Dela Rosa, Vican Jess

SY 2012-2013, Second Semester


At Stake

The relatively recent Republic Act No. 10173 or the Data Privacy Act of 2012, approved on August 15, 2012 by President Benigno S. Aquino III, lends substance and provides teeth to the litany of rights embodied in the 1987 Constitution when it guarantees, among others that: “Sec 3. The privacy of communication and correspondence shall be inviolable…x x x.” It is the declared policy of the State to protect the fundamental human right of privacy of communication while ensuring free flow of information to promote innovation and growth, provided the law.

In reference to accounts and history of the last 50 years, the advent of the 21 st century has ushered in unlike and swift ways of communication and transportation, of tending to daily business and interests and of bringing them into conclusion. Where messages get swifter to reach the receiving end, the more matters relating to the sender become bare that hardly any distinct line cannot be drawn between the virtual and actual personalities. The guarantee of confidentiality of messages is all the more at threat where the sender and the receiver are not too certain of the protection and security due to communications. The virtual world has become the new abode of netizens who find planet earth a place too crowded to stay. Evidence of this fact can be found in the profile-filling-up stage called registration upon attempt to log in to sites where one is not yet a citizen. Readily obliging, one satisfies the site with personal data, open or private, such as the name of a childhood crush or one’s pet, unmindful of the risk ahead.

The necessity of this particular law is made apparent nowadays with the wide recognition of practicality of transmission of electronic documents. Sacred is the constitutional right that guarantees the principle to be “let alone” save for some exceptions that are supported by reasonable grounds. The ruling of the Court in the case of Valmonte vs. Belmonte {G.R. No. 74930, February 13, 1989} is instructive of the crucial role of the guard against intrusion to personal identity lest the government may fall into the pit of totalitarianism, in this wise:

“Protection x x x of the dignity and integrity of the individual — has become increasingly important as modem society has developed. All the forces of technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society.”

Data Privacy Act secures protection and confidentiality of personal information that are obligingly provided in the processing of such information for reasonable purposes from the wrong hands of uncanny elements. The law specifically defines personal information, to wit:

“Sec 3 (g) Personal information refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and ascertained by the entity holding the information, or when put together with other information would identify an individual.”

The protection secured by the law assures privacy of personal information and the free flow of information and communication with unfettered restraint on the part of the data subject while strongly enjoining personal information processor from undue practices that may undermine the declared policy of the State to give protection to the fundamental human right of privacy of communication. The law hence assures every date subject that no personal information may be processed without fear or risk, or be put at stake.


Henceforth

The last quarter of the year 2012 witnessed a significant legislative maturity when the Cybercrime Bill was passed into a law [1] after years of musing. This is a potent move on the part of the State to assert its police power over the vastly used internet services and communications that its citizens have amorously embraced since its introduction. And its enactment is at its best timely following reports of abuse of internet use against citizens who are caught in their most unguarded moments by the omnipresent lens of the cameras, and such video data are uploaded in the internet for the consumption of the bullying public. While some video materials display spoof and comedy that merit a good laugh and stomachache, others remind that humans can be heroes at will, others too portray indecent and (inhumane) scenes that merit the rant of netizens, it cannot be gainsaid that the internet has become a public medium where netizens can simply convey approval, cry foul, or even openly lambast the persons involved in the pictures.

The case in point is the event that transpired in the Capitol Hills Drive and Tandang Sora Avenue intersection between a traffic enforcer and a motorist where the latter directly assaulted the former. The event was caught on camera and it went viral in the internet. Shortly after it was uploaded in the internet, the video won various reactions from internet users who viewed and found themselves into whose side of the fence they are standing on, either on Team Fabros or Team Carabuena. Rant against the said motorist was vastly directed, ranging from slight disapproval to violent reactions. As it is recorded, the video on its face can be readily adjudged as contrary to public sense of prudence and placidness, hence, unsurprisingly the large number of internet users who posted violent and foul reactions against the motorist. This has grown to become the modern way of public persecution without aiding the person persecuted the opportunity to intelligently defend his person and rights. No less than the 1987 Constitution itself warns man not to openly lambast and deprive human rights of life, liberty and property without the aid of due process of law. The Constitution itself recognizes the bestial tendencies of man who finds it pleasurable to disdain the name and good repute of persons who are left alone on the side against the throng of angry bloggers. To add insult to injury, bloggers can openly inflict injury while reaping the benefit of impunity. “Cyberspace is a borderless world and the Internet provides a perfect cover and refuge to everyone, and these hackers have almost perfected the skills of anonymity.” [2] Bloggers are shielded by the screen of their monitors and the monikers they employ in the internet, thereby making them apparently invincible. This posits a great danger to public security as bloggers can cause harm to other person by say wrecking one’s good name and reputation and stealing some important data that are meant to be confidential while their perpetrators can escape unscathed from the pangs of sanction provided for by law.

Another incident that was caught on camera and went viral in the internet [3] is the event on that forgettable day in a train station featuring an irate passenger lecturing a lady guard how to properly say sorry. The video also introduces the buzzword amalayer, which the girl used in repeatedly asking the lady guard who is the pretty liar between them. The incident earned the ire [4] of the netizens against the irate passenger that prompted them to voice out condemnation of the ill-action in the internet. Yet again, emphasizing credulity over rage, citizens of the Republic of the Philippines made tirade in the internet against the persons involved in the video, as other bloggers who hesitated to judge quickly came to the rescue of the irate passenger by providing justification for her ill-action. More numerous in numbers are citizens who are displeased of the disrespectful actuations of the lady passenger. Still, the use and abuse of internet services cannot be gainsaid in the guise of the constitutional protection afforded by freedom of expression. Internet screens from taking responsibility of actions and aids escape from punishment that comes with the consequences of decisions every internet user poses or directs therein. It has apparently afforded every blogger the license to ridicule without fear of the pain of penalty written under the law. It is said that one ought not to say to another in any medium what one cannot say when confronted face to face. Also, it appears that one can express what he thinks he ought to say, regardless of its potential slanderous nature, and can point an accusing finger without the benefit of the twin requisites of due process- notice and hearing.

It cannot be lightly taken that rights are wantonly abused through the use of internet and communications technology (ICT). The toll of internet abuse is not only confined against individual interest but has exceeded to include the larger and greater scope of the State’s. Arguably it can be ascribed that “one of the pillars of national security is economic security.” [5] It is not anymore surprising nowadays that even top-secrets relative to the national interest of the State are not immune from attacks. They are not airtight that cannot escape the intelligibility and greatness of its creators and users- man. “In cyberwar, the enemy can successfully take down the economy of a nation or state by merely pressing the “Enter” key. A cyberterrorist can cause havoc without necessarily blowing anything or himself up. A cyberspy can steal and gather vital information about a target country without being physically present there. In this modern and technology-driven world, the war has shifted from guns and bombs to bits and bytes. A cyberwar can be won without firing a single bullet.” [6]

Nonetheless, the State, while abhorring cyberattacks, equally recognizes the rights and freedoms of its citizens to openly express ideas and thoughts, critical or otherwise. As the Court in plethora of cases declared that “the freedom of expression promotes the free flow of ideas essential to political democracy and democratic institutions, and limits the ability of the State to subvert other rights and freedoms.” [7]

The booming BPO industry in the country receives the biggest interest in the implementation of a cybercrime law that seeks to regulate the use of the internet as it heightens the confidence of foreign investors in the national economy of the country. [8] The stringent security the law envisions to uphold against unwarranted and unauthorized access of internet network by defining prohibited acts and providing reasonable penalties therefor poses a positive spark from potential business partners of local entrepreneurs thereby making balloon on high stakes that will consequently contribute to the interest of the national economy at large. While this is a remarkable positive remark on the economic department of the country, the fact remains that the freedom of expression which is one of the cornerstones of democracy cannot be left untouched by virtue of the implementation of law.

The Cybercrime Law [9] is the progress of the legislative department in the hope to regulate and supervise the use of the internet and to curtail abuse of rights that is abetted by the use of internet services. But shortly after its enactment, petitions were filed seeking the suspension of the law, prompting the Supreme Court to issue a Temporary Restraining Order (TRO) [10] holding at bay for 120 days the implementation of the said law. As some writers described, the law as “shabbily crafted” or “flimsily enacted” did not win wide support but only a bandwagon of censure from internet users who find the implementation of the law a curtailment of their freedom of expression. Truly, citizens can invoke the blanket of protection afforded by the Constitution when it guarantees freedom of speech and expression, but they cannot employ such protection to directly cause slander and express ill-repute against persons or the State, notwithstanding its veracity. Legislation is again put to the test of hitting the equilibrium between the necessity of regulation of internet use and upholding rights and freedom that come with the use of the internet. So that, in the end, the State can strike the balance between upholding the constitutional rights of the citizens while adamant in seeking protection to the interest and security of the State and its citizens that are fundamentally intertwined with the use (and abuse) of internet communications and technology (ICT).

Not long after the issuance of the TRO suspending the implementation of the Cybercrime Law and before the hearing is set by the Supreme Court accommodating the oral argument of the petitioners assailing the constitutionality of the particular law, the Senate of the Philippines received a Senate Bill [11] authored by Senator Miriam Defensor-Santiago [12] tersely entitled the Magna Carta for Philippine Internet Freedom (MCPIF) which is described as a better [13] version of the suspended law.

The main feature of the MCPIF is arguably the provision qualifying the definition of the prohibited act of internet libel. This is apparently the bone of contention of assailants who questions the constitutionality of the earlier law that is now serving suspension of implementation. They argue that while it is consequently a valid exercise of police power of the State to regulate and supervise the use (and abuse) of internet services, it undermines and compromises certain rights and freedom the citizens merit from the goodness of history and destiny. While the Cybercrime Law listed and defined acts that constitute the offense of cybercrime, among others is the (cyber)libel, MCPIF [14] likewise provides prohibition but adds qualification for proper guideline. “The MCPIF does not suffer from overbreadth and vagueness in its provisions on libel, unlike the law it tries to replace. In fact, it treats libel as a civil liability rather than a criminal act, which is a step forward in the move to decriminalize libel.” [15] The inclusion of the proviso mapping out the essentiality of malice and positive identification of the subject, regardless of the veracity of the claim, is the manifest intention of the bill to carefully craft the police power it ought to implement while conscious of the vested and inherent certain rights and freedom of the citizens.

In closing, I join in the cause of the State to uphold the right that gives life to the meaningless conglomeration of letters composing the word “democracy” while offering a pat that takes care of the regulation of the use of one internet. This bears stressing the fact that internet use is one of the most vastly used medium nowadays. Following the suspension of the implementation of the Cybercrime Law and the pending processes of the enactment of the MCPIF Bill, regardless of the legislative development covering the subject matter of internet use, I can only hope that henceforth, we would grow in maturity to become responsible of the consequences resulting from every press of our finger, whether right or left.


Endnotes

[1] http://opinion.inquirer.net/38218/cybercrime-act-features-and-issues

[2] http://opinion.inquirer.net/43129/real-need-for-cyberlaw-unaddressed-by-ra-10175

[3] http://technology.inquirer.net/20314/train-passenger-goes-ballistic-video-of-incident-goes-viral

[4] http://www.youtube.com/watch?v=pnYWdNHS-oo&feature=player_embedded

[5] http://opinion.inquirer.net/43129/real-need-for-cyberlaw-unaddressed-by-ra-10175

[6] http://opinion.inquirer.net/43129/real-need-for-cyberlaw-unaddressed-by-ra-10175

[7] http://www.lawphil.net/judjuris/juri2008/feb2008/gr_168338asg_2008.html

[8] http://www.abs-cbnnews.com/business/09/18/12/anti-cybercrime-law-promote-it-bpo-growth

[9] http://www.gov.ph/2012/09/12/republic-act-no-10175/

[10] http://www.globalpost.com/dispatch/news/regions/asia-pacific/philippines/121009/philippines-cybercrime-law-suspended

[11] http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-3327

[12] http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet

[13] http://www.solarnews.ph/lifestyle/technology/2012/11/30/santiago-aims-for-a-better-anti-cybercrime-law#.UOz_eaxcWt8

[14] http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-3327

[15] http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet

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