Javier, Clifford

SY 2012-2013, Second Semester


“Data Privacy Act of 2012″

Let me begin, by mentioning Section 5 of the 1987 Philippine Constitution. The law provides that “The privacy of communication and correspondence shall be in violable except upon lawful order of the court or when public safety and order require otherwise.” (Article III, section 1 [5] of the Constitution. This provision cited refers to privileged communication. Privilege communication is defined as a private communication made by any person to another, in good faith, in the performance of any duty, whether legal, moral, or social, solely with the fair and reasonable purpose of protecting the interests of the person making the communication or the interests of the person to whom the communication is made, is a privileged communication.” (Sec. 9, Act. No 227). Likewise a communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained incriminatory matter which without this privilege would be slanderous and actionable.’ (Harrison vs. Bush).

Privilege is classified as either absolute or qualified. For the sake of clearness of application privileged communications are often divided into two classes: Absolute privilege; and conditional or qualified privilege, the second sometimes being called ‘quasi privilege.’ In cases of absolutely privileged communications, the occasion is an absolute bar to the action; whereas, in cases of conditionally or qualifiedly privilege communications, the law raises only a prima facie presumption in favor of the occasion. In the former class the freedom from liability is said to be absolute or without condition, regardless of the existence of express malice, as contrasted with such freedom in the latter class where it is said to be conditioned on the want or absence of express malice.” (53 C.J.S., 141-142.) An absolutely privileged communication is one for which, by reason of the occasion on which it is made, no remedy is provided for the damages in a civil action for slander or libel. It is well settled that the law recognizes this class of communications which is so absolutely privileged that even the existence of express malice does not destroy the privilege, although there are some dicta denying the rule, and some eminent judges, in dealing with particular applications of the rule, have doubted or questioned the rationale or principle of absolutely privileged communications. As to absolutely privileged communications, a civil action f or libel or slander is absolutely barred.” (53 C.J.S., p. 142.) Qualified privilege exists in a larger number of cases than does absolute privilege. It relates more particularly to private interests; and comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has an interest, or in respect to which he has a duty, public, personal, or private, either legal, judicial, political, moral, or social, made to a person having a corresponding interest or duty. Briefly stated, a qualifiedly privileged communication is a defamatory communication made on what is called an occasion of privilege without actual malice, and as to such communications there is no civil liability, regardless of whether or not the communication is libelous per se or libelous per quod.” (53 C.J.S., pp. 143-144.)

Public policy is the foundation of the doctrine of privileged communications. It is based upon the recognition of the fact that the right of the individual to enjoy immunity from the publication of untruthful charges derogatory to his character is not absolute and must at times yield to the superior necessity of subjecting to investigation the conduct of persons charged with wrongdoing. In order to accomplish this purpose and to permit private persons having, or in good faith believing themselves to have, knowledge of such wrongdoing, to perform the legal, moral, social duty resulting from such knowledge of belief, without restraining them by the fear that an error, no matter how innocently or honestly made, may subject them to punishment for defamation, the doctrine of qualified privilege has been evolved, under which, “the occasion on which the communication was made rebuts the inference of malice prima facie arising from a statement prejudicial to the character of the plaintiff, and puts upon him the burden of proving that the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made (US vs. CAÑETE).

Indeed, our constitutional guarantee of privacy of communication and correspondence will not be violated, because the trial court has power and jurisdiction to issue the order for the production and inspection of the books and documents in question in virtue of the constitutional guarantee making an express exception in favor of the disclosure of communication and correspondence upon lawful order of a court of justice. As the law stands now, there are two ways that this guarantee may be limited that is by lawful order of the court or when public safety and order. Lawful order means that there is a mandate coming from courts in their exercise of their judicial power to limit such right. The other when public safety or order requires. This is a mandate by the very existence of the government. When the government deems it fit to enact laws, they may enact laws, in order to promote and preserve the government as well as its citizenry.

The enactment of Republic Act 10173 or known as the “Data Privacy Act of 2012″ is a living example of such authority of the government to preserve, promote and improve the government itself. This law accordingly is deemed necessary to safeguard the rights of its citizenry. Basically, this law will try be protecting personal information in the information and communication systems in the government and the private sectors. Personal information is 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 directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual. The policy is embodied in section 2 to wit, “it is the 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. The State recognizes the vital role of information and communications technology in nation-building and its inherent obligation to ensure that personal information in information and communications systems in the government and in the private sector are secured and protected”. The said provision is the root of its enactment. The wise men and women of Congress, to me had anticipated the fast changing era, the so called postmodernism. Accordingly, postmodernity implies flexibility and changes. For Lyotard, postmodern would be that which in the modern invokes the un-presentable in the representation itself. That which refuses the consolation of the correct forms, refuses the consensus of taste permitting a common experience of nostalgia for impossible and inquiries of the new un-presentable (Lyotard, postmodern condition). The pronouncement made by him ignites changes in the first world countries. U.S.A, Germany, France and other countries begin to improve their laws concerning communications in relation participation in the political sphere. They now acknowledge, what was before unrepresented and/or un-captured to their minds, the birth technology matters in the political hemisphere.

Quite interesting to point out that its applicability is encompassing. Section 4 of the said law provides that “Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines. It does include juridical and those other person that may be authorized by law. Furthermore, it did not limits its application herein the Philippines as section 6 points out that it may be made applicable to acts done or practices engaged in and outside of the Philippines by an entity if relates to personal information about a Philippine citizen or a resident entity that has a link with the Philippines, and the entity is processing personal information in the Philippines or even if the processing is outside the Philippines as long as it is about Philippine citizens or residents such as, but not limited to, the following: (1) A contract is entered in the Philippines; (2) A juridical entity unincorporated in the Philippines but has central management and control in the country; and (3) An entity that has a branch, agency, office or subsidiary in the Philippines and the parent or affiliate of the Philippine entity has access to personal information amongst other. For me, this shows more significant to Filipinos working anywhere other than our country. In order to classify what may be included as personal information, the law specifically provided its criteria. 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.

One important feature of this law is the creation of National Privacy Office. This independent body is likely to assure that the purposes of this law will be attained. Without which, no instrumentality of the government can focus specially the mandates of this law. The Commission shall be attached to the Department of Information and Communications Technology (DICT) and shall be headed by a Privacy Commissioner, who shall also act as Chairman of the Commission. The Privacy Commissioner shall be assisted by two (2) Deputy Privacy Commissioners, one to be responsible for Data Processing Systems and one to be responsible for Policies and Planning. The Privacy Commissioner and the two (2) Deputy Privacy Commissioners shall be appointed by the President of the Philippines for a term of three (3) years, and may be reappointed for another term of three (3) years. Vacancies in the Commission shall be filled in the same manner in which the original appointment was made.
The powers and functions of the commission is enshrine in section 7, to wit the assurance compliance of personal information controllers, exercise quasi-judicial power within its scope and limitations as well as lawful order to rendered the law effective, issue cease and desist orders, impose a temporary or permanent ban on the processing of personal information, upon finding that the processing will be detrimental to national security and public interest, compel or petition any entity, government agency or instrumentality to abide by its orders or take action on a matter affecting data privacy, monitor the compliance of other government agencies or instrumentalities on their security and technical measures and recommend the necessary action in order to meet minimum standards for protection of personal information. The Commission is itself mandated to coordinate with other government agencies and the private sector on efforts to formulate and implement plans and policies to strengthen the protection of personal information in the country, to publish on a regular basis a guide to all laws relating to data protection and publish a compilation of agency system of records and notices, including index and other finding aids. Likewise it may recommend to the Department of Justice (DOJ) the prosecution and imposition of penalties. The commission is also task to ensure proper and effective coordination with data privacy regulators in other countries and private accountability agents, participate in international and regional initiatives for data privacy protection, negotiate and contract with other data privacy authorities of other countries for cross-border application and implementation of respective privacy laws, to assist Philippine companies doing business abroad to respond to foreign privacy or data protection laws and regulations; and to generally perform such acts as may be necessary to facilitate cross-border enforcement of data privacy protection.

To me, the Republic Act 10173 or known as the “Data Privacy Act of 2012″ is very timely. Now is a good time for such law. Our country needs to update itself to the current changes of the world. Not only that it needed to be updated but also to ensure that situations be suitable and appropriate for it so that life, liberty and property of its citizenry will not be prejudice.


What Now?

Society is reaping the results of our failure to give priority to life. What now? Children are growing contrary to god’s plan that is without knowledge what true love is. They lack basic understanding of what is supposed to be done. As a result thereof, we are improperly prepared to face issues of today. In the Philippines, the issue is noticeable. All roads lead back to the fundamental character of the Filipino and the dis-functional culture it spawned to the tune of a nation of 100 million. Filipinos are unable to control and police themselves. These kinds of performance expected of a modern society are simply beyond the intellectual reach of the average Filipino minds. It is evident in the way the simplest of rules and the most basic of courtesies simply escape the grasp of Filipino thinking. To such a society, the very modern privilege of freedom of speech and the right to elect their leaders have been granted. But questions remain as to whether Filipinos have truly earned these privileges.

The enactment of the Republic Act 10175 also known as the Philippine Cybercrime Prevention Act of 2012 became a celebrated event in our nation. It became a pre-new year celebrations for us! Filipino antagonists started, questioning people behind the said law. What now? They mocked some legislative personae. They are in the position that, the enactment of such law is, for protection of the administrators of the government against public disclosure of their shit! They protested publicly, through online forum and social discussion in the newspaper. For example, in a news column, a contributor expressed that, “unprecedented freedom, anonymity and democracy allowed by the Internet may have come to a screeching, crashing halt”) has caused quite an amusing hysteria in the online commentary community. [1] Some of the many antagonists brought the same to the judiciary and asked the high court concerning its applicability without disregarding basic constitutional rights. My perusal readings in the cyber world and in some newspapers, including reporters’ discussions after the aftermath one thing has quite evident amongst the social networker: they have been terrified by the passage of the law!

What now? Quite interesting to depict, are the reactions of networkers who, by evident dissatisfaction of the law personally disarmed some political figures. Even the law provides penalty against violators, they never hesitated bringing some comments against them. For example, a provocative statement by someone against the law, speak against a senator. I quote, “Heard [Philippine Senator] Tito Sotto was cruising a gay bath house in Quezon City last week. Spread your own truth about Sotto today!” and “Senator Tito Sotto is not only a plagiarist and misogynist, but he is also a coddler of rapists, drug dealers”. [1] Various networkers expressed their sentiments against the law saying “that who cares about this cybercrime law!?hindi pa rin maitatago ang KATOTOHANAN na ABNOY! BAKLING! PANOT! BAD BREATH (TALSIK LAWAY)! TAMAD at B0B0 si NOYNOY! hindi rin nila MAIKAKAILA na MAKATI pa sa GABING BICOL, MANGWAWASAK ng PAMILYA (mahilig KUMABIT!), MALANDI at MAY STD yang si KRIS AQUINO!” [3]

The outbreak of this kind of character, to me is too personal. This must not be done. We should learn to exercised rights granted by the government, in such a manner not injurious to others. Not the other way around. That is why I mostly admire Senator Santiago, for trying to come up a suggestion to push for the passage of a bill dubbed as anti-cybercrime law version 2.0 that would replace the controversial Republic Act No. 10175. In a way it may solve the impasse brought about by the passage of the law and to reasonably fulfill the purpose of the law for which it was in the first place created. The purpose of the law is express in section 2 of R.A. 10175. [4] Santiago said her Senate Bill 3327, known as the Magna Carta for Philippine Internet Freedom (MCPIF), will guard the rights and freedoms of Filipinos in cyberspace, while defining and penalizing cybercrimes. While it is important to crackdown on criminal activities on the internet, protecting constitutional rights like free expression, privacy, and due process should hold a higher place in crafting laws,” she said.

Is the proposed bill better than the law passed? What now? The antagonists argued that the law, the Cybercrime Prevention Act of 2012 or Republic Act No. 10175 threatens our basic rights and freedoms. This law works against ordinary citizens, bloggers, freelance writers, website owners, social network users and disregards, among other things, our right to privacy and freedom of expression.

I agree with Senator Santiago that the bill being push be her is quite better than the other. Here are my reasons:

First, the policy of MCPIF does not suffer from over breadth and vagueness. It expressly affirmed the rights contained in the Constitution and guarantees its observance and protection. This confirmation is not present in the said law. It likewise acknowledge the potential harm which the internet may bring, which she herself coined as cyber weapons, which to her is inimical to national interest. I quoted (some portion of section2), 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 cyber weapons against foreign nations and shall pursue a policy of cyber defense, 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.

Secondly, R.A. 10175 violates the right to privacy and the Constitutional guarantee against illegal search and seizure through allowing the warrantless real-time collection of traffic data. Section 12 [5] of the law is not clear when may be the real time to collect on such potential data. Although the section produced, enumerate the elements when this section is applicable, the wordings of the said enumerations is ambiguous that would lead a reasonable man to evident mistakes. In contrast, the MCPIF ensures due process by providing strict guidelines for any collection of any data, including the securing of warrants, obligating notification, and limiting seizure to data and excluding physical property. Santiago’s bill differed from R.A. 10175 as it guaranteed the right against illegal searches and seizures. The internet rights and privileges 6 are contained in articles 4-12 of the proposed bill. A feature outstanding in the proposed bill is the acknowledgment of the internet as an open area, where ideas is shared and passed. The law contained no provision in this respect.

Thirdly, the MCPIF authorized government agencies to provide security for the data they collected from citizens to ensure their right to privacy. This provision is absent in the law signed by President Aquino. As an illustration, The dangerous ‘takedown’ clause of R.A. 10175 where the government may have a website or network blocked or restricted without due process of law, is not present in the MCPIF. The bill provides for court proceedings in cases where websites or networks are to be taken down, and prohibits censorship of content without a court order. It connotes that the judicial power to decide any existence controversy pertaining to the subjects covered by the law is retained by the courts and courts alone and not to be transfer to any government agencies which are not competent to decide the case.

Fourth, the MCPIF did not curtail the freedom of expression via internet. This is expressed in section 8 of the bill. It provides that the State shall, within its jurisdiction, protect and promote the freedom of speech and expression on the Internet. In connection thereto, The State shall, within its jurisdiction, protect the right of the people to petition the government via the Internet for redress of grievances. The State shall, within its jurisdiction, protect the right of any person to publish material on or upload information to the Internet. This right as granted by the constitution was never touch by the legislature.

Fifth, the MCPIF also prohibits double jeopardy. R.A. 10175 allows double jeopardy through prosecution of offenses committed against its provisions and prosecution of offenses committed against the Revised Penal Code and special laws, even though the offenses are from a single act. Double jeopardy is a prohibition against second prosecution after a trial for the same offense. The evil sought to be avoided is the double trial and double conviction and not the double punishment. Right against such cruel punishment is being affirmed in the bill proposed by Senator Santiago.

Sixth, Santiago’s bill also seeks to clarify the mandate and organization of the proposed Department of Information and Communications Technology (DICT), the creation of which is currently pending before Congress. Because of the broad range of responsibilities related to the enforcement of laws governing ICT, a department-level office should be established and its functions and jurisdiction should be clear-cut. There is no said the matter concerning the new law. To me, there must be a clearly established body that oversees the enforcement and applicability of law. A body which its primordial concern it to see to it, that, the law is use to fulfill its function and not otherwise. In connection thereto, the MCPIF prepared the proposed DICT, law enforcement agencies, and the military with provisions for handling cybercrimes. Section 47 of the bill provides amendments to the AFP Modernization Act to ensure the country has weapons and defenses against cyber-attacks by terrorists, violent non-state actors, and rogue or enemy nation-states. Cyber-attack means An attack by a hostile foreign nation-state or violent non-state actors on Philippine critical infrastructure or networks through or using the Internet or information and communications technology. The term may also be used to mean an assault on system security that derives from an intelligent threat, i.e., an intelligent act that is a deliberate attempt to evade security services and violate the security policy of a system. Also, the bill’s Section 48, on the other hand, mandates the Philippine National Police and the National Bureau of Investigation to combat cyber terrorism. It is proper to recognize that child pornography, child abuse, and human trafficking can be committed through the internet, as much as hacking, piracy, and copyright infringement. Santiago’s bill also enables the country to harness ICT for national development by ensuring government agencies are keeping up with the realities of and advances in information technology, such as those involving consumer welfare and copyright laws.

Seventh, if passed into law, S.B. No. 3327 will be the first law to be created through “crowdsourcing.” Crowdsourcing is an online process of getting work done by tapping people on the Internet who volunteer their talent and skills. This is not tackle even by glance in the law. This is an emerging epidemic in the internet and lastly,

“The MCPIF does not suffer from over breadth and vagueness in its provisions on libel, unlike the law it tries to replace. The law provides that, the unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future. 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.

Although the proposed bill quite long, to me it is better than the law. I suggest that it be acted upon, in order that to safeguard the law will bind us all. And to stop the inimical dialogue amongst man concerning the unconstitutionality of the law, let us be reminded that, legislature are also humans such that, they are may insist on setting up standards which may in the end violates any right, this is not a permission upon us to mocked them. They are also entitled to what we post on our blogs or on our pager, or in the new column, which is due process. No one is above each other.

Freedom and right must not be curtailed. That slogan, are cries of all walks of life and yet, they remain useless in my ears. It must not be a one way thing to do! Government and its inhabitant must do their stuffs. No one is to be blame. We must resolve to follow the uniform standard to keep up with the rest of the western world and put order in our communities. We cannot continue to run our organizations or communities like the Wild, Wild West and expect progress to happen.


Endnotes

[1] MANILA STANDARD ARTICLE by Jojo Robles,

[2] Carlos Cledran, on his TWITTER

[3] The latest outrage fad: Protests against the new Philippine anti-cybercrime law have become personal. This article is posted by one Benigno on September 19, 2012.

[4] SEC. 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.

[5] SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system. Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information. The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

[6] A right that, when granted to an entity, permits the entity to perform a privileged access that is the completely unrestricted access of a user to the resources of a device, computer, system, or network, and the privileged control which means The completely unrestricted ability of a user to use the resources, modify the configuration, and otherwise exert a directing influence on the operation of a device, computer, system, or network.

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