SY 2012-2013, Second Semester
- Data Privacy Act
- Cybercrime Prevention Act vis-à-vis Magna Carta for Philippine Internet Freedom – Which shall it be? Which shall it be?
Privacy is one of the rights that I cherish and value the most. There are certain information about myself that I don’t want to share with a particular person, a group of people, or just everyone, for that matter, due to several reasons. For safety purposes, I don’t feel comfortable giving my address, the place where I am currently working, my security numbers, or other personal information to a lot of people, for these bits and pieces of information might be amalgamated into something by someone who can use it in various ways I can’t possibly anticipate. Or sometimes, I don’t want to share my ideas with someone because that person might take my comment in a different context and get offended with it. Or for simple reason like I don’t want advertising agencies or marketing people to get hold of my phone number, which they would most likely use to flood me with unwanted advertisements. And there are those information about myself that I consider to be too personal to be shared with someone who I don’t trust enough to know that part of me.
I think the need to privacy on personal information is true to everyone, not just to myself. Every person has his own secrets, which sometimes he does not want to disclose with others. I can’t imagine a world with no privacy; it would be intolerable. Just imagine your boss having access to your gripes about work, or worst, about him. Or someone who you have made negative comments of being able to read those comments. Or your parents being familiar with every detail about your love life. Or someone, who’s not close to you, being able to know about your “silly moments”. Or your crush, finding out that you failed in one, or several, of your subjects. To be able to avoid these awkward (or dreaded, even) moments, you’ll have to spend the rest of your life restraining yourself from expressing what you actually feel. By doing so, you would in a way lose a part of your freedom, which would lead to your inhibitions and make you less spontaneous. And heart attacks would, for sure, be rampant.
Before, securing one’s personal information from unwanted recipient/s is much simpler. However, because of the technological advances, the right to data privacy of an individual is threatened in a number of ways. There are companies nowadays who are hired to look at the sites which are being visited by an individual; and there are even those that are employed to infiltrate personal information of people from the internet, which are used for various purposes, even illegal sometimes. This kind of thing is achievable since it is possible to record everything that you do on line. There are several of those what they called “cookies” which are being used by these private companies to track one’s record while using the internet, and some of them are the following:
- Flash cookies. When some users choose to disable http cookies to reduce privacy risks as noted, new types of cookies were invented: since cookies are advertisers main way of targeting potential customers, and some customers were deleting cookies, some advertisers started to use persistent Flash cookies and zombie cookies. In a 2009 study, Flash cookies were found to be a popular mechanism for storing data on the top 100 most visited sites. (Soltani, Ashkan: “Flash Cookies and Privacy”. University of California, Berkeley. Retrieved 3 February 2012.)
There is no doubt on the usefulness of internet in my day-to-day life. However, because of the threat which I mentioned above, every time I use the internet, I always have this fear that the data that I entered in each site that I visit and the information that I get by transacting with other parties through the net could be infiltrated by someone and use it for his benefit, at my expense. This is true especially when I have to give information about my personal/business address, security numbers, banking data, and other sensitive information, and every time I have to send or receive files which are confidential in its nature. Because of this, I sometimes prefer transacting with the other party personally, which is somehow more burdensome on my part, especially with the limited time that I have.
It’s good thing to know that currently, we have this Republic Act (RA) 10173, or otherwise known as the Data Privacy Act of 2012, which was signed by President Benigno S. Aquino III on August 15, 2012. The law protects the integrity and confidentiality of individual personal information in information and communication systems, both in the government and the private sector. By doing so, it penalizes the unauthorized disclosure of personal information.
The most important features of the law are: (i) the procedures to be followed in the collection, processing and handling of personal information; (ii) the rights of data subjects; and (iii) the creation of a National Privacy Commission.
For the processing of personal information, the law provides that:
SEC. 11. General Data Privacy Principles. – The processing of personal information shall be allowed, subject to compliance with the requirements of this Act and other laws allowing disclosure of information to the public and adherence to the principles of transparency, legitimate purpose and proportionality.
Personal information must, be:
a) Collected for specified and legitimate purposes determined and declared before, or as soon as reasonably practicable after collection, and later processed in a way compatible with such declared, specified and legitimate purposes only;
b) Processed fairly and lawfully;
c) Accurate, relevant and, where necessary for purposes for which it is to be used the processing of personal information, kept up to date; inaccurate or incomplete data must be rectified, supplemented, destroyed or their further processing restricted;
d) Adequate and not excessive in relation to the purposes for which they are collected and processed;
e) Retained only for as long as necessary for the fulfillment of the purposes for which the data was obtained or for the establishment, exercise or defense of legal claims, or for legitimate business purposes, or as provided by law; and
f) Kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected and processed: Provided, That personal information collected for other purposes may lie processed for historical, statistical or scientific purposes, and in cases laid down in law may be stored for longer periods: Provided, further, That adequate safeguards are guaranteed by said laws authorizing their processing.
The personal information controller must ensure implementation of personal information processing principles set out herein.
SEC. 12. Criteria for Lawful Processing of Personal Information. – The processing of personal information shall be permitted only if not otherwise prohibited by law, and when at least one of the following conditions exists:
a) The data subject has given his or her consent;
b) The processing of personal information is necessary and is related to the fulfillment of a contract with the data subject or in order to take steps at the request of the data subject prior to entering into a contract;
c) The processing is necessary for compliance with a legal obligation to which the personal information controller is subject;
d) The processing is necessary to protect vitally important interests of the data subject, including life and health;
e) The processing is necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of its mandate; or
f) The processing is necessary for the purposes of the legitimate interests pursued by the personal information controller or by a third party or parties to whom the data is disclosed, except where such interests are overridden by fundamental rights and freedoms of the data subject which require protection under the Philippine Constitution.
SEC. 13. 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 consent, specific to the purpose prior to the processing, or in the case of privileged information, all parties to the exchange have given their consent prior to 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;
c. The processing is necessary to protect the life and health of the data subject or another person, and the data subject is not legally or physically able to express his or her consent prior to the processing;
d. The processing is necessary to achieve the lawful and noncommercial objectives of public organizations and their associations: Provided,That such processing is only confined and related to the bona fide members of these organizations or their associations: Provided, further, That the sensitive personal information are not transferred to third parties: Provided, finally, That consent of the data subject was obtained prior to processing;
e. The processing is necessary for purposes of medical treatment, is carried out by a medical practitioner or a medical treatment institution, and an adequate level of protection of personal information is ensured; or
f. The processing concerns such personal information as is necessary for the protection of lawful rights and interests of natural or legal persons in court proceedings, or the establishment, exercise or defense of legal claims, or when provided to government or public authority.
The law requires the information collectors, holders and processors to adhere to strict rules on transparency, legitimacy and proportionality in the conduct of their activities. Among others, the collection should be carried out for “specific and legitimate purposes determined and declared before, or as soon as reasonably practicable after collection, and later processed in a way compatible with such declared, specified and legitimate purposes only.” Accuracy, relevance and essentiality of purpose must also be observed during the collection stage. Inaccurate or incomplete data must be corrected, supplemented, destroyed or their further processing restricted. The information can be stored only as long as needed for the purpose for which it was obtained, or “for the establishment, exercise or defense of legal claims, or for legitimate business purposes, or as provided by law.” Once collected, the information can be processed or used only if it is not prohibited by law and the person who provided the information (or data subject) has given his consent; if no such consent is given, the processing can still go on provided it meets the “necessity” test.
Furthermore, the law also enumerates the rights of the individual whose personal information is processed, which are to:
a). Be informed whether personal information pertaining to him or her shall be, are being or have been processed;
b). Be furnished the information indicated hereunder before the entry of his or her personal information into the processing system of the personal information controller, or at the next practical opportunity:
- Description of the personal information to be entered into the system;
- Purposes for which they are being or are to be processed;
- Scope and method of the personal information processing;
- The recipients or classes of recipients to whom they are or may be disclosed;
- Methods utilized for automated access, if the same is allowed by the data subject, and the extent to which such access is authorized;
- The identity and contact details of the personal information controller or its representative;
- The period for which the information will be stored; and
- The existence of their rights, i.e., to access, correction, as well as the right to lodge a complaint before the Commission.
c). Reasonable access to, upon demand, the following:
- Contents of his or her personal information that were processed;
- Sources from which personal information were obtained;
- Names and addresses of recipients of the personal information;
- Manner by which such data were processed;
- Reasons for the disclosure of the personal information to recipients;
- Information on automated processes where the data will or likely to be made as the sole basis for any decision significantly affecting or will affect the data subject;
- Date when his or her personal information concerning the data subject were last accessed and modified; and
- The designation, or name or identity and address of the personal information controller;
d). Dispute the inaccuracy or error in the personal information and have the personal information controller correct it immediately and accordingly, unless the request is vexatious or otherwise unreasonable;
e). Suspend, withdraw or order the blocking, removal or destruction of his or her personal information from the personal information controller’s filing system upon discovery and substantial proof that the personal information are incomplete, outdated, false, unlawfully obtained, used for unauthorized purposes or are no longer necessary for the purposes for which they were collected; and
f). Be indemnified for any damages sustained due to such inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal information.
And “to administer and implement the provisions of (the) Act, and to monitor and ensure compliance of the country with international standards set for data protection”, an independent body known as the National Privacy Commission was created.
Upon knowledge of the existence of the said law, I had this additional sense of security, although not absolute, that the information which I feed the internet is somehow protected. Since we live in a world where sharing information in social networking is a trend, and where paying bills and buying foods and other necessities can be done with just one click on the computer, the need to protect internet users from various privacy threats has also intensified. Never has data privacy been more important than today, in this age of the Internet, the World Wide Web and smart phones.
As you may have heard, back in latter part of 2012, the Congress has passed this controversial law called Republic Act No. 10175 (RA 10175) or known as Cybercrime Prevention Act of 2012, which became the hot topic of discussion not only in the internet, but also extends in the real world all throughout the country. And while in the heat of all this, Senator Miriam Defensor-Santiago filed another bill crafting a Magna Carta for Philippine Internet Freedom (MCPIF), which, if to be passed into law, shall replace RA 10175. If you haven’t heard of this, let me give you a backgrounder on the issue.
RA 10175 or known as “Cybercrime Prevention Act of 2012” was signed by President Benigno Aquino, Jr. on 12 September 2012, which aimed to address legal issues concerning online interactions and the internet in the Philippines. Among the cybercrime offenses prohibited by the act includes cybersquatting, cybersex, child pornography, identity theft, illegal access to data and libel .
Though ostensibly, the law appeared to be absolutely agreeable with its purpose of penalizing illegal cyber acts which were not previously covered by old laws, a number of individuals and groups, however, believe it to be unconstitutional and should be struck down with finality due to its: 1) vagueness; 2) undue curtail of constitutional rights to due process, speech, expression, free press and academic freedom ; and 3) violation of equal protection clause of the Constitution and the law against double jeopardy .
A group of petitioners sought for temporary restraining order (TRO) on the implementation of RA 10175, which was granted by the Supreme Court on 9 October 2012 . Several petitions were then filed before the High Tribunal asking it to strike down specific provisions of the law, particularly those on online libel, authority of the law enforcement authorities to collect or record traffic data without warrant, and DOJs authority to block websites without court review.
While RA 10175 was under a TRO, Senator Miriam Defensor-Santiago filed the Senate Bill No. 3327 (SB 3327) known as the Magna Carta for Philippine Internet Freedom (MCPIF), which aimed to repeal and replace RA 10175.
Cybercrime Prevention Act of 2012
Reading the law and based on our Tech and the Law class discussion last month, I honestly don’t see the basis for the exaggerated tweets and posts I read about it on twitter, facebook, blogs, and other social networking sites. Although the law has its loopholes which might be used by some vicious mind for possible abuse of power, it appears that the media just made a big fuss out of which that resulted to the flare-up reactions of some people.
Below are some points I want to raise regarding the matter:
- Provisions on libel have been one of the most contentious provisions of the law. Some claim that the law violates their right to freedom of expression because of the restrictions it created. There are even those unfounded belief that a person can end up behind bars by posting just ANYTHING in the internet. Talk about exaggerations!
- If you look at the provisions on libel, the only acts regarded as unlawful under the law are those that are considered libelous under Article 355 of the Revised Penal Code (RPC). Therefore, this restriction has long been part of our law and was only extended to the cyber world through RA 10175.
- Saying that the law suffers from “overbreadth and vagueness”, setting “no clear definition of libel and who among the parties shall be held liable,” is not entirely correct. Please take note that the law specifically refer to Article 355 of RPC for its definition, which clearly provided for the criteria to consider in identifying whether a specific act shall constitute libel or not. As to the concern on failure to identify the parties that shall be held liable, my opinion is that it is just proper to omit this item under the law, considering the rapid rate of evolution of the internet. Parties in an online environment today may be different from the parties that there will be in the future (i.e. a person can now re-post/re-tweet a particular post/tweet/blog/photo, which is unlikely before). Therefore, it is sufficient that the law has identified the criteria on identifying the acts to be considered as libel, and leave the specifications on its implementing rules and regulations to make the law more flexible on the fast-paced changes in the cyber world.
- Another contention is that “virtually any person can now be charged with a crime, including people who post criticisms against politicians, actors and actresses, and other persons on their Twitter or Facebook accounts” because of the new law. RPC (which the law referred to for the definition of liel), however, explicitly provided some imputations which shall not be considered libelous even if it be believed to be defamatory in nature, which includes fair and true report, MADE IN GOOD FAITH, of any judicial, legislative or other official proceedings or of any act performed by a public officer in the exercise of his function. Therefore, a report or statement against these politicians need not guarantee its correctness to be excused from liability, what is only required is that it be made in good faith.
Furthermore, RPC has long been prohibiting publishing of facts connected with the PRIVATE LIFE of a person, regardless if the latter is a private or public person, except if done in legal, moral, or social duty/obligation which, therefore, would involve public interest. This prohibition cannot be considered as unconstitutional since it has long been decided that the right to freedom of expression is not an absolute one. It can be limited through a law under reasonable grounds, which on this case is to protect the reputation of a person from malicious imputations. The law does not entirely restrict a person’s freedom of expression, but only limit it to protect public interest. This protection was only extended in the cyberworld through RA 10175.
The only problem I see with this law are the provisions provided under sections 7, 8, 12, and 19, which:
- Section 7 – increases the penalty from four years and two months to twelve years imprisonment period;
- Section 8 – allows a person to be charged with two counts of libel for the same act.
- Section 12 – authorizing the law enforcement authorities to collect or record traffic data associated with specified communications
- Section 19 – restrict or block a computer data without due process of law
An increase in penalty for internet libel, as compared to traditional libel, is downright unfair, considering that no substantial distinction exists between the two. In fact, if distinction shall be insisted, one might say that traditional libel constitute graver offense compared to internet libel since the victim of the latter can right away retaliate from the offensive comment, which opportunity is not available to the victim of the former.
Under this law, a person can be prosecuted for the same libelous act twice, under the Revised Penal Code and under the Cybercrime Prevention Act. This clearly violates a person’s constitutional right against double jeopardy.
Privacy of communication and correspondence is one of the constitutional rights of a person, which shall remain inviolable except (1) upon lawful order of the court, or (2) when public safety or order requires otherwise . Thus, an order of the court can be dispensed with ONLY if there is a threat to public safety or order, which condition is clearly not met when the law only requires that there be a “due cause” for the law enforcement authorities to collect or record traffic data “associated with specified communications”.
With RA 10175, the government, specifically the DOJ, has the authority to have a website or network blocked or restricted without any due process. Due process, as a constitutional precept, requires that a person be given the opportunity to be heard and to submit any evidence he may have in support of one’s defense.  Blocking or restricting access to a computer data based merely upon a finding that such data is in violation of the provisions of the act, without notice and without the benefit of a hearing, shall tantamount to denying the person of his basic right to liberty and engage in a means of livelihood (if the restricted data is essential to his business).
Magna Carta for Philippine Internet Freedom
Now, here is what I have to say about this bill proposed by Senator Santiago:
Three of the problems I noted above concerning RA 10175 were indeed addressed by this new version of Cybercrime Law. The bill prohibits double jeopardy; ensures due process prior to seizure of data by providing strict guidelines for any collection of any data, including securing warrants and obligating notification; and provides for court proceedings in cases where websites or networks are to be taken down.
Imposing only a civil liability for internet libel, however, would create an inequitable penalty for slander. As what Atty Berne Guerrero has pointed out during our Tech and the Law class, imposing a civil liability for internet libel shall send the message that written defamation (internet libel) is lesser evil compared to oral defamation (slander), considering that the first shall only result to a civil liability while the latter shall be punished b imprisonment.
The good thing about MCPIF is that it covers other things that RA 10175 is silent on, such as copyright protection for materials published in the internet, online plagiarism, and cyberterrorism.
The prohibition to restrict a person from accessing the internet creates an unreasonable interference with the liberty of an employer, parent, or school to direct and/or control the behavior/conduct of its employees, children, or students .
The bill prohibits a person from restricting another person from having an access to the internet without an order issued by a competent court, with NO exception provided. Furthermore, the instance wherein a court is allowed to issue such order shall be limited only to those wherein the access to the internet is a means to commit the specific crimes, as provided in the bill.
Therefore, an employer, parent, or school will have no power to restrict its employees, children, or students from accessing the internet, even for a probable cause (i.e. an employer may restrict the access of an employee to the internet during office hours in order for the latter to be more productive during those time; a parent may restrict the access of a child to the internet during specific times so as to control the latter’s addiction to online games; a school may restrict a student from accessing the internet during examination periods.
The bill has to be improved so as to consider those other instances wherein the right of a person to have a universal access to the internet may be restricted due to reasonable grounds.
The prohibition to restrict the flow of data or information, except for security purposes, is again unreasonable due to the same reason as provided in the preceding item. 
The provision on requiring an order from a competent court before a person shall be allowed to restrict another person’s access to information on the Internet7 or to remove an uploaded information from the Internet  failed to consider those instances wherein the government is faced with an emergency situation (e.g. when there are attacks going on and cutting the access to the internet of the malefactor plays an important role to the attacks and there are no courts open to issue such order; or when a person is spreading a virus to create a substantial damage to the system of the government), wherein waiting for the issuance of the court’s decision may rendered such order useless since the malefactor has already completed its mission and the damage has already been inflicted.
Any person shall be held liable for causing the stoppage of internet or network operations of another person . Following this, one might ask the following questions: What if the person has accidentally caused this stoppage, without any intention of doing so? What if it is done under an emergency situation? Will the person who caused such stoppage be still liable?
Following the language of the proposed bill, the answer would be “yes”, since the bill did not require that the act be conducted with malicious intent. Therefore, a person may be held criminally liable even with no malicious intent and/or fault/negligence. One might contend that this is a clear violation of equal protection clause, since tortuous acts committed in the real world are only held civilly liable, and those done with no fault or negligence are exempted from any liability.
Most of the provisions of the bill concerning libel are just detailed version of the stipulations under RPC, which makes it no better than the law which it aimed to replace (RA 10175).
The definition of “internet libel” is identical to the one provided under Article 353 of the Revised Penal Code (Libel), except for the phrase “made on the Internet or on public networks”. Therefore, it is of no better compared to RA 10175 with regards to this thing.
Again, most of the specific instances provided in the bill, which exclude such from the context of internet libel, are impliedly part of the exceptions provided under Article 354 of RPC.
The only items in the exemption which I observed are not covered under RPC (thus, not also part of RA 10175) are those expressions of dissatisfaction with the products and services of the commercial entities and/or the acts of its officers/agents, as related to the products or services that the commercial entity provides. This addition in the exemption is valid since the right of the commercial entities against defamatory statements should take a backseat and yield to public interest.
Expression of dissatisfaction against public persons, without any distinction whether the remark pertains to the public or private life of the latter, is a clear violation of his constitutional right to privacy.
In one of the decisions of the Supreme Court, it held that “the right to privacy is a fundamental right guaranteed by the Constitution … (it) was not engraved in our Constitution for flattery.”  The general rule, therefore, is that every person is granted by the Constitution with a right to privacy. However, just like any other rights, this one not absolute. A person’s right to privacy may be restricted to give way to larger public interest. An official of the government should not then be onion or thin skinned and should expect criticisms from public concerning his public life. But this restriction should only be limited to the officer’s public life and not be extended to his private life, as the latter is not of national concern.
The provisions of the bill are very specific that it may not be able to adopt to the fast changing environment of internet. These details should have been part of implementing rules.
RA 10175 is not absolutely unconstitutional. It has its loopholes, yes, but there is already a move to rectify these imperfections. The law has already gone through the microscopic eyes of the public and has been the topic of several debates and discussions in the country. MCPIF, on the other hand, consists of several provisions involving different topics, wherein cybercrime law is only one part of it, and still has to undergo a lot of scrutinizing. It might take a while before the said bill can be passed into a law. My proposal, therefore, is to focus first on the amendment of RA 10175. And the things that has been pointed out by several groups in the previous months needs to be considered during its amendment. MCPIF, as what I’ve already pointed out, has to be studied upon first so as to iron out the provisions that might present a problem in the future.
With the widespread use of internet in the country, it is crucial that we have a law that will regulate the acts of the people in this environment. We need a law that shall protect our constitutional rights even if we chose to transact or to communicate using the cyberspace. We need a law which shall go after those who uses the internet in committing criminal acts. We need that kind of law. We need it NOW.
P.S. I just hope that this experience with RA 10175 serves as an eye-opener to our lawmakers to study well the laws before passing it into a law. And for us ordinary citizens, I hope that this should also serve as a caution for us to choose a more qualified lawmakers in the coming election, since these people whom we will vote today shall be the one to make our laws in the future. We don’t want to have laws that is defective enough that will give those with abusive minds an opportunity to use the law to infringe our rights, do we?
 http://manilastandardtoday.com/2012/09/27/more-voices-vs-cybercrime-law/; Republic Act No. 10175 known as the “Cybercrime Prevention Act of 2012”
 Section 3, Article 3, 1987 Constitution
 Marohombsar v. Judge Adiong, A.M. RTJ-02-1674, January 22, 2004
 Section 6, Chapter III, The Magna Carta for Philippine Internet Freedom
 Section 5, Chapter III, The Magna Carta for Philippine Internet Freedom
 Section 8, Chapter III, The Magna Carta for Philippine Internet Freedom
 Section 24, Chapter VII, The Magna Carta for Philippine Internet Freedom
 Ople v. Torres, 293 SCRA 141