Mendoza-Bagnes, Paula

SY 2012-2013, Second Semester


Understanding R.A. No. 10173

The 1987 Philippine Constitution recognizes “the right of the people to be secure in their persons, houses, papers, and effects …” [1] and “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] There was no law on privacy then.

These rights are simple and true up to our present time in our country. However, the right to privacy is limited to a person’s person, house, papers and effects. The framers of our Constitution did not foresee that there would be another world where we would need protection and security. This vast world is the Internet, which was provided to the public in the late 1980’s and 1990’s. [3]

Being born in the early 1980’s, the Internet was eased into my life very gradually. I remember in high school when I tried accessing the Internet through my father’s very heavy laptop, and did not know or understand what to do with the popping pages. I remember, during my college days, when I was more comfortable with going to the libraries than the Internet when I do my research. Now, I am not without an iPhone in my hand and a laptop and portable Wi-Fi in my bag. And I am not the only one attached to the Internet in almost every minute. Almost everybody are, even children.

The Internet is technically a lawless space. People are just bound by the conditions of the “Terms of Agreement” of websites and social networks, which are usually accepted by all even without reading them. Without knowing or understanding, we may have accepted conditions that give the website or the social networking site the right to own and use the data or information we post in them.

With the fast paced lives that we have and with our dependence on the Internet and the services it provides, we seem to neglect the fact that we did not have laws to protect us from those who abuse the use of the Internet for the detriment of others, until Republic Act No. 10173 (the Data Privacy Act of 2012) together with Republic Act No. 10175 (Cybercrime Prevention Act of 2012) were signed by the President of the Philippines last August 15, 2012 [4], the latter being presently under a temporary restraining order by the Supreme Court [5].

The R.A. 10175, with fifteen (15) petitions against it in the Supreme Court, was vehemently protested by people who frequent the Internet (or netizens), thus the temporary restraining order [6]. Fascinatingly enough, R.A. 10173 was left unnoticed by the people. I personally think that this is because the law was written so technically that normal people had difficulty in understanding its purpose and how it would affect them.

What is R.A. 10173? What is it for?

R.A. 10173 is a law which enumerates the rights of an individual on the personal information he or she gives to other people or companies, whether in the Internet or not, or through a computer or not. [7] It states the requirements and criteria of lawful processing of personal information. [8] It makes the people and companies who collect or gather the personal information of individuals responsible to secure the said personal information. [9] It describes and penalizes the acts that violate the rights of an individual with regard to his or her personal information. [10]

According to R.A. 10173, its Declaration of Policy is stated as follows:

“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.” [11]

The Scope of R.A. 10173 is stated as follows:

“This Act applies to the processing of all types of personal information and to any natural and juridical person involved in personal information processing including those personal information controllers and processors who, although not found or established in the Philippines, use equipment that are located in the Philippines, or those who maintain an office, branch or agency in the Philippines subject to the immediately succeeding paragraph…” [12]

The declaration of policy is easy to understand. The State wants to strengthen and to protect the people’s right to privacy and communication, and it recognizes the “high-tech” ways of communication, which are the computer and the Internet.

The scope is another matter.

What is personal information? What is personal information processing? What are personal information controllers and processors? The following definitions are used in R.A. 10173:

“xxx

(b) Consent of the data subject refers to any freely given, specific, informed indication of will, whereby the data subject agrees to the collection and processing of personal information about and/or relating to him or her. Consent shall be evidenced by written, electronic or recorded means. It may also be given on behalf of the data subject by an agent specifically authorized by the data subject to do so.

(c) Data subject refers to an individual whose personal information is processed.

xxx

(e) Filing system refers to any act of information relating to natural or juridical persons to the extent that, although the information is not processed by equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular person is readily accessible.

(f) Information and Communications System refers to a system for generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar device by or which data is recorded, transmitted or stored and any procedure related to the recording, transmission or storage of electronic data, electronic message, or electronic document.

(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 directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual.

(h) Personal information controller refers to a person or organization who controls the collection, holding, processing or use of personal information, including a person or organization who instructs another person or organization to collect, hold, process, use, transfer or disclose personal information on his or her behalf. The term excludes:

(1) A person or organization who performs such functions as instructed by another person or organization; and

(2) An individual who collects, holds, processes or uses personal information in connection with the individual’s personal, family or household affairs.

(i) Personal information processor refers to any natural or juridical person qualified to act as such under this Act to whom a personal information controller may outsource the processing of personal data pertaining to a data subject.

(j) Processing refers to any operation or any set of operations performed upon personal information including, but not limited to, the collection, recording, organization, storage, updating or modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data.

(k) Privileged information refers to any and all forms of data which under the Rules of Court and other pertinent laws constitute privileged communication.

(l) Sensitive personal information refers to personal information:

(1) About an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations;

(2) About an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings;

(3) Issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or cm-rent health records, licenses or its denials, suspension or revocation, and tax returns; and

(4) Specifically established by an executive order or an act of Congress to be kept classified.” [13]

With these definitions in mind, the scope means that R.A. 10173 applies to all personal information which identifies an individual or a person, and to all natural or juridical persons who collect, record, organize, store, update or modify, retrieve, consult, use, consolidate, block, erase or destruct such personal information here or outside the Philippines [14].

However, there are exemptions to this law. It states that it does not apply to the following:

“(a) Information about any individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual, including:

(1) The fact that the individual is or was an officer or employee of the government institution;

(2) The title, business address and office telephone number of the individual;

(3) The classification, salary range and responsibilities of the position held by the individual; and

(4) The name of the individual on a document prepared by the individual in the course of employment with the government;

(b) Information about an individual who is or was performing service under contract for a government institution that relates to the services performed, including the terms of the contract, and the name of the individual given in the course of the performance of those services;

(c) Information relating to any discretionary benefit of a financial nature such as the granting of a license or permit given by the government to an individual, including the name of the individual and the exact nature of the benefit;

(d) Personal information processed for journalistic, artistic, literary or research purposes;

(e) Information necessary in order to carry out the functions of public authority which includes the processing of personal data for the performance by the independent, central monetary authority and law enforcement and regulatory agencies of their constitutionally and statutorily mandated functions. Nothing in this Act shall be construed as to have amended or repealed Republic Act No. 1405, otherwise known as the Secrecy of Bank Deposits Act; Republic Act No. 6426, otherwise known as the Foreign Currency Deposit Act; and Republic Act No. 9510, otherwise known as the Credit Information System Act (CISA);

(f) Information necessary for banks and other financial institutions under the jurisdiction of the independent, central monetary authority or Bangko Sentral ng Pilipinas to comply with Republic Act No. 9510, and Republic Act No. 9160, as amended, otherwise known as the Anti-Money Laundering Act and other applicable laws; and

(g) Personal information originally collected from residents of foreign jurisdictions in accordance with the laws of those foreign jurisdictions, including any applicable data privacy laws, which is being processed in the Philippines.” [15]

Even though it is already indicated in Section 4 (d) above that R.A. 10173 does not apply to “personal information processed for journalistic, artistic, literary or research purposes”, the authors of the law reiterated it in the subsequent section,

“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.” [16]

How can R.A. 10173 affect me?

This law affects me, and everybody for that matter, because of the penal sanctions it has on certain acts or omissions. [17] Of the eight offenses, six of them may be done by any person, may he be a personal information controller or processor or a mere private person. These are (1) Unauthorized Processing of Personal Information and Sensitive Personal Information [18], (2) Accessing Personal Information and Sensitive Personal Information Due to Negligence [19], (3) Improper Disposal of Personal Information and Sensitive Personal Information [20], (4) Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes [21], (5) Unauthorized Access or Intentional Breach [22], and (6) Concealment of Security Breaches Involving Sensitive Personal Information [23].

Almost everybody who uses a computer or the Internet is covered by the offenses mentioned above. The offender may be a computer illiterate who accessed personal information due to negligence. He may be a high school student who knowingly or negligently disposed a damaging picture of a classmate in the trash bin of a public computer without deleting it. He may be an average person who, while waiting for the train in LRT2, witnessed and recorded an outburst of another passenger to a lady security guard.

The law would not go easy on these violators because according to Section 38 of R.A. 10173 [24], in case of doubt, it would be liberally construed in favor of the person whose personal information is processed.

Netizens are used to the lawless Internet where the law enforcers cannot reach them, and to their reliance on their constitutional right of freedom of expression and information. Ratifying a law like R.A. 10173 limits the netizens actions and gives our legal system the arm to reach for the violators.

We should all be aware on how we deal with people, whether in real life or in the Internet. If we bring our good manners and proper conduct in our dealings with others online, then R.A. 10173 should not be a cause of concern.

On a last note, dura lex, sed lex.


[1] 1987 Philippine Constitution, Article III, Section 2.

[2] Ibid., Article III, Section 3(a).

[3] http://en.wikipedia.org/wiki/History_of_the_Internet

[4] http://www.gmanetwork.com/news/story/270934/scitech/technology/data-privacy-act-signed-into-law

[5]http://www.mb.com.ph/articles/376433/supreme-court-issues-tro-against-ra-10175-or-cybercrime-prevention-act-2012#.UMITrrTrb18

[6] Ibid.

[7] Ibid., Chapter IV. Rights of the Data Subject.

[8] Ibid., Chapter III. Processing of Personal Information.

[9] Ibid., Chapter V. Security of Personal Information.

[10] Ibid., Chapter VIII. Penalties.

“CHAPTER VIII

PENALTIES

SEC. 25. Unauthorized Processing of Personal Information and Sensitive Personal Information. – (a) The unauthorized processing of personal information shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.

(b) The unauthorized processing of personal sensitive information shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Four million pesos (Php4,000,000.00) shall be imposed on persons who process personal information without the consent of the data subject, or without being authorized under this Act or any existing law.

SEC. 26. Accessing Personal Information and Sensitive Personal Information Due to Negligence. – (a) Accessing personal information due to negligence shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

(b) Accessing sensitive personal information due to negligence shall be penalized by imprisonment ranging from three (3) years to six (6) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Four million pesos (Php4,000,000.00) shall be imposed on persons who, due to negligence, provided access to personal information without being authorized under this Act or any existing law.

SEC. 27. Improper Disposal of Personal Information and Sensitive Personal Information. – (a) The improper disposal of personal information shall be penalized by imprisonment ranging from six (6) months to two (2) years and a fine of not less than One hundred thousand pesos (Php100,000.00) but not more than Five hundred thousand pesos (Php500,000.00) shall be imposed on persons who knowingly or negligently dispose, discard or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection.

(b) The improper disposal of sensitive personal information shall be penalized by imprisonment ranging from one (1) year to three (3) years and a fine of not less than One hundred thousand pesos (Php100,000.00) but not more than One million pesos (Php1,000,000.00) shall be imposed on persons who knowingly or negligently dispose, discard or abandon the personal information of an individual in an area accessible to the public or has otherwise placed the personal information of an individual in its container for trash collection.

SEC. 28. Processing of Personal Information and Sensitive Personal Information for Unauthorized Purposes. – The processing of personal information for unauthorized purposes shall be penalized by imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00) shall be imposed on persons processing personal information for purposes not authorized by the data subject, or otherwise authorized under this Act or under existing laws.

The processing of sensitive personal information for unauthorized purposes shall be penalized by imprisonment ranging from two (2) years to seven (7) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons processing sensitive personal information for purposes not authorized by the data subject, or otherwise authorized under this Act or under existing laws.

SEC. 29. Unauthorized Access or Intentional Breach. – The penalty of imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00) shall be imposed on persons who knowingly and unlawfully, or violating data confidentiality and security data systems, breaks in any way into any system where personal and sensitive personal information is stored.

SEC. 30. Concealment of Security Breaches Involving Sensitive Personal Information. – The penalty of imprisonment of one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00) shall be imposed on persons who, after having knowledge of a security breach and of the obligation to notify the Commission pursuant to Section 20(f), intentionally or by omission conceals the fact of such security breach.

SEC. 31. Malicious Disclosure. – Any personal information controller or personal information processor or any of its officials, employees or agents, who, with malice or in bad faith, discloses unwarranted or false information relative to any personal information or personal sensitive information obtained by him or her, shall be subject to imprisonment ranging from one (1) year and six (6) months to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).

SEC. 32. Unauthorized Disclosure. – (a) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party personal information not covered by the immediately preceding section without the consent of the data subject, shall he subject to imprisonment ranging from one (1) year to three (3) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00).

(b) Any personal information controller or personal information processor or any of its officials, employees or agents, who discloses to a third party sensitive personal information not covered by the immediately preceding section without the consent of the data subject, shall be subject to imprisonment ranging from three (3) years to five (5) years and a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than Two million pesos (Php2,000,000.00).

SEC. 33. Combination or Series of Acts. – Any combination or series of acts as defined in Sections 25 to 32 shall make the person subject to imprisonment ranging from three (3) years to six (6) years and a fine of not less than One million pesos (Php1,000,000.00) but not more than Five million pesos (Php5,000,000.00).

SEC. 34. Extent of Liability. – If the offender is a corporation, partnership or any juridical person, the penalty shall be imposed upon the responsible officers, as the case may be, who participated in, or by their gross negligence, allowed the commission of the crime. If the offender is a juridical person, the court may suspend or revoke any of its rights under this Act. If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings after serving the penalties prescribed. If the offender is a public official or employee and lie or she is found guilty of acts penalized under Sections 27 and 28 of this Act, he or she shall, in addition to the penalties prescribed herein, suffer perpetual or temporary absolute disqualification from office, as the case may be.

SEC. 35. Large-Scale. – The maximum penalty in the scale of penalties respectively provided for the preceding offenses shall be imposed when the personal information of at least one hundred (100) persons is harmed, affected or involved as the result of the above mentioned actions.

SEC. 36. Offense Committed by Public Officer. – When the offender or the person responsible for the offense is a public officer as defined in the Administrative Code of the Philippines in the exercise of his or her duties, an accessory penalty consisting in the disqualification to occupy public office for a term double the term of criminal penalty imposed shall he applied.

SEC. 37. Restitution. – Restitution for any aggrieved party shall be governed by the provisions of the New Civil Code.

[11] Republic Act No. 10173, “The Data Privacy Act of 2012”, Section 2.

[12] Ibid., Section 4.

[13] Ibid., Section 3.

[14] Ibid., Section 6.

[15] Ibid. 12.

[16] Ibid., Section 5.

[17] Ibid. 10.

[18] Ibid. 10, Section 25.

[19] Ibid. 10, Section 26.

[20] Ibid. 10, Section 27.

[21] Ibid. 10, Section 28.

[22] Ibid. 10, Section 29.

[23] Ibid. 10, Section 30

[24] Ibid., Section 38. “Interpretation. – Any doubt in the interpretation of any provision of this Act shall be liberally interpreted in a manner mindful of the rights and interests of the individual about whom personal information is processed.”


On Magna Carta for Philippine Internet Freedom

Filipinos love freedom and democracy. This is why Filipinos love using the Internet. They enjoy the unregulated international freedom that it provides. A study even shows that Filipinos spend more time on the Internet than other traditional media like television. [1] Filipinos in and out of the Philippines enjoy the use of the Internet through networking sites like Facebook and Twitter. They enjoy making comments on current issues and they even enjoy making memes [2] about everything.

However, like everything that is vast, unlimited and unregulated, the freedom that the Internet provides has been taken for granted. Presently, the Internet has been home for cyber frauds [3], cyber pornography and cyber prostitution [4], hacking and cyber wars [5], and cyber bullying [6]. It was just recently that the Philippines enacted it’s own cyberlaw.

Presently, the Philippines has Republic Act 10175, the Cybercrime Prevention Act of 2012, which is, however, under a 120-day restraining order due to the petitions on the unconstitutionality of several of provisions of the said law. [7]

Senator Miriam Santiago then proposed her bill, Senate Bill No. 3327 or the Magna Carta for Philippine Internet Freedom, to replace R.A. 10175, which she argued is unconstitutional due to its “over breadth and vagueness”. [8]

Do the Filipinos really need a cyberlaw? If so, is not R.A. 10175 enough? If not, would S.B.N. 3327 suffice in protecting the rights of Filipino Internet users?

The Filipinos Need a Cyberlaw

According to the Constitution, “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.” [9]

This means that it is not allowed in the Philippines to have a law that will restrict these freedoms. Because of the history of oppression in the Philippines, these freedoms are among the most zealously guarded in the Constitution. Free expression however, “is not absolute for it may be so regulated that [its exercise shall neither] be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society.” [10] While the Philippine laws protect the rights of the individual, it also ensures that every individual can enjoy such rights. [11] [12]

Does the government of the Philippines recognize the Internet and the transactions of Filipinos in the Internet part of the jurisdiction of the Philippines? It should and it does. The Internet may be a separate world from the real one but the business, transactions, activities and the people are the same. The government should be able to protect the Filipinos wherever they may be. Violations of rights to privacy and libel in the Internet are being reported every now and then, like the “Chris Lao” incident, the “Barney” incident and the “Amalayer” incident. Because there is no law on the Internet, Filipino netizens get out of hand in their comments and reactions and in their “sharing” of such incidents via networking sites. They are unmindful of the fact that judgment by the public greatly affect the people involved. In foreign countries, victims, who are usually minors, of such judgment usually resolve to suicide.

Since every Filipino upholds the Constitution and its laws, and the government of the Philippines recognize the Internet as part of their jurisdiction, having a cyberlaw would protect and ensure the rights of individuals. It would help the Philippines move forward with other countries, which are also slowly starting to have their own Internet laws. To be fair and just, the Filipinos need a cyberlaw to keep everyone mindful of their behavior and transactions in the Internet.

R.A. 10175 should be Repealed

Although with good intentions at hand, R.A. 10175 fell quite short on its promise to uphold the rights of the people.

It failed to give mention certain cyber crimes like hacking, cracking, and phishing. These are acts in the Internet that violate other people’s rights. They should have been mentioned or included in the list of cyber crimes. Definitions of cybercrimes included in the Cybercime Prevention Law are vague and lack technicalities. The Internet is a complicated network and the law should be able to explain precisely what it wants to prohibit and what it wants to allow. Definition of cyber crimes should be specific.

R.A. 10175 “allows double jeopardy through the 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.” [13]

The most disturbing part of this law is that it denied due process on the said “takedown” clause [14]. Giving too much power to an agency without restriction or review is dangerous and unconstitutional. The agency may eventually abuse his power of discretion because it is not subject to review from the other branches of government.

S.B.N. 3327 is “Sort-of” Better

Sen. Santiago’s bill answers those that netizens find wrong in R.A. 10175.

The MCIF clearly defines the cyber crimes and violations [15] and also provides for their specific penalties [16]. Penal provisions should be concrete in the definition of crimes and violations because the general public have the right to know what acts are allowed and which are prohibited. They have the right to know because their right to liberty and property is at stake in penal laws.

It provides proper procedures on searches and seizure [17]. These provisions uphold the Constitution by safeguarding the people’s property rights [18] and right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures [19]. Government should not be allowed to search and seize a person’s property without a warrant, like what happened during Martial Law. Filipinos would not allow such a thing to happen again in their history.

One of the main differences between R.A. 10175 and the MCIF is that the latter mandates government agencies to provide security for the data they collect from citizens to ensure their right to privacy [20] while the former does not.

The controversial “takedown clause” is not found in the MCIF. This is but only proper and just to Filipino bloggers. They should be able to exercise their freedom of speech and expression through their blogs in the Internet. They should not be made fearful by any government agency. If they are blogging about the truth, then they should not be hindered and afraid.

Includes Consumer’s Welfare, Copyright Laws and Security from Internet Providers

The MCIF includes provisions on consumer welfare and copyright laws [21]. This answers the woes of the movie industry, music industry and the art industry, whose works can be uploaded in the Internet by unauthorized people and the general public can download them for free. This kind of provision protects not only the rights of the individuals like musicians, artists, actors and producers, but also the industries in particular. Everyone must give everyone his due [22] – public morals and the law dictate so.

The MCIF provides security from Internet service providers. [23] This is an answer to those people who subscribe for such services. Subscribers can avail Internet services but can rarely avail security for their Internet connection. Thus, they can be subject to cyber attacks and hacking. Requiring the Internet service provider to give such security may be a little costly to them but this act will safeguard the rights of their consumers/subscribers.

Includes Child Pornography and Cyber Terrorism

Provisions on child pornography [24] and cyber terrorism [25] of the MCIF should be applauded. It is about time that the Philippines addresses such issues.

Child pornography or “child abuse images” has been addressed by 94 out of 187 Interpol member states and 54 of them criminalizes such act [26]. Children should not be subject of such obscene acts. Filipinos value their children so much that they are protected by the Constitution in Article XV Section 3(2), wherein it states that “The State shall defend xxx the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development.” The State recognizes the youth in it’s nation building [27] and it should give importance in protecting them. Filipinos believe that their children will lead the country to progress in the future. Allowing child pornography in the Internet is violation to the law and the people’s beliefs.

Computer viruses and hacking incidents that disrupt a computer or two is not uncommon to the public who uses the computer almost everyday. But what if the computer viruses were released to attack computer networks in a large scale and disrupts everyday activities? This is what cyber terrorism is about [28]. It is about cutting everyone out from their computers – the thing that is most depended upon in these times – and disrupting other people’s lives though it. This should not be taken lightly by the people.

This bill provided provisions that were lacking in R.A. 10175. However, other issues arise.

Double Jeopardy in S.B.N. 3327

Sen. Santiago claims that there is no double jeopardy in her bill. [29] She must have “neglected” to review Section 25 (B) [30] wherein it allows prosecution under R.A. 10173 or the Data Privacy Act and under the MCIF if the act violating R.A. 10173 was done through negligence.

The 1987 Constitution prohibits double jeopardy in Article III Section 21 [31]. As was held by the Supreme Court in the case of Julia vs. Sotto [32], “without the safeguard this article establishes in favor of the accused, his fortune, safety, and peace of mind would be entirely at the mercy of the complaining witness, who might repeat his accusation as often as dismissed by the Court and whenever he might see fit, subject to no other limitation of restriction than his own will and pleasure. The accused would never be free from the cruel and constant menace of the never ending charge, which the malice of the complaining witness might hold indefinitely suspended over his head, were it not that the judiciary is exclusively empowered to authorize, by an express order to that effect, the repetition of a complaint or information once dismissed in the cases in which the law requires that this be done. Such is, in our opinion, the fundamental reason of the article of the law to which we refer.”

Filipinos value their life and liberty that they abolished the death penalty in 2008 and their criminal law, when in favor of the accused, can be retroactive, unless provided otherwise. Having laws or provisions allowing double jeopardy is a violation of the Constitution and the people’s rights and wants.

Is the MCIF condoning Prostitution?

Under Section 31 (A) of S.B.N. 3327,

“It shall be unlawful for any person who, by means of a device, equipment, or physical plant connected to the internet or to telecommunications networks, or in connivance with a third party with access to the same, shall use the Internet for the purpose of enabling the exchange of money or consideration of services of a sexual or lascivious nature, or facilitating the performance of such services; PROVIDED, the services shall be performed by one or more unwilling third-party adults under threat or duress.”

Does this mean that if the third-party adult, at least 18 years old, is willing and is not under threat or duress then it is not unlawful? Which “services” is this provision pertaining to – the sexual or lascivious services or the mentioned purposes of using the Internet? What is the definition of “third-party adults”?

This provision will be subject to a lot of interpretations. The Senate should clear this provision before passing it to the House of Representatives. Prostitution is unlawful in the Philippines. It is penalized under the Republic Act 9208 or the Anti-Trafficking in Persons Act of 2003.

“Internet” Libel Should Not Be Decriminalized

In the MCIF, Sen. Santiago clearly defined Internet libel, which separates it from libel covered in the Revised Penal Code. She said that the MCIF treats libel as a civil liability rather than a criminal act, which is a step forward in the move to decriminalize libel. [33] This should not be so.

The enactment of R.A. 10175 and the proposal of Internet Libel in the MCIF only acknowledge the fact that the crime of libel as defined and penalized under the Revised Penal Code of the Philippines does not cover the medium of the Internet. A perusal of Article 353 on libel easily shows that the same is silent on whether libel can be committed in the Internet. Thus, in the absence of any definition, there is an imperative need to consider the intent of the lawmakers at the time the said Article was drafted or put into being. The concept of the Internet was not yet in existence at the time the crime of libel under the penal code was passed.

Clearly, Internet libel is the solution in order to address the prevailing problems in society brought about recent developments in technology. The law should punish those who trample upon other people’s honor and integrity, whether it be in the real world or in the Internet.

Conclusion

R.A. 10175 has its faults. The Supreme Court even acknowledged it by issuing a temporary restraining order on its implementation. The MCIF may have answered the faults of its counterpart, but it raises other issues. The public should be vigilant in knowing what their legislators put into law, especially in this Internet law. An Internet law will, in one way or another, end the lawless freedom of the Internet as the people know it.


Endnotes

[1] Lopez, Virgil. “Study: Filipinos spend more time surfing web than watching TV”. Sun Star Manila Website: http://www.sunstar.com.ph/manila/local-news/2011/11/07/study-filipinos-spend-more-time-surfing-web-watching-tv-189174. Nov. 7, 2011.

[2] An Internet meme (pron.: /ˈmiːm/ meem) is a concept that spreads from person to person via the Internet. Website: http://en.wikipedia.org/wiki/Internet_meme.

[3] Manabat, Jacque. “400 Foreigners in Big Asian ‘Cyrberfraud’ nabbed”. ABS-CBN News Website: http://www.abs-cbnnews.com/-depth/08/23/12/400-foreigners-big-asian-cyberfraud-nabbed. Aug. 23, 2012.

[4] “PH calls for strong partnership among ASEAN to fight Cyber Pornography and Cyber Prostitution”. Republic of the Philippines Department of Social Welfare and Development Website: http://www.dswd.gov.ph/2012/07/ph-calls-for-strong-partnership-among-asean-to-fight-cyber-pornography-and-cyber-prostitution/. July 2, 2012.

[5] “Filipino hackers fight back, deface Chinese sites.” Inquirer Technology Website: http://technology.inquirer.net/10235/filipino-hackers-fight-back-deface-chinese-sites. April 21, 2012.

[6] Tulad, Victoria Camille. “Cyberbullying: A victim’s tale of lies and the madness of crowds.” GMA Network Website: http://www.gmanetwork.com/news/story/274156/scitech/socialmedia/cyberbullying-a-victim-s-tale-of-lies-and-the-madness-of-crowds. Sept. 15, 2012.

[7] Panaligan, Rey G. “Cybercrime Law Stopped: SC Unanimously Decides to Issue TRO Against RA 10175”. http://www.mb.com.ph/articles/376433/supreme-court-issues-tro-against-ra-10175-or-cybercrime-prevention-act-2012#.UO-NFKXrb18. Oct. 9, 2012.

[8] Bordadora, Norman. “Santiago proposes Magna Carta for Internet”. Philippine Daily Inquirer Website: http://technology.inquirer.net/20769/santiago-proposes-magna-carta-for-internet. Dec. 1, 2012.

[9] The 1987 Philippine Constitution. Article III Section 4.

[10] Dionisio Lopez v. People of the Philippines and Salvador Escalante Jr. G.R. No. 172203. Feb. 14, 2011.

[11] New Civil Code of the Philippines. Article 19. “Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.”

[12] Ibid., Article 26. “Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another’s residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.”

[13] Ibid. No. 8.

[14] R.A. 10175, Section 19.

[15] Senate Bill No. 3327. Magna Carta for Philippine Internet Freedom. Part 2 (Internet Rights and Freedoms) and Part 3 (Cybercrime).

[16] Ibid., Chapter VIII. (Penalties).

[17] Ibid., Section 28. (Illegal and Arbitrary Seizure).

[18] 1987 Constitution. Article III. Section 1.

[19] Ibid. Article III. Section 2.

[20] SBN 3327. Section 16. (A.3).

[21] Ibid., Section 19 (Amendments to the Intellectual Property Code of the Philippines) and Section 29 (Infringement of Intellectual Property Rights).

[22] Ibid. No. 11.

[23] SBN 3327, Section 25.

[24] Ibid., Section 33 (C).

[25] Ibid., Section 34.

[26] Website: http://en.wikipedia.org/wiki/Child_pornography.

[27] The 1987 Constitution. Article II Section 13.

[28] Website: http://en.wikipedia.org/wiki/Cyberterrorism.

[29] Ibid. No. 8.

[30] S.B.N. 3327, Section 25 (B). Negligent failure to provide security – Negligence resulting to act in violation of the Data Privacy Act of 2012 using a device, network equipment, or physical plant connected to the Internet, public networks, private networks, or telecommunications facilities shall constitute a violation of the preceding paragraphs, without prejudice to prosecution under the Data Privacy Act of 2012.

[31] “No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”

[32] G.R. No. 1044. May 15, 1903.

[33] Ibid. No. 8.

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