on networks, and on the Internet, the State shall pursue a policy that promotes the Internet and information and communications technology, and the innovation therein and thereof, as instruments of life, liberty, and the pursuit of happiness.

5. Recognizing that the growth of the Internet and information and communications technologies both depend on and contribute to the growth of the economy, advances in science and technology, and the development of human capital, and encourage democratic discourse and nation-building, the State reaffirms its commitments to education, to science and technology, to labor, and to private enterprise. Further, the State recognizes that development, invention, and innovation for the Internet and for information and communications technology are pursuits of both the public and the private sector, and can be local, national, international, and transnational in effort. Therefore, the State shall endeavor to develop plans, policies, programs, measures, and mechanisms to encourage development, invention, and innovation through and for the Internet and for information and communications technology, in cooperation with other nations and international bodies.

6. Recognizing that the growth of the Internet and information and communications technologies affect peace and order and the enforcement of law within the national territory and across other nations, the State reaffirms its policy of cooperation and amity with all nations, and its adoption of generally accepted principles of international law as part of the law of the land, in the pursuit of peace and order and in the enforcement of law.

7. Recognizing that the Internet has the potential to become a theater of war, and that information and communications technologies can be developed into weapons of mass destruction, the State reaffirms its renunciation of war as an instrument of national policy. Therefore, consistent with the national interest, the State shall pursue a policy of “no first use” of cyberweapons against foreign nations and shall pursue a policy of cyberdefense, and shall endeavor to develop plans, policies, programs, measures, and mechanisms to provide security for Internet and information and communications technology infrastructure for and in the defense of the Filipino people.

8. Recognizing that the growth of the Internet and information and communications technologies have increased the scope and potential for participative governance, transparency, and accountability in government, the State reaffirms its policy of full public disclosure of all its transactions involving public interest, subject to such reasonable conditions as prescribed by law. Therefore, the State shall endeavor to develop plans, policies, programs, measures, and mechanisms using the Internet and information and communications technology in the implementation of its policy of full public disclosure and in prescribing reasonable conditions therefor.

9. Recognizing that the growth of the Internet and information and communications technologies are vital to the development and flourishing of an “information society,” where anyone can create, access, utilize and share information and knowledge, and thus enable individuals, communities and peoples to achieve their full potential in promoting their sustainable development and improving their quality of life, the State reaffirms its commitment to the full respect for human, civil, and political rights and the dignity of every human person, and shall guarantee the same in the crafting of slaws and regulations governing the use of the Internet and of information and communications technology.

[10] http://www.chanrobles.com/revisedpenalcodeofthephilippinesbook2.htm#.UO4q2-Tqklo. Act No. 3815 – The Revised Penal Code of the Philippines, Book Two – Crimes and Penalties, Title 13 – Crimes against Honor, Chapter 1 – Libel, Section 1 – Definitions, forms, and punishment of this crime, Article 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

[11] http://www.gov.ph/2012/09/12/republic-act-no-10175/. Republic Act No. 10175, Chapter 2 – Punishable Acts, Section 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

Advertisements
1 comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: